Uma Shankar Poddar Son Of Late ... vs The State Of Jharkhand
2021 Latest Caselaw 3489 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        Cr. Revision No. 828 of 2012

       Uma Shankar Poddar son of Late Ganesh Poddar, resident of
       Chira Chas, P.O.-Bharra, P.S. Chas (M), District-Bokaro
                                               ...     ...     ...    Petitioner
                             -Versus-
       The State of Jharkhand                  ...     ...     ... Opp. Party
                                     ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

For the Petitioner : Mr. A.K. Sahani, Advocate For the Opp. Party : Mr. Shekhar Sinha, A.P.P.

Through Video Conferencing 12/20.09.2021

1. Heard Mr. A.K. Sahani, the learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Shekhar Sinha, the learned A.P.P. appearing on behalf of the Opposite Party-State.

3. This criminal revision application has been filed against the Judgment dated 04.09.2012 passed by the learned Additional Sessions Judge-II, Bokaro in Criminal Appeal No. 21 of 2010 whereby and whereunder the appellate court upheld the conviction and sentence of the petitioner under Section 409 of the Indian Penal Code passed by the learned trial court and dismissed the criminal appeal.

4. The learned trial court, vide Judgment of conviction and the order of sentence 30.03.2010 passed by the learned Judicial Magistrate, 1st Class, Bokaro in G.R. No. 1674 of 1998 / T.R. No. 544 of 2010 (arising out of Herla P.S. Case No. 129/1998 dated 16.12.1998), had convicted the petitioner under Section 409 of the Indian Penal Code and had sentenced him to undergo Rigorous imprisonment for three years with fine of Rs.1000/- and in default of payment of fine, to undergo Simple Imprisonment for one month and had directed that the period of custody undergone during investigation and

trial shall be set off from the period of sentence.

Submission on behalf of the petitioner

5. Learned counsel for the petitioner submitted that the petitioner has been convicted only under Section 409 of the Indian Penal Code. He further submitted that the petitioner was working in a school and it was alleged that the petitioner had issued the receipts of fee collection from the various students which was to be prepared in triplicate and different amounts and details were mentioned in the receipts issued to the students as compared to what were mentioned in the corresponding two counter-foils of such receipts which were retained by the school authorities. He submitted that the petitioner has been made scapegoat. In support of his contention, he refers to the evidence of the defence witness who had stated that the entire collection was made by the informant of the case, who was the principal of the school, and the counter foils of the receipts were prepared subsequently under the dictates of the Principal (informant) who had maintained a chart indicating the receipts with respect to each of the students. The learned counsel further submitted that the defalcation, if any, has been made by the Principal (informant) of the school and the petitioner has been falsely implicated in the present case. He also submitted that the entire responsibility of fee collection was that of the Principal and not of the petitioner. He submitted that the aforesaid aspects of the case have not been properly considered by the learned courts below and as such, the impugned judgments are perverse and cannot be sustained in the eyes of law.

6. Learned counsel for the petitioner further submitted that the case was instituted in the year 1998 and since then, 23 years have elapsed and the petitioner was convicted on 30.03.2010

when his age was 65 years and now, he is aged more than about 76 years of age and is also suffering from various ailments. He also submitted that the petitioner was ultimately terminated from his services. He also submitted that the petitioner had remained in jail custody from 05.02.1999 to 29.10.1999 during trial and also from 03.12.2012 to at least 13.12.2012 when he was granted bail by this Court during the pendency of the present criminal revision and some days must have been taken by him to furnish the bail bond and accordingly, the petitioner has already remained in jail custody for more than one year. The learned counsel submitted that considering the totality of the facts and circumstances of this case and also that no useful purpose would be served by sending the petitioner, being aged about 76 years, again to jail at this stage of his life, the sentence of the petitioner may be modified and an appropriate order may be passed.

