Basically prosecution case rests upon the documents in the form of registers and journals. First informant has inspected those documents and then only he came to conclusion that Applicant has not accounted money of Rs.28,834/- accepted from the account-holders. Without inspecting registers, he was not in a position to conclude about misappropriation. It is true that as per Section 61 of the Indian Evidence Act contents of the document can be proved either by primary or secondary evidence. In this case, they are not proved in either way. So, I find lacuna in the prosecution evidence i.e. to say even there is an oral evidence in the form of all the witnesses (except P.W.1), however their version could not be substantiated by producing the documentary evidence in the form of register and journals. So, it cannot be said that the offence of criminal breach of trust by the Applicant is proved beyond reasonable doubt. Though the investigating agency have seized some registers, but they were not tendered in evidence and proved. This is serious lacuna in the prosecution evidence. Without proving the documents, no finding of guilt for offence under Section 409 of IPC can be arrived at. So, certainly it has resulted into illegality when both the Courts convicted the Applicant for offence under Section 409 of IPC. Certainly, there is a scope for interference by the Revisional Court. So the conviction needs to be set aside. {Para 28}
Duty of Police & Court
29. It is the part of investigation to seize relevant register and journals. First informant in his FIR has given the duration of registers from 20th August 2006 upto 28th February 2007 whereas the registers seized were written upto 30th August 2004 and upto 15th February 2005). Even if they can be said to be relevant, they were kept in the police station only. Neither APP in-charge nor the trial Court Judge were vigilant in taking appropriate steps/directions. They conducted trial without registers. Trial Court discussed evidence and convicted the applicant by overlooking absence of important piece of evidence. It is strange even the Appellate Court overlooked this fact and confirmed the conviction. This is blatant disregard to the responsibility bestowed on the stakeholders.
IN THE HIGH COURT OF BOMBAY
Criminal Revision Application (ST) No. 4181 of 2024 and Interim Application (ST) No. 4204 of 2024
Decided On: 19.03.2024
Anand Narayan Sakpal Vs. State of Maharashtra
Hon'ble Judges/Coram:
S.M. Modak, J.
Citation: MANU/MH/2312/2024.
1. The Hon'ble Supreme Court in various matters has laid down what is the scope of jurisdiction under Section 397 r/w Section 401 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the Judgment of conviction and against concurrent finding of facts by the Criminal Courts. Re-appreciation of evidence is not permissible. What is meant by re-appreciation? Re-appreciation means not to inquire about reliability of the witness, his bonafides, issue of corroboration. Still the Hon'ble Supreme Court has carved out few of the exceptions wherein the Revisional Court may verify the correctness of the findings and legality of the order.
2. There are two instances carved out by the Hon'ble Supreme Court. They are :-
(a) finding of guilt arrived at without considering the evidence on record or
(b) finding of guilt arrived at by considering improper evidence on record.
This Court feels that this is one of the case wherein the revisional powers have to be exercised in favour of the Applicant - convicted accused. With the assistance of both the sides, when the evidence is perused, we realize why these revisional powers are engrafted by the legislatures in Code of Criminal Procedure.
Facts
3. The Applicant was working as Post-Master of Khambewadi Post. His job was to accept the money from the depositors and to do needful including making entries in their passbook and also in the register maintained as per the postal rules in the office. During the relevant period from 20th August 2006 till 28th February 2007 various customers have deposited various amounts and the Applicant being the Postmaster has made entries in the passbook of those customers. They were under belief that the amount deposited by them will be accounted in the record maintained by the Postal Department. However, the Applicant was having some dishonest intention. He misappropriated the amount of Rs.28,834/-. It was neither noticed by the account- holders (it is but natural also) nor by any other staff from that Post.
Inspection of record
4. When the Assistant Superintendent from Post Office at Panvel Shri Ambadas Kalappa Chinchole inspected the documents from the period 20th August 2006 upto 28th February 2007, he realised there is misappropriation to the tune of Rs.28,834/- in the sense the amount deposited by relevant customers were not deposited in the account of postal department. He came to this conclusion on the basis of registers maintained. He found registers were not maintained for entire period and that is why he came to the conclusion that the money is misappropriated for that period. He also verified this fact from the account-holders and finally he lodged complaint with Vavoshi Police outpost from Khalapur Police Station. They have registered FIR under Sections 409, 468 of IPC. The Applicant was charge-sheeted.
