Biswanath Sett vs The State Of West Bengal & Anr
2022 Latest Caselaw 1486 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                             Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                        CRA 63 of 2003
                        Biswanath Sett
                             -Vs.-
                The State of West Bengal & Anr.

For the appellant        :   Mr. Milon Mukherjee, Sr. Adv.,
                             Mr. Prosenjit Mukherjee, Adv.,
                             Ms. Sreyashi Biswas, Adv.,
                             Mr. Saptarshi Chakraborty, Adv.,
                             Ms. Tiyasa Ghosh, Adv.

For the State            :   Mr. Swapan Banerjee, Adv.,
                             Ms. Sujata Das, Adv.

Heard on                :    06.04.2021,08.03.2022,
                             24.03.2022,25.03.2022.

Judgement on             :   25.03.2022.

Bibek Chaudhuri, J.

Judgment and order of conviction and sentence passed by the

learned Special Jude, 2nd Court at Howrah on 28th January, 2003 in

Special Case No. 1/2000 arising out of G.R.Case No. 370/1998 and

J. B. Pur Police Station Case No. 22/1998 is assailed in the instant

appeal under Section 374(2) of the Code of Criminal Procedure.

The Learned Trial Judge holding the appellant guilty for

committing offence under Section 409 of the Indian Penal Code

convicted him and passed a sentence of rigorous imprisonment for

three months and also to pay fine of Rs.50,000/-, in default, to suffer

further rigorous imprisonment for three months.

The above-mentioned police case was registered on the basis of

a written complaint submitted by the District Inspector of Schools

(SE), Howrah on 1st March, 1998. It is alleged in the written

complaint that the appellant being the Headmaster of Jagatballavpur

High School withdrew a sum of Rs.10,30,000/- during the period

between April, 1997 and July, 1997 for payment of salaries of the

teaching and non-teaching staff of the said school. However, he

disbursed Rs.8,80,142/- only as salary and other emoluments to the

teaching and non-teaching staff for the months of March, 1997 to

June, 1997 as per the Bank statement and acquaintance rolls register

as well as the statement of accounts submitted by one Bhudeb Jana,

the Drawing and Disbursing Officer of the said school and the A.D.I. of

schools (SE), Howrah. Thus, it was alleged that the appellant did not

disburse the balance sum of Rs.1,49,848/- and the said unpaid

amount was misappropriated by the appellant. Police took up the

case for investigation which ended in filing charge-sheet against the

appellant under Section 409 of the Indian Penal Code. The appellant

submitted himself to face trial before the Learned Court below.

Charge under Section 409 of the Indian Penal Code was framed

against him. When the said charge was read over and explained to

him he pleaded not guilty.

During trial, prosecution examined as many as 19 witnesses.

Some documents were exhibited. On due consideration of evidence

on record, both oral and documentary, the Learned Trial Judge held

the accused guilty for committing offence under Section 409 of the

Indian Penal Code and convicted and sentenced him accordingly.

Mr. Milon Mukherjee, Learned Senior Counsel on behalf of the

appellant attacks the impugned judgment on the following grounds:-

It is submitted by him at the outset that the case was initiated

on the basis of a complaint submitted by District Inspector of Schools

(SE), Howrah. The said de facto complainant could not depose during

trial of the case because she unfortunately expired before the

commencement of trial. The written complaint was marked exhibit by

the A.D.I. and A.S.I. of the schools, Howrah.

It is further submitted by Mr. Mukherjee that another case

under Section 409 of the Indian Penal Code was registered against

the accused for criminal misappropriation since March, 1991 till

February, 1997 amounting to Rs.5,32,834/- alleging misappropriation

of provident fund of the teachers and non-teaching staff of the said

school. In the said case, the appellant was honourably acquitted.

Subsequently, the instant written complaint was filed for alleged

misappropriation of money for limited period between March, 1997 to

June, 1997 payable on April, 1997 to July, 1997.

