Calcutta High Court (Appellete Side)
Tarun Kanti Chattaraj vs The State Of West Bengal on 3 August, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRA 65 of 1998
Tarun Kanti Chattaraj
Vs.
The State of West Bengal.
For the Appellant : Mr. Niladri Sekhar Ghosh,
Ms. Srimoyee Mukherjee,
Ms. Sompurna Chatterjee,
Mr. Sourov Mondal.
For the State : Mr. Md. Kutubuddin.
Heard on : 27.06.2022
Judgment on : 03.08.2022
2
Shampa Dutt (Paul), J.:
The appeal
The appeal is against the judgment and order dated 12.02.1998 passed
by the Ld. Additional Sessions Judge, 1st Special Court, Bankura convicting the
appellant for commission of offence punishable under Section 409 of the Indian
Penal Code and sentencing him to suffer rigorous imprisonment for 1 ½ years
and to pay a fine of Rs. 500 in default to suffer rigorous imprisonment for 6
months more.
Prosecution case
Amar Kumar Mandal, Sub-divisional Inspector, Postal, Bankura, North
Sub-division, lodged a FIR with Officer-in-charge, Barjora Police Station on
06.08.1990
to the effect that on departmental inquiry the appellant while
working as Extra Departmental Branch Postmaster of Dadhimukha E.D.B.O.
(Extra Departmental Branch Office) accepted on 07.07.1989 being the amount
of premium for the months of February, 1989 to June, 1989 including
defaulting surcharge from the depositor of Dadhimukha 5 years R.D.A/c.
No.10827. The appellant made entry of the deposit in the said R.D. Pass Book
with date stamp impression and manuscript dates and also put his dated
initial but did not credit the said amount to the account of the Post Office
either on that date or on any subsequent date. On receipt of a complaint from
the Sub-Postmaster, Beliatore Sub Office through Senior Superintendent of
Post Offices, Bankura Division under his office letter no. L3/Misc-05/10/89-90
dated 16.10.1989, the complainant carried out a departmental inquiry and it
transpired that the appellant formerly Extra Departmental Branch Postmaster
of Dadhimukha E.D.B.O. accepted a sum of Rs. 947.52 on 12.02.1986 for
crediting the amount in the S.B.A/c. No. 223351 in the name of Dadhimukha
B.B.Vidyalaya P.F. (public account). The appellant entered the amount in the
relevant Pass Book showing the balance after deposit as Rs. 25,548-46 duly
authenticated by his initial and date stamp impression of the Post Office. The
said amount accepted for deposit on 12.02.1986 was not credited to the Govt.
A/c. on the date of acceptance of the money. The appellant credited the money
to the Govt. A/c. on a very later date and accounted for the amount in the
books of accounts of the office on 02.04.1986. Thus, the appellant did not
credit the amount deposited in the Govt. A/c. on the actual date of transaction
and failed to credit the same from 12.02.1986 to 06.11.1989. Further, on
enquiry it transpired that the amounts shown as below in Dadhimukha S.B.
Pass Book A/c. No. 223351 with date stamp impression and manuscript dates
and dated initials of Sri Chattaraj (appellant) had not also been credited to the
Govt. A/c.
Date of deposit Amount of Balance after Remarks
deposit deposit
08.12.1986 987=48 30,424=98 -
13.01.1987 493=75 30,918=73 -
16.02.1987 493=75 31,412=48 -
21.03.1987 493=78 31,906=23 -
16.04.1987 493=75 32,399=98 -
19.05.1987 508=75 32,908=73 -
11.06.1987 508=75 33,417=48 Balance shown
wrongly in PB-
33419=48
18.09.1987 1523=98 34,941=46 Date stamp
wanting Balance
shown wrongly
Rs. 34943=46
However, it has been further stated by the complainant (PW 1) that on a
later stage the appellant admitted his guilt and voluntarily credited the entire
amount to the Govt. A/c. in two instalments on 19.10.1989 and on 06.11.1989
against the said defalcation.
On completion of investigation the police submitted chargesheet against
the appellant for offence punishable under Section 409 IPC.
The defence case before the Trial Court is of innocence and being falsely
implicated.
Charge was framed and the appellant pleaded not guilty and claim to be
tried. In course of trial prosecution examined 11 witnesses and exhibited a
number of documents marked exhibit 1 to 13.
On conclusion of trial, the Trial Judge by the judgment under appeal
dated 12th February, 1998 convicted and sentenced the appellant as stated.
Defence
The Ld. Lawyer for the appellant submitted that charge as framed
against the appellant to the extent that he defalcated an amount of Rs.
5503.96 is by excluding the amount of Rs. 103 in respect of Account no.
