Calcutta High Court (Appellete Side)
The State Of West Bengal vs Bhabani Birbanshi & Anr on 25 August, 2022
1
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
GA 24 of 1984
The State of West Bengal
Vs.
Bhabani Birbanshi & Anr.
For the Appellant/State : Mr. Pravash Bhattacharya,
Mr. Diptendu Banerjee.
For the Amicus Curie : Mr. Santanu Talukdar.
Heard on : 01.07.2022
Judgment on : 25.08.2022
2
Shampa Dutt (Paul), J.:
The appeal is against the judgment and order of acquittal dated
31.07.1984
passed by the Ld. Judge, Additional Special Court, Birbhum in
Special Court case no. 2 of 1982 acquitting the opposite party no. 1 Bhabani
Birbanshi of the charge punishable under Section 409 read with Section 109 of
the Indian Penal Code and the accused/opposite party no. 2 Hriday Ranjan
Banerjee of the charge punishable under Section 468, 465, 471 and 409 of the
Indian Penal Code. Leave to appeal under Section 378 (3) read with sub Section
1 of the Code of the Criminal Procedure 1973 was prayed for and granted by
this court on 20.12.1985.
The opposite party/complaint's (State of West Bengal) case against the
accused/opposite parties in short is as follows:
Office of the Administrator, Sainthia Anchalik Parishad is situated within
the office of B.D.O. Sainthia with its office at Ahamedpur. The B.D.O., Sainthia
works as the Administrator of the said Anchalik Parishad in addition to his
own duties as B.D.O.
In 1976 accused Hriday Ranjan Banerjee was the only clerk-cum-typist
of that office. There was also one peon in the office. Prabhat Kumar Singha
joined as B.D.O., Sainthia in May, 1975 and also worked as Administrator of
the Parishad upto 1976.
Hriday Ranjan Banerjee as the only clerk of that Anchalik Parishad was
the custodian of all the papers, registers and cheque books of the Anchalik
Parishad and those papers and cheque books were kept in a steel Almirah
within the office.
On 22.05.1976 in the morning (during morning sessions of office) it was
detected at Suri Treasury that one cancelled cheque of Sainthia Anchalik
Parishad was encashed forging the signature of the Administrator. That cheque
was passed in the name of one Prasanta Banerjee for a sum of Rs. 31,954.35
paisa.
At the relevant time accused Bhabani Birbanshi was the accountant of
Suri Treasury. He was consulted over the matter. The matter was brought to
the notice of the then Treasury Officer, Sri N.K.Bhattacharjee who had joined
that office in March, 1976. As the cheque was encashed by practising fraud, Sri
Bhattacharjee lodged a written complaint with the officer-in-charge of Suri
police station.
On completion of investigation police submitted chargesheet against the
accused persons. Charge was framed accordingly against each of the accused
persons under the above mentioned Sections of the Indian Penal Code to which
they pleaded not guilty and claimed for trial.
Appellant/Prosecution (State) case
Mr. Pravash Bhattacharya, Ld. Additional Public Prosecutor submits
that during investigation it was revealed that the disputed cheque issued was a
cancelled cheque of 1971. It further revealed that accused Hriday Ranjan
Banerjee was the custodian of the cheque and some days before the
encashment of the disputed cheque he placed an order with Saraswati Art
Press at Ahamedpur for a rubber stamp on behalf of the Bolpur-Sriniketan
Anchalik Parishad. Accordingly police seized the 'Chit' on which accused
Hriday Ranjan Banerjee himself wrote the description of the rubber stamp and
also the cash memo book showing the carbon copy of the cash memo for the
order placed by the accused Hriday Ranjan Banerjee. During investigation the
forged cheque bearing no. 003727 of book no. 000075 and the above
mentioned 'Chit' and the specimen writings and signatures and standard
writings and signatures in English in the hand of the accused Hriday Ranjan
Banerjee were sent to the Examiner of questioned documents attached to C.I.D.
West Bengal, for his comparison and opinion.
It is further submitted that inspite of the materials and evidence on
record the Trial Judge erroneously acquitted the accused/opposite parties.
