Lukas Tirkey @ Lucas Tirkey 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 04.07.2017 passed by learned Additional Sessions Judge-I, Hazaribag in Criminal Appeal No. 175 of 2008, whereby and whereunder the appeal preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence dated 09.09.2008 passed by learned Judicial Magistrate, 1^st Class, Hazaribagh in G.R. No. 1676 of 2000, arising out of Hazaribagh Sadar P.S. Case No. 326 of 2000, has been confirmed, whereby petitioner has been held guilty for the offence under Sections 409, 468, 469 & 471 of the I.P.C. and sentenced to undergo rigorous imprisonment of three years along with fine of Rs. 500/- for the offence under Section 409 of I.P.C., rigorous imprisonment of three years along with fine of Rs. 500/- for the offence under Section 468 of the I.P.C., rigorous imprisonment of three years along with fine of Rs. 500/- for the offence under Section 469 of I.P.C. and also rigorous imprisonment of three years along with fine of Rs. 500/-for the offence under Section 471 of I.P.C. with default stipulation. All the sentences were directed to run concurrently.

The factual matrix giving rise to this revision as per written report lodged by one Sadan Kumar Sinha, Sub-Divisional Inspector (Postal), North Sub-Division, Hazaribagh dated 16.06.2000 addressed to Officer-in-Charge, Sadar P.S., Hazaribagh is that the present petitioner Lucas Tirkey was working as Sub Post-master, Korrah H.O. during the period from 07.04.1993 to 06.03.1995. It is alleged that during that period the said Lucas Tirkey had made fraudulent transactions from S.B. A/c Nos. 776610, 772565 and 776684 to the tune of Rs. 44,000/-. It is further alleged that from S.B. A/c No. 776610, a sum of Rs. 25,000/- was withdrawn by preparing a forged and fabricated withdrawal form on 23.09.1993. An account was standing in the name of Sri Samar Kachchap and the passbook was lying with the accused Lucas Tirkey and Lucas Tirkey put signature of Sri Samar Kachchap himself on the withdrawal form and warrant of payment (SB-7) and managed to withdraw Rs. 25,000/- fraudulently and spent the same for his personal use. It is further alleged that the account holder Samar Kachchap has denied the withdrawal of Rs. 25,000/- on the relevant date along with his signature on S.B.-7. It is further alleged that S.B. A/c No. 772565 stands in the name of Sri Murli Kumar Kappor, wherein he has deposited Rs. 3,000/- on 07.04.1993 and entry was made in the handwriting and signature of Lucas Tirkey, but deposit was shown Rs. 2,000/- only in the said savings account. This sum was also incorporated in the S.O. Account and S.B. Log book and thus, Rs. 1,000/- was not credited in the account of account holder and Rs. 1,000/- was misappropriated by accused. It is further alleged that from S.B. A/c No. 776684, which was opened on transfer from Monghyr Head Office in the name of Jawala Prasad Sinha on 04.12.1993 with a balance of Rs. 19,820.05. A sum of Rs. 18,000/- was shown as withdrawal on 04.12.1993 with due entry in the pass book which was lying with the accused. It is alleged that the said withdrawal was denied by the account holder along with his signature on the withdrawal form and warrant of payment dated 04.12.1993. It is alleged that Lucas Tirkey has also confessed his guilt in his written statement made before his officials.

On the basis of above information, Hazaribagh (Sadar) P.S. Case No. 326 of 2000 was registered for the offence under Sections 409, 468, 469 and 471 of the I.P.C.

After completion of investigation, charge sheet was submitted against the accused and the learned C.J.M., had taken cognizance of the offences under the same Sections of the I.P.C. and the case record was transferred to the court of S.D.J.M., Hazaribagh and later on to the court of J.M., 1^st Class, Hazaribag for trial. Thereafter charge was framed for the offence under Sections 409, 468, 469 and 471 of the I.P.C. to which the accused pleaded not guilty and claimed to be tried.