Holding of trial
5. He was tried by the Court of J.M.F.C., Khalapur. There were in as much as seven witnesses examined on behalf of the prosecution. The judgment was partly in favour of the Applicant and partly against him. He was convicted for the offence under Section 409 of IPC. The sentence is as follows:-
a. 3 years R.I. and
b. Rs.2,000/- being the fine amount.
He was acquitted for the offence under Section 468 of IPC.
6. Though he challenged his conviction before the Court of Additional Sessions Judge, Panvel he was unsuccessful. His appeal was dismissed by judgment dated 7th February 2024. Its legality is challenged before this Court.
7. I have heard learned Advocate Shri Gaware-Patil for the Applicant and learned APP Shri Sagare. Though initially Mr. Gaware- Patil argued for suspension of the sentence, later on he has consented for deciding the Revision itself finally at an admission stage. The issue involved in this revision is :--
'whether guilt of the accused can be arrived at only on the basis of oral evidence without insisting on documentary evidence though available'?
Prosecution evidence
8. It consists of oral as well as documentary evidence. Following are the witnesses:-
9. The documentary evidence consists of the documents seized as per the seizure panchanama dated 22nd August 2008. The reference of documents is as follows:--
a. Two registers - (1) Saving Bank Journal Register and (2) RD Journal Register written upto 30th August 2004 and written upto 15th February 2005. (unfortunately they were not produced in the court and shown to the witnesses).
b. Five passbooks belonging to the customers.
c. 19 daily account letters.
10. Mr. Sagare emphasized on the wording of Section 405 of IPC. There are different ways of committing breach of trust. One of the mode is :--
If there is dishonest use of the property in violation of direction of law prescribing mode in which such trust is to be discharged, Section 405 of IPC can be invoked.
According to him, the Postmaster - Applicant was supposed to account the money deposited by the account-holders in the account of the Post.
11. By way of reply, Mr. Gaware-Patil submitted that account- holders have never complained for misappropriation and in fact, they have received back the money and it has come in the deposition of one account holder P.W.No.5 Pramial Kanoje (page 27).
Oral evidence
12. When this Court has perused the evidence on relevant witnesses i.e.
- the panch witness P.W.1 - Subhash Dalvi,
- P.W.6 - Arun Sonawane- Investigating Officer and
- the P.W.7 - Ambadas Chinchole - first informant.
This Court finds that the panch has not supported. Whereas, P.W.7 - Ambadas Chinchole - first informant has deposed about handing over necessary registers and journals to the police at the time of FIR. Whereas, Investigating Officer has also deposed about seizure of the registers and the panchanama is at Exh.28. He has handed over to muddemal clerk of police station and the receipt is also at Exh.29. Even there is a muddemal list produced by the police which is annexed to charge-sheet on page 29 of Revision Application. Description of register is correct.
What this Court finds is in any of the testimony of these witnesses attempt was not made to show those registers/journals to the relevant witnesses. They could have been P.W.6 - Arun Sonawane, Investigating Officer and first informant - P.W.7. This Court is unable to guess why they were not shown to the relevant witnesses. One of the reason may be they pertain to the period not mentioned in FIR or it has slipped from the mind of concerned A.P.P. Even one may say that the learned trial Judge has adopted lackadaisical approach in not issuing necessary directions for producing at least the registers seized as per the seizure panchanama.
Non-production of relevant Registers
13. He further submitted that prosecution by producing the relevant register and by proving them through proper mode ought to have proved the allegation that the money is not accounted by the Applicant. It has come in the evidence of concerned account-holders. In order to buttress this contention, Mr. Gaware-Patil has made the following submission:-
a. The duration of the inspection done by P.W.7 is from 20th August 2006 upto 28th February 2007.
b. In the seizure panchanama the duration as per the register seized is written upto 30th August 2004 and written upto 15th February 2005.
c. According to him, 'the registers referred for the relevant period referred in the FIR' are not at all seized (however it seems that the registers from that period were not maintained is the conclusion drawn by P.W. No.7. but unfortunately it could not be brought on record properly).
Fresh police report about Registers
14. It is true that this objection goes to the root of the matter and that is why, this Court has given directions to learned APP from time to time. With all his persuasion and experience he was successful in prevailing upon the police officers from Khalapur Police Station and today, he has produced report given by the Police dated 19th March 2024. It is taken on record and marked as Annexure - "A".
It gives following details:--
i) Saving Bank Journal from 30th August 2004 onwards was produced.
ii) RD Journal from 15th February 2005 onwards is produced.
iii) Two passbooks are produced.
