Bhuneshwar Prasad Gupta vs The State of Jharkhand

Heard learned counsel for the petitioner as well as learned APP for the State.

The present criminal revision is directed against the judgment dated 30.08.2016 passed by learned Additional Judicial Commissioner-VIII in Criminal Appeal No. 60 of 2013, whereby and whereunder judgment of conviction dated 12.02.2013 passed by learned Judicial Magistrate, 1^st Class, Ranchi in G.R. No. 3193 of 2007, arising out of Sikidiri P.S. Case No. 32 of 2007 for the offence under Sections 409 and 420 of the I.P.C. has been upheld but order of sentence passed by the learned trial court to undergo rigorous imprisonment for 2½ years along with fine of Rs. 2,500/-for each section with default stipulation is modified to the extent that petitioner shall undergo rigorous imprisonment for one year along with fine of Rs. 1,000/- for each section with default stipulation. Both the sentences were directed to run concurrently.

The factual matrix of the case giving rise to this revision is that one Udaybhan Singh, Inspector of Postal North Sub-Division, Ranchi has lodged a written report alleging therein that the present appellant was working as Gramin Dak Sevak, Sikidiri and was suspended from the postal department on 20.03.2007. It is further alleged that on 02.09.2007, Inspection Camp was organized by the informant for inspection of the depositor’s pass-book related to saving account, village postal life insurance, where informant learnt that Bhuneshwar Prasad Gupta was still taking the money from the villager in the name of depositing the same in their account and forged receipts were being given to the depositors and the money collected in his period was not deposited in the respective accounts, the book no.1840 (village life insurance) was missing from the post office and the money receipt of that book was being issued by him. The receipt of book no.1840 of the money receipt no.4 dated 02.09.2006 of Rs.2,000/-, money receipt no.12 dated 12.10.2006 of Rs.500/-, money receipt no.25 dated 30.04.2007 of Rs.652, money receipt no.26 dated 30.06.2007 of Rs.978/- from book no.1840 was being deposited along with the FIR. The money receipt no.7 & 19 dated 17.02.2007 and 17.03.2007 respectively each Rs.500/- of book no.1576 were issued in the name of Rabindra Kumar Singh by the appellant, but the amount was not deposited in the government exchequer and in this regard, the writing complaint dated 02.09.2007 made by Shri Om Prakash Sahu and Rabindra Kumar were being attached with the written report. On 20.07.2007, Hiralal Mahto Village Post distributor had gone for distribution of letter and at that time, Tulsi Das Pahan, Village Post distributor was present in the post office, then appellant forcibly entered in the post office with the pass-book of the villagers and started affixing the seal of the post office thereupon, the written complaint in this regard by Hira Lal Pahan and Tulsi Das Pahan dated 24.08.2007 and 23.08.2007 respectively were being attached with the written report. The department enquiry was being conducted by the informant and to check the further wrong deed of the accused and for facilitating the inquiry, the information was being given by him for register the FIR and book no.1840 of village life insurance be seized from his possession.

On the basis of written report of the informant, Sikidri P.S. Case No. 32 of 2007 was registered for the offence under Sections 409 and 420 of I.P.C.

After investigation, the police submitted charge sheet for the offence under Sections 409 and 420 of the I.P.C. and thereafter cognizance was taken and then charges were framed for the aforesaid offences and the contents of charge were read over and explained to the accused in hindi, to which he denied and claimed to be tried.

In course of trial, the prosecution has examined 07 witnesses apart from several documentary evidences.

In support of his defence, petitioner has examined himself as D.W.-1 and also adduced two documentary evidences in his behalf.

After conclusion of trial, petitioner was held guilty for the offence under Sections 409 & 420 of the I.P.C. and sentenced, as stated above.

The judgment of conviction and order of sentence of petitioner was challenged in Criminal Appeal No. 60 of 2013 before the learned Additional Judicial Commissioner-VIII, Ranchi, which was heard and disposed of vide judgment dated 30.08.2016, whereby the judgment of conviction of the petitioner was upheld but the sentence awarded by the trial court was modified to the extent that instead of undergoing imprisonment for 2 ½ years along with fine of Rs. 2,500/- for the offence under Sections 409 & 420 of the I.P.C., petitioner was directed to undergo R.I. for one year each for the offence under Sections 409 & 420 of the I.P.C. along with fine of Rs. 1,000/- with default stipulation. Both the sentences were directed to run concurrently, which has been assailed in this revision.