The learned trial court, after evaluating the evidence available on record, has held the petitioner guilty for the offence under Sections 409, 468, 469 and 471 of the I.P.C. and sentenced him, as stated above.

The judgment of conviction and order of sentence dated 09.09.2008 of petitioner was challenged in Criminal Appeal No. 175 of 2008 before the learned Additional Sessions Judge-I, Hazaribagh, which was heard and disposed of vide judgment dated -4.07.2017, whereby the conviction and sentence of the petitioner was upheld and confirmed and appeal was dismissed, which has been assailed in this revision.

Learned counsel for the revisionist submits that both the trial court as well as learned appellate court have committed serious error of law in ignoring the very vital fact that none of the three account holders, from whose account money is allegedly withdrawn or deficient amount was deposited, were produced by the prosecution as a witness. Even during course of investigation, none of the above account holders have been interrogated. The learned trial court has also failed to take pain to call for those witnesses as court witnesses, so that truth can be disclosed by examining the account holders and providing the opportunity of cross-examination to the accused person. Non-interrogation with the above witnesses during investigation as well as non-production during trial as a witness has occasioned failure of justice in this case. The petitioner was absolutely deprived from his right to cross-examine the person who was aggrieved in this case. The petitioner has been falsely implicated due to ulterior motive of the Postal officials, although the withdrawal form and the deposition slip for the accounts, as shown in the FIR, by the account holders, is brought on record, but the same cannot be assumed to be misappropriated by the petitioner, unless and until the aggrieved person comes forward. It is further submitted that the petitioner is a public servant and the transactions are said to be made while discharging his official duties and this case was lodged without obtaining sanction for his prosecution from competent authority. No incriminating material has been brought on record and put to the petitioner under Section 313 Cr.P.C. The confessional statement of petitioner has also been exhibited i.e. Exhibit-6, 7 & 8, but in strict sense, these are admissions and not confession and the admissions are pertaining to transactions as effected by account holders and there was no irregularity in those transactions. The learned trial court as well as appellate court had ignored the vital aspects of the case for consideration and held the petitioner guilty without any evidence. Therefore, the impugned judgments are perverse, illegal and beyond the weight of evidence and not justifiable under law and fit to be set aside. This revision may be allowed.

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. The conviction and sentence of petitioner 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.

It appears that in the present case, the date of occurrence was shown to be between 07.04.1993 to 06.03.1995, but F.I.R. was lodged in the year 2000, after a lapse of five years without any explanation. The sine qua non for an offence under Section 468 of I.P.C. is forgery, which has been defined in Section 463 of I.P.C. To hold a person guilty for forgery or that a person has made false document or part thereof it is to be proved beyond reasonable doubt that person concerned has made, signed, sealed or executed the document or part of document with fraudulently or dishonestly. But in this case, neither the account holders / depositors namely, Samar Kachchap, Murli Kumar Kappor and Jawala Prasad Sinha were produced nor examined in this case to support the prosecution case. The signature of the petitioner on the alleged withdrawal form was not sent to the handwriting expert, which caused grave prejudice to the case of the appellant. It further appears that the petitioner, who has got no criminal antecedent has now retired and aged about 74 years, is facing the rigors of trial for last 26 years.

Considering the overall aspects of the case, the prosecution has failed to prove its case beyond all reasonable doubt, therefore, in my considered view, the judgment of conviction and order of sentence awarded to the petitioner is perverse.

In view of aforesaid discussion and reasons, I find that both learned trial court as well as learned appellate court has committed serious error of law in appreciating the evidence available on record and in passing the impugned judgment. Therefore, I find legal substance in the points of argument raised on behalf of the petitioner and merits in this revision. Accordingly, the impugned judgment of conviction and order of sentence of the petitioner passed by the learned trial court and upheld by the appellate court is hereby set aside and this revision is allowed.

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.