An error in the charge framed by the trial court under Section 212 of the CrPC will not be regarded as material unless it misleads the accused or occasions a failure of justice.

JUDGMENT :

Shampa Dutt (Paul), J.

1. THE APPEAL :-

The present appeal has been preferred against the Judgment and Order of conviction and sentence dated 27.07.2015 and 28.07.2015 respectively passed by the learned Judge, 5th Special Court, Asansol, Burdwan in Sessions Trial No.8 of 2013 arising out of Sessions case No.1 of 2013 thereby convicting the accused/appellant under Section 409 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a further period of three months.

2. THE PROSECUTION:-

i) That on 24.07.2012 one Lakshmi Narayan Dey, Assistant Superintendent of Posts, Asansol lodged a written complaint to the Officer-in-Charge, Hirapur Police Station alleging that accused Awadhesh Kumar Bhar was an employee of postal department as Postal Assistant, Burnpur Mukhya Dak Ghar. On 31.01.2011 he accepted a sum of Rs.10,000/- from Indu Bhusan Pathak having SB Account No.379632. On 20.1.2011 and on 3.6.2011 accepted a sum of Rs.5700/- from Shri Biman Bihari Mondal having SB Account No.376601 and subsequently on 15.2.2011 he accepted Rs.10,000/- from Sisir Kumar Mukherjee. He made the relevant entries in the Pass Books in his own hand and impressed date stamps but he did not credit the said money in Government account, on the said date or any subsequent dates and in this way he defalcated the government money.

ii) On the basis of the said complaint, Mirapur Police Station case No.195 of 2012 under Section 409 of the Indian Penal Code was registered for investigation.

iii) On completion of investigation the Investigating Authority submitted charge sheet against the accused for offence under Section 409 of the Indian Penal Code. The learned ACJM, Asansol was pleased to take cognizance of the offence and send the records to the file of the learned Judge, 5th Special Court, Asansol. On 20.12.2013 the learned Judge, 5th Special Court, Asansol was pleased to frame charge against the accused under Section 409 of the Indian Penal Code. The accused pleaded ‘not guilty’ and claimed to be tried.

iv) In course of trial seven witnesses were examined by the prosecution. Two witnesses were examined on behalf of the accused including the accused himself as DW1. On conclusion of the trial the learned Judge, 5th Special Court, Asansol, vide his judgment and order dated 27.07.2015 was pleased to hold the accused guilty as charged and accordingly convicted him under Section 409 of the Indian Penal Code. By further order dated 28.07.2015 the learned Trial Judge was pleased to sentence the accused to suffer rigorous imprisonment for two years and also to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for three months.

3. THE EVIDENCE :-

Prosecution witness no.1 is the complainant (Assistant Superintendent of Post Office). He has proved the FIR (Ext. 1), the three written statements made by the accused (Ext. 12 series), the Pass book entries and connected ledgers, scrolls, (Ext. 1 to 10). He has deposed in cross-examination that according to rule the money collected by the Counter Clerk is deposited with the treasurer at the end of the day.

Prosecution witness nos.2 to 5 are the depositors who have deposed that relevant entries were duly made by the appellant in their respective pass books.

Prosecution witness no.3 is a formal witness.

Prosecution witness nos.4 is a formal witness to the seizure.

Prosecution witness no.6 is also a depositor. He has deposed that on verification he realised that two amounts deposited by him were not credited to his amount.

4. ANALYSIS OF EVIDENCE :-

Appellant has been convicted for offence punishable under Section 409 of IPC.

Prosecution witness no.1 is the complainant, the Assistant Superintendent who on Inspection detected the anomalies in the transaction.

The alleged defalcated amount was deposited by the appellant in May, 2012 with the permission of the Post Master. P.W 2, 5 are the customers whose deposi