Learned counsel for the petitioner has submitted that the F.I.R. was lodged after one month of the alleged occurrence and there is no any explanation for such delay. It is further submitted that neither the learned trial court nor the learned appellate court has properly appreciated the materials available on records before convicting the petitioner for the offence punishable under Sections 409 and 420 of I.P.C. It is further submitted that the offence of criminal breach of trust and cheating cannot co-exist on the basis of same allegations. The offence of cheating involves criminal intention from inception, however, for criminal breach of trust, there is lawful entrustment at the beginning, which is later misappropriated. Hence, this revision may be allowed by setting aside the impugned judgments and orders passed by the learned trial court as well as appellate court.

In alternative, learned counsel for the petitioner submitted that the case was instituted in the year 2007 and since then, 20 years have elapsed and the petitioner was convicted on 12.02.2013 when his age was 60 years and now, he is aged more than about 73 years of age and is also suffering from various ailments. Learned counsel for the petitioner has also submitted that the petitioner was ultimately terminated from his services. He also submitted that the petitioner had remained in jail custody for more than four months, out of sentence of one year. 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 73 years, again to jail at this stage of his life, the sentence of the petitioner may be modified to the extent of imprisonment already undergone by him.

On the other hand, learned Additional Public Prosecutor has vehemently opposed the aforesaid contentions raised on behalf of the petitioner and submitted that both the courts below have concurrently recorded the finding of guilt of the petitioner. It is further submitted that the account holders of the post office in P.L.I. Scheme had given their installments to the petitioner for depositing in their account, reposing faith in him as Postmaster so they entrusted money to the petitioner and the petitioner by not depositing installments in the account of the account holders, breached the trust as created between them as fiduciary relationship. Therefore, the conviction and sentence of petitioner passed by the trial court and upheld by the appellate court with modification in sentence is justified under law and this revision has no merits and fit to be dismissed.

I have given anxious consideration to the rival contentions of the parties and also perused the impugned judgments and order along with other materials available on record.

Before imparting my verdict on merits, the provision of Sections 409 and 420 of the I.P.C. are extracted as under:-

From perusal of aforesaid provision, it appears that if a public servant is entrusted with a property and he commits criminal breach of trust with respect to the said property then he is liable to be punished under section 409 I.P.C. Criminal breach of trust defined under section 405 of the I.P.C., which runs as follows:

In the present case, from perusal of records, it appears that P.W.-1 and P.W.-7, who are the account holders of the post office in P.L.I. Scheme had given their installments to the petitioner for depositing in their account, reposing faith in him as Postmaster, so they entrusted money to the petitioner and the petitioner by not depositing installments in the account of the account holders, breached the trust as created between them as fiduciary relationship and thereafter misappropriated the same.

In view of aforesaid discussion, the impugned judgment appears to be well-considered and in accordance with law. There is no reason to interfere with the impugned judgment of conviction of the petitioner for the offence charged against him.

So far quantum of sentence is concerned, admittedly the petitioner has undergone more than 04 months imprisonment. Now, from the date of commission of offence, two decades has been passed and the petitioner is aged about 73 years old. Now, it will not be just and proper to send him to custody for suffering rest of the imprisonment after such a long period. In my considered view, imprisonment already undergone by the petitioner would meet the ends of justice in this case and is sufficient punishment in the facts and circumstances of this case.

In view of aforesaid discussions and reasons, the impugned judgment of conviction of the petitioner is upheld, but the sentence passed by the learned trial court and modified by the appellate court is reduced to imprisonment already undergone by the petitioner, but the fine amount shall remain intact.

Accordingly, this criminal revision is dismissed on merits with modification in sentence as stated above.

Pending I.As., if any, stand disposed of.

Petitioner is on bail. As such, he shall be discharged from the liability of bail bond and sureties shall also be discharged.

Let a copy of this judgment along with trial court record be sent to the concerned trial court for information and needful.