Arguments on behalf of the Opposite Party-State

7. The learned A.P.P. appearing on behalf of the State, on the other hand, opposed the prayers and submitted that there are concurrent findings recorded by the learned court below and admittedly, the documents i.e. the receipts did not contain the signature of the Principal. He also submitted that the defence witness has also stated that the counter receipts were prepared by the petitioner, though alleged to have been prepared under the dictates of the Principal. The learned A.P.P. submitted that it has further come in evidence that it was the petitioner who was working as an assistant in the school and he was entrusted with the work of collecting the fees at the time of admission. He submitted that it appears that the counter-foils of the receipts were prepared subsequently, but the petitioner cannot run away from his responsibility as it was the petitioner who had prepared the

counterfoils as well.

8. The learned A.P.P. further submitted that the impugned judgments are presentable and have been passed after considering all the materials on record and the petitioner has not been able to point out any material indicating any perversity in the impugned judgments. He submitted that there is no scope for re-appreciation of evidences and coming to a different finding in revisional jurisdiction and therefore, the impugned judgments may not be interfered with.

9. However, advancing his arguments on the point of sentence, the learned A.P.P. submitted that considering the total period of custody of the petitioner which he remained during trial and during the pendency of the present criminal revision application and also the age, etc. as submitted by the learned counsel for the petitioner, it is for this Court to take a call on the sentence of the petitioner. He further submitted that as the allegation against the petitioner is that he defalcated an amount of Rs. 55,247/-, if this court is inclined to modify the sentence of the petitioner, then some appropriate fine may be imposed upon him which may be remitted to the Bokaro Steel Plant, so that the said amount can be used for the purposes of the school itself.

Findings of this Court

10. The prosecution case is based upon the written report dated 16.12.1998 of the principal of +2 Higher Secondary School, Sector-VIII/A, Bokaro Steel Plant, Bokaro Steel City alleging that the petitioner was posted as an assistant under the informant and was assigned the duty to collect fee from the students. Upon verification of records, it was found that from 17.10.1998 till the date of F.I.R., the petitioner did not deposit Rs.55,247/- approximately collected from the students by way of fee, etc. with Bokaro Steel Plant. It was further alleged that any type of cash collected was to be deposited within 48

hours in the Estate Account of the Bokaro Steel Plant. In spite of repeated reminders, the petitioner did not deposit the aforesaid amount. It was also alleged that the petitioner also cheated outside children in the matter of collection of fees from them. The method of preparation of receipts was also stated in the F.I.R. that the receipt was prepared in three copies, the pink colour was to be given to the children when they deposit cash amount and yellow colour receipt was to be retained by the school and white receipt was to be forwarded to Bokaro Steel Plant. It was alleged that enquiry revealed that after receiving Rs.1402/-, the petitioner had given pink colour receipt of the said amount to the concerned students, whereas the corresponding yellow colour receipt projected only Rs.10, 25 and 57 and so on. Certain more instances of the differences in the pink and white colour receipts were also given.

11. On the basis of the written report, Herla P.S. Case No. 129/1998 dated 16.12.1998 was registered and after completion of investigation, charge-sheet was submitted under Sections 409, 420, 471 of the Indian Penal Code and cognizance was taken under the same sections and charges were also framed against the petitioner under the same sections which were read over and explained to the petitioner in Hindi to which he pleaded not guilty and claimed to be tried.

12. In course of trial, the prosecution examined altogether 5 witnesses to prove its case. P.W.-1 is Tripurari Singh who was posted as Lecturer in the +2 High School. P.W.-2 is Mrs. P.N. Balsama who was posted as Senior Executive in the Education Department and was examined on 09.12.1998, but due to objection petition of the defence, her further evidence was deferred and thereafter, she never turned up for adducing evidence and therefore, her evidence has got no

evidentiary value. P.W.-3 is Sadanand Jha who was a teacher in the school. P.W.-4 is Dinesh Ranjan who was also posted as a teacher in the school. P.W.-5 is Pratap Chandra Das who was the Principal of the school and is also the informant of the case. The prosecution exhibited a large number of documents as documentary evidences in support of its case.

