Calcutta High Court (Appellete Side)
Prativa Sinha & Ors vs The State Of West Bengal & Anr on 23 August, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Rai Chattopadhyay
C.R.A No. 550 of 2011
Prativa Sinha & Ors.
Vs.
The State of West Bengal & Anr.
Amicus curiae : Ms. Sibangi Chattopadhyay.
For the State : Mr. Saswata Gopal Mukherjee,
Ld. P.P.
: Mr. Narayan Prasad Agarwala,
: Mr. Pratick Bose.
Hearing concluded on: 16/03/2023
Judgment on: 23/08/2023
Rai Chattopadhyay, J.
1. Allegations against the respondent no. 2/accused person, for defalcation
of money of the Co-operative Credit Society, entrusted with him, as an
office bearer of the said Society, are at the core of the issues, for which
the respondent no.2 has faced trial.
2. The judgment and order of acquittal of the trial Court dated May 31,
2011, in Special Court Case No. 15/2001 is under challenge in this
appeal. On the basis of the FIR lodged by one Ajit Chowdhuri,
Chairman, Employees' Co-operative Credit Society of R.T. Girls' School at
Suri, the Suri Police Station Case No. 14/99 dated 20.01.1999 was
started. The FIR was lodged on 20.01.1999, under Sections
406/409/403/467/468/471 of the IPC.
3. The allegation against the respondent no.2/accused person in a nut-
shell was that while holding office as the Secretary of the said Co-
operative Credit Society, and while being assigned with the duty to
manage the loan accounts of the members thereof, the said person has
defalcated and used for his own wrongful gain a sum of money
amounting to Rs.2,82,024/-. Allegedly, he defalcated the money by not
repaying the instalments of loan taken by the members of the Society to
the Bank, which the members deposited with him as the office bearer of
the said Society, for the purpose of repaying the same in bank against
respective individual loanee.
4. The trial Court on July 31, 2002 framed charges against the respondent
no.2 under Sections 409 and 471 of the IPC. In trial the prosecution has
examined as many as fifteen witnesses including the members of the said
Co-operative Society, who happened to be the teachers of the said
School, the staff of the bank where the Co-operative Society used to
maintain the account and the Police Personnel. One person has also
been examined as the defence witness.
5. The trial Court proceeded on the premise that the prosecution though
has alleged but could not bring on record sufficient evidence including
documentary evidence, to substantiate those allegations against the
accused persons. The trial Court has discussed the evidence on record
in details. It has opined that the necessary documentary proof regarding
entrustment of the money with the accused person and his
misappropriation of the same by utilising the same for wrongful gain,
could not have been brought on record by the prosecution. For this, the
trial Court has finally opined that the allegations under Section 409 and
471 of the IPC against the respondent no, 2/accused person were not
proved in trial and ultimately acquitted him by dint of the impugned
judgment as above.
6. The propriety of the said impugned judgment has been challenged in this
appeal. However, in spite of grant of sufficient opportunity, none
appeared to represent the appellant. Under the circumstances, Court
appointed Ms. Sibangi Chattopadhyay as amicus curiae, to assist the
Court in deciding the appeal.
7. It is pertinent to note in this appeal that neither the de facto complainant
nor the State has come up here, to challenge the order of the acquittal of
the respondent no.2. Necessary is to look for the provision when an
appeal against acquittal can be filed and by whom. For this one may
note as regards Sections 378 (1) (b), 378 (2) (b), 378 (4) of the Cr.P.C.
Those provisions are extracted as herein below:-
"378. Appeal in case of acquittal.- [(1) Save as otherwise provided in
sub- section (2) and subject to the provisions of sub- sections (3) and (5),-
(a) ********
(b) the State Government may, in any case, direct the Public Prosecutor to
present an appeal to the High Court from an original or appellate order
of an acquittal passed by any Court other than a High Court [not being
an order under clause (a)] or an order of acquittal passed by the Court
of Session in revision.]
(2) If such an order of acquittal is passed in any case in which the offence
has been investigated by the Delhi Special Police Establishment constituted
under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation into an offence under
any Central Act other than this Code, [the Central Government may,
subject to the provisions of sub-section (3), also direct the Public Prosecutor
to present an appeal-
(a) ***************
(b) to the High Court from an original or appellate order of an acquittal
passed by any Court other than a High Court [not being an order under
clause (a)] or an order of acquittal passed by the Court of Session in
revision.
*******************
(4) If such an order of acquittal is passed in any case instituted upon
complaint and the High Court, on an application made to it by the
complainant in this behalf, grants special leave to appeal from the order of
acquittal, the complainant may present such an appeal to the High Court."
8. Therefore the statutory scheme is only empowering either the State
Government through the Public Prosecutor or the complainant himself
(when the case was instituted upon complaint), to initiate an appeal in
the High Court against the judgment of acquittal by the trial Court.
Pertinent is to note in this appeal, that the appellants are not either any
instrumentality of State or complainants themselves. Out of curiosity
this Court, when looked into the records, could find the appellants to be
the witnesses in the trial. Under such circumstances this Court is
constrained to hold that none of the appellants were a party to the trial.
9. Since the appellants were not a party to the trial, therefore the appellants
do not have the locus standi to maintain this appeal against the
judgment of acquittal as impugned. Thus, the appeal should fail on the
ground of the appellants having no locus standi and the appeal being not
maintainable on this count.
10. The findings as above prompt this Court not to go into the merits of the
appeal as that would be redundant in view of the fact that the appeal is
not maintainable at all.
11. On the discussion as above it is held that the appeal being C.R.A 550 of
2011 fails and is dismissed.
12. Before parting, the Court appreciates the able assistance put in by the
Ld. Amicus Curie in this case. Let the High Court Legal Services
Committee take necessary steps to pay her fees in accordance with the
scale applicable to "Category-A" lawyer in its panel. The same may be
paid within a period of one month from the date. A copy of this order be
immediately forwarded to the Secretary, High Court Legal Services
Committee, for doing the needful.
13. Urgent photostat certified copy of this judgment, if applied for, be given
to the parties, upon compliance of requisite formalities.
(Rai Chattopadhyay,J.)
