The conviction for misappropriation under Sections 403 and 409 IPC was upheld, confirming that the accused breached trust as a public servant responsible for collecting and depositing substantial government fees.

JUDGMENT

T. Amarnath Goud, J. - This is an application under Section 401 read with Section 399 of the Cr.P.C., 1973 for setting aside the judgment dated 27.01.2020 passed in Criminal Appeal No. 03(1) of 2018 by the learned Sessions Judge, Gomati District, Udaipur, affirming the order of conviction and sentence dated 13.12.2017 passed by the learned Chief Judicial Magistrate, Gomati, Udaipur in case No. GR 347 of 2011 convicting the petitioner under Section 403 /409 of the IPC and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 5000/- in default to pay the said amount to suffer further rigorous imprisonment for one month for the commission of the offence punishable under Section 403 of the IPC and further sentenced him to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 10,000/- defaulting to suffer rigorous imprisonment for a period of two months for the commission of the offence punishable under Section 409 of the IPC with a direction to run both the sentence concurrently.

2. For the sake of brevity the parties are referred to as in the cause title of GR 347 of 2011. The brief fact of the prosecution case is that accused Sri Khagendra Acharjee was Head Clerk cum Cashier of the Sub-Registry officer, Udaipur and accused Sankar Sarkar(now deceased) was Sub-Registrar and accused Sri Khagendra Acharjee was made as cashier by the then DM & Collector by order No. F.1(12)/DR/S/2000/92-95, dated 01.02.2010 with effect from 25.01.2010 and accused Sri Khagendra Acharjee has taken over the charge of cashier from earlier cashier Sri Uttam Kr. Das 25.01.2010 and an audit team after audit submitted a report on 03.06.2011 that an amount of Rs. 23,04,900 collected as registration fee, searching fee, copying fee etc. from the month of January, 2011 to May, 2011 was not deposited in the treasury and on verification of cash book, they found cash Rs. 1,60,200/- only was lying in chest which is kept in the Almirah of accused Sri Khagendra Acharjee and accused Sri Khagendra Acharjee committed cheating and misappropriated the government money and accused Sankar Sarkar (now deceased) was negligent and liable and, accordingly, stating the above mentioned fact along with other fact informant filed FIR before the O.C. RK. Pur P.S.

3. On receipt of FIR, the officer-in-charge of R.K. Pur P.S. has registered the case No. 244/11, dated 09-06-2011 under Sections 420 /409/109 of IPC and, thereafter endorsed the case to SI Subrata Barman for investigation of the case. Thereafter, again the case was endorsed to the SI Rajib Saha (CID) on 14-07-2011 as per order of the SP (CID) and he received the case docket from the O/C, R.K. Pur P.S.

4. After completion of investigation I.O. submitted the charge-sheet vide No. 289/2012 dated 31-08-12 under Sections 120(B)/420/409 of IPC against the above mentioned accused persons.

5. On receipt of the charge-sheet cognizance of the offence punishable under Sections 120(B)/420/409 of IPC was taken and the relevant process was commenced and the accused copy has been supplied to the accused Sri Khagendra Acharjee under provision of Section 207 of Cr.P.C. and as per report of O.C. Dharmanagar P.S. the trial court passed an order on 01.09.2015 in respect of accused Sankar Sarkar, which is as follows:

'Received a report from the O.C. Dharmanagar P.S. and stated accused Sankar Sarkar has died on 28.04.2013 and a xerox copy of death certificate of the said accused was annexed with the report.

Heard Ld. APP.

From the death certificate it appears that accused Sankar Sarkar has expired on 28.04.2013.

I am satisfied with the report of O.C. Dharmanagar P.S. and accordingly the action against the accused Sankar Sarkar died wi