That there is substantial evidence on record which could have warranted a
conviction and acquitting the accused persons has caused gross miscarriage of
justice. That the judgment under appeal suffers from material irregularities
and the evidence on record has not been properly considered by the Ld. Trial
Judge inspite of the prosecution/state having proved their case beyond all
reasonable doubt. That the Trial Judge did not consider the evidence of
majority of the witnesses causing failure of justice and wrongly held that if
Treasury Rules West Bengal and the Subsidiary Rules are always followed then
such offence could not be committed. The appellant/state further submits that
the chain of circumstantial evidence is complete and as such the guilt of the
accused/opposite parties has been clearly proved. That the evidence of PW 13
Prabhat Kumar Singha, B.D.O. was not considered by the Trial Judge which
conclusively proved the charge against the accused persons beyond all
reasonable doubt. It is further submitted by the state that the Trial Judge
approached the whole case from a wrong angle resulting in gross miscarriage of
justice. And thus the appeal should be allowed and the accused/opposite
parties accordingly convicted.
Accuseds/opposite parties case
Mr. Santanu Talukdar, Ld. Amicus Curie submits before the court that
the Ld. Trial Judge rightly interpreted the Treasury Rules of West Bengal and
the Subsidiary Rules of 1967. Each of the charge and action of the
accused/opposite parties was dealt with specifically and categorically by the
Ld. Trial Judge. It is submitted that none of the Treasury Rules as required
were followed. The Trial Judge rightly came to the findings that the signature
on Exhibit 4 inspite of examination of the handwriting expert could not prove
that accused Hriday Ranjan Banerjee had forged the signature. The Trial Judge
also rightly held that the handwriting expert did not say that any writing in the
cheque book marked Exhibit II was erased at any point of time. From the
evidence of the handwriting expert the Trial Court rightly held that case of
forgery against accused Hriday Ranjan Banerjee could not be proved. The Trial
Court rightly held that accused Hriday Ranjan Banerjee did not present the
alleged cheque before the Treasury authority or the State Bank of India and as
such there was no evidence to prove that accused Hriday Ranjan Banerjee had
reason to believe that it was a forged document and the Trial Court also rightly
held that though the case of the prosecution is that the cheque was cancelled
in the year 1971 and was in the custody accused of the Hriday Ranjan
Banerjee along with other papers of the Anchalik Parishad (violating the rules),
it has come before the court that in the absence of Hriday Ranjan Banerjee
some other persons worked as clerk of the Parishad and had access over the
said cheque book and other documents and came to the right finding that the
accused was never entrusted with the cancelled cheque. Though the
prosecution tried to make out a case of misappropriation, they could not prove
that the said amount was actually withdrawn. Other than oral evidence there is
no documentary evidence that the said cheque was encashed or that the
disputed amount was withdrawn. The Trial Court rightly held that the
Investigating Officer also admitted that he did not examine any person of the
State Bank and nor did he seize any documents. It was also further rightly held
by the Trial Court that the handwriting expert could not give any definite
opinion on the said document and without such confirmed opinion the said
document cannot be relied upon.
It is further submitted by the Ld. Amicus Curie that the case of the
prosecution based on circumstantial evidence has not been proved as the
prosecution failed to complete the chain of circumstances to substantiate the
charge and the Trial Court rightly acquitted both the accused persons/opposite
parties of all charge giving them the benefit of doubt. It is further submitted by
the Ld. Amicus Curie that the Trial Court also considered the charge against
accused Bhabani Birbanshi that he abetted accused Hriday Ranjan Banerjee in
commission of the offence of misappropriation and rightly held that as the
prosecution failed to prove the charge against accused Hriday Ranjan Banerjee,
the case of abetment in respect of accused Bhabani Birbanshi also fails.
It is further submitted that the Trial Court rightly held that the witnesses
more specifically PW 17 did not support the case of the other witnesses
regarding the conduct of accused Bhabani Birbanshi and as such rightly held
that the prosecution failed to prove the charge against accused Bhabani
Birbanshi beyond reasonable doubt and rightly acquitted both the
accused/opposite parties and as such the appeal should be dismissed.