13. P.W.-5 deposed that at the relevant point of time, he was posted in the school as Principal and the petitioner was posted as an assistant. The admission of +2 class was going on and it was the duty of the petitioner to collect the fee, prepare statement and deposit the money in the Estate Account of B.S.L. and the amount was to be deposited within 48 hours from collection of the money. He also stated that as the petitioner was not presenting the statement of collection before the principal, he was called upon to put up the statement, but he gave an excuse that due to heavy rush of admission, it was not possible to prepare the statement and he would do so later. In spite of repeated reminders, the petitioner did not bring the statement before him and in such circumstances, he informed the Chief of Education Department and the Deputy Chief in writing alleging some fraud. Consequently, an audit team was constituted and the auditor found that an amount of Rs. 55,247/- of the total collection was short and when questioned, the petitioner replied that he had kept the money in his friend's house and ultimately the petitioner did not deposit the amount and the audit officials asked the petitioner to come to the Education Department alongwith the receipts of all the documents relating to admission. P.W.-1 collected some of the pink colour money receipts from the students which were 40-50 in number. Pink receipts were given to the students, yellow receipts were to be given to the Estate Account and the white receipts were the office copy. All the receipts were having

serial number and upon tallying the three receipts of the same serial number, it was found that the amount was correctly mentioned in the pink receipts, but not on the yellow receipt. By way of example, it was stated that in one pink receipt, the amount was mentioned as 1,412/-, whereas on the corresponding yellow receipt, it was mentioned as Rs. 10 and the name in whose favour the receipt was issued also differed. He also stated that these questions were put to the petitioner by the auditors, but he did not respond and left. P.W.-5 exhibited seven receipts which were given by the education department to the school with corresponding book numbers which were in the writing and signature of the petitioner and was marked as Exhibits- 2, 2/1, 2/2, 2/3, 2/4, 2/5 and 2/6. P.W.-5 also exhibited another pink receipt which was marked as Exhibit-3 and the white receipt was marked as Exhibit-4 and again there was a mismatch in the amount. The P.W.-5 also stated that the petitioner was supposed to get the signatures of the Principal in all the three receipts, but this was not done by the petitioner. There were certain receipts on which even the dates were not mentioned. P.W.-5 exhibited a number of pink receipts with their corresponding yellow and white receipts which were supposed to be the copy of the corresponding pink receipts, but there was complete mismatch not only on account of the amounts which were mentioned and in all the pink receipts which were copies of the children, the amount was much higher than what was correspondingly mentioned in white receipts and yellow receipts, but also there was mismatch in connection with dates in some of the receipts and there was mismatch in connection with names of the students in some receipts. He also stated that the signature of the Principal was not present in the receipts and they were prepared under the handwriting and signature of the petitioner.

14. After closure of prosecution evidence, the petitioner was examined under Section of 313 of Cr.P.C. wherein he denied the allegations levelled against him and stated that he would adduce evidence in defence. Thereafter, the petitioner examined one witness namely, Yogendra Rai as D.W.-1 in his defence who was posted as Senior Lecturer in the school during the relevant period.

15. D.W.-1 deposed that he used to do the office work prior to joining of the petitioner and the admission in the school started in the year 1998 and at that time, P.W.-5 told him to do another work of the office and P.W.-5 would assist the petitioner. He stated that on commencement of admission, P.W.-5 sat with the blank paper in his hand in a chair in front of the petitioner and D.W.-1 was sitting on a chair adjacent to the petitioner. He stated that P.W.-5 started collecting the fee and keeping it with him and entering the details in the chart made on blank paper having column for roll number, admission fee, tuition fee, game fee, library fee etc. and due to heavy rush, only original receipts were given to the students and P.W.-5 (informant) had told him that duplicate and triplicate receipts would be prepared on the basis of statement prepared by him later on. He also stated that when the petitioner asked P.W.-5 for the paper, P.W.-5 did not give the paper and after 2-4 days, he got the duplicate and triplicate prepared, when the petitioner used to fill up the receipts and P.W.-5 used to speak out the details. He admitted that the audit team had come in the school on 09.12.1998. During his cross examination by the prosecution, he stated that the petitioner was the only assistant in the school and he used to do the work of management, accounts and cash and he did not use to assist the petitioner in monetary works, but used to give him books etc. and the petitioner used to issue receipts to the students. He also

