Gulin Chandra Hansda vs State Of West Bengal
2021 Latest Caselaw 5678 Cal

Form J(2)
                 In the High Court at Calcutta
                 Criminal Appellate Jurisdiction
                            Appellate Side

Present : The Hon'ble Mr. Justice Bibek Chaudhuri

                           CRA 296 of 1992

                     Gulin Chandra Hansda
                             -Vs.-
                     State of West Bengal

For the appellants     :     Mr. Mahendra Prasad Gupta, Adv.
                             Mr. Mukunda Lal Sarkar, Adv.,
                             Ms. Antara Panja, Adv.

For the respondent     :     Mr. Saswata Gopal Mukherjee, Adv.,

Ms. Faria Hossain, Adv.

Heard on               :     15.11.2021, 16.11.2021

Judgment on            :     16.11.2021.

      Bibek Chaudhuri, J.:

Judgment and order of conviction and sentence dated 31 st

August, 1992 passed by the learned Judge, 5th Special Court,

Contai, Midnapore in Special Trial Case No. 34 of 1990

convicting the appellant and sentencing him for committing

offence under Section 409 of the Indian Penal Code to suffer

rigorous imprisonment for two years is under challenge in the

instant appeal. Before I dwell upon the submissions made by

the respective Counsels for the appellant and the respondent it

is necessary to narrate the facts of the case in short compass.

The appellant was an Extra Departmental Branch

Postmaster (EDBPM), Kodapara Branch Post Office, Midnapore

within Police Station - Belpahari. As Postmaster, he received

certain amount of money for deposit in Savings Bank Account

No. 556756 standing in the name of one Gobordhan Tudu.

Similarly, one Malati Soren was savings bank account holder

bearing no. 556851 maintained in the said Post Office. She also

deposited certain amount of money on 5 th November, 1986.

One Smt. Rani Murmu was also the holder of Savings Bank

Account No. 557135. She also deposited certain amount of

money on 27th May, 1986 in her passbook. The appellant

received the said money from the above-named savings bank

account holders, entered the said deposit in their passbooks

with official seal and signature and returned the passbooks to

the above-named account holders. However, on departmental

enquiry it was learnt that the said Postmaster never entered

the money so deposited by the savings bank account holders in

the ledger book and other official registers and documents and

the said deposits were not made over to the Government

account. In view of such specific act and omission made by the

appellant, one Sunil Baran Mukherjee, Sub-Divisional Inspector

of Post Offices lodged a complaint before the Officer-in-Charge,

Belpahari Police Station on 1st July, 1988 on the basis of which

Belpahari Police Station Case No. 1 dated 1st July, 1988 under

Section 409 of the Indian Penal Code was registered against the

appellant.

Investigation of the case was conducted by the Police

Authority and on completion of investigation charge-sheet was

submitted under Section 409 of the Indian Penal Code. Since

the offence under Section 409 of the Indian Penal Code is

triable by the Special Court the case was sent to the Court of

the learned Special Judge, 5th Court at Contai, Midnapore for

trial. It appears from the record that the accused duly entered

appearance before the Trial Court. Charge was framed against

the accused under Section 409 of the Indian Penal Code and

when the said charge was read over and explained to him, he

pleaded not guilty. Accordingly, trial of this case commenced.

During trial, prosecution examined as many as ten

witnesses. Series of documents were marked exhibits. The

appellant/accused was examined under Section 313 of the Code

of Criminal Procedure. It was the specific defence of the

accused that he did not misappropriate any money of any of the

account holders. He made payment to the account holders

from their savings whenever they came to withdraw the

amount. However, he failed to incorporate some of the

deposits made by some of the account holders in the Post Office

ledger book and the Government account book as he was

mentally perplexed at the relevant period of time because of

serious illness of his wife.

The learned Trial Judge on careful consideration of entire

evidence on record both oral and documentary as well as the

answers given by the appellant in course of his examination

under Section 313 of the Code of Criminal Procedure held the

accused guilty for committing offence under Section 409 of the

Indian Penal Code and convicted and sentenced him

accordingly.

As a Court of appeal it is the duty of this Court to examine

the evidence on record independently. It is also the duty of the

Court to consider whether the learned Court below has

committed any illegality in the application of legal principles

involved in the case.

I have already recorded that the prosecution examined

ten witnesses during trial of the case. Amongst the said

witnesses, P. W. 1, Sunil Kumar Banerjee was the Sub-

Divisional Inspector of Post Offices, Jhargram Sub-division who

made departmental enquiry in the said Branch Post Office

during 1986-87. After enquiry he found certain discrepancies in

the matter of receiving money in respect of savings bank

account holders and transmitting the same to the Government

account. He informed the matter to his superior officer and

subsequently submitted FIR against the appellant on 1 ST July,

1988. P.W. 2, Vivekananda Adhikary was the Assistant

Superintendent of Post Offices, Midnapore Sub-Division during

the year 1990. From his possession the passbooks of

Gobardhan Tudu, Malati Soren and Rani Murmu were seized by

the Investigating Officer under a seizure list. P.W. 3, Ranjit

Kumar Das was posted as the Office Assistant attached to the

office of the Senior Superintendent of Post Offices, Midnapore in

the year 1990. On 28th November, 1990, the Investigating Officer

seized two passbooks of savings account bearing No.556851,

standing in the name of Mrs.Malati Soren and bearing No.557135,

standing in the name of Smt. Rani Murmu from the office of the

Senior Superintendent, Midnapore Division under a seizure list in his

presence. He put his signature on the seizure list. His signature was

marked as Exbts.3 in course of his evidence. Similarly, P.W.4, Tarun

Kanti Ray was posted as Office Assistant in the office of the Senior

Superintendent, Midnapur Division on 28 th November, 1990. He is

also a seizure witness whose signature on the seizure list was

marked as Exhibit 3/2. P.W.5, Smt. Rani Murmu, P.W.6, Smt. Maloti

Soren and P.W.7, Gobordhan Tudu were the savings bank holders in

question in the said post office. P.W.8, S.I., S.Ansari is the

Investigating Officer of this case. During investigation he seized the

passbooks of Gobordhan Tudu, Malati Soren and Rani Murmu. He

also seized the Cash Register, 8 withdrawal slips submitted by the

account holders on different dates and post office accounts ledger

during his investigation.

P.W.9 is the Recording Officer of the police station case and

P.W.10 is the subsequent Investigating Officer who submitted

charge-sheet against the accused.

Mr.Mahendra Prasad Gupta, learned Advocate for the appellant

at the outset submits that the learned Trial Judge passed the

impugned judgment holding the appellant guilty for committing

offence under Section 409 of the Indian Penal Code and convicting

and sentencing him accordingly without considering any evidence on

record only on the basis of the statement made by the accused under

Section 313 of the Code of Criminal Procedure. It is submitted by

Mr. Gupta that answers of the accused to the question under Section

313 of the Code of Criminal Procedure is not a substantive piece of

evidence. Therefore, the answers cannot be used to convict an

accused without any substantive corroboration in the evidence on

record. In support of his contention, he first refers to the decision of

the Hon'ble Supreme Court in the case of Reena Hazarika Vs.

State of Assam : (2019) 13 SCC 289. In Paragraph 19 of the said

report, the scope of Section 313 of the Code of Criminal Procedure is

stated in the following words: -

"19. Section 313 Cr.P.C. cannot be seen simply as a part of

audi alteram partem. It confers a valuable right upon an accused to

establish his innocence and can well be considered beyond a

statutory right as a constitutional right to a fair trial under Article 21

of the Constitution, even if it is not to be considered as a piece of

substantive evidence, not being on oath under Section 313(2)

Cr.P.C. The importance of this right has been considered time and

again by this Court, but it yet remains to be applied in practice as we

shall see presently in the discussion to follow. If the accused takes a

defence after the prosecution evidence is closed, under Section

313(1)(b) Cr.P.C. the Court is duty-bound under Section 313(4)

Cr.P.C. to consider the same. The mere use of the word "may"

cannot be held to confer a discretionary power on the court to

consider or not to consider such defence, since it constitutes a

valuable right of an accused for access to justice, and the likelihood

of the prejudice that may be caused thereby. Whether the defence

is acceptable or not and whether it is compatible or incompatible with

the evidence available, is an entirely different matter. If there has

been no consideration at all of the defence taken under Section 313

Cr.P.C., in the given facts of a case, the conviction may well stand

vitiated. To our mind, a solemn duty is cast on the court in

dispensation of justice to adequately consider the defence of the

accused taken under Section 313 Cr.P.C. and to either accept or

reject the same for reasons specified in writing."

It was further observed in Paragraph 20 of the said judgment

that neither Trial Court nor the High Court took notice of the defence

taken by the appellant while examined under Section 313 of the Code

of Criminal Procedure to either accept or reject it. The Hon'ble

Supreme Court was of the opinion that the defence taken by the

accused in course of his examination under Section 313 of the Code

of Criminal Procedure cannot be said to be irrelevant, illogical or

fanciful in the entirety of the facts and nature and other evidence

available. The complete non-consideration thereof would cause

prejudice to the appellant.

