Sadhana W/o Dharmraj Vishwekar vs The State Of Maharashtra & Ors.

In the instant appeal, there is challenge to the judgment and order of acquittal passed by the learned Additional Sessions Judge, Bhoom, acquitting the respondents of the charge under Section 381 read with Section 34 of the Indian Penal Code (IPC). The appeal was an off-shoot of judgment and order of conviction rendered by the learned Judicial Magistrate First Class, Washi in Regular Criminal Case No.12 of 2015.

Brief background of the case is that, present appellant instituted private complaint seeking directions under Section 156(3) of the Code of Criminal Procedure alleging commission of offence under Section 381 read with Section 34 of the IPC i.e. commission of theft of documents and registers from the chamber of Headmaster. Learned Judicial Magistrate First Class was pleased to invoke Section 156(3) of the Code of Criminal Procedure and investigation was carried out by CW8, which culminated into filing of charge-sheet. Particulars of the charge were explained to the accused and on appreciating the oral as well as documentary evidence, learned Judicial Magistrate First Class was pleased to convict both the respondents for offence under Section 381 read with Section 34 of the IPC vide judgment and order dated 16.08.2017.

. Feeling aggrieved by the same, they approached learned Additional Sessions Judge, Bhoom, who heard the parties and re-appreciated the evidence and by judgment and order dated 11.08.2023 overturned the judgment and order of conviction and allowed the appeal.

. Dissatisfied by the same, de-facto complainant has preferred instant appeal.

Before the Trial Court, following witnesses were examined and the sum and the substance of their evidence is as under :-

PW1, the complainant, deposed that the incident occurred on 16.07.2012 at about 2:00 p.m. in the Headmaster's office of Vishweshwar Vidyalaya, Zinnar. According to her, she was working as In-charge Headmistress, while accused No.1, who was the Headmaster, had been suspended on 05.06.2012. Accused No.2, was working as a peon. She stated that both accused, bearing a grudge against her on account of the suspension of accused No.1, came to her office, assaulted her with kicks and fist blows, and that accused No. 2 held her while accused No.1 removed documents from the cupboard. The documents allegedly taken away included the staffing approval file, General Register, Board Approval File, employee approval files, passbooks of D.C.C. Bank and State Bank of India, and the registration certificate of the society. She further deposed that the incident obstructed her in discharging her official duties and that accused No. 1 threatened to throttle her if she continued to run the school without the necessary documents. She stated that, as the police did not take cognizance of her complaint, she filed a complaint before the Court through an advocate, which was exhibited at Exhibit 21. She also stated that she showed the spot of the incident to the police.

. While under cross-examination, she was extensively questioned regarding her claim to the positions of President of the society and In-charge Headmistress of the school. She stated that the President and Secretary of the society had died and that a meeting of the Executive Committee had been held, with the signature of the Vice-President, to appoint her as President, whereafter a proposal was submitted to the Charity Commissioner. She denied the suggestions that the Education Department or the concerned Court had restrained her from functioning as President or In-charge Headmistress, or that her appointment proposal had been rejected. She admitted that she had not drawn the salary of In-charge Headmistress and was not working as an Assistant Teacher. She stated that a proposal for her appointment as Assistant Teacher had been submitted in 2012. She denied that accused No. 1 was functioning as Headmaster on the date of the incident, that the school records were exclusively in his custody, or that she had lodged a false complaint to secure control over the society. She also denied the allegations that she had submitted forged proposals, issued an unauthorised notice to accused No. 1, or falsely implicated the accused in collusion with the police.

PW2, Kashinath Kale, deposed that on 04.09.2012, the police called him to Mahatma Vishweshwar Vidyalaya, Zinnar, to act as a panch witness for the spot panchnama. The other panch witness, Rama Waghmare, and Sadhana Vishwekar were present. He stated that Vishwekar showed them the Headmaster's office, which contained one wooden cupboard, one iron cupboard, chairs and a table. Both cupboards were empty, and no documents were found there. The police prepared the panchnama in his presence, read it over to him, and obtained his signature. He identified the panchnama at Exhibit 23 and affirmed its contents.

. While under cross-examination, he stated that accused No. 1 was the Headmaster of the school and that Vishwekar was the Headmistress on 04.09.2012, a fact he knew because they belonged to the same village. He admitted that he was not an employee of the school and could not state which documents had been kept in which cupboard or whether documents had previously been stored in the cupboard found empty. He stated that he was called for the panchnama by Police Head Constable Terkar between 11:30 a.m. and noon, and that the panchnama commenced at 11:30 a.m. He further stated that the articles mentioned in the panchnama were shown to him by Terkar and Vishwekar. He denied the suggestions that the police had not called him, that he was deposing falsely, or that the contents of the panchnama were false.

PW3, Prabhu Kale, deposed that on 16.07.2012, between 2:00 p.m. and 2:30 p.m., he was sitting on the steps of a temple when he heard a commotion coming from Mahatma Vishweshwar Vidyalaya. He went to the school along with Adinath Vishwekar, and both intervened in the quarrel. He stated that he saw accused Narsing More holding Sadhana Vishwekar, while accused Sanjay Kawale broke open the lock and removed documents from the cupboard, placing them in a bag. The documents included children's certificates, the school register and the attendance book or muster. He further stated that the accused were abusing Sadhana Vishwekar, who was weeping, and that accused Kawale fled with the documents. He identified the accused persons and the complainant.

. While under cross-examination, he stated that accused No.1 had previously been the Headmaster, that there was a period when no Headmaster was appointed, and that accused No. 1 subsequently became the Headmaster again. He admitted that he was a member of the society but could not specify the years during which accused No. 1 had not served as Headmaster. He voluntarily stated that accused No. 1 had not been Headmaster from 16.07.2012 for approximately three years thereafter. He stated that no meeting of the society's members had been held after 16.07.2012 and that he could not state the date of the meeting concerning the vacant post. He admitted that he shared a good relationship with the complainant but denied that he was deposing falsely at her instance or that the contents of his examination-in-chief were false.

PW4, Balasaheb More, deposed that on 16.07.2012 at about 2:30 p.m., he was working as a Junior Clerk at Mahatma Vishweshwar Vidyalaya. According to him, Sadhana Vishwekar was the In-charge Headmistress, accused No. 1 was under suspension, and accused No. 2 was working as a peon. He stated that the accused abused Vishwekar and took away school records, including the Transfer Certificate book, two General Registers and the Transfer Certificate file.

. While under cross-examination, he stated that he shared the Headmaster's office with Vishwekar but admitted that he had received no document establishing her appointment as In-charge Headmistress. He stated that documents received from outside were ordinarily received by him and that his duties included preparing salary bills. He could not remember whether he had drawn the salary of accused No.1 for July 2012 or whether accused No. 1 had submitted the employees' attendance report for that period. He also stated that he did not remember whether accused No. 1 or Vishwekar had signed office documents on the date of the incident. Although he stated that Vishwekar used to attend as In-charge Headmistress and that a separate muster roll was maintained for her, he could not produce a document establishing her appointment. Regