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2016 Supreme(Cal) 361
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Debasish Kar Gupta and Md. Mumtaz Khan, JJ.
Jagat Narayan Roy - Appellant
Versus
The State of West Bengal - Respondents
CRA No. 496 of 2013
Decided On : 16-08-2016
For the Appellant : Mr. Milon Mukherjee, Mr. Pravas Bhattacharya
For the State : Mr. Monjit Singh, Mr. Ranabir Roy Chowdhury
For a conviction under Section 409 IPC, the prosecution must prove entrustment of the property to the accused, access to the property by the accused, and dishonest misappropriation or conversion of the property by the accused.
Headnote:
CRIMINAL BREACH OF TRUST - SECTION 409 IPC - CASH PEON - ENTRUSTMENT OF MONEY - CONFESSION - EVIDENCE - SUFFICIENCY - INTERPRETATION OF SECTION 409 IPC - ESSENTIAL ELEMENTS OF OFFENCE.
Fact of the Case:
Appellant, a cash peon at United Bank of India, was convicted for criminal breach of trust under Section 409 IPC for allegedly stealing Rs. 9,80,000 from the bank's vault. The prosecution case relied on extra-judicial confession, shortage of cash, and the appellant's absence from the bank at the time of the incident.
Finding of the Court:
The court found that there was no evidence to support the appellant's entrustment with the disputed amount of money, and that it was not part of his duty to deal with such an amount. The prosecution failed to prove that the appellant had access to the strong room in the absence of authorized personnel, and no witnesses saw him leaving the bank with the missing money.
Issues: 1. Whether the appellant was entrusted with the disputed amount of money. 2. Whether the appellant had access to the strong room in the absence of authorized personnel. 3. Whether there was evidence to support the appellant's extra-judicial confession. 4. Whether the prosecution proved that the appellant left the bank with the missing money.
Ratio Decidendi: 1. Entrustment of money is an essential element of the offense under Section 409 IPC. In this case, there was no evidence to establish that the appellant was entrusted with the disputed amount of money. 2. The prosecution failed to prove that the appellant had access to the strong room in the absence of authorized personnel, who were the custodians of the keys. 3. The purported extra-judicial confession of the appellant was not supported by any evidence and was not seized by the investigating officer. 4. The prosecution failed to produce any witnesses who saw the appellant leaving the bank with the missing money.
Final Decision: The court allowed the appeal, quashed the impugned judgment, order of conviction, and sentence, and directed the return of the case records to the trial court.
Debasish Kar Gupta, J.
1. This appeal is directed against order of conviction of the appellant punishable under Section 409 of the Indian Penal Code (hereinafter referred to as the I.P.C.) dated May 28, 2013 and sentence dated May 29, 2013 to suffer rigorous imprisonment for life and to pay a fine of Rs.10 lakh in default to suffer further rigorous imprisonment for 10 years, passed by the learned Special Judge, 2nd Court, Jalpaiguri in Special Case No.2 of 2011 arising out of Kotwali P.S. Case No.459 of 2011 dated June 8, 2011, G.R. No.2041 of 2011.
2. According to the prosecution case, on June 7, 2011 the shortage of cash to the extent of Rs.9 lakh 80 thousand only was detected at the time of closing of United Bank of India, Jalpaigury Branch (hereinafter referred to as the said Bank). In course of searching and reconciling the cash, it was detected that the appellant, who was working for gain as Cash Peon of the said Bank, had left the bank before his scheduled time of departure without any information. On further enquiry it was revealed that he had left his cycle and hand bag in the said Bank. He could not be traced over telephone. Sri Santanu Biswas, an Officer of the said Bank was deputed to find him out. But he (the appellant) was not available at his residence. Then a team of officers and staff of the said Bank consisting of Sri Ajit Kumar Sinha, Branch Manager of the said Bank (PW 3), Amal Kr. Bhattacharya, Single Window Operator of the said Bank (PW 6) and T. Phuntsok, posted at North Bengal Regional Office of United Bank of India at Siliguri (PW 9) visited the house of the appellant. After waiting there for some time as also after much persuasion by his wife over telephone, the appellant came back to his house. He confessed in writing in presence of the aforesaid officers that he had committed theft of the Bank’s money from the vault of the said Bank.
3. On June 8, 2011, at 00.20 hours the PW 3 submitted a written complaint to the Officer-in-Charge, Jalpaiguri Police Station, Jalpaiguri. The formal FIR bearing Kolwali P.S. Case No.459 dated June 8, 2011 was drawn at 00.20 hours on the basis of General Diary Entry No.530 dated June 8, 2011. The case was entrusted to Sri Ashish Thapa (PW 10), Sub Inspector, Kotwali Police Station, District-Jalpaiguri by the Inspector-in-Charge of the aforesaid police station for investigation. The appellant was arrested from his house on the same day.
4. After completion of investigation a charge-sheet bearing No.737 dated August 31, 2011 was submitted against the appellant for commission of offence punishable under Sections 409/411 of the I.P.C. Charge under Sections 406/409 of the I.P.C. was framed against the appellant by the learned Judge, Special Court (Under NDPS Act), Jalpaiguri on January 6, 2012 on the ground that on June 7, 2011 the appellant being entrusted with Rs.9,80,000/- at the office of the said Bank converted the same for his own use and committed criminal breach of trust in respect of the aforesaid amount of money in the capacity of a public servant (Cash Peon) thereby.
5. After taking into consideration the evidence of 11 prosecution witnesses, documentary evidence and the statement of the appellant recorded under Section 313 of Cr.P.C. the impugned judgment was passed.
6. It is submitted by Mr. Milon Mukherjee, learned Senior Advocate, appearing on behalf of the appellant, that the impugned judgment, order of conviction and the sentence are passed on surmise and conjecture. According to him, neither entrusting with any amount of money was a part of the duty of the appellant nor entrusting of any amount of money to the appellant was based on evidence. It is further submitted by him that the alleged shortage of cash or any part thereof was not recovered from the appellant. The finding of the learned Judge with regard to the extra judicial confession of the appellant in respect of the commission of offence under reference was not based on evidence.