Mr.Gupta next refers to another case of the Hon'ble Supreme

Court reported in (2013) 12 SCC 406: Sujit Biswas Vs. State of

Assam. In the aforesaid report, the Hon'ble Supreme Court

reiterated the age-old principle on examination of an accused under

Section 313 of the Code of Criminal Procedure. It is observed by the

Apex Court that the purpose of examining the accused person under

Section 313 is to meet the requirements of the principle of natural

justice, i.e., audi alteram partem. The accused must be asked to

furnish some explanation as regards the incriminating circumstances

associated with him and the Court must take note of such

explanation. It is further held by the Hon'ble Supreme Court in the

aforesaid report that in case of circumstantial evidence, the same is

essential to decide whether or not the chain of circumstances is

completed, meaning thereby if there is a missing link in the chain of

circumstances and the said missing link is available from the answer

given by the accused under Section 313 of the Code of Criminal

Procedure, the said missing link can be used to complete the chain of

circumstances who hold the accused guilty for committing offence.

Mr. Gupta next refers to the decision of the Hon'ble Supreme

Court in the case of Nagaraj Vs. State reported in (2015) 4 SCC

739; Paragraph 15 of the said report is relevant for the purpose of

this case and reproduce below:-

"15. In the context of this aspect of the law it has been held

by this Court in Parsuram Pandey v. State of Bihar that Section

313 Cr.P.C. is imperative to enable an accused to explain away any

incriminating circumstances proved by the prosecution. It is

intended to benefit the accused, its corollary being to benefit the

court in reaching its final conclusion; its intention is not to nail the

accused, but to comply with the most salutary and fundamental

principle of natural justice, i.e., audi alteram partem, as explained in

Asraf Ali v. State of Assam. In Sher Singh v. State of Haryana

this Court has recently clarified that because of the language implied

in Section 304-B IPC, which deals with dowry death, the burden of

proving innocence shifts to the accused which is in stark contrast and

dissonance to a person's right not to incriminate himself. It is only in

the backdrop of Section 304-B IPC that an accused must furnish

credible evidence which is indicative of his innocence, either under

Section 313 Cr.P.C. or by examining himself in the witness box or

through defence witnesses, as he may be best advised. Having

made this clarification, refusal to answer any question put to the

accused by the court in relation to any evidence that may have been

presented against him by the prosecution or the accused giving an

evasive or unsatisfactory answer, would not justify the court to

return a finding of guilt on this score. Even if it is assumed that his

statements do not inspire acceptance, it must not be lost sight of

that the burden is cast on the prosecution to prove its case beyond

reasonable doubt. Once this burden is met, the statements under

Section 313 assume significance to the extent that the accused may

cast some incredulity on the prosecution version. It is not the other

way around; in our legal system the accused is not required to

establish his innocence. We say this because we are unable to

subscribe to the conclusion of the High Court that the substance of

his examination under Section 313 was indicative of his guilt. If no

explanation is forthcoming, or is unsatisfactory in quality, the effect

will be that the conclusion that may reasonably be arrived at would

not be dislodged, and would, therefore, subject to the quality of the

defence evidence, seal his guilt. Article 20(3) of the Constitution

declares that no person accused of any offence shall be compelled to

be a witness against himself. In the case in hand, the High Court

was not correct in drawing an adverse inference against the accused

because of what he has stated or what he has failed to state in his

examination under Section 313 Cr.P.C."

With reference to the above-mentioned reports, it is submitted

by Mr. Gupta that examination of the accused under Section 313 of

the Code of Criminal Procedure is to explain away any incriminating

circumstances proved by the prosecution. It is intended to benefit

the accused and not to nail the accused in order to hold him guilty.

In the instant case, the learned Trial Judge held the accused guilty

for committing offence under Section 409 of the Indian Penal Code

on the basis of admission made in course of examination under

Section 313 of the Code of Criminal Procedure which is not

permissible under the law. It is further submitted by Mr. Gupta that

in criminal trial prosecution must prove its case beyond any shadow

of doubt and conviction can be based on the basis of such evidence

adduced by the prosecution. An explanation under Section 313 of

the Code of Criminal Procedure made by the accused cannot be basis

of conviction of the accused.

Secondly, Mr. Gupta submits that P.W.5, P.W.6 and P.W.7 are

the persons whose money was not deposited in Government account

allegedly by the accused. However, P.W.5, P.W.6 and P.W.7 did not

make any allegation against the accused in course of their evidence.