It is further submitted by Mr. Mukherjee that the allegation

against the appellant was misappropriation of a portion of money

which he withdrew for payment of salary to the teachers and non-

teaching staff of the said school. Therefore, if any part of the money

which the appellant allegedly withdrew was not paid to some of the

teaching and non-teaching staff of the school. The said teaching and

non-teaching staff are the real aggrieved person but they did not file

any complaint against the appellant for non-payment of any part of

their salary or other emoluments, neither they were examined during

trial of the case. Therefore, during trial the prosecution failed to

produce evidence of the aggrieved persons who allegedly did not

receive any part of their salary or any other emoluments which they

are entitled according to law to receive.

It is further pointed out by Mr. Mukherjee that the accused took

the specific defence to the effect that some of the employees of the

said school prayed for loan and advance from their provident fund

contribution. The amount of Rs.10,30,000/- which was withdrawn

from the Bank included the loan amount. The said loan amount was

disposed to the employees which would be revealed from cash

register and loan register. Surprisingly enough even during trial

neither the prosecution, nor the school authority produced the said

two registers to falsify the specific case of the appellant. According to

the Learned Senior Counsel for the appellant, the instant case is an

outcome of dispute between the headmaster and some greedy

teachers. A section of teachers did not allow the Headmaster, the

appellant herein to enter into the school from July, 1997. The

Headmaster was compelled to file an application under Article 226 of

the Constitution being W. P. No. 16383(W) of 1997 and was favoured

with an order by this Court that he would be eligible to enter into the

school and carried out his function as the Headmaster of the school.

The said order was passed on 27th March, 1998. Prior to the order

having been passed in the above-mentioned writ petition on 27 th

March, 1998 the FIR of this case was lodged on 1 st March, 1998.

Therefore, at the time of initiation of the case and during investigation

the appellant had no privy over the cash register, advance register

and the cashbook. He was not even examined by the Investigating

Officer and the said documents were not produced by the prosecution

during trial of the case. Learned Trial Judge did not consider the said

circumstances during the trial of the case.

The Learned Trial Judge failed to consider that the appellant

being a Junior to Usha Ranjan Bhattacharya, Assistant Headmaster of

Jagatballavpur High School who deposed during trial as P.W. 1 was

the mastermind of the entire dispute. PW-1 took charge as the

Headmaster of the said School during the absence of the appellant. It

appears from exhibit-13 that night guard of the said school handed

over the keys of the school and the office of the Headmaster to PW-1.

PW-1 also locked the office of the Headmaster with a new key. During

deposition of PW-1, PW-1 proved the relevant "treasury receipt form"

in which the PF money of the teaching and non-teaching staff of the

School for the month of April, 1997 was deposited under the signature

of the appellant, the then Headmaster. Subsequently, a sum of

Rs.2,50,000/- was withdrawn on 11th April, 1997, then on 13th May,

1997 a sum of Rs.2,90,000/- was withdrawn. Again on 9th June,

1997, a sum of Rs.2,90,000/- was withdrawn and finally on 11th July,

1997, a sum of Rs.2,00,000/- was withdrawn. Thus, through the said

four withdrawals a sum of Rs.10,30,000/- was withdrawn. The

exhibit-13 is a document written by Assistant Inspector of

Schools(SE), Howrah on 12th May, 1998 to the D.I of Schools

admitting the fact that the PF deposit was not submitted during the

period between April, 1991 to April, 1997. It is already recorded that

for the said period the appellant was acquitted in another case.

Mr. Mukherjee then draws my attention to the evidence of PW-

19, who is the investigating officer of this case. In his deposition, he

clearly admits that during investigation he told PW-1 to produce cash

book, ledger book, PF loan Register and advance Register to him on

29th March, 1998. He also demanded audit report of the School

during the period in question but PW-1 did not produce those

documents during the period between 01.03.1998 to 28.03.1998.

Only on 29th March, 1998 he produced the said documents but those

cash book, ledger book, PF loan Register and advance Register was

marked in the instant case.

Mr. Swapan Banerjee, learned advocate for the State

respondent on the other hand submits that it was the duty of the

appellant to produce documents in support of his plea of innocence.