Report further mentions willingness to produce them in this Court. No purpose could have been served by perusing them by this Court. Because it ought to have been shown to the witnesses during trial. They were kept in the muddemal room of the police station. According to learned APP, the then investigating officer has retired and he tried his level best to communicate him and to secure his presence. However, he is not successful to the fullest extent. It means they were not produced before the Court.
15. According to Mr. Gaware-Patil even these registers do not pertain to the period mentioned by P.W.7 in the FIR.
Court record
16. In order to ascertain the fact as to which registers are part of the muddemal of the Court record, this Court has also called report from the Court of J.M.F.C., Khalapur. It is received as per letter dated 7th March 2024. It is marked as Annexure-'A-2'.
17. Let both these reports be considered as part of the judgment. The same are annexed at the bottom of the judgment. With the assistance of both the sides, I have perused the contents of that report. It is in three parts. It is as follows:-
(I) Part I gives description of the documents tendered in evidence.
(II) Part II deals with the registers/documents submitted but not marked as Exhibits.
(III) Part III deals with muddemal mentioned by the police in the list attached to the charge-sheet but not produced in the Court and pending in the police station. (This includes Saving Bank Register from 30th August 2004 and R.D. Journal Register from 15th February 2005).
18. According to Mr. Gaware-Patil, there are two lacunas in the prosecution evidence. They are as follows:--
a. Relevant registers are not at all seized.
b. The registers which were seized were not shown to the witnesses in the evidence.
Judgment of the trial Court
19. Trial Court has appreciated the evidence in detail. I have read it. The findings of the trial Court are as follows:-
a. Trial Court has taken note of the return of money to account-holders and they are not having any complaint against the accused, (para 15)
b. Trial Court opined "question of refund of money does not arise if the accused has not accepted money and could have deposited with the Government. It indicates that he has misappropriated to his own use". (para 16)
c. merely because account-holders - P.W.2 to P.W.5 are not having any complaint against the Applicant it does not mean that Accused has not misappropriated that amount (para 17).
d. Trial Court observed the Applicant being conscious of his responsibility and he was aware how the entries should be taken in the Register (para 18).
e. Applicant being public servant was authorised to accept the amount.
d. The fact of seizure of document though not supported by the panch witnesses they were proved through the Investigating Officer and they were produced by P.W.7 (para 20).
20. These are the findings on the point of arriving at guilt for the offence under Section 409 of IPC. The trial Court acquitted the Applicant for offence under Section 468 of IPC and the predominant reason was 'hand-writing report was inconclusive' as reflected in paragraph No.10 and 21 to 23. The allegation of forgery is in passbook issued to account-holders.
21. Whereas, the allegation of misappropriation is in respect of amount accepted by the Applicant. To prove the allegations of non- accounting the amount, prosecution has examined the panch, IO and first informant. Even this Court failed to understand how the relevant registers were not produced and not tendered in evidence.
Appellate Court Judgment
22. With their assistance, I have perused the judgment given by the Appellate Court. The Appellate Court concluded :--
"accused has deposited the siphoned amount at Shilphata Post office without informing to the office. Thus the act of accused is evident from the testimony of prosecution witnesses that he has siphoned of the amount of the account holders." (para 14/page 75).
The Appellate Court discussed about evidence on the point of seizure and producing documents by the first informant (para 16). The Appellate Court found there were no contradiction in the evidence of prosecution witnesses and hence it has inspired confidence (para 17). The Appellate concluded the Accused being Postmaster has collected the amount but not deposited. The Appellate Court thought it fit not to interfere in the trial Court judgment.
23. Even the Appellate Court has overlooked the lacuna in the prosecution evidence of proving the registers which were seized as per the seizure panchanama (Exh.28). The Appellate Court overlooked the fact that those registers does not pertain to the period mentioned by the first informant in the FIR. (Exh.27) and even the seized registers were never produced in the Court and shown to the relevant witness.
Importance of registers
24. Even though trial Court discussed the evidence in detail, it has overlooked the fact that the relevant registers were not seized and registers which were seized were not produced in the Court. Even P.W. No. 7 who is the first informant and who has inspected the record has not clarified in what manner an offence of section 409 of I.P.C was committed. That is to say by making wrong entries of amounts deposited by the account holders or by not at all making the entries in the registers. Probably it seems from the description of registers in the seizure panchnama, the registers/journals were maintained upto particular date. Mean to say after the said period, they were not maintained and that is how the money is misappropriated. But unfortunately no clarification is sought by Learned A.P.P. and even he has not taken pains to call seized registers from the police station and to show it to him.