10827. No separate charge has been framed in this respect. It is the specific
case of the defence that the depositors have not claimed that there has been
defalcation in respect of their accounts. It has been alleged that the offence has
been committed between 12.02.1986 to 06.11.1989 but the date of defalcation
as alleged do not support said dates. That the Secretary of the Dadhimukha
B.B.Vidyalaya (PW 7) has also not supported the prosecution case and she was
declared hostile. The complainant in his cross examination has stated that the
entire amount as alleged to have been defalcated was credited to the
Government by the appellant voluntarily, but on subsequent dates.
In view of the evidence on record and facts, the defence has submitted
that the appellant is thus entitled to get benefit of doubt, as the prosecution
has not been able to prove their case against the appellant beyond all
reasonable doubt and as such he is entitled to acquittal and the judgment and
conviction under appeal is liable to be set aside.
Prosecution
The Ld. Additional Public Prosecutor has argued that the Trial Court
came to the right finding by holding that the charge under Section 409 of the
Indian Penal Code has been proved against the appellant by way of oral and
documentary evidence beyond all reasonable doubt and that the Trial Judge
rightly came to the findings and convicted the appellant. Hence the appeal is
liable to be dismissed.
Evidence
The evidence before the Trial Court.
PW 1 is the complainant Amar Kumar Mandal. He was posted as Sub-
divisional Inspector, Postal, Bankura North Sub-division on 25.08.1990. At
that time the appellant was posted as Postmaster in Dadhimukha Post Office.
This witness being authorized by the Senior Superintendent of Post Offices,
Bankura inspected S.B. A/c. No. 223351 (Exhibit 8). The said Public account
was in the name of B.B. Vidyalaya P.F. Nine defalcations were found in the said
Pass Book on several dates. As the appellant could not give any satisfactory
application he was suspended from service. On being asked by the complainant
the appellant deposited the amount on two dates that is 19.10.1989 and
06.11.1989. On inspection of R.D. Account no. 10827 (Exhibit 7) defalcation
was found and on being asked again the appellant deposited the defalcated
amount. A written complaint was filed and it was proved before the Court and
PW 1 also identified the appellant on Dock.
Complainant's further evidence is that as per rules all transactions are
shown in the S.B. Journal (Exhibit 10) and B.O. Account Book (Exhibit 10/1
and 11/1) on the same date, but the appellant did not do so. He subsequently
deposited the said amount.
Exhibit 8/3 shows that an amount of Rs. 493.75 was deposited on
16.02.1987 in S.B. Account no. 223351 and the same was authenticated by
the appellant Postmaster in the Pass Book, but Exhibit 10/3 and 11/3 show
that the transaction was not reflected in the S.B. Journal and B.O. Account
Book on the relevant date.
Exhibit 8/4 shows that an amount of Rs. 493.75 was posted on
21.03.1987 in S.B. Account No. 223351 and the same was authenticated by
the appellant Postmaster in the Pass Book, but Exhibit 10/4 and 11/4 show
that the transaction was not reflected in the S.B. Journal and B.O. Account
Book on the relevant date.
Exhibit 8/5 shows that an amount of Rs. 493.75 was deposited on
16.04.1987 in S.B. Account no. 223351 and the same was authenticated by
the appellant Postmaster in the Pass Book, but Exhibit 10/5 and 11/5 show
that the transaction was not reflected in the S.B. Journal and B.O. Account
Book on the relevant date.
Exhibit 8/6 shows that an amount of Rs. 508.75 was deposited on
19.05.1987 in S.B. Account no. 223351 and the same was authenticated by
the appellant Postmaster in the Pass Book, but Exhibit 10/6 and 11/6 show
that the transaction was not reflected in the S.B. Journal and B.O. Account
Book on the relevant date.
Exhibit 8/7 shows that an amount of Rs. 508.75 was deposited on
11.06.1987 in S.B. Account no. 223351 and the same was authenticated by
the appellant Postmaster in the Pass Book, but Exhibit 10/7 and 11/7 show
that the transaction was not reflected in the S.B. Journal and B.O. Account
Book on the relevant date.
Exhibit 8/8 shows that an amount of Rs. 1523.98 was deposited on
18.09.1987 in S.B. Account no. 223351 and the same was authenticated by
the appellant Postmaster in the Pass Book, but Exhibit 10/8 and 11/8 show
that the transaction was not reflected in the S.B. Journal and B.O. Account
Book on the relevant date.
Further evidence of the complainant is that the appellant further
defalcated an amount of Rs. 103 deposited on 07.07.1989 in respect of R.D.
