The State Of Maharashtra vs Mandabai Ashok Sawant
2016 Latest Caselaw 4244 Bom

                                      1/10                                                   appeal 547.02.sxw

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             APPELLATE JURISDICTION




                                                                                             
                              CRIMINAL APPEAL NO. 547 OF 2002




                                                                     
     State of Maharashtra                                                           ...    Appellant
                                                                                    (Original Complainant)




                                                                    
              V/s.

     Mrs. Mandabai Ashok Sawant,
     R/o Mumbra, Anand Koliwada,




                                                
     Thane                                                                          ...   Respondent
                                                                                   (Original Accused no.1)
                             
     Mr. J. P. Yagnik, APP for the State.
     Mr. Machindra Patil for the respondent.
                            
                                    CORAM :                 NARESH H. PATIL AND
                                                            PRAKASH D. NAIK, JJ.
      


                                                             28th July, 2016.
   



     JUDGMENT (PER NARESH H. PATIL, J)

The respondent was charged for the offence under section 409 of

I.P.C. By Chief Judicial Magistrate, Thane in R.C.C. No. 66/1996. At the

relevant time respondent was discharging her duties as Branch Post

Master, Kausa, Dist. Thane. The Inspector at Divisional Office Thane-

PW2 Uday Kumar Jadhav was called by Senior Superintendent of Post

Office, Central Division, Thane on 10th November, 1995 alongwith

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Assistant Superintendent of Post Office. They were informed that money

orders received by post office, Kausa were not accounted for and the

matter requires investigation. The PW2 Jadhav alongwith PW3 Forgade

visited Post Office, Kausa. The respondent was present there. The cash

balance, stamps, money order forms, registers and other relevant record

were verified. It was alleged that they did not find the stamp receipts

which were to be issued to persons who deposited money for sending it

by money order. They found one book of money orders and register

having scored number of receipts. The PW1 Laxman Kamble, Vigilant

Inspector filed complaint against the respondent on which FIR came to be

registered. The Vigilance Inspector and PW2 found that certain record

relating to receipt of money orders was lying in the house of respondent.

The record was seized. It was attached under Panchnama. The Senior

Officers of the postal department after verifying the entire record and

taking into consideration the complaint lodged arrived at conclusion that

respondent had misappropriated an amount of Rs.95,396/-. The police

after investigation filed a chargesheet against the respondent.

2. Seven witnesses were examined by prosecution. From the record

we have noticed that summons were issued to several witnesses but it is

surprising to note that prosecution was unable to record evidence of

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witnesses particularly the persons who claimed that they had paid money

for forwarding it by money order which amount did not reach the

destination. It was alleged that money was misappropriated. A long list

of 130 persons was cited. PW1 Laxman Kamble is the Complaint

Inspector of post office who lodged the complaint. PW2 Udaykumar

Jadhav is senior Superintendent of Post Office and PW3 Dyaneshwar

Forgade who was working as Superintendent at Thane Central Division

was also examined in support of prosecution case. PW4 Raghunath

Walekar was serving as Postman at the relevant time. PW5 is Panch

witness who did not support the prosecution. PW6 is Chhotelal Verma

who is a sole witness from the list of 130 persons who had deposited

money to be forwarded by money order. PW7 is the Investigating Officer.

3. The PW2 and PW3 being officers of the post office, Central

Division, Thane have deposed before the Court that the entire record of

the post office was verified and it was found that respondent no.2 was

entrusted with an amount of Rs. 95,396/- pertaining to money orders.

The receipt books were seized from the respondent's house.

Respondent claimed ignorance about the entire transaction. Her defence

was of denial. The witnesses further deposed before the Court that

amount was not accounted for neither it reached persons in whose favour

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the amount was deposited by various persons with Branch Manager of

the post office i.e. respondent. The PW5 who was examined as panch

witness did not support the prosecution. In paragraph 2 of his deposition

he stated:

" It is not true to say that, in my presence police had searched the house of accused. Panchnama dated 12/12/95 bears my signature. It is not true to say the Complainant

Kamble had shown the money order forms 129 to the police

and two receipt books thereafter it was seized in my presence".

PW6, the person who claimed to have deposited the money could not

produce receipt of payment made by him. PW4 Raghunath Walekar

stated that investigation was carried out and the entire record was

searched. He was discharging his duties as a postman and was in a

position to identify the signature of respondent. He stated about the day

to day transactions going on in the post office Kausa. He deposed that

he was present during inspection but during cross examination he

deposed that he did not know who used to accept money order amount in

Mumbra post office. He was getting salary from Kausa post office. He

deposed before the Court that he had not stated before police that he

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could identify signature of accused as it was not asked by police. In

other words, witness expressed his opinion that he was not in a position

to identify signature of respondent at exhibit 15 and 16.

