JUDGMENT :

Bibek Chaudhuri, J.

1. This is an appeal under Section 374(2) of the Code of Criminal Procedure filed by the convict in Special Case No. 4 of 2006 against the judgment and order of conviction and sentence convicting the appellant under Section 409 of the Indian Penal Code and sentencing him to suffer imprisonment for two years and to pay fine of Rs.3,000/-, in default, simple imprisonment for further two months.

2. Admittedly, the appellant was an employee of Block Land and Land Revenue Office, Gorubathan in the district of Darjeeling.

3. Complaint was lodged against him and one Ashok Biswakarma, a Group – ‘D’ employee attached to the said office alleging, inter alia, that they collected land revenue and cess from the raiyats as per Government rate. The amount collected from the tenants was allegedly shown less to the Government receipt by means of malpractices. Thus, less amount was deposited by the appellant and the said Ashok Biswakarma in the Government exchequer and the balance amount was misappropriated by them. Such embezzlement of fund was made by the accused persons while collecting rent in Patengodak Khas Mahal Mouza J.L.No. 05 and Today-Tangta Khas Mahal Mouza J.L.No. 04 under Jaldhaka Police Station during the period between 15th April, 2004 and 16th November, 2004. The written complaint was submitted by the BL & LRO, Gorubathan before the Officer-in-Charge, Jaldhaka Police Station and on the basis of the said written complaint, formal FIR was drawn and Jaldhaka Police Station Case No. 2 of 2005 dated 31st January, 2005 under Section 409 of the Indian Penal Code was registered against the accused persons.

4. It is pertinent to mention at the outset that initially one M.P. Gurung, Sub-Inspector of Police was entrusted to conduct the investigation of the case. Thereafter, on his transfer the case was entrusted to Sub-Inspector, Hiralal Roy and subsequently on transfer of Hiralal Roy, the case was entrusted to Sub-Inspector, Santosh Kumar Pradhan who filed charge-sheet under Sections 409/34 of the Indian Penal Code against the appellant and the said Ashok Biswakarma.

5. As the offence under Section 409 is exclusively triable by the learned Special Judge, the case was transferred to his Court at Darjeeling. On completion of trial, the appellant was convicted and sentenced accordingly for committing offence under Section 409 of the Indian Penal Code. Accused Asok Biswakarma was, however, acquitted from the charge.

6. Being the first Court of appeal, this Court has the bounden duty to consider the evidence on record independently to come to a finding as to whether the learned Trial Judge was justified in convicting the appellant under Section 409 of the Indian Penal Code and sentencing him accordingly. Out of 10 witnesses P.Ws. 1, 2, 8, 9 and 10 are Police personnel. P.W. 3, Lachhu Brahamin did not support the prosecution case in his evidence. He also failed to identify the appellant during trial. However, he was not declared hostile by the prosecution.

7. It appears from the evidence of P.W. 4, Padam Rai that about 7 or 8 years ago, accused Ashok Biswakarma came to their village and collected land rent. Subsequently, the Revenue Inspector came to his house and took the original land rent receipt from him.

8. P.W. 5, Kalu Mukhia, P.W. 6, Sita Nath Das, P.W. 7, Dilbahadur Gurung are the seizure witnesses. From their evidence, it is learnt that they put their signatures on a seizure list on being asked by the Police in their office. They do not have any idea about the papers and documents that were seized by the Police Officers from their office.

9. P.W. 1, Inspector, Tapan Kumar Bhattacharjee was the Recording Officer of the case. P.W. 2, Sub-Inspector, Hiralal Roy is the second Investigating Officer. It transpires from his evidence that during investigation, he seized a carbon copy of Rent Receipt Book No. 111701 to 111800 from the office of the BL & LRO, Gorubathan in presence of witnesses. According to P.W. 2, the cou