He did not produce the said documents. Therefore, the accused

person has failed to discharge his burden that he actually deposited

the PF amount which was deducted from the salary of the teaching

and non-teaching staff and the remaining of money of Rs.1,49,000/-

was paid as loan to the employees of the said School.

In order to prove a charge under Section 409 of the Indian

Penal Code, it is the incumbent duty of the prosecution to prove the

following ingredients:-

(i) Accused, a public servant was entrusted with property of

which he was duty bound to account for and

(ii) The accused has misappropriated the said property. The

term criminal breach of trust has the same meaning as

advanced in Section 405 of the Indian Penal Code.

Explanation-I of Section 405 is important for the purpose of the

instant case and the same is quoted below:-

"Explanation 1. - A person, being an employer [of an

establishment whether exempted under Section 17 of the

Employees' Provident Funds and Miscellaneous Provisions Act,

1952 or not] who deducts the employee's contribution from the

wages payable to the employee for credit to a Provident Fund or

Family Pension Fund established by any law for the time being

in force, shall be deemed to have been entrusted with the

amount of the contribution so deducted by him and if he makes

default in the payment of such contribution to the said Fund in

violation of the said law, shall be deemed to have dishonestly

used the amount of the said contribution in violation of a

direction of law as aforesaid".

Therefore, the gist of offence under Section 405 is entrustment

of property and dishonest misappropriation thereof. The person

entrusted may himself misappropriated or may willfully suffer another

person to do so.

In order to prove a charge under Section 409 of the Indian

Penal Code, prosecution is not required to prove, nor it is possible to

prove in every case, in what precise manner the accused had dealt

with or appropriated that property which was entrusted to him. When

entrustment is proved giving a false account of its use is generally

considered to be a strong circumstance against the accused. Rather

on prove of entrustment it is for the accused to discharge the burden

that entrustment has been carried out as accepted and the obligation

has been discharged.

Mr. Banerjee, the learned advocate for the State respondent call

upon this court to decide as to whether the accused has discharged

his onus or not.

At this stage, it is pertinent to mention that the State

respondent probably has forgotten the case of the prosecution. At the

risk of repetition, I may be permitted to record that the prosecution

case is that the appellant withdraw a sum of Rs.10,30,000/- and could

not account for a sum of Rs.1,49,858/-. PW-8, Smt. Arpita Adhikari

submitted a report that the appellant allegedly did not deposit the PF

amount. PW-9, Smt. Rupali Saha, who was S.I of Schools during

relevant period of time deposed that during April, 1997 to June, 1997,

the appellant deposited Rs.7,815/- only towards PF contribution. It is

needless to say that this is not a case of non-payment of PF

contribution. Thus, a case of embezzlement of money belonging to the

Teachers and non-teaching staff which was withdrawn during the

period between Aril, 1997 and July, 1997 allegedly by the appellant. It

is also important to note that PW-8, Arpita Adhikari, PW-9, Rupali

Saha and PW-7, Subrata Singha were not examined by the

investigating officer. Therefore, the entire investigation was directed

towards a deviated route to prove that the appellant did not deposit

the PF contribution.

The learned trial Judge failed to consider that not a teacher or

non-teaching staff came forward to make allegation against the

appellant that they did not receive salary and other emoluments

during the disputed period of time.

The appellant all along maintained his stand that the said

amount of Rs.1,49,858/- was withdrawn for payment of loan and

advances and it would be revealed from cash register, advance

register and loan register of the School for the relevant period of time

that the said amount was disbursed. Prosecution failed to produce the

said documents. The learned trial Judge failed to consider the above

circumstances during the trial of the case.

For the reasons stated above, this Court of the considered view

that the judgement of conviction and sentence passed by the learned

Special Judge, 2nd Court at Howrah in Special Case No.1 of 2000 is

liable to be set aside. Accordingly, the instant appeal is allowed. The

appellant is acquitted of the charge and discharge from his bail bond.

Urgent photostat certified copy of this order may be supplied to

the parties expeditiously, if applied for.

[Bibek Chaudhuri, J.]

Srimanta/BM A. Rs. (Court)