About Section 468 & Section 409 of IPC
25. With the assistance of both the sides, I have gone through the oral evidence. Mr. Gaware-Patil emphasized if there is acquittal for the offence under Section 468 of IPC, there cannot be conviction for the offence under Section 409 of IPC. Whereas, according to learned APP, even though both the offences are connected to each other still the acquittal for the offence under Section 468 of IPC does not materially affect the conviction for the offence under Section 409 of IPC. It is for the reason that for an offence under Section 409 of IPC if a public servant commits criminal breach of trust there is an enhanced punishment.
26. Wrong entries are made in the passbook belonging to the account-holders so as to create an impression in the mind of account- holders that money is accepted by the Applicant. Whereas, it is not accounted in the registers and that is how, misappropriation. So charge of forgery and charge of criminal breach of trust are part of larger transaction that is to dupe postal authorities. But both these offences deal with separate facts. Forgery is in respect of passbook of customers whereas Section 409 is in respect of money entrusted and misappropriated. Forgery is for covering the offence u/s. 409 of IPC. Finding on one charge does not depend upon outcome of the another charge. I reject the contention by Mr. Gaware Patil.
Scope of this Revision
27. There are certain facts which can be proved only on the basis of oral evidence. It does not require documentary evidence for e.g. if there is assault on particular person the oral version is sufficient. Medical certificate is required only for ascertaining the nature of injuries. It is for the purpose of ascertaining the offence falls under which section of IPC. This case is not of that type.
28. Basically prosecution case rests upon the documents in the form of registers and journals. First informant has inspected those documents and then only he came to conclusion that Applicant has not accounted money of Rs.28,834/- accepted from the account-holders. Without inspecting registers, he was not in a position to conclude about misappropriation. It is true that as per Section 61 of the Indian Evidence Act contents of the document can be proved either by primary or secondary evidence. In this case, they are not proved in either way. So, I find lacuna in the prosecution evidence i.e. to say even there is an oral evidence in the form of all the witnesses (except P.W.1), however their version could not be substantiated by producing the documentary evidence in the form of register and journals. So, it cannot be said that the offence of criminal breach of trust by the Applicant is proved beyond reasonable doubt. Though the investigating agency have seized some registers, but they were not tendered in evidence and proved. This is serious lacuna in the prosecution evidence. Without proving the documents, no finding of guilt for offence under Section 409 of IPC can be arrived at. So, certainly it has resulted into illegality when both the Courts convicted the Applicant for offence under Section 409 of IPC. Certainly, there is a scope for interference by the Revisional Court. So the conviction needs to be set aside.
Duty of Police & Court
29. It is the part of investigation to seize relevant register and journals. First informant in his FIR has given the duration of registers from 20th August 2006 upto 28th February 2007 whereas the registers seized were written upto 30th August 2004 and upto 15th February 2005). Even if they can be said to be relevant, they were kept in the police station only. Neither APP in-charge nor the trial Court Judge were vigilant in taking appropriate steps/directions. They conducted trial without registers. Trial Court discussed evidence and convicted the applicant by overlooking absence of important piece of evidence. It is strange even the Appellate Court overlooked this fact and confirmed the conviction. This is blatant disregard to the responsibility bestowed on the stakeholders. The Investigating Officer has retired. I deem it necessary to bring this lackadaisical approach of Police and Judges to the Joint Director, MJA. Because training is imparted to Judges. He can bring this fact to the notice of trial Court and Appellate Court Judges trained there. It is expected from Joint Director, MJA to inform this Court in what manner these observations were given effect. Copy of this judgment may be sent to him.
30. Hence, the order:-
ORDER
(i) Revision is allowed.
(ii) The judgment of conviction passed by the learned Court of J.M.F.C, Khalapur in R.C.C. Case No.23 of 2009 dated 5th March 2023 thereby convicting the Applicant for the offence punishable under Section 409 of IPC and confirmed by the Court of Additional Sessions Judge, Panvel in Criminal Appeal No.65 of 2019 is set aside.
(iii) Applicant be released from jail forthwith, if not required in any other case.
(iv) Trial Court to pass appropriate order about disposal of the Muddemal including registers and journals produced before the Court as well as not produced before the Court but kept at Police Station.
(iv) Fine amount paid, if any, be returned to the Applicant.
(v) Revision Application is disposed of.
(vi) In view of disposal of the Revision Application, Interim Application does not survive and the same is disposed of.
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