On the contrary, they stated on oath that they received entire

amount with interest from the post office, which was deposited by

them in their saving bank accounts. In view of such evidence of the

account holders who may be treated as the victims of the case, the

accused/appellant cannot be held responsible for misappropriation of

money. The order of conviction and sentence passed against the

appellant is bad in law and liable to be set aside.

Mr. Gupta concludes his argument submitting that for

constituting an offence of criminal breach of trust, the following

ingredients must be satisfied:-

(a) a person should have been entrusted with property, or

entrusted with dominion over property;

(b) that person dishonestly misappropriates or converts to his

own use that property, or dishonestly uses or disposes of that

property or wilfully suffers any other person to do so;

(c) that such misappropriation, conversation, use or disposal

should be in violation of any direction of law prescribing the mode in

which such trust is to be discharged; or of any legal contract which

the person has made, touching the discharge of such trust.

In the instant case, the appellant was entrusted to receive

the saving bank deposits from the P.W.5, P.W.6 and P.W.7. He duly

received the amount on different dates; entered the same in the

postal savings books; whenever the saving bank accounts holders

came to withdraw the money, the accused paid that amount.

Therefore, by way of legal fiction the trust that was created by the

saving bank account holders in favour of the Postmaster, was duly

discharged by him and the account holders had no allegation. In

support of his contention, he refers to a decision of the Hon'ble

Supreme Court in Asoke Basak Vs. State of Maharashtra & Ors.

reported in (2010) 10 SCC 660.

Mr. Gupta also refers Kailash Kumar Sanwata Vs. State

of Bihar & Anr. reported in (2003) 7 SCC 399. I have gone

through the said decision and found that the facts of the said

reported decision are in no way connected with the facts of this case

and, therefore, I refrain myself from recording the principle laid down

in the said judgment.

Ms. Faria Hossain, learned Public Prosecutor-in-Charge, on

the other hand, submits that a case under Section 409 of the Indian

Penal Code may entirely be based on documentary evidence. It is

further submitted by her that one of the basic canons of Evidence Act

is that the oral evidence may be subject to scrutiny as to whether a

witness deposed falsely or not but a document shall never be

questioned on the point of authenticity. She also adds that the

documents involved in the instant case are all government records

and the said documents are required to be maintained by the

Postmaster under Postmaster's Manual published by the Department

of Post, Government of India in course of his official business.

Ms. Hossain next distinguishes judgments of the Hon'ble

Supreme Court referred to by Mr. Gupta. It is submitted by her that

in all the above-mentioned reported decisions, it was observed by the

Hon'ble Supreme Court that examination of the accused under

Section 313 of the Code of Criminal Procedure confers a valuable

right upon an accused to establish his innocence and can well be

considered beyond a statutory right of audi alteram partem as a

constitutional right to a fair trial under Article 21 of the Constitution

of India. It is further stated by Ms. Hossain that the Hon'ble

Supreme Court further held that in case based on circumstantial

evidence, answer given by the accused in course of his examination

under Section 313 of the Code of Criminal Procedure can be taken as

a missing link to complete the chain of circumstances. Therefore, it

is not the law enunciated by the Hon'ble Supreme Court that the

examination of the accused under Section 313 of the Criminal

Procedure Code is a mere formality or to follow the principle of

natural justice, i.e. audi alteram partem. The answers of the

examination under Section 313 of the Code of Criminal Procedure can

well be taken also in certain circumstances to complete the chain of

circumstantial evidence pointing towards the guilt of the accused.

