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IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANIL KUMAR CHOUDHARY, J.
Gopal Prasad Sinha, son of Late Kamla Prasad-Appellant
Versus
The State of Jharkhand through C.B.I.-Respondent
Cr. Appeal (SJ) No. 943, 941, 957 of 2015
Decided on : 01-12-2020
CRIMINAL APPEAL - SECTION 409 OF INDIAN PENAL CODE - SECTION 13 (2) READ WITH SECTION 13 (1) (C) & (D) OF PREVENTION OF CORRUPTION ACT, 1988 - MISAPPROPRIATION OF COAL - ENTITLEMENT OF PROPERTY - PUBLIC SERVANT - BANKER - MERCHANT - FACTOR - BROKER - ATTORNEY - AGENT - SUMMARY OF EVIDENCE - INTERPRETATION OF SECTIONS - CONVICTION - ACQUITTAL - SUMMARY OF JUDGEMENT.
Fact of the Case:
The appellants were convicted for the offences punishable under Section 409 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988. The appellants were accused of misappropriating 302.840 M.T. of non-coking coal, Grade-‘C’ worth Rs.1.50 lakhs which was meant for distribution amongst the employees of B.C.C.L. for domestic use. The appellants-convicts Pujari Prasad and R.S. Jha received 222.680 MT coal from various collieries of B.C.C.L. on the basis of a contract but dishonestly and fraudulently they did not deliver the said coal at Bhuli Township Coal Depot and thereby they misappropriated the coal entrusted to them for delivering at Bhuli Township Depot.
Finding of the Court:
The court found that the prosecution failed to prove the essential ingredients for the offence punishable under Section 409 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988 against the appellants. The court held that the appellants were not entrusted with any property or dominion over any property and hence the charge for the offence punishable under Section 409 of the Indian Penal Code is not sustainable against any of the appellants. The court also found that there was no evidence of misappropriation or converting to their own use in respect of any property entrusted to them against the appellants.
Issues: 1. Whether the prosecution proved the essential ingredients for the offence punishable under Section 409 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988 against the appellants? 2. Whether the appellants were entrusted with any property or dominion over any property?
Ratio Decidendi: 1. The essential ingredients for the offence punishable under Section 409 of the Indian Penal Code are that the accused was in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent. In this case, the prosecution failed to prove that the appellants were entrusted with any property or dominion over any property. 2. The appellants were not entrusted with any property or dominion over any property. The appellant Gopal Prasad Sinha was the proprietor of M/s. Gopal Engineering, which was entrusted with the job of transportation of coal from the collieries to the Bhuli Township. However, there is no evidence that Gopal Prasad Sinha was entrusted with any property or dominion over the coal. The appellant Pujari Prasad was the power of attorney holder of Gopal Prasad Sinha. However, there is no evidence that Pujari Prasad was entrusted with any property or dominion over the coal. The appellant Baldin Ram was a public servant, but there is no evidence that he was entrusted with any property or dominion over the coal. The appellant Ravi Shankar Jha was also a public servant, but there is no evidence that he was entrusted with any property or dominion over the coal.
Final Decision: The court allowed the appeals, set aside the impugned Judgment of Conviction and Order of Sentence, and acquitted the appellants of all the charges by giving them the benefit of doubt.
JUDGMENT :
Anil Kumar Choudhary, J.
Heard the parties through video conferencing.
2. These three appeals have been preferred against the common Judgment of Conviction and Order of Sentence dated 09.10.2015 passed by the Special Judge, C.B.I., Dhanbad in R.C. Case No.14 (A) of 1995-D whereby and where under, the learned court below has held appellants-convicts guilty for the offence punishable under Section 409 of Indian Penal Code and sentenced them to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,00,000/-each and in default of payment of fine, to undergo Simple Imprisonment for a period of six months. The learned court below found the appellants-convicts not guilty so far as the charge for the offences punishable under Sections 465, 467, 407, 471 of Indian Penal Code are concerned. The convicts-Baldin Ram and Ravi Shankar Jha have additionally been convicted for the offence punishable under Sections 13 (2) read with Section 13 (1) (c) & (d) of Prevention of Corruption Act, 1988 and sentenced them to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.50,000/-and in default of payment of fine to undergo Simple Imprisonment for a period of three months. All the sentences were directed to run concurrently.
3. The brief facts of the case is that upon the information from a reliable source, the First Information Report of this case was registered at the instance of B.K. Birdi, Inspector of Police, SPE, C.B.I., Dhanbad. In the FIR, it is alleged that the appellant-convict-Baldin Ram who has been referred to as B.D. Ram in the said FIR, while working as Senior Executive Engineer (Civil), Bhuli Town Administration, B.C.C.L., Dhanbad during the period of October, 1993 to January 1994 entered into a criminal conspiracy with the appellant-convict-Gopal Prasad Sinha-the Proprietor of M/s. Gopal Engineering, Pujari Prasad-a private person and the co-convict-Bhagwan Das who died during the pendency of the trial and others. In furtherance of said criminal conspiracy dishonestly and fraudulently misappropriation of 302.840 M.T. of non-coking coal, Grade-‘C’ worth Rs.1.50 lakhs which was meant for distribution amongst the employees of B.C.C.L. for domestic use was caused by the accused-persons of the case, causing a wrongful loss to the tune of Rs.1.50 lakhs to B.C.C.L., a Government of India Undertaking and wrongful gain to themselves.
4. During the investigation of the case, it was found that the appellant-convict-Baldin Ram was working as Senior Executive Engineer (Civil), Bhuli Town Administration, B.C.C.L., Dhanbad from October, 1993 to January 1994 and awarded the job of transportation of coal from various collieries of B.C.C.L. to Bhuli Township to M/s. Gopal Engineering of which the appellant-convict-Gopal Prasad Sinha is the proprietor. The appellant-convict-Gopal Prasad Sinha has executed a power of attorney in favour of appellant-convict-Pujari Prasad. It is also alleged that the said power of attorney was acted upon by the appellant-convict-Baldin Ram for execution of contract between B.C.C.L. and the said M/s. Gopal Engineering. The deceased-Bhagwan Das created document in respect of transfer of the said contract in his favour by forging the signature of his brother-in-law-Pujari Prasad and the said document was fraudulently and dishonestly entertained by the appellant-convict-Badlin Ram. It was also found during the investigation that the appellants-convicts Pujari Prasad and R.S. Jha-who was the Auto Fitter in Sendra Auto Workshop, B.C.C.L., Dhanbad received 222.680 MT coal from various collieries of B.C.C.L. on the basis of said contract but dishonestly and fraudulently they did not deliver the said coal at Bhuli Township Coal Depot and thereby they misappropriated the coal entrusted to them for delivering at Bhuli Township Depot. The details of misappropriation of coal consignment found o
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