4. The learned Prosecutor submitted that in fact this was a case

where the trial Court ought to have been vigilant during trial for doing

complete justice. It was a serious matter where money deposited by poor

villagers was misappropriated by the accused. The amount was paid by

various persons to the Branch Post Master, receipts were executed but

the amount did not reach the destination. The learned Prosecutor

submitted that relevant record was seized from the residence of

respondent. The postman who was discharging duties in Kausa post

office was not in a position to throw light on the day to day transactions.

Panch witness Hasan Shaikh denied that in his presence police searched

the house of accused and seized money order forms in his presence.

He could not state the reason as to why his signature was obtained on

the panchnama. His testimony ought to have been relied upon by the

trial Court. In the submissions of learned Prosecutor as the respondent

was entrusted with money deposited towards money orders, she ought to

have accounted for the said amount. She was responsible for the

amount that was not accounted for and charge framed against the

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respondent was clearly established.

5. Learned Counsel appearing for respondent submitted that after

going through the entire evidence, the trial Court had acquitted the

accused. The responsibility on the prosecution was heavy. They are

supposed to establish the case beyond reasonable doubt. The

respondent could not have been convicted on conjectures and surmises

neither on drawing inferences. The learned Counsel submitted that

Panchas

have not supported the prosecution case though the

prosecution claimed that several persons deposited money but they failed

to bring such persons before the Court in support of the prosecution case.

One such person deposed before the Court but his testimony is of no

value as he failed to produce receipt of payment of money. Learned

Counsel submitted that the theory of prosecution that the record was

seized from the house of respondent does not get credence from the

evidence of independent witness. The signature on the receipts was not

proved. No opinion of hand-writing expert was tried to be obtained by the

prosecution. There is no evidence to show that respondent accepted the

money from the persons towards money order and executed the receipts

and handed over the same to various persons. This being essential

ingredient of offence, learned Counsel submits that benefit must go to

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respondent. Learned Counsel further submitted that being an appeal

against order of acquittal, if two views are possible, the benefit shall go to

respondent-accused.

6. We have perused the entire record and the evidence. We find

that the case could have been conducted in a more proper and

appropriate manner. Learned APP is right in submitting that trial court

could have been more vigilant in conducting the trial. At the relevant

time, the amount which was not accounted for was a substantial amount

i.e. Rs. 95,396/-. The Investigating officer ought to have taken pains to

produce the prosecution witnesses cited in support of the prosecution

case. The record shows that efforts were made by the Prosecutor for

getting summons issued at times, even bailable warrant were issued, but

for the reasons best known to the Investigating Agency, the persons who

claimed to have deposited money with the post office did not come

forward to depose in favour of the prosecution.

7. The evidence of PW1, PW2 and PW3 who were from the

department shows that entire record was scanned by them. They seized

the record. The record also shows that several receipts were seized

which were executed in the name of persons who paid money towards

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money order. The record is relevant to the allegations made. The

prosecution witnesses 1, 2 and 3 calculated the amount of Rs. 95,396/-

which was not accounted for. In the normal circumstances, respondent

being a Branch Post Master of Kausa post office must have been made

responsible and accountable. Being a Branch Post Master, it was the

responsibility and duty of the respondent to explain the circumstances

and allegations made.

8.

We cannot loose site of the fact that prosecution has to establish its

case beyond reasonable doubt. The seizure of record from the residence

of respondent was not supported by Panchas but the same was

supported by the Investigating Officer. The investigating officer in the

cross-examination stated that receipt books were sealed after the

panchnama was drawn but there was no reference of the same in the

panchnama. He further stated that receipt books do not bear signature

of Panchas but he denied suggestion that panchnama was fabricated.

The Investigating officer has averred that he did not seized original

money order receipts from witnesses i.e. sender of money orders. This is

serious lacuna on the part of Investigating Officer. The Investigating

Officer ought to have obtained specimen signature and hand-writing

expert report while conducting investigation. For the reasons best known

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to Investigating Officer, we do not find such an evidence was brought on

record. These are matters where confidence of people is involved. The

Investigating Agency ought to have been more vigilant in conducting

investigation in such cases. In this fact of scenario and considering the

nature of quality of evidence, benefit would be derived by the accused

person for the lacunas, lapses and defects in the prosecution evidence. It

is the cardinal principle of criminal jurisprudence that on mere conjectures

and surmises a person cannot be held guilty and punished. In certain

situations inference could be drawn but it depends on the facts and

circumstances of each case and the nature of evidence brought on

record. The record reflects that respondent being Branch Post Master

was Incharge of the post office. Her duties were crucial in nature and

mere pleading ignorance would not suffice and mere denials are of no

consequence but still the fact remains that the prosecution is not

absolved of its responsibility and duties to establish the case beyond

reasonable doubt. In the facts of the case, we find that benefit of doubt

would go in favour of the respondent.

9. We are informed by the Counsel appearing for the respondent that

the departmental enquiry was held and respondent was dismissed from

service in the year 2003.

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10. There is no merit in the Appeal. Appeal is dismissed. Bail Bond

of the accused stands cancelled.

            (PRAKASH D. NAIK, J.)                                            (NARESH H. PATIL, J.)




                                                                    
     L.S. Panjwani, P.S.