Bombay High Court
State Of ... vs Vasanta S/O Laxman Thakre on 30 March, 2017
Bench: B.P. Dharmadhikari
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 40 OF 2000.
The State of Maharashtra,
through P.S.O. Police Station,
Saoner, District Nagpur. ....APPELLANT.
VERSUS
Vasanta s/o Laxman Thakre,
Aged 34 years, Resident of Sadar
Bazar, Nagpur. ....RESPONDENT
.
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Mr. S.S. Doifode, Addl. P.P. for the Appellant- State.
Mr. P.S. Tidke, Advocate for Respondent- Accused.
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CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : MARCH 30, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
This appeal against acquittal is filed by the State Government
under Section 378 of the Criminal Procedure Code. Acquittal of respondent
- Vasanta for offence punishable under Sections 409 and 468 of Indian
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Penal Code on 18.10.1999 by the Chief Judicial Magistrate, Nagpur in
Regular Criminal Case No.363/1989, has been questioned.
2. We have heard Shri S.S. Doifode, learned A.P.P. for the appellant -
State and Shri P.S. Tidke, learned Counsel for the respondent - accused.
3. Learned A.P.P. submits that perusal of evidence of witnesses on
record show that it was the responsibility of respondent to disburse salary
and amount of deductions therefrom for payment of Provident Fund
Contribution or premium of Group Insurance used to be in his custody. That
amount has not been paid to the concerned offices/agencies and this fact has
been brought on record by these witnesses. According to him, the
deductions were also shown in relevant records by the respondent and as
such, the fabrication of records has also been established. He is placing
strong reliance upon deposition of P.W.4 - Ramkrishna Barkuji Chandekar,
to show how the cash book entries were manipulated.
4. Shri Tidke, learned Counsel for respondent on the other hand
submits that entrustment of amount to respondent and competency with
him to credit the deducted amounts to Provident Fund Authorities or Group
Insurance Scheme has not been established. He points out that as per
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answers given by the witnesses, the cash of salary used to remain in office of
the Block Development Officer and the Block Development Officer used to
sign the cheque for transmitting the deducted amount to the Provident Fund
Authorities or Group Insurance Agency. He invites our attention to the
discussion in this respect by the Trial Court to urge that there is no
perversity in appreciation of material on record and a possible view has been
reached.
5. Exh Nos.16, 23 and 24 are the charge memos under Sections 221,
222 and 223 of Criminal Procedure Code. Three different amounts are
mentioned therein, but, then assertion is commission of criminal breach of
trust in relation to those amounts and forging of cash book. In the course of
judgment, the learned Chief Judicial Magistrate has framed two points for
consideration. Points are in relation to all these three charges. By first
point, question raised is about entrustment of money of General Provident
Fund and Life Insurance Corporation deduction. Vide point no.2 question
framed is - about forging of cash book. Evidence of various witnesses has
been looked into by the trial Court and it has found that the witnesses have
received correct amounts of their salary.
6. We find that P.W.1 - Prabhakar Bhagwan Gid, has stated that he
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had received a letter from the office of the Life Insurance Corporation about
non receipt of premium, however, he could not produce that letter and
accepted that he was disclosing that letter for the first time in Court. The
portion about respondent - accused appropriately deducted amount for his
own use appearing in Section 161 Criminal Procedure Code, is denied by
this witness as incorrect.
P.W.2 - Damodhar Bhedruji Talekar also in cross examination
could not substantiate the stand that amount of LIC Premium or GPF
contribution was not being regularly credited to concerned Authorities.
P.W.3 - Shalikram Atmaram accepted that he received correct
amount of G.P.F. and L.I.C. He denied statements to the contrary appearing
in his Section 161 statement.
P.W.4 -Ramkrishna Barkuji Chandekar, a Panch witness accepted
that dates of petty cash book were not mentioned in the panchnama. Trial
Court has looked into this part of his evidence in paragraph no.33 of its
judgment.
P.W.5 - Narayan Ramkrushna Ahir, is complainant. He has
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deposed that accused was serving as junior assistant at Panchayat Samiti,
Saoner. Thus, story of prosecution that accused was working as cashier, has
not been established. This witness states that prior to receipt of letter from
LIC, he had no knowledge of misappropriation of money by the accused.
However, that letter was not handed over to police. He had not made any
enquiry with the Deputy Accountant and Senior Assistant in office, but, did
not record their statement. He accepted that he used to check the cash and
undertake surprise checks and also at the end of every month. He used to
issue certificate when ever he checked the cash. He also accepted that he
used to certify cash balance after office hours, every day. He could not state
whether 4 copies of challan are prepared for depositing amounts so
deducted.
7. In paragraph no.37, the Trial Court has found that carbon copy of
complaint dated 22.01.1981 (Exh.71) was produced. It was addressed to
Police Station Officer, Saoner. However, original complaint was not
produced by anybody.
8. In view of this evidence of P.W.5, it is apparent that when cash
was checked every day and every month and there were Deputy accountant
and Senior Accountant in the office, fact that deducted amount has not been
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paid to LIC or PF. Deductions could have been learnt immediately. P.W.1
Prabhakar, a Senior Clerk has in cross examination stated that the Block
Development Officer was incharge of the office and salary was being
disbursed in presence of Block Development Officer. Deducted amount was
to be sent to the concerned department through cheque signed by the Block
Development Officer. He also expressly states that Block Development
Officer alone was supervising payments and deductions.
9. This material therefore, shows that the amounts deducted from
salary is not shown to be in custody of the present respondent thereafter.
The Group Insurance amount and P.F. Contributions was to be deposited by
cheque signed by the Block Development Officer. Block Development Officer
was therefore, aware that he has not issued those cheques.
10. We therefore, find that custody of deducted amount after
payment of salary is not shown to be with respondent. It is not the case of
State Government that the deducted amount was to be sent to these offices
by respondent only. When the cheques for that amount were to be issued by
the Block Development Officer, it is apparent that the amount would go
through Bank account of the office of the Block Development Officer to those
offices. None of the witnesses has stated that it was the duty of respondent
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to deposit the deducted amount in any Bank.
12. When cheques in favour of Provident Fund department or Life
Insurance Corporation were never prepared and sent to them, necessary
documentation was not there. All superiors, including B.D.O, therefore, were
aware of it. Unless the deducted amount is first deposited in bank, B.D.O.
Could not have issued the cheques. In this situation, we find that the Chief
Judicial Magistrate has taken a possible view of the matter and there is no
perversity. Accordingly we uphold the acquittal of respondent and order
dated 18.10.1999 in Regular Criminal Case No. 363/1989. Accordingly, we
pass the following order :
(1) The Appeal is dismissed.
(2) The judgment and order delivered by Chief
Judicial Magistrate, Nagpur dated 18.10.1999
in Regular Criminal Case No.363 of 1989
acquitting the respondent for offences
punishable under Sections 409 and 468 of the
Indian Penal Code is maintained.
(3) No costs.
JUDGE JUDGE
Rgd.