Pass Book no. 10827 in the name of Animesh Mukherjee. The said amount was
entered by the appellant in the Pass Book but the same was not reflected in
R.D. Journal and B.O. Account Book. Endorsement in the Pass Book has been
marked Exhibit 9/1 and R.D. Journal in Exhibit 12. The total amount allegedly
defalcated by the appellant was a sum of Rs. 5606.96. On being cross
examined the complainant has admitted that the B.O. summary is maintained
by the Accounts Officer in respect of the all Branch Offices under his control
and that in every Post Office Postmaster is supposed to maintain a book of the
Postmaster, and has admitted that he did not examine the book of the
Postmaster as it was not required. He has further stated that the counterpart
of pay in slip was not produced by the depositor before him as at that time pay
in slip in two parts was not used.
PW 2, 3 & 4 are staff & officers of the department and are seizure
witnesses.
PW 6 is the Police Officer who recorded the formal FIR.
PW 7 Aloka Chakrabartty who was a teacher of Dadhimukha B. B.
Vidyalaya in the year 1979 in the absence of the Headmistress, she looked after
the accounts of the school herein being S.B. Pass Book no. 223351. The
evidence of this witness is very relevant to the present case which is being
reproduced as follows:-
" I cannot say who has written that Pass Book. The P.F. Amount of the
teachers and non-teaching staff of Dadhimukha Bireswar Jr. High School was
deposited at Dadhimukha P.O. one Postal Inspector came to our school in 1989
(on a day). I was present in the school at that time. The Inspector did not show
me the Pass Book which is marked 'X' for identification. While she was an
operator of the S.B. A/c. relating to P.F., some amount was deposited in that
S.B. A/c. but she could not remember if any amount was deposited in that S.B.
A/c. in 1986-87. She admitted that she made a statement to the Postal
Inspector on 23.10.89 and 06.11.89, but she did not make this statement out
of her own accord."
PW 8 was declared hostile by the prosecution. This witness though
declared hostile has categorically stated in his evidence that there was no
defalcation in respect of the amount of Rs. 740 deposited in his Account no.
10827 on 11.09.1989. This witness has further stated he did not notice any
discrepancy in the balance in his Pass Book on 10.11.1989 and 28.11.1989.
PW 9 Krishnadas Chattaraj was the Secretary of Dadhimukha B. B.
Vidyalaya from 1972 to 1982. This witness is not a relevant witness as he was
not the Secretary of the School from 1982 to December 1989. But has
categorically further stated that during his tenure there was no discrepancy in
their account. This witness was also declared hostile by the prosecution.
PW 10 has identified the handwriting of the appellant being conversant
and has stated that though he signed Exhibit 6 and 7 as per instruction of the
Inspector he cannot say on what he put his signature.
PW 11 is the Investigating Officer in this case. He seized the relevant
documents in this case examined witnesses collected sanctioned order (Exhibit
13) and submitted chargesheet. On being cross examined this witness has
categorically stated that he did not seize any document from Dadhimukha High
School.
Analysis of evidence
The oral evidence and documentary evidence as recorded by the Trial
Court shows that the complainant filed a written complaint against the
appellant on 25.08.1990 on the basis of which Barjora P.S. case no. 44 of 1990
under Section 409 IPC was started. The written complaint (Exhibit 1) was filed
on conducting a Departmental Inquiry.
It was found that the appellant while working as Extra Departmental
Branch Postmaster, Dadhimukha, E.D.B.O. :-
(1) On 07.07.1989, accepted a sum of Rs. 103/- as premium for the
months of February 1989 to June 1989 including defaulting
surcharge from the depositor (PW 8) of R.D. Account no. 10827 and
made the relevant entry in the R.D. Pass Book with date, stamp and
initial.
Offence as alleged by the complainant in this matter is that the
appellant did not credit the said amount to the account of the post
office (S.B. Journal and B.O. Account Book).
(2) On 12.02.1986 the appellant allegedly accepted a sum of Rs. 947.52
paisa for crediting the amount in the Savings Bank Account no.
223351. The appellant made the relevant entry in the Pass Book of
Dadhimukha B. B. Vidyalaya P.F. with initial and stamp. It is alleged
that the said amount was also not credited to the Government
Account (S.B. Journal and B.O. Account Book) on that day, but at a
later date on 02.04.1986.
(3) The complainant has stated that the following deposits shown in
Dadhimukha S.B. Pass Book deposits shown in Dadhimukha S.B.
Pass Book (A/c. No. 223351) with date stamps impression and
manuscript dates and dated initials of the appellant formerly
E.D.B.O./Dadhimukha E.D.B.O. have not been credited in the
Government A/c. and no respective entries made in the relevant
books of account.
Date of Amount of Balance after Remarks
deposit deposit deposit
08.12.1986 987=48 30,424=98 -
13.01.1987 493=75 30,918=73 -
16.02.1987 493=75 31,412=48 -
21.03.1987 493=78 31,906=23 -
16.04.1987 493=75 32,399=98 -
19.05.1987 508=75 32,908=73 -
11.06.87 508=75 33,417=48 Balance
shown
wrongly in
PB. Rs.
