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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, J.
Vikash Kumar Banerjee – Petitioner
Versus
The State of Jharkhand – Respondent
Cr. Rev. No. 49 of 2013
Decided On : 07-02-2019
Evidence Act - Section 106 – Indian Penal Code - Sections 409 and 420 – Criminal Procedure Code - Section 313 – Appeal against conviction - Possession of keys of bank-vault – Rigorous Imprisonment - By judgment passed in Cr. Appeal conviction and sentence of appellant for offence punishable under sections 420 and 120B IPC have been set-aside however conviction and sentence for offence punishable under section 409 IPC have been affirmed - During trial prosecution has examined nine witnesses and produced Cash Verification Report Daily Cash Balance Book and letters of Bank of India to establish that it was petitioner and co-accused who were entrusted this was closing balance of bank in evening and they have misappropriated which was found deficit in bank-vault of bank when it was opened - Trial Judge by a detailed order but mainly raising a presumption against accused-petitioner that he was cashier of bank and he along with the co-accused are persons who had possession of keys of bank-vault found him guilty for offences punishable under sections 409, 420 and 120B IPC – Held, Inference drawn by appellate court under section 106 of Evidence Act is erroneous for reason that an inference can be drawn under section 106 of Evidence Act against an accused of an act or omission as alleged if accused had special knowledge about a fact which would constitute offence - Statutory illustration makes it abundantly clear - Inference drawn on consumption of poison that petitioner had committed suicide under fear of losing job and criminal prosecution to find charge under section 409 IPC proved cannot be countenanced in law - Appellate court has misunderstood defense sought to be advanced by petitioner - Stand taken by petitioner is that he became unconscious and taken to hospital and therefore he had no occasion to access bank-vault and therefore allegation of deficit in bank-vault when it was open in his absence in evening would not lead to an inference that he is one who is responsible for deficit and thus it is not proved that he has committed criminal breach of trust in respect from bank-vault - Offence under section 120B IPC implies agreement between at least two persons to commit an offence - Appellate court has held that charge of conspiracy is superfluous - There is no independent evidence led by prosecution that it was petitioner who has taken away from bank-vault - Co-accused is absconder and it is prosecution’s own case that both accused persons are responsible for criminal breach of trust of public money - In above facts it cannot be inferred that it was petitioner who has committed offence under section 409 I.P.C - There is another error committed by appellate court - It is duty of court to examine whether charges have been proved or failed - After observing that charge under section 120B IPC is superfluous appellate court has illegally fastened liability for offence under section 409 IPC on petitioner - This is not prosecution’s case and there is no finding recorded by courts below that there is independent evidence to hold petitioner alone guilty for offence under section 409 IPC - A third case cannot be made out by court what has not been set-up by prosecution – Appeal allowed
ORDER :
1. The petitioner has challenged the judgment in Cr. Appeal No. 193 of 2012, by which the judgment of conviction and order of sentence both dated 28.08.2012 passed in G.R. Case No. 1073 of 2011 converted into T.R. No. 1713 of 2012 have been partly dismissed.
2. By the judgment dated 28.08.2012, the petitioner was convicted for the offence punishable under section 420, 409 and 120B IPC and he has been sentenced to undergo R. I. for 5 years each with fine of Rs. 10,000/- for the offences punishable under sections 409 and 420 IPC and R.I. for 3 years for the offence under section 120B IPC.
3. By the judgment dated 12.12.2012 passed in Cr. Appeal No. 193 of 2012, the conviction and sentence of the appellant for the offence punishable under sections 420 and 120B IPC have been set-aside, however, the conviction and sentence for the offence punishable under section 409 IPC have been affirmed.
4. During the trial in G.R. Case No. 1073 of 2011, the prosecution has examined nine witnesses and produced the Cash Verification Report, Daily Cash Balance Book and the letters of the Bank of India to establish that it was the petitioner and the co-accused- Swapan Kumar Chattopadhyay who were entrusted with Rs. 14,43,841/- on 16.08.2011 this was the closing balance of the bank in the evening of 16.08.2011 and they have misappropriated Rs. 7.60 lakhs which was found deficit in the bank-vault of the bank when it was opened on 17.08.2011. The learned trial Judge by a detailed order, but mainly raising a presumption against the accused-petitioner that he was cashier of the bank and he alongwith the co-accused Swapan Kumar Chattopadhyay are the persons who had possession of the keys of the bank-vault, found him guilty for the offences punishable under sections 409, 420 and 120B IPC. The learned trial Judge has held thus:
“19. The accused is charge u/s 420 IPC. Admittedly the accused is a Cashier of Bank of India, Pindrajora Branch, Bokaro. It has come in evidence that the cash balance have been retained in the bank at the closure of the Bank as per daily cash balance book and it has been duly signed by the Cashier and verified by the officer and at the material time This accused along with Swapa Chatopadhayay were made in-charge for doing the said job after closure of bank to verify the cash balance kept reserved in the cash vault. Admittedly cash kept in the cash vault is public money and Rupees Seven lakh sixty thousand have been found shortage and the accused is duty bound to account for cash kept in the cash vault. On verification of the cash amount. Thus certainly due to such shortage wrongful loss was caused to the Nation in general and to the Bank in particular. Thus it is National loss. It is important to note that the accused has given suggestion to PW-1 Mantu Chakravarty in para-36 that the Bank employee have given poison to the accused and in unconscious condition, he was admitted to the hospital and thereafter the bank employee with connivance of Swapan have misappropriated/taken away the cash from the cash Vault. This fact must have to be established by the accused but during examination u/s 313 Cr.P.C. accused has simply stated that he is innocent and denied all the statement comes in evidence. Thus from the aforesaid suggestion goes to show that on 16/8/11 the cash balance was Rs. 14,43,841.50 and 17.08.2011 shortage of Rupees Seven lakh Sixty thousand was found. The accused has failed to prove the fact that as to whether the cash vault or strong room was open at any time prior to the verification by bank employee on 17.08.2011.
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It is important to note that all the prosecution witnesses have supported that on 17.08.2011, no cash transaction was done in the bank nor strong room or cash vault was opened. It is not denied by the accused that one key was not kept by him and it is admitted fact that without entering both key the cash vault cannot be opened. It is i
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