Evidence on record
The prosecution examined 22 witnesses in all.
Prosecution witness no. 1, Sri N.K.Bhattacharjee is the Treasury
Officer and the complainant (Exhibit 1). He has reiterated his case as stated in
the written complaint. On being cross examined this witness could not recollect
the total incident.
Prosecution witness no. 2, Shiba Prasad Ghosh was the then B.D.O. of
Bolpur Sriniketan Block Ex-Officio Administrator of Bolpur Sriniketan
Anchalik Parishad and he is a seizure witness of the rubber stamp (Exhibit
2/3).
Prosecution witness no. 3, Sahadeb Chowdhury was a clerk in the
Anchalik Parishad at the relevant time. He is also a witness to the seizure of
the rubber stamp (Exhibit 2/4).
Prosecution witness no. 4, Ranjit Kumar Mukherjee is the Recording
Officer and also seized several documents connected with the case.
Prosecution witness no. 5, Nani Gopal Chakraborty was one of the
Investigating Officer who sent the specimen signatures and handwriting for
handwriting expert opinion.
Prosecution witness no. 6, Ramtaran Roy is S.I. of police who was
directed to seize the rubber stamp by O.C. Suri.
Prosecution witness no. 7, Sudhindra Krishna Das another S.I. of
police. He further investigated the case.
Prosecution witness no. 8, Lakshman Chandra Banerjee member of
the West Bengal Higher Judicial Service, has stated that is not possible to say
anything without reference to any document.
Prosecution witness no. 9, Tulsidas Lai further I.O.
Prosecution witness no. 10, Debdas Roy L.D.Assistant of Suri
Treasury.
Prosecution witness no. 11, Radhashyam Das receipt clerk at Suri
Treasury.
Prosecution witness no. 12, Rajani Kanta Das is the examiner of
questioned documents C.I.D., West Bengal. He deposed that he examined one
cheque being no. 003727 of Book No. 000075 in the name of Prasanta
Banerjee, containing writings and signatures in English on the cheque. But he
was unable to give any opinion regarding the authorship of the questioned
writings and the signatures on the said cheque.
Prosecution witness no. 13, Prabhat Kumar Singha B.D.O. He took
charge as B.D.O. on 10th may, 1975.
Prosecution witness no. 14, Kshirode Chowdhury was the Munsif-
cum-Judicial Magistrate, 1st Class. He recorded the statement of witnesses
under Section 164 Cr.P.C. (marked Exhibit 8 and 9).
Prosecution witness no. 15, Chittaranjan Das further I.O.
Prosecution witness no. 16, Bibhuti Bhusan Guha further I.O.
Prosecution witness no. 17, Ashit Kumar Bagchi L.D.Assistant at
Birbhum Treasury. He received the disputed cheque (Exhibit 4). He suspected
the genuineness of the cheque and handed over the same to the Treasury
Officer which was later seized by the police under a seizure list.
Prosecution witness no. 18, Ashit Kumar Sil L.D.Assistant under
B.D.O. Sainthia.
Prosecution witness no. 19, Sukharanjan Burman Panchayet clerk in
the office of the B.D.O. Sainthia.
Prosecution witness no. 20, Ashit Baran Aich one of the owners of
Saraswati Art Press of Ahamedpur, has stated that accused Hriday Ranjan
Banerjee had placed an order for a rubber stamp (Exhibit 10).
Prosecution witness no. 21, Ashoke Kumar Sen and Prosecution
witness no. 22, Habib Sheikh are seizure witness.
The following documents were proved by the prosecution/state before the Trial
Court and marked as Exhibit.
Serial no. of Description of the Exhibits
Exhibits
Exhibit 1 Written complaint of PW 1 Sri
N.K.Bhattacharjee.
Exhibit 2 Signature of PW 1 N.K. Bhattacharjee in
a seizure list on 24/5/76.
Exhibit 2/1 Signature of PW 1 N.K. Bhattacharjee in
a seizure list on 24/5/76.
Exhibit 2/2 Signature of PW 1 N.K. Bhattacharjee in
a seizure list on 22/5/76.
Exhibit 2/3 Signature of PW 2 Sri S.P.Ghosh in a
seizure list.
