Raj Kishor Mondal vs State Of Jharkhand

Heard Mr. Binod Singh, learned counsel appearing on behalf of the petitioner along with Ms. Satakshi, Amicus.

Heard Mr. Tarun Kumar, learned counsel appearing on behalf of the opposite party-State.

Arguments on behalf of the petitioner

The learned counsel for the petitioner has submitted that the impugned judgments are perverse and are fit to be set- aside, in as much as, there is no evidence on record that it was the petitioner who had manipulated the cheques involved in the present case. He submits that there are three cheques involved in the present case i.e. amounting to Rs. 60,000/- Rs. 30,000/- and Rs. 30,000/- respectively and so far as the allegation in connection with cheque amount of Rs. 60,000/- is concerned, it has been alleged against the petitioner that he had interpolating the cheque by inserting 'ty' in front of six and inserting one zero after Rs, 6,000/-. He also submits that the cheque was encashed at the bank and there is no evidence that the interpolation had taken place at the end of the petitioner. He has also submitted that so far as other two cheques i.e. of Rs. 30,000/- and Rs. 30,000/- are concerned, there has been allegation of interpolation in those cheuqes also, but the counter-foil of the cheque also indicated that the cheque was being issued for an amount of Rs. 30,000/- each and accordingly there could have been no interpolation in the cheque by the petitioner. The learned counsel submits that it has been recorded by the learned trial court that it was the banker who was cheated and it is not clear as to how the banker has been cheated, as the amount did not belong to the bank, but the amount belong to the government. The learned counsel has submitted that there is no element of entrustment and there is no direct evidence against the petitioner. The learned counsel has also submitted that the investigating officer of the case has not been examined which has caused serious prejudice to the petitioner. The learned counsel has submitted that there has been no wrongful loss to the banker and accordingly no criminal case of forgery, cheating or criminal breach of trust is made out against the petitioner. The learned counsel further submits that there is no expert opinion on record to show that the interpolation which was made in the cheque was under the handwriting of the present petitioner and therefore, the finding of the learned courts below that the petitioner had interpolated the cheque is itself perverse and is fit to be set-aside.

The learned counsel has also submitted that there has been unreasonable and unexplained delay in lodging the FIR and further from perusal of the written report i.e. the FIR, it appears that the same is not a complaint but rather the same is an explanation on behalf of the informant to save his skin from the entire episode.

The learned counsel for the petitioner has submitted that without prejudice to the aforesaid submission made on behalf of the petitioner, one more important aspect of the matter is that the present petitioner is admittedly a public servant, the petitioner could not have been held criminally liable for the acts and omissions, if any, on the part of the petitioner without there being a sanction under Section 197 of Code of Criminal Procedure. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2000) 8 SCC 500 Paras-8 and 9 to submit that in absence of sanction, the entire conviction and sentence of the petitioner are fit to be set- aside. The learned counsel submits that the point regarding sanction has been taken by the petitioner before the learned lower appellate court, but that aspect of the matter has not been properly examined and the learned lower appellate court has failed to consider that the petitioner was acting in discharge of his official duty.

Arguments on behalf of opposite party

The learned counsel appearing on behalf of opposite party-State, on the other hand, has opposed the prayer and has submitted that as per the FIR, the petitioner was the custodian of the cash-book etc. and accordingly, the interpolation which was made by the petitioner in the cheque was to be explained by the petitioner himself. He also submits that so far as the cheque amounting to Rs. 60,000/- is concerned, even the counter-foil of the cheque clearly indicated that the cheque was issued only for an amount of Rs. 6,000/- and not for Rs. 60,000/- and admittedly the cheque was handed-over to the petitioner for encashment and the bank officials had produced records to show that the amount of Rs. 60,000/- was handed over to the petitioner. He submits that the cheque being in custody of the petitioner and it was encashed by the petitioner , it was for the petitioner to explain the interpolation in the cheque, but the petitioner did not furnish any explanation in his statement recorded under Section 313 of Code of Criminal Procedure.

However, during the course of arguments, the learned counsel did not dispute the fact that as per the exhibits recorded in the impugned judgment, the counter-foil of the cheques amounting to Rs. 30,000/- also indicated amount of Rs.

30,000/- only and it is also not in dispute that the cheques were being issued by the informant under her signature. The learned counsel further submits that there are concurrent finding of facts recorded by the learned courts below and it involves misappropriation of public money, therefore, no sympathetic view is called for in the present case.

The learned counsel has submitted that the learned lower appellate court has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Prakash Singh Badal vs. State of Punjab reported in (2007) 1 SCC 1, wherein it has been held that the offences relating to Sections 467, 465, 471 and 120- B of Indian Penal Code can by no stretch of imagination, by their very nature, be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. The learned counsel submits that the sanction for prosecution will be required only when the petitioner would have acted in discharge of his official duty, but in view of the specific allegations made against the petitioner regarding interpolation in the cheque in order to withdraw much higher amount than the amount for which the cheque was issued, his act cannot be said to be in discharge of his official duty and this aspect of the matter has been duly considered by the learned lower appellate court which does not suffer from any perversity. He further submits that in the judgment passed by the Hon'ble Supreme Court reported in (2000) 8 SCC 500, the Hon'ble Supreme Court has held that the sanction would be required once it is found that the public servant was acting in discharge of his official duty and accordingly, the judgment which has been relied upon by the petitioner does not help the petitioner. The learned counsel submits that there is no scope of re-appreciation of evidence in revisional jurisdiction and accordingly, the present revision petition is fit to be dismissed.

Arguments concluded.

Judgment reserved.