Allahabad High Court
B.K. Tiwari vs State Of U.P. on 13 December, 2018
Bench: Umesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R. Judgment reserved on 5.12.2018
Judgment delivered on 13.12.2018
Court No. 15
Case :- CRIMINAL REVISION No. - 1381 of 2017
Revisionist :- B.K. Tiwari
Opposite Party :- State Of U.P.
Counsel for Revisionist :- Sarvesh,Krishna Kumar Yadav,Prashant Kumar Singh
Counsel for Opposite Party :- G.A.,Shishir Tandon
Hon'ble Umesh Chandra Tripathi,J.
1. Heard Senior Counsel Sri Vijay Bahadur Singh assisted by Sri Prashant Kumar Singh and Sri Syed Imram Ibrahim, learned counsel for the revisionist, Senior Counsel Sri Gopal Swaroop Chaturvedi assisted by Sri Shishir Tandon, learned counsel appearing for Krishna Pratap Kaushik who has presented the application for impleadment in the Revision and Sri Om Prakash, learned A.G.A., for the State.
2. This criminal revision has been preferred against the judgment and order dated 22.3.2017 passed by Additional Sessions Judge, Court No. 10, Kanpur Nagar in Criminal Appeal No. 15 of 2016 (B.K. Tiwari Vs. State of U.P.), dismissing the appeal against the judgment and order dated 27.1.2016 passed by additional Chief Metropolitan Magistrate, Court No. 2, Kanpur Nagar in Case No. 10596 of 2009 (State Vs. B.K. Tiwari) arising out of Case Crime No. 519 of 2005, Police Station Kalyanpur, District Kanpur Nagar. Vide order dated 27.1.2016 revisionist/accused B.K. Tiwari was convicted for the offence punishable under Section 409 Indian Penal Code (in short "IPC") and sentenced to rigorous imprisonment for six years and to pay fine of Rs. 5,000/- and in case of default in payment in fine, simple imprisonment for further one year.
3. The brief facts of the prosecution case are that (i) cash voucher No. 2276 dated 23.2.1998 for Rs. 1292.50/- of financial year 1997-98, cash voucher No. 14 dated 30.4.1999 for Rs. 6986.50/- of financial year 1998-99 relating to journey performed by Accountant B.K. Tiwari. (ii) Cash voucher No. 2277 dated 23.2.1998 for Rs. 456/- of financial year 1997-98 relating to journey performed by R.K. Yadav. (iii) Register relating to travelling allowance of financial year 1997-98 relating to Class-III employees and (iv) guard file of financial year 1999-2000 in which 120 cash vouchers were attached, were missing from Accounts Section of U.P. State Industrial Development Corporation Limited, Kanpur. In departmental inquiry, Sri B.K. Tiwari, Accountant was held prima facie responsible for missing of the above documents. On the basis of suspicion, Sri S.N. Ram, Manager (Accounts) has lodged first information report at Case Crime No. 519 of 2005 under Section 409 IPC at Police Station Kalyanpur, District Kanpur Nagar on 3.8.2005 at 11:15 PM against Sri B.K. Tiwari, Accountant. Police has investigated the case and submitted chargesheet against B.K. Tiwari. On the basis of statement of PW-1 S.N. Ram and CW-1 Sushil Kumar, learned Magistrate has passed the impugned order of conviction against the revisionist B.K. Tiwari. Appellate Court held that there is no infirmity in the impugned order passed by the Trial Court.
4. Learned counsel for the revisionist contended that the trial court and appellate court have passed the impugned orders without properly appreciating the evidence on record. There is no evidence on record to convict the revisionist for the offence punishable under Section 409 IPC.
Apart from arguing on the merits of the case, learned counsel for the revisionist further contended that revisionist is languishing in jail since 27.1.2016, he has completed for about three years in custody in this case. If the conviction of the revisionist is upheld, his sentences should be reduced to the period already undergone.
5. Learned counsel appearing for Krishna Pratap Kaushik and learned A.G.A., contended that trial court and appellate court have recorded concurrent finding on the basis of evidence available on record, which is not liable to be interfered in the criminal revision.
6. From perusal of the first information report, it reveals that cash voucher for Rs. 1292.50/- of financial year 1997-98 and cash voucher of Rs. 6986.50/- of financial year 1998-99 relating to travelling allowance of Sri B.K. Tiwari were missing from the Accounts Section. In the first information report, it is not mentioned that B.K. Tiwari has received travelling allowance without performing his journey. The missing of above mentioned vouchers and guard file is proved by PW-1 Sri S.N. Ram. CW-1 Sri Sushil Kumar has proved the payment of above money of travelling allowance to revisionist/accused B.K. Tiwari. PW-1 Sri S.N. Ram has admitted in his cross-examination that at the time of occurrence, B.K. Tiwari was posted in the Accounts Section and deals with Employee Provident Fund Trust. None of the witnesses of the prosecution stated before the Trial Court that B.K. Tiwari was custodian of missing vouchers and guard file. PW-3 Mukesh Paliwal has admitted in his cross-examination that guard files were placed in the record room and Class-IV employee of the Accounts Section was In-charge of record room. At the time of occurrence, Kesh Bahadur was custodian of record room. PW-1 S.N. Ram has admitted in his cross-examination that at the time of occurrence, aforesaid records were placed on rack in the office room in which Anand Tripathi and Satish Gupta were seated. There is no evidence on record to show that these missing records were entrusted to revisionist-accused B.K. Tiwari or B.K. Tiwari was custodian of these records at any time. The cash voucher of Rs. 456 dated 23.2.1998 of financial year 1997-98 relating to travelling allowance of Sri R.K. Yadav was also missing but Sri R.K. Yadav has not been made accused in this case. There is also no evidence on record to show that revisionist B.K. Tiwari has received travelling allowance without performing his journey. From the contents of the first information report and material available on record, no offence is made out against the revisionist B.K. Tiwari. From perusal of evidence on record, even a suspicion does not arise about commission of offence by the revisionist Sri B.K. Tiwari. It is very unfortunate that in such case, Sri B.K. Tiwari revisionist is languishing in jail for about three years.
7. Accordingly, this criminal revision is allowed. The judgment and order dated 22.3.2017 passed by Additional Sessions Judge, Court No. 10, Kanpur Nagar as well as the judgment and order dated 27.1.2016 passed by additional Chief Metropolitan Magistrate, Court No. 2, Kanpur Nagar are set aside.
8. Revisionist B.K. Tiwari is acquitted from the offence punishable under Section 409 IPC. He is in jail. He shall be released forthwith, if not detained in any other case.
9. A certified copy of this order be sent to the Trial Court for the purposes of intimation and necessary compliance. Lower court record be also remitted back to the court concerned.
Order Date :- 13.12.2018
Jaswant