Exhibit 2/4 Signature of PW 3 Sahadeb Chowdhury
in a seizure list.
Exhibit 1/1 Formal FIR.
Exhibit 1/2 Endorsement made by PW 4 in the
written complaint.
Exhibit 3 Seizure list of 22/05/76.
Exhibit 3/1 Seizure list of 23/05/76
Exhibit 3/2 Seizure list of 24/05/76
Exhibit 3/3 Seizure list of 24/05/76.
Exhibit 3/4 Seizure list of 25/05/76.
Exhibit 3/5 Another seizure list of 25/05/76.
Exhibit 3/6 Seizure list of 27/05/83.
Exhibit 3/7 Seizure list of 03/05/78.
Exhibit 3/8 Seizure list of 25/05/76 regarding
rubber stamp.
Exhibit 4 Cheque
Exhibit 2/5 Signature of PW 13 Prabhat Kumar
Singha in a seizure list.
Exhibit 5 Entry on page no. 91 in the cash book.
Exhibit 2/6 Signature of PW 13 Prabhat Kumar
Singha in a seizure list.
Exhibit 2/7 Signature of PW 13 Prabhat Kumar
Singha in a seizure list.
Exhibit 6 Entries in the cheque register dated
01.03.71.
Exhibit 7 Writings in four sheets in the
handwriting of accused Hriday Ranjan
Banerjee (marked collectively).
Exhibit 2/8 Signature of PW 13 Prabhat Kumar
Singha in a seizure list.
Exhibit 7/1 to Certificate of PW 13 appended in four
7/4 sheets of paper (Exhibit 7).
Exhibit 8 Statement of witness Sankar Lal Bose.
Exhibit 8/1 Certificate appended to the statement of
witness Sankar Lal Bose by the PW 14
Kshirode Chowdhury.
Exhibit 9 Statement of witness Ashit Baran Aich.
Exhibit 9/1 Certificate appended to the statement
of witness Ashit Baran Aich by the PW
14 Kshirode Chowdhury.
Exhibit 10 Brown slip written by the accused
Hriday Ranjan Banerjee.
Exhibit 11 Carbon copy of cash memo.
Exhibit 2/9 Signature of PW 20 Ashit Baran Aich in
a seizure list.
Exhibit 2/10 Signature of PW 20 Ashit Baran Aich in
a seizure list.
Exhibit 2/11 Signature of PW 21 Ashoke Kumar Sen
in a seizure list.
Exhibit 2/12 Signature of PW 22 Habib Sheikh in a
seizure list.
Analysis of evidence.
Charge against the accused/opposite party was framed as follows:-
"(1) That you, accused Hriday Ranjan Banerjee on or about the 20th day
of May 1976 at Suri Treasury and State Bank of India, Suri Branch
within P.S. Suri forged a cancelled cheque bearing no. 003727 of
Book no. 000075 in favour of one Prasanta Banerjee intending that it
shall be used for the purpose of cheating and thereby committed an
offence punishable under Section 468 of the Indian Penal Code, and
within the cognizance of this court.
(2) That you, on or about the same day of at the same place as stated
about, fraudulently and dishonestly used as genuine a certain
document to wit, a forged rubber stamp and forged cancelled cheque
bearing no. 003727 of Book No. 000075 in favour of the Prasanta
Banerjee which you knew, or had reason to believe, at the time you
used it, to be a forged document and thereby committed an offence
punishable under Section 465 and 471 of the Indian Penal Code, and
within my cognizance of this court.
(3) That you, on or about the same day of same place as stated above,
being a clerk in the office of the Administrator Sainthia Anchalik
Parishad - a public servant and you in capacity, have been entrusted
with a cancelled cheque bearing no. 003727 of Book No. 000075 in
favour of the Prasanta Banerjee to the tune of Rs. 31,954.35 paisa
and you misappropriated the said amount by drawing the said
cheque on 20.05.1976 from the State Bank of India, Suri Branch and
you committed criminal breach of trust with respect to the said
property and thereby committed an offence punishable under Section
409 of the Indian Penal Code, and within my cognizance of this
court."