33419=48
18.09.87 1523=98 34,941=46 Date stamp
wanting
balance
shown
wrongly Rs.
34,943=46
The Complainant has stated that the appellant allegedly admitted his
guilt and credited the entire amount to the Government Account in two
installments that is on 19.10.1989 and 06.11.1989.
Charge was framed against the appellant to the effect "that on 18.05.94
on the allegation that in his capacity as E.D.B.O. Postmaster between
12.02.1986 and 06.11.1989 at Dadhimukha E.D.B.O. he being a public
servant in the employment as Postmaster of the said Branch Post Office was
entrusted with certain property, viz Rs. 5504.86p. and he committed criminal
breach of trust in respect of the said amount" and accordingly charge was
framed against the appellant for offence punishable under Section 409 of the
Indian Penal Code.
Section 409 Indian Penal Code:-
409. Criminal breach of trust by public servant, or by banker, merchant or
agent. - Whoever, being in any manner entrusted with property, or with any
dominion over property in his capacity of a public servant or in the way of his
business as a banker, merchant, factor, broker, attorney or agent, commits
criminal breach of trust in respect of that property, shall be punished with
imprisonment for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
Ingredients of offence:-
The essential ingredients of the offence under Section 409 are as follows:-
(1) Accused was a public servant, or a banker or merchant or agent or
factor or broker or an attorney;
(2) In such capacity accused was entrusted with certain property or he
gained domain over such property which was not his own;
(3) Accused committed criminal breach of trust with respect to such
property.
The Trial Court considering the evidence on record both oral and
documentary came to a finding of guilt of the appellant and convicted him
under Section 409 of the Indian Penal Code and sentenced him to suffer 2 for
½ years and to pay a fine Rs. 500 i.d. to suffer 2 ½ and 3 months more.
The Trial Court believed the evidence of PW 1 to the extent that on the
basis of a Departmental Inquiry, the alleged defalcation by the appellant was
detected and he was suspended accordingly. No documents relating to the
proceedings of the Departmental Inquiry was produced before the Trial Court
by the prosecution. Nor did the Trial Court call for the same to prima facie see
the basic document which is very foundation of the present case. The Trial
Court further came to a finding that as the relevant entries were made in the
Pass Book and the same allegedly not being entered in the relevant registers,
there was temporary defalcation.
The Trial Court further held that the prosecution case to the effect that
the amount received in respective Saving Accounts were noted in the respective
Pass Books but the said amount was not entered in the relevant S.B. Journal
and B.O. Accounts Book. Subsequently it is alleged that on the direction of the
complainant the appellant allegedly deposited the defalcated amount in the
Government Account.
The essential ingredients to constitute an offence under Section 409 of
the Indian Penal Code has already been noted above.
Firstly a person has to be a Public Servant ......... In the present case
admittedly the appellant was working as an Extra Departmental Branch
Postmaster of Dadhimukha E.D.B.O. at the relevant time.
An Extra Departmental Postmaster is governed by a body of rules called
the posts and telegraphs Extra Departmental Agents (conduct and service)
Rules, 1964 issued under the authority of the Government of India.
Rule 2 (b) of the Rules defining "Extra Departmental Agent" includes
within the category among others Extra Departmental Branch Postmasters.
The Supreme Court held in Superintendent of Post Offices Vs. P.K.
Rajamma etc. (1977 AIR 1677, 1977 SCR (3) 678) that Extra Departmental
Agents held Civil posts under the Union of India.
The Court considered the explanation as to what the 'Civil post' is, in
State of Assam and others Vs. Kanak Chandra Dutta (1967 AIR 884, 1967
SCR (1) 679).
The Court observed:-
"..... a civil post means a post not connected with defence and
outside the regular civil services. A post is a service or employment
...... There is a relationship of master and servant between the State
and a person holding a post under it. The existence of this
relationship is indicated by the State's right to select and appoint the
holder of the post, its right to suspend and dismiss him, its right to
control the manner and method of his doing the work and the
payment by it of his wages or remuneration."
The Court also held in Superintendent of Post Offices Vs. P.K.
Rajamma (1977 AIR 1677, 1977 SCR (3) 676).
".... it is thus clear that an extra departmental agent is not a
casual worker but he holds a post under the administrative control
of the State. It is apparent from the rules that the employment of an
extra departmental agent is in a post which exists "apart from" the
person who happens to fill it at any particular time. Though such a
post is outside the regular civil services, there is no doubt it is a post
under the State."
The Court further held:-
".... the rules make it clear that these extra departmental agents
work' under the direct control and supervision of the authorities who
obviously have the right to control the manner in which they must
carry out their duties. There can be no doubt therefore that the
relationship between the postal authorities and the extra
departmental agents is one of master and servant."
