Ganesh Bhakat vs The State Of West Bengal & Anr
2022 Latest Caselaw 5441 Cal

16.08.2022 S/L No.9 KS

C.R.R. 3166 of 2005 Ganesh Bhakat

-Vs.-

The State of West Bengal & Anr.

Mr. Prabir Majumdar Mr. Snehansu Majumdar .....For the Petitioner Mr. Abhra Mukherjee Mr. Sauradeep Dutta .....For the O.P. No.2

The present revisional application has been preferred challenging

the judgment and order dated 30th September, 2005 passed by the

Learned Additional Sessions Judge, Fast Track, First Court, Nabadwip,

Nadia in Criminal Appeal No.6 of 2005/ 2 of 2005 holding the appellant

guilty under Section 406 of the Indian Penal Code and sentencing him to

suffer simple imprisonment for six months and a fine of Rs.2,000/- in

default to suffer further simple imprisonment for one month. The said

appeal was preferred against the judgment and order of conviction and

sentence passed by the Learned Judicial Magistrate, Nabadwip, Nadia

in connection with C.R. Case No.23/2003 wherein the Learned

Magistrate was pleased to hold the present petitioner guilty of offence

under Section 420 and 406 of the Indian Penal Code and sentenced him

to suffer simple imprisonment for one year in respect of each of the

offences.

The case as is reflected from the records originates from the facts

that the accused person and the complainant and the witnesses were

known to each other. Having known to each other, the complainant

went to the house of the accused on 06.08.2001 at about 4 p.m. wherein

the accused convinced all of them that they would be forming "Tant

Samabay Samity" and by that Samity all of them will gain. The accused

assured them to give money to form Samity. Thereafter the shares

certificate would be issued to them which would be proportionate to the

respective amount contributed by each of them. It was further repeated

that Government would aid to the Samity and on such assurance the

complainant and the witnesses deposited money to the accused persons

in the following manner:-

"Complainant - Rs.1500/-

Purna Bhakat - Rs.3000/-

Kartick Bhakat - Rs.1100/-

Sumit Chowdhury - Rs.1000/-

Gour Bhakat - Rs.300/-

Arun Bhakat Rs.900/-."

It has been alleged that thereafter the complainant and the

witnesses demanded refund of money however the accused refused to

give the same.

Consequently, the complaint was filed before the Learned

Magistrate and after examination of the complainant and its witnesses

under Section 200 of the Code of Criminal Procedure as also directing

enquiry to be conducted under Section 202 of the Code of Criminal

Procedure, the learned Magistrate on consideration of the evidence as

well as the report was pleased to issue process under Section 420/406 of

the Indian Penal Code. Pursuant to the summons being received the

accused person appeared and evidence before charge was recorded.

After completion of evidence of the witnesses adduced by the

prosecution in support of its case charge was framed under Section 420

and Section 406 of the Indian Penal Code. The charges were read over

to the accused person to which he pleaded not guilty and claimed to be

tried. It would be reflected from the records of this case that the

prosecution in support of its case examined nine witnesses which

included P.W. 1 Ranjit Bhakat, P.W. 2 Purna Bhakat, P.W. 3 Gour

Bhakat, P.W. 4 Arun Bhakat, P.W. 5 Kartick Bhakat, P.W. 6 Sumit

Chowdhury, P.W. 7 Nakul Debnath, P.W. 8 Sadhan Bhakat and P.W. 9

Mahadeb Bhakat.

The records of the case reflects that each and every witness

corroborated the oral version which was submitted by the complainant.

However, no document has been submitted before the Court in any

form of admissible evidence for the Court to come to a conclusion that

there was entrustment made by the complainant and the witnesses to

the accused. Surprisingly, the Learned Trial Court while referring to the

same has observed that accepting no documents is produced before the

Court, there is no scope for the Learned Trial Court to disbelieve the

oral testimony of the witnesses who have consistently deposed before

the Court. This Court while considering the present revisional

application scanned the Lower Court Records and found none of the

documents have been marked as exhibit. No receipt has been placed

before the Court, as such, the ground assigned by the Learned Trial

Court sofaras the relying upon an oral assertion regarding the factum of

entrustment required scrutiny and, as such, the manner in which the

appeal Court dealt with the point was also considered by this Court.

The Appellate Court affirmed such observation of the Learned Trial

Court that in spite of any document not being placed in course of the

trial but the consistent version of the witness were sufficient enough to

come to a conclusion. The only issue which weighed with the Learned

Trial Court was that Section 420 and Section 406 of the Indian Penal

Code are mutually exclusive and, as such, both the offences cannot be

committed in the same transaction and on such ground the Appellate

Court acquitted the accused i.e. present petitioner under Section 420 of

the Indian Penal Code.

I have considered the reasons assigned by the Learned Trial

Court as well as the Learned Appellate Court. The basic foundation in a

case under the Indian Penal Code is proof beyond any reasonable doubt.

Mere oral assertion that a person has handed over money to any person

is not enough in a case under Section 406 of the Indian Penal Code for a

Court to come to a conclusion more particularly in a case where a Court

is convicting and sentencing an accused person. The nature of evidence

so produced before the Learned Trial Court and the legal appreciation

of the evidence in respect of convicting the petitioner both by the

Learned Trial Court and the appeal Court raises serious questions of fact

and law so far as 'proof' is concerned. The manner in which the Trial

Court and appeal Court has arrived at its conclusion is converting

factual circumstances of may presume to 'conclusive proof', which the

law under no circumstances permit under the provisions of the Indian

Evidence Act.

Having regard to the same, I am of the opinion that the order of

the appellate Court calls for interference as such the judgment and order

dated 30th September, 2005 passed by the Learned Appellate Court in

Criminal Appeal No.6 of 2005/ 2 of 2005 is hereby set aside.

The present petitioner is acquitted of all the charges.

Accordingly, C.R.R. 3166 of 2005 is allowed.

All pending connected applications, if any, are consequently

disposed of.

Department is directed to send back the Lower Court Record to

the respective Courts.

All parties are directed to act on the server copy of this order

downloaded from the official website of this Hon'ble Court.

(Tirthankar Ghosh, J.)