Whether the ingredients required to constitute the charge as framed
under Section 468 of the Indian Penal Code has been proved by the
prosecution against the accused/opposite party.
Section 468 of the Indian Penal Code lays down as follows:-
468. Forgery for purpose of cheating.--
Whoever commits forgery, intending that the
*[document or electronic record forged] shall be
used for the purpose of cheating, shall be
punished with imprisonment of either de-
scription for a term which may extend to seven
years, and shall also be liable to fine.
Ingredients of offence. - The essential ingredients of the offence under Sec.
468 are as follows:-
(1) There should be a forgery in respect of the
document or electronic record in question.
(2) The intention of the forgery should be that
the forged document or electronic record is
to be used for the purpose of cheating.
(3) There should be forgery with particular
intent - Ram Narayan v CBI (2003)3 SCC
PW 1 the then the Treasury Officer has deposed that the disputed
cheque being no. 003727 of Book No. 000075 in favour of Prasanta Banerjee
for a sum of Rs. 31,954.35 paisa was passed from the Suri Treasury on
20.05.1976. On the belief that the said cheque was issued by the Administrator
Bolpur Sriniketan Anchalik Parishad. This witness has stated that they were
intimated as the cheque came back from the State Bank of India, Suri Branch
after encashment. At that time the Dealing Assistant being PW 17 informed
him that it was a cancelled cheque and it was encashed by practising fraud
after making forgery. This witness filed the written complaint. On being cross
examined he has admitted that as per Treasury Rule he passed the said cheque
observing the legal formalities to be observed by a Treasury Officer. He has also
not stated in his written complaint that he was informed by PW 17 that the
cheque was a cancelled cheque and was forged and this witness has further
admitted that he worked as the B.D.O. for 14 years and also acted as
Administrator of Anchalik Parishad and issued cheques. To prove that the
opposite party committed forgery the prosecution has made out a case that a
rubber stamp of the Administrator of the Anchalik Parishad was prepared by
the accused/opposite party Hriday Ranjan Banerjee to commit the forgery.
PW 2 the B.D.O. and Ex-Officio Administrator of Bolpur Sriniketan
Anchalik Parishad in May, 1976 is a seizure witness in respect of the said
rubber stamp. In his deposition, this witness has categorically stated that he
could not detect any wrong with the office papers, the cheque books or
the accounts.
PW 3 is a clerk of the said office and has stated in his evidence in chief
that he and the Administrator handled those seals and none else handled the
same. The key of the Almirah where all documents and seals were kept was
with the Administrator. He is a seizure witness to the rubber stamp seized by
the police on 25.05.1976.
PW 4 was the Recording Officer and also one of the Investigating Officers.
He examined witnesses and seized documents. He has stated that he did not
seize the voucher of the State Bank sent to Suri Treasury showing
payment of disputed amount. Nor did he seize any paper from State Bank.
PW 6 is also another Investigating Officer who seized the rubber stamp
as produced by PW 3. PW 3 in his evidence has categorically admitted that
no one other than him and the Administrator handled those seals.
PW 7 has admitted during trial that the said seized rubber stamp could
not be traced out.
PW 12 is the most important witness in this case being the handwriting
expert. His definite opinion regarding authorship of the questioned writings
and signature was stated to be not possible from the materials in hand.
PW 13, W.B.C.S. Officer and B.D.O. has clearly deposed that from the
entries in the cash book he found that the cancelled cheque no. 003727 of
Book No. 000075 was never encashed and never entered in the cash book. This
witness has further stated that it was the duty of the Administrator to keep
the cheque book in their custody. But they kept the same in the custody of
the clerk on good faith.
On being cross examined principal witness no. 17 who allegedly
brought to the notice of PW 1 the complainant, the said cancelled cheque being
forged has categorically stated in his cross examination that he did not report
to the Treasury Officer (PW 1) about use of any cancelled cheque. He has
further stated that he had no duty about the transaction over any cheque.
This witnesses further categorically stated that it is dealt with by several clerks
and that he was not called by the Treasury Officer at any point of time for any
cheque of any big amount.
