Entrustment of property under employment constitutes criminal breach of trust; conviction under Section 408 upheld despite claims of FIR delay and improper examination.

JUDGMENT :

SHAMIMA JAHAN, J.

1. Heard Ms. M Nirola, learned counsel for the petitioner as well as Ms. A Begum, learned Additional Public Prosecutor appearing for the State respondent.

2. This is a revision petition filed under Section 401 read with Section 397 of the Cr.PC by which the petitioner has challenged the judgment and order dated 14.02.2011 passed by the learned Additional Sessions Judge (FTC) No. 1, Tinsukia in Criminal Appeal No. 33(4)/2009 affirming the judgment and order dated 26.10.2009 passed by the learned Chief Judicial Magistrate, Tinsukia in GR Case No. 123/2007. The petitioner has also challenged the said judgment and order passed by the learned Chief Judicial Magistrate by which the learned Court convicted the petitioner under Section 408 of the IPC and sentenced him to undergo rigorous imprisonment for 1 (one) years with fine and default stipulation.

FACTS

3. An FIR was lodged by the informant stating inter alia that he is the authorised distributor of Igo Marketing (Colour TV, DVD etc) and that his employee, i.e., the petitioner had collected orders and received money from the dealers. It is alleged that the said employee stopped coming to the office since 25.12.2016 and that after scrutinising the office records, it was detected that the petitioner has misappropriated huge sum of money. It was also alleged that the petitioner had not deposited the Money Receipt Book No. 10 bearing pages from Sl. Nos. 551 to 600 by alleging further that he had intentionally collected money from the dealers to cheat them.

4. The Police on receipt of the ejahar registered the case and upon completion of the investigation submitted charge-sheet under Sections 406/420 of the IPC against the petitioner.

5. The learned Court of the Chief Judicial Magistrate, Tinsukia thereafter framed charges against the petitioner under Section 408 of the IPC, which was read over and explained to the petitioner, who pleaded not guilty and claimed to be tried.

6. The prosecution had examined 5 (five) witnesses, including the Investigating Officer and thereafter the petitioner was examined under Section 313 of the Cr.PC and on completion of the trial, the learned Court convicted and sentenced the petitioner, as mentioned above.

EVIDENCE

7. The informant was examined as the PW-1 and he in his evidence stated that his wife is the proprietor of the establishment namely, Igo Marketing Limited which is an electronic distributor firm and that they distributed products like TV, DVD, etc., to Dibrugarh and Tinsukia district. The said witness stated that he has the power of attorney to look after the said firm. This witness further stated that the petitioner was working in their establishment from May, 2006 at a monthly salary and his duty was to collect orders and received payment from their dealers and for this they had issued money receipt book to the accused. He also stated that during collection of the money from the dealers, the original receipt was given to the parties by keeping the counter foil, carbon copy in the receipt book. He also stated that the petitioner everyday deposits the collected money to the informant that is shown in the carbon copy of the receipt book. On 25.10.2006, the informant stated that he came to the firm to take the money receipt book, bills, price list, etc., but the accused was found absent in the said evening and it was informed that due to illness, he could not come to the duty and it was also stated that on the said day, the petitioner did not returned the receipt book No. 10 with serial No. 551 to 600 and the collected money. The informant further stated that it was not the accused responsibility to deliver the products