Admittedly it is the case of the prosecution that the appellant was posted
as an Extra Departmental Postmaster of Dadhimukha Sub Post Office and
was thus under the direct control and supervision of the postal authorities and
the relationship between the postal authorities and the said Extra
Departmental Agent is one of master and servant.
PW 1 has clearly stated in this evidence that "..... on receiving the pay in
slip the Postmaster makes entry in the daily account, a part of it is kept in his
custody and the Accounts Office after receiving that pay in slip incorporated
that amount in the register. After incorporating the transaction in the account,
the Accounts Officer sends the same to the Head Office. The Head Office is to
prepare the consolidated stamp of the account, enter the amount in the Ledger
Book and used to send to Savings Bank Control Organization. One B.O.
Summary is maintained by the Accounts Officer in respect of all the
Branch Offices under his control. In every Post Office the Postmaster is
supposed to maintain one book known as book of Postmaster.
In the present case the Extra Departmental Postmaster being the
convict/appellant was under the direct control and supervision of the postal
authorities, more so specifically the Accounts Officer, who in turn sent all the
registers to the Head Office. The Accounts Officer maintains the B.O. summary
in respect of all the Branch Offices under his control. The laches on the part of
the appellant as allegedly detected by the complainant was neither supervised
nor detected by the postal authorities who were in control and had power of
supervision over the daily work of the Extra Departmental Postmaster. The
complainant in this case went for inspection on the strength of a letter written
by the Senior Superintendent of Post Office, Bankura. Surprisingly, the
Accounts Officer who was admittedly in control and also had the power of the
supervision over several Branch Offices including that of the appellant, was
neither examined nor was any statement produced before the Court.
A Criminal trial commences with the framing of charge. In the
present case charge was framed by the Ld. Special Judge, on 18th May, 1994.
The charge read over and explained to the appellant was as follows:-
"That you on or about the 12th day of February, 1986 to 6th November,
1989 at Dadhimukha E.D.B.O. Branch Post Office, P.S. Barjora, District
Bankura, being a public servant in the employment as Postmaster of the said
Branch Post Office and in such capacity entrusted with certain property as
such the amount of Rs. 5503.96p. (Rupees five thousand five hundred three
and ninety six paisa) only, to wit committed criminal breach of trust of the said
amount."
Section 212 of the Cr.P.C. provides:-
(1) The charge shall contain such particulars as to the time and place of the
alleged offence, and the person (if any) against whom, or the thing (if any)
in respect of which, it was committed, as are reasonably sufficient to give
the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest
misappropriation of money or other movable property, it shall be
sufficient to specify the gross sum or, as the case may be, describe the
movable property in respect of which the offence is alleged to have been
committed, and the dates between which the offence is alleged to have
been committed, without specifying particular items or exact dates, and
the charge so framed shall be deemed to be a charge of one offence
within the meaning of Section 219:
Provided that the time included between the first and last of such
dates shall not exceed one year.
In this case the charge as framed by the Trial Court includes the period
from the 12 day of February, 1986 to 6th November, 1989 which is not in
accordance with Section 212 of Cr.P.C. as the period herein exceeds beyond
the period of 1 year.
Though the charge framed is not in accordance with Section 212 of
Cr.P.C. this Court has to keep in mind Section 215 of the Cr.P.C. which lays
down :-
Section 215 in the Cr.P.C., 1973
Effect of errors. - No error in stating either the offence or the particulars
required to be stated in the charge, and no omission to state the offence or
those particulars, shall be regarded at any stage of the case as material, unless
the accused was in fact misled by such error or omission, and it has
occasioned a failure of justice.
The Supreme Court in Criminal Appeal no. 1051-1054 of 2021 with
Criminal Appeal no. 1055-1059 of 2021, (Nasib Singh Vs. The State of
Punjab) vide judgment dated 8th October, 2021 laid down the principle on
retrial in paragraph 28 of the judgment as follows:-
"The principles that emerge from the decisions of this Court on
retrial can be formulated as under:-
(i) The Appellate Court may direct a retrial only in 'exceptional'
circumstances to avert a miscarriage of justice;
(ii) Mere lapses in the investigation are not sufficient to warrant a
direction for retrial. Only if the lapses are so grave so as to
prejudice the rights of the parties, can a retrial be directed;
(iii) A determination of whether a 'shoddy' investigation/trial has
prejudiced the party, must be based on the facts of each case
pursuant to a thorough reading of the evidence;
(iv) It is not sufficient if the accused/prosecution makes a facial
argument that there has been a miscarriage of justice
warranting a retrial. It is incumbent on the Appellant Court
directing a retrial to provide a reasoned order on the nature of
the miscarriage of justice caused with reference to the evidence
and investigatory process;
(v) If a matter is directed for re-trial, the evidence and record of the
previous trial is completely wiped out; and
(vi) The following are some instances, not intended to be
exhaustive, of when the Court could order a retrial on the ground
of miscarriage of justice :
a) The trial court has proceeded with the trial in the absence of
jurisdiction;
b) The trial has been vitiated by an illegality or irregularity
based on a misconception of the nature of the proceedings;
and
c) The prosecutor has been disabled or prevented from
adducing evidence as regards the nature of the charge,
resulting in the trial being rendered a farce, sham or
charade."