PW 19 has proved Exhibit 10 to be in the handwriting and the signature
of the opposite party/accused Hriday Ranjan Banerjee. The said document
could not be proved by the handwriting expert as he could not identify the
same. It is also seen on careful perusal of Exhibit 10 that the same is not at all
legible to form any opinion.
As such on analysis of evidence it is seen that:
PW 1 admits that he passed the cheque observing legal formalities as
Treasury Officer.
PW 2 could not detect any wrong with the office papers, cheque books
and accounts.
PW 3 stated that only he and the Administrator handled the seals and no
one else handled the same.
PW 4 did not seize the most important document being the voucher by
which allegedly the opposite party committed forgery and misappropriated the
amount withdrawn by him on the basis of the forged cheque.
PW 7 has deposed before the court that the seized rubber stamp could
not be traced out.
PW 12 the handwriting expert clearly deposed that it was not possible for
him to give any definite opinion regarding authorship of the question
documents.
The Statement of PW 1 the complainant has not been supported or
corroborated by PW 17. PW 1 had stated that he had been informed by PW 17
that PW 17 suspected that the disputed cancelled cheque was forged, whereas
in his evidence as PW 17, the said Ashit Kumar Bagchi has clearly stated that
he did not report to the Treasury Officer about the use of any cancelled cheque
and that he had no duty about the transaction over any cheque.
It has also been admitted on cross examination of the Investigating
Officer Tulsidas Lai, (PW 9) in this case that "I did not examine any
employee of the State Bank. I did not seize any paper from the State Bank
showing payment of the disputed amount".
Herein is clearly seen in view of the facts and circumstances of the case
that the disputed cheque in the present case could not be proved to be forged
as neither the handwriting expert could give any definite opinion nor was any
bank official examined to that effect. The intention of the opposite party in
respect of the alleged forgery also could not be proved as the relevant
documents relating to alleged encashment were not produced nor proved before
the Trial Court (PW 9). As such the ingredients required to prove the charge
under Section 468 could not be proved against opposite party no. 2 by the
prosecution beyond reasonable doubt.
The next charge is for offence punishable under Section 465 and 471 of
the Indian Penal Code.
In view of the discussions above and the analysis of evidence as
discussed this court finds that the prosecution also could not be prove the
ingredients required to prove the charge under Section 465 and 471 IPC.
The next and final charge is under Section 409 of the 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 Sec.
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.
From the evidence on record admittedly the opposite party no. 2 was a
public servant. In the present case the dispute is regarding a cancelled cheque
being encashed by practicing forgery and misappropriation.
Admittedly the accused/opposite party no. 2 was a clerk in the office of the
Administrator of Sainthia Anchalik Parishad. PW 3 Sahadeb Chowdhury a
clerk of the said Parishad has clearly stated that only he and the Administrator
handled the seals and no one else handled the same.
PW 2 the B.D.O. of the Parishad could not detect anything wrong with the
office papers, cheque books and the accounts.
PW 13 the then B.D.O. and also in charge of Administrator of Sainthia
Anchalik Parishad has deposed that the opposite party no. 2 was the then clerk
of the said office and that he was the custodian of the cheque book and all
other papers and registers of the Parishad.
This witness on being cross examined has clearly admitted that according
to rules it was his duty to keep the cheque book in his custody but in
good faith, it was kept in the custody of clerk of Anchalik Parishad. From
evidence of PW 13 it is apparent that though the Administrator is the
custodian of all documents, register, cheque books, it is a practice to keep
the same in the custody of the clerk of the office. Keeping in the custody
of a clerk against the rules in, good faith is not entrustment as these
documents in such cases are not officially entrusted to a public servant in
his official capacity as a public servant.
In the present case such being the situation the custody herein does not
come within the meaning of entrustment as the opposite party no. 2 herein was
not entrusted with the cheque in his official capacity, and as such it was not
"entrustment" as required to constitute an offence under Section 409 of the
Indian Penal Code.
In the present case as such the evidence which has come before this court
shows that there was no entrustment in favour of the opposite party no. 2
Hriday Ranjan Banerjee in his capacity as a public servant. It was also not
proved that the said disputed cheque was forged by the opposite party no. 2.