stated in cross examination that P.W.-5 gave some complaint to the education department. Some documents have also been exhibited from the side of the defence. Exhibit-A is certified copy of deposition of Kaushal Kishore in Reference Case No. 20/02 before the Labour Court, Exhibit-B is certified copy of the affidavit of P.W.-5 and certified copy of deposition of P.W.-5 in Reference Case No. 20/02 and Exhibit-C is certified copy of affidavit sworn by D.W.-1 and certified copy of deposition of D.W.-1 in Reference Case No. 20/02 before the Labour Court.

16. The learned trial court, after hearing the parties and scrutinizing the materials on record, recorded that the evidences on record, particularly documentary evidences, clearly show that the petitioner was an employee of the BSL which is a Government of Indian Undertaking and he was working as assistant and he was empowered to collect money from the students, but he collected money and misappropriated the same. The trial court also considered the impact of non-examination of the Investigating Officer and recorded that non examination of the investigating officer is not fatal to the prosecution case.

17. The learned trial court acquitted the petitioner from the charges under Sections 420 and 471 of the Indian Penal Code, but convicted him for offence under Section 409 of the Indian Penal Code. The learned trial court, while considering the case on the point of sentence, recorded the submissions of the petitioner that he was 67 years on the date of conviction and he has been terminated from the services of BSL in the year 2001 and the present offence is his first offence and he may be given the benefit of the Probation of Offenders Act. But the learned trial court, considering the nature of offence involved in the case, sentenced the petitioner to undergo Rigorous imprisonment for three years with fine of Rs.1000/-

and in default of payment of fine, to undergo Simple Imprisonment for one month.

18. The learned appellate court also meticulously considered the evidences on record and recorded its findings at Para-34 and 35 which read as under:

"34. Having heard the appellant and the learned counsel for the State and meticulously perusing the evidence on the record, I find that there are apparent latches on the part of the prosecution. The audit report should have been exhibited by the prosecution. The allegation regarding depositing the amount within 48 hours could have been fortified, had the relevant circular be exhibited by the prosecution. I find that one such circular dated 12.03.1999 (that is of a date subsequent to the period of occurrence) and the report of the inquiry committee are part of the record, but strangely the prosecution did not choose to get the said document exhibited for reasons best known to it. As such the above referred documents have not been taken into consideration in this judgment. I further find that the Auditors who were material witnesses, should have been examined by the prosecution to substantiate its case, but that was not done. Further that the I.O. of the case has also not been examined.

35. But on the other hand, I find that there are contradictions in the submission of the appellant herein, as mentioned in his written argument and the deposition of D.W.-1 with regard to the contents of original, duplicate and triplicate copies of the cash receipt. The appellant has mentioned in his written argument that there was no difference in the contents of the three copies of the same receipts whereas D.W.-1 has mentioned at para 7 that upon instruction of the informant, only the pink receipts were filled up at the time of admission by the appellant herein and the informant used to sit in front of him while collecting fees and jot down the necessary details in paper. Thereafter, after

few days, the informant dictated the contents of the collected fees as mentioned in his paper to the appellant herein who filled up the other two receipts in carbon copy. This diametrically opposite versions of the appellant and the defence witness creates doubt and is untrustworthy."

19. The learned appellate court mentioned the details of the pink yellow and white receipts in a comparative chart and recorded its findings in Para-36 which read as under:

"36. ............................ This goes to show that the contention of the appellant that all the three receipts had same contents is falsified. Further, it is understandable that as the pink receipts had been issued to the students, the prosecution could base its case on only whatever pink receipts could be collected back from the students. From the scanning of the above chart, I am of the view that the prosecution has succeeded in bringing home the charge against the accused/appellant herein, albeit not for the entire amount as alleged in the prosecution case, but only to a certain extent. Nevertheless, that is sufficient to convict the accused for the offence punishable under Section 409 of the IPC."