So even if it is seen that the charge framed by the Trial Court in this case
was not in accordance with the provision of Section 212 of Cr.P.C, the
circumstances in the present case do not warrant a retrial. More so in view of
the fact that there is exhaustive oral and documentary evidence on record for
consideration of the Court. Section 215 of Cr.P.C. has to be also kept in mind
while considering if a case is to be remitted for retrial. The materials on record
in this case also do not come under any of the grounds for retrial as laid down
by the Supreme Court in the judgment under reference.
The Trial Court relied upon the following entries in the relevant documents:-
(1) Passbook in respect of Dadhimukha B.B.Vidyalaya P.F. Account no.
223351 (marked Exhibit 8 and entries marked Exhibit 8 series).
(2) R.D. Passbook Account no. 10827 of Animesh Mukherjee (marked
Exhibit 9) and the relevant entry has been marked as Exhibit 9/1.
(3) S.B. Journal marked Exhibit 10 series.
(4) Entries made in Passbook marked Exhibit 9, subsequently entered in
the R.D. Journal and B.O. Account have been marked as Exhibit 11 and
12 series.
On perusal of the Branch Office accounts book for the period from
01.08.1988 to 31.08.1989, it is found that the entries in each page of the
accounts book is checked and verified by a superior officer. The register, on the
relevant date that is 07.07.1989 shows no entry. The next register is for the
period from September, 1989 to August, 1990 in respect of Beliatore, Sub-Post
Office. This register also is duly verified by the superior authority (marked 'X'
for identification). The charge was framed for the period from February, 1986 to
6th November, 1989.
It is the case of the prosecution that the appellant voluntarily deposited
the total defalcated amount on two days that is on 19.10.1989 and 06.11.1989.
On scrutiny of the entry dated 19.10.1989 in the said register, there is an
amount of Rs. 5503.96 which has been noted on the top as non credit of the
amount of deposit in Dadhimukha S.B. Account no. 223351 for the period of
08.12.1984 to 18.09.1987 by the Branch Postmaster Dadhimukha. But the
said entry has not been proved before the Court nor marked as Exhibit. The
total register has been marked 'X' for identification but the relevant entry has
not been proved thus not marked Exhibit. In respect of alleged deposit of the
defalcated amount on 06.11.1989. It is seen that an entry of Rs. 103 has been
put in the column of unclassified. The said entry has also not been proved,
thus not marked Exhibit.
The S.B. Journal for the period from 19.12.1984 to 27.10.1989 of
Dadhimukha Branch Post Office shows that the entries in the said Journal,
have been made by several persons, as it shows that the said Journal
contains entries in different handwriting. As such the said Journal prima
facie was not maintained by one single person.
Exhibit 10 shows an entry dated 06.12.1986 wherein the total amount
of deposit on the said day amounting to Rs. 4335.72 has been marked as
Exhibit 10/1 and the said Journal has been marked as Exhibit 10. The
relevancy of this Exhibit 10/1 in Journal marked Exhibit 10 has not been
specifically discussed by the Trial Judge. The said amount has also not been
mentioned in the formal change Exhibit 8 series, Passbook of the P.F. Account
no. 223351 of Dadhimukha B.B.Vidyalaya shows entries as follows:-
Date Amount Exhibit
08.12.86 987.48 8/1
13.01.87 493.75 8/2
21.03.87 493.75 8/4
16.04.87 493.75 8/5
19.05.87 508.75 8/6
11.06.87 508.75 8/7
18.09.87 1523.98 8/8
The S.B. Journal does not show any entry dated 08.12.1986.
The entry in the Passbook amounting to Rs. 493.75 is not shown in the
S.B. Journal on the relevant date that is 13.01.1987, but the same has neither
been proved nor marked Exhibit before the Trial Court. The blank space after
the date 15.01.1987 in the S.B. Journal has been marked as Exhibit 10/2.
There is no such entry dated 15.01.1987 in the Passbook marked Exhibit 8.
The Trial Court held that Exhibit 10/1 series are entries in S.B. Journal but
no comparison has been made relating to the said entries with the respective
Passbook. As such the entry marked Exhibit 10/2 has not been explained as
there is no such connected entry in the Passbook marked Exhibit 8. Exhibit 8
being P.F. Account no. 223351 and Exhibit 9 being Passbook of Account no.
