Negligence and dereliction of duty by a public servant may amount to misconduct but not necessarily criminal breach of trust under Section 409 of IPC.

1. This revisional application, under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order dated 09.12.2011, passed by learned Addl. Sessions Judge, Dharmanagar, North Tripura, in Criminal Appeal No. 40(4)/2011 whereunder the learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence, 1st dated 31.10.2011, passed by learned Judicial Magistrate Class, Kanchanpur, North Tripura in Case No. GR 130/2010 against accused-petitioner Sachindra Das, who was charged in the criminal trial for commission of offence punishable under Section 409 of IPC and learned Magistrate found him guilty of the charge and sentenced him to suffer R.I. for two years and to pay a fine of Rs.10,000/- in default of payment to suffer R.I. for one month.

2. Heard learned counsel, Mr. G.S. Bhattacharjee for the accused-petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State-respondent.

3. Prosecution case is that the accused Sachindra Das was working as Branch Postmaster of Anandabazar Branch Post office. He was entrusted 5(five) cheques by the Chairman of Anandabazar Village Committee (P.W.8) and the Panchayat Secretary of the said Village Committee (P.W.22) to draw an amount of Rs.3,30,600/- from Tripura Gramin Bank, Dasda Branch to disburse the amount to the workers of NREGA (National Rural Employees Guarantee Act). On 17.06.2010, the accused Sachindra Das with police escort went to Dasda, obtained signature of Sub Postmaster of Dasda Sub Post Office (P.W.24) and thereafter encashed those cheques from Tripura Gramin Bank, Dasda Branch and collected cash amount of Rs.3,30,600/- from the Bank. The accused hired a vehicle while going to Dasda and the security personnel (P.W.12 and two other security persons) of Anandabazar SPO Camp accompanied the accused. While on way to Dasda and back, he stopped the vehicle and entered in a house and passed some time there and thereafter he came to Anandabazar Branch Post Office and disbursed Rs.24,000/- to some of the NREGA workers during 3:00 p.m. to 4:00 p.m. on 17.06.2010 and thereafter he stopped payment. P.W.3 was the Postman of the said Branch Post Office and P.W.7 was a person of Anandabazar Village Committee, attached with the accused to help in the disbursement of payment to the NREGA workers.

3.1 It is the case of the prosecution that the accused being a Postmaster of a Branch Post Office was not authorized to keep in custody more than Rs.2000/- in the Branch Post Office. He was cautioned by P.W.24, the Sub Postmaster of Dasda Post Office while putting his signature in the cheques as to whether the accused will be able to disburse the entire amount or not and that he should not withdraw such huge amount but the accused assured P.W.24 i.e. the Postmaster of the Sub Post Office, Dasda that he will be able to disburse the amount.

3.2 The Branch Post Office was located at Anandabazar market area and it was in a hut measuring 7X14 feet with bamboo fencing having one door and two windows made of wood and with GCI sheet roof. There was no iron grill or rod in the windows. On 18.06.2010 in the early morning P.W.2 Sanchita Deb found back side window of the Post Office in a broken condition and the gate also open and she immediately reported it to her husband (P.W.1) Himangshu Deb who immediately informed the accused and the accused rushed to the spot and thereafter informed P.Ws 8 and 22 that an amount of Rs.3,06,600/- had been stolen. The accused stated that he had drawn Rs.3,30,600/- for making payment to 560 NREGA workers and he could disburse only Rs.24,000/- to 80 NREGA workers and the rest amount of Rs.3,06,600/- was kept in a trunk inside the Post Office under lock and key and thereafter left the post office keeping the door under lock and key. The accused stated that the amount had been stolen.

3.3 A telephonic information was sent to O.C., Kanchanpur P.S. and accordingly, O.C. of the P.S. along with P.W. 23, S.I. Parendra Reang rushed to Ana