20. The learned appellate court was of the view that the prosecution has been able to prove the case against the petitioner for offence under Section 409 IPC and upheld the conviction and sentence of the petitioner passed by the learned trial court and dismissed the criminal appeal.

21. After hearing the learned counsel for the parties and perusal of the materials on record, this Court finds that P.W.-5, Informant has fully supported the prosecution case stated in his written report and P.W.-1, P.W.-3 and P.W.-4, who were posted in the said school at the relevant point of time, have corroborated the evidence of the informant.

22. The Investigating Officer of the case has admittedly not been

examined in the case, but the case appears to be largely based on documentary evidences and mismatch of the figures which were issued to the students and the receipts which were retained by the school and were submitted before the Estate Officer of BSL and the fact that the receipts which were issued to the students indicated much higher amount having been recovered from them and under such circumstances, this Court is of the view that non-examination of the investigating officer is not fatal to the prosecution case.

23. This Court finds that the learned courts below have meticulously considered the evidences on record including the evidence of the defence witness who stated that the receipts were prepared by the petitioner and it was alleged that the petitioner was being dictated by the principal as the receipts were not simultaneously prepared, rather they were prepared later on. It is an admitted fact on record that initially only the pink receipts were issued to the students at the time of collection of money and subsequently the yellow and white copies of the same were filled up. Admittedly, none of the receipts contained the signature of the Principal, P.W.-5. It is proved on record that the petitioner being the assistant in the school was involved in the collection of the money from the students at the time of admission and there was complete mis-match with regard to the amount and other details mentioned in the pink receipts issued to the students when compared to the corresponding yellow and white copies of the receipts. It is also established that the amount mentioned in the pink receipts was much higher than the amount mentioned in the corresponding yellow and white copies of the receipts.

24. This Court finds that the learned courts below have returned concurrent findings regarding the facts of the case and have convicted the petitioner for the offence under Section 409 of

the Indian Penal Code. This Court is of the considered view that the basic ingredients of offence under Section 409 of the Indian Penal Code are duly satisfied. There is no scope for re- appreciation of evidences on record and coming to a different finding. No perversity as such has been pointed out by the learned counsel for the petitioner calling for any interference in the revision jurisdiction.

25. So far as sentence is concerned, it has been submitted by the learned counsel for the petitioner that the petitioner has already been terminated from his services and at present, he is 76 years of age having no criminal antecedent and he has already remained in judicial custody for some period during investigation, trial and during pendency of the present criminal revision application and it has also been expressed that the sentence imposed upon him may be modified.

26. Considering the totality of the facts and circumstances of the case and also the fact that the occurrence is of the year 1998 and about 23 years have elapsed since then and the petitioner has faced the rigours of the criminal case for a long period and the petitioner being at an advance stage of his life, aged about 76 years and he has already remained in judicial custody for more than 9 months , this Court is of the view that no useful purpose would be served by sending the petitioner again to jail at this point of time and the ends of justice would be served, if the sentence is modified and some fine amount is imposed upon him.

27. Accordingly, the sentence of the petitioner is modified and reduced to the period already undergone by him in judicial custody with fine of Rs.55,000/- to be deposited by the petitioner before the learned court below within a period of 06 (six) months from the date of communication of this Judgment to the learned court below. The fine amount so deposited is directed to be remitted to the Bokaro Steel Plant,

upon due identification of his representative, to be utilised for the benefits of concerned school.

28. In case, the fine amount is not deposited within the stipulated time frame, the petitioner would serve the sentence imposed by the learned court below. If the fine amount is deposited within the stipulated time frame, the petitioner and his bailors will stand discharged from their liability under the bail bond furnished by them.

29. Accordingly, with the aforesaid findings and modification in the sentence of the petitioner, the present criminal revision application is hereby disposed of.

30. Let the lower court records be sent back immediately to the court concerned.

31. Let a copy of this Judgment be communicated to the learned court below through 'e-mail/FAX'.

(Anubha Rawat Choudhary, J.)

Binit/