10827. The Trial Court did not compare Exhibit 10/2 with Exhibit 8 and 9.
Exhibit 10/3 shows several entries dated 16.02.1987 entered in the S.B.
Journal. Exhibit 8 which is the relevant Passbook shows an entry of Rs.
493.75, in P.F. Account no. 223351. Though the said amount is not reflected in
the S.B. Journal, there are several entries in respect of other accounts. Exhibit
8/8 appears to be in a different handwriting.
Exhibit 10/4 is an entry marked 24.03.1987. The entry marked Exhibit
10/4 is not clear as to whether the said entry is dated 24.03.1987, as it is seen
that there is an entry in the S.B. Journal between the date 20.03.1987 and
24.03.1987.
Exhibit 8 shows no entry dated 24.03.1987. The entry marked Exhibit
10/4 is not clear as to its relevancy with the entry dated 21.03.1987 in Exhibit
8. Though it is found that the entry dated 21.03.1987 has not been entered in
the said S.B. Journal, the said entry marked Exhibit 8/4 has not been
compared with the S.B. Journal nor proved nor marked Exhibit.
The next disputed entry in Exhibit 8 is dated 16.04.1987. Exhibit 10/5
is entry dated 16.04.1987 in the S.B. Journal. The entry dated 16.04.1987 in
Exhibit 8 has been marked Exhibit 8/5. There is no such connected entry in
the S.B. Journal (proved).
Entry marked Exhibit 8/6 dated 19.05.1987 also does not figure in the
entries dated 19.05.1987 marked Exhibit 10/6 in the S.B. Journal (proved).
Next entry dated 11.06.1987 in Exhibit 8 is marked Exhibit 8/7. The
entries dated 11.06.1987 in S.B. Journal marked Exhibit 10/7 does not show
the said entry marked Exhibit 8/7 (proved).
The next entry dated 18.09.1987 marked Exhibit 8/8 has also not been
entered in the S.B. Journal dated 18.09.1987 (marked Exhibit 10/8).
From the said comparison of the entries in the S.B. Journal and the
Passbook marked Exhibit 8 it is found that the prosecution has clearly proved
that some of the entries marked Exhibit 8 series have not been entered in the
S.B. Journal (Exhibit 10 series). Some of the entries and the dates do not tally
with the dates in Exhibit 8 but as discussed above it is clear that the entries in
Exhibit 8 were not entered on the respective dates in the S.B. Journal (Exhibit
10 series).
It is the case of the complainant that on being asked the appellant
voluntarily deposited the defalcated amount subsequently. The said deposits
on 19.10.1989 and 16.11.1989 though shown in the register, were not proved
before the Trial Court. But the register produced show the said deposits.
Pass Book of Account no. 10827 has been marked Exhibit 9 as a whole.
Exhibit 11 series is the relevant B.O. Account Book and entries therein, which
show that the entries were also not made in the said B.O. Account Book.
Exhibit 12 is the R.D. Journal which also proves that the entries in the
relevant Pass Book, were not entered on the relevant date in the respective
registers.
Thus from the said registers and the relevant Pass Books produced,
proved and exhibited before the Trial Court, it is seen that the prosecution has
been able to prove beyond reasonable doubt that the appellant being in charge
of the Sub-Post Office Dadhimukha as an Extra Departmental Postmaster has
failed to make relevant entries in the respective Journals on the date of
deposits as entered in the Pass Books. It has also been admitted by the
complainant and the prosecution that the appellant/convict subsequently
voluntarily deposited the said amounts, which is reflected in the Beliatore Sub-
Post Office Register. It has also been admitted by the complainant that all the
Branch Post Office along with other Branch Office was under the supervision of
an Accounts Officer and that the B.O. Summary was also maintained by the
said Accounts Officer in respect of all Branch Offices under his control. It is
also seen that each page of the registers produced bear an endorsement to the
effect that it is checked and verified by the authorized person. Inspite of the
said supervision, the defalcation was not detected by the supervising authority
thus providing opportunity to commit the crime. These lack of supervision or
control by the authority creates the circumstances to commit such
defalcation/fraud.
PW 2, PW 3 and PW 4 are staff and officers of the Postal Department
and seizure witnesses.
PW 7 Aloka Chakrabartty is the person concerned in respect of Exhibit
8 being the Pass Book of P.F. Account no. 223351. This witness on oath could
not even recollect if she has seen the Pass Book marked Exhibit 8, though it
relates to the school Dadhimukha B.B.Vidyalaya where she was in-charge to
look after the account in the absence of the Headmistress.
PW 8 is the account holder of Account no. 10827 marked Exhibit 9. This
witness has categorically stated that he did not notice any discrepancy in his
Pass Book.