The handwriting expert also could not give any definite opinion regarding the
writing on the cheque.
Finally there is no evidence before the Trial Court brought before the court
by the prosecution to prove that the cheque was presented for encashment or
that the cheque had been encashed as no such document was seized as
admitted by PW 9 from the State Bank showing payment of the disputed
amount. In view of the said materials on record this court finds that the
ingredients required to prove the charge under Section 409 has also not been
proved by the prosecution beyond all reasonable doubt.
The Ld. Trial Court rightly held that a cancelled cheque bears the
endorsement "cancelled" and such cancelled cheque cannot be encashed. The
allegation of encashing a cancelled cheque includes the allegation that the said
endorsement 'cancelled' was erased. But in the present case there is no such
specific allegation, neither in the evidence nor in the charge. The handwriting
expert has also not deposed anything in that respect and as such the Trial
Court rightly came to the finding that it could not be proved by the prosecution
that the disputed cheque was forged. It was rightly further held by the Trial
Court that the prosecution could not produce any evidence on record to show
that the opposite party no. 2 Hriday Ranjan Banerjee at any point of time
presented the cheque before the Treasury Authority or at the State Bank for
encashment of the same and as such rightly held that the prosecution failed to
substantiate the charge under Section 465 and 471 of the IPC against the
opposite party.
The Trial Court also rightly held that the cheque book and other papers of
the Parishad used to be kept in the custody of the clerk violating the rules and
rightly held that the said charge was not proved against the accuseds/opposite
parties by the prosecution. There is also absolutely no documentary evidence
on record to show that the said disputed cheque was presented or encashed or
that the disputed amount was withdrawn from the Bank by the opposite party
no. 2 and as such prosecution could not prove that the cheque was drawn by
the opposite parties/accuseds. The handwriting expert also could not prove the
handwriting on Exhibit 10 which is supposed to be a 'Chit' relating to making
of the rubber stamp and finally this court finds that Trial Court rightly gave the
benefit of doubt in respect of all the grounds of charge leveled against the
accuseds/opposite parties and rightly acquitted the opposite parties/accuseds.
The second opposite party is Bhabani Birbanshi. Charge was framed against
the said accused/opposite party to the effect that.
"You accused Bhabani Birbanshi on or about 28th day May, 1976 at Suri
Treasury and State Bank of India, Suri Branch within Suri P.S. abetted
accused Hriday Ranjan Banerjee in the commission of the said offence of
misappropriation of Rs. 31,954.35 paisa by Shri Hriday Ranjan Banerjee a
public servant which was committed in consequence of your abetment, and
that you have thereby committed an offence punishable u/s. 109 and 409 of
the Indian Penal Code and within the cognizance of this court."
The appeal is also against the acquittal of opposite party no. 2 Bhabani
Birbanshi. The single charge against this accused/opposite party is under
Section 409/109 of IPC. As the Trial Court and also this court has come to the
finding that the prosecution has failed to prove the charge against
accused/opposite party Hriday Ranjan Bannerjee, the charge of abetment
under Section 109 of the IPC against the present accused/opposite party also
fails. There is absolutely no evidence on record to show that accused/opposite
party Bhabani Birbanshi was in any way connected with the incident in this
case. The only evidence against accused Bhabani Birbanshi has been given by
PW 17 Ashit Kumar Bagchi who at the time of suspecting the genuineness of
the cheque stated that he did not consult Bhabani Birbanshi over the cheque.
But after a long pause this witness has stated that he also consulted accused
Bhabani Birbanshi and Bhabani Babu instructed him to stop further
payment and asked him to inform the Administrator about the matter. As
such it is found that no 'mens rea' or any ingredients required to constitute the
offence as charged in respect of Bhabani Birbanshi could be proved before the
Trial Court and the Trial Court also rightly acquitted accused Bhabani
Birbanshi of all charge.
The appeal thus stands dismissed.
Let a copy of this judgment along with the lower court records be sent down
to the trial court immediately.
Photostat certified copy of this judgment, if applied for, be given to the
parties upon compliance with all requisite formalities.
(Shampa Dutt (Paul), J.)