Ms. Hossain next draws my attention to the evidence of the

de facto complainant, Sunil Kumar Mukherjee. It is ascertained from

his evidence that he was posted as Sub-Divisional Inspector of Post

Offices, Jhargram Sub-Division during the period 1986-1987. At the

relevant point of time he inspected Kodapara Branch Post Office. The

accused was extra departmental branch Postmaster in the said post

office. As Postmaster he used to receive money for depositing in

savings bank accounts from the account holders. It was also his duty

to enter the same in the passbook and the corresponding savings

bank journals and branch office account book. He is responsible for

the cash of the branch post office. During enquiry on 12th April,

1988 P.W.1 found that in respect of Savings Bank Account

No.556756, Sri Gobordhan Tudu deposited Rs.6,500/- during the

period between 21st December, 1984 to 13th July, 1987. The said

depositor withdrew a sum of Rs.2,000/- on different dates during the

period between 30th January, 1986 to 26th August, 1987. The

accused entered the deposits in the savings bank passbook and the

withdrawal in the savings bank accounts of the said Gobordhan Tudu

but those were not entered in the savings bank journal of the branch

post office or in savings bank account book. Thus, the amount of

Rs.6,500/- was not deposited in the Government account meaning

thereby the accused defalcated the said amount. Again he made

payment of Rs.2,000/- out of the said defalcated amount. P.W.1

produced and proved the passbook of the said Gobordhan Tudu and

corresponding journal and the account book to show that the said

amounts were not entered in the journal and the account book and,

therefore, the said money was not deposited to the Government

treasury. Similar was the case in respect of savings bank passbook

No.556851 and 557135. It is also ascertained from his evidence that

after inspection of the said branch post office on 12th April, 1988, he

informed the matter to the senior superintendent of post offices at

Midnapore and the senior superintendent of post offices with P.W.1

had inspected the said branch post office again on 23rd July, 1988.

Thereafter, he submitted the F.I.R.

The accused in course of examination under Section 313 of

the Code of Criminal Procedure admitted that he did not enter the

said deposits and withdrawals in the post office accounts journal and

account book. He admitted that said amount was not deposited in

the Government account. Thus, the said amount was lying in the

hand of the accused. The aforesaid documents prove beyond doubt

the involvement of the accused in misappropriating the amount. The

learned trial Judge used the reply of the accused under Section 313

of the Code of Criminal Procedure as additional circumstance to prove

the guilt. Therefore, the learned trial Judge acted within the four

corners of the legal principles enunciated by the Hon'ble Supreme

Court in dealing with the answers to the questions made under

Section 313 of the Code of Criminal Procedure.

It is further submitted by Ms. Hossain that the accused

subsequently paid the entire defalcated amount to the Government

account. This goes to suggest that he defalcated the amount because

defalcation or misappropriation of money even for a short period of

time is enough for the Court to hold the accused guilty for

committing offence under Section 409 of the Indian Penal Code and

subsequent payment does not absolve his responsibility.

Having heard the learned counsel for the parties and on

careful perusal of the entire evidence on record as well as reported

decisions cited by Mr. Gupta, I like to record at the outset that in

order to sustain conviction under Section 409 of the Indian Penal

Code, two ingredients are to be proved. The ingredients are:

The accused, a public servant, or banker or agent was

entrusted with property for which he is duty bound to act for; and,

the accused has committed criminal breach of trust.

What amounts to criminal breach trust is provided in

Section 405 of Indian Penal Code. The basic requirements to bring

home the acquisitions under Section 405 are the requirements to

prove conjointly (a) entrustment, and (b) whether the accused was

actuated by dishonest intention or not; misappropriated it or

converted it to his own use to the detriment of the persons who

entrusted. As the question of intention is not a matter of direct

proof, certain broad decisions are envisaged which would generally

afford useful guidelines in deciding whether in a particular case the

accused had mens ria for the crime.

Bearing the statutory provision in mind let us consider the

case in hand on the basis of evidence on record. Indisputably P.W.5,

P.W.6 and P.W.7 were the savings bank account holders with branch

post office where the appellant was part time . As it was the duty of

the appellant to receive money which the account holders deposit,

enter the deposits in the account books, post office journal and the

Government account and dispatch the amount to the Government

head, in the instant case, the accused received the money, entered

the same in the passbook but did not enter the said deposits in the

post office journal and the Government ledger. Thus, he failed to

dispatch the said amount to the Government accounts. The money

was kept in his custody. The said fact was proved by P.W.1 on

production of documents. In course of evidence under Section 313

of the Code of Criminal Procedure the appellant admitted the said

fact. The plea was taken that at the relevant point of time his wife

was seriously ill. So, he was mentally perplexed and failed to record

the said deposits in the Government accounts. It is not the case of

the defence that only three persons (P.W.5, P.W.6 and P.W.7) used

to maintain savings bank account in the said post office. In respect

of other bank accounts the appellant entered the said deposits to

various departmental account books and dispatched the amount to

the Government head. Only in respect of these three accounts the

accused failed and such failure circumstantially proves his mens ria

to commit the offence.

In view of such circumstances and for the reasons stated

above, I do not find any reason to spill ink over the judgment and

order of conviction and sentence passed by the learned trial Judge.

The instant appeal is, therefore, dismissed on contest,

however, without costs.

The appellant is directed to surrender before the trial Court

within three weeks from the date of communication of this judgment

failing which the learned trial Judge is at liberty to issue warrant of

arrest against the appellant.

The parties are at liberty to act on the server copy of the

judgement.

Urgent photostat certified copy of this order, if applied for,

be given to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)

Srimanta/Mithun/Suman A.Rs. (Court)