The Trial Court rightly held that these witnesses were not persons who
could depose anything relating to the relevant entry in the respective Journals
as they had access to only their own Pass Books and not the Journals of the
Post Office.
The identification of the appellant has not been challenged. The
handwriting has been denied by the appellant but the same has been proved by
PW 10 Ashoke Rajguru who was conversant with the handwriting of the
appellant. He has also deposed that the appellant wrote the petition marked as
Exhibit 6 and 7 in his presence and signed the same.
Motive of Crime.
Motive in a case of defalcation is primarily for personal gain.
The dictionary defines:-
Defalcation as:-
(1) misappropriation of money or funds held by an official, trustee, or
other fiduciary.
(2) the sum misappropriated.
Fraud as:-
Wrongful or criminal deception intended to result in financial or personal
gain.
Fraud Triangle
In order to deter, detect and investigate fraud, one must understand how
and why people commit fraud. The concept states that there are three
components which, together, lead to fraudulent behavior. They are:-
(1) a perceived un-shareable financial need (motive/pressure),
(2) a perceived opportunity to commit fraud, and
(3) the rationalization of committing the fraud.
Motive/Pressure
(1) Personal financial pressure.
(2) Addiction.
Opportunity
(1) Lack of internal control.
(2) Senior management not watching.
Rationalization
(1) "I haven't received a raise".
(2) " It's only a loan: I'll pay it back."
The "opportunity" element of the fraud triangle refers to the circumstances
that allow fraud to occur. Even in organizations with an excellent control
environment, fraud is possible if employees circumvent controls being placed in
a position of complete trust. There may be collusion among employees or a lack
of adequate management review. There is a nearly endless list of reasons a
person would feel compelled to commit fraud. It could be personal financial
problems, such as mounting medical bills, gambling debts or a spouse laid off
from their job, employee's compensation tied to financial performance, or
greed. Rationalization of committing fraud involves fabricating a moral excuse
to justify the fraud. Many fraudsters view themselves as honest, ordinary
people and not as criminals, so they have to come up with some reasoning to
reconcile the act of committing fraud.
From the above discussion and definition it can only be held that as the
appellant was In-charge of Dadhimukha Sub Post Office being the Extra
Departmental Sub Postmaster, was in total control of the daily affairs of the
said Post Office and as such the circumstances provided him with opportunity
to commit the crime. The materials on record also prima facie show that there
was no proper supervision over the functioning of the Sub Post Office. The
circumstances of there being any financial need has not been proved before the
Trial Court by the prosecution. As such the Court can only come to the finding
that the appellant's sole motive was for illegal financial gain.
Conclusion
The analysis of evidence as discussed above clearly proves the
prosecution case beyond reasonable doubt. The innocence of the appellant has
not been proved, nor caused any shadow of doubt over on the prosecution
case.
From the findings based on both oral and documentary evidence it is
seen that the Trial Court came to the right finding and it has been established
by the prosecution that the appellant as a public servant committed criminal
breach of trust in respect of an amount of Rs. 6555.28 paisa (altered at the
time of judgment).
This is a very old case dated 06.08.1990 relating to alleged
defalcation for the period from February, 1986 to November, 1989.
The incident occurred more than 30 years back. Thus considering
the case of the prosecution and the complainant, that it was a case of the
temporary defalcation, as the amounts were subsequently deposited
voluntarily by the appellant, and the facts and circumstances of the case/the
materials on record, this court is of the view that if the sentence of the
appellant is modified to a certain extent keeping in mind the age of case
(almost 30 years) and the hope that the appellant during all these years
(almost 30 years) had the opportunity of introspection and the feeling of
regret, the same shall serve the interest of justice.
The initiation, trial, conviction and appeal has taken away the most
important part of the appellant's mental, social and working life.
Substantive sentence imposed on the appellant is accordingly modified
and he is directed to suffer rigorous imprisonment for a period of 25 (twenty
five) days. The sentence of fine imposed by the Trial Court is enhanced to a
sum of Rs. 10,000 (ten thousand) in default to suffer rigorous imprisonment for
6 months more for offence punishable under Section 409 of Indian Penal Code.
Bail bond of the appellant is cancelled. The appellant is directed to
surrender forthwith and serve out the remainder of his sentence (if any) within
one month from date.
In the event he fails to do so, trial court shall take appropriate steps to
apprehend him and execute the sentence in accordance with law.
The period of detention, if any, undergone by the appellant during
investigation, enquiry and trial shall be set off against the substantive
sentences imposed upon him in terms of Section 428 Cr.P.C.
The appeal is, allowed to the aforesaid extent.
Let a copy of this judgment along with the lower court records be sent
down to the trial court immediately.
Urgent Photostat Certified copy of this Judgment, if applied for, be
supplied expeditiously after complying with all necessary legal formalities.
(Shampa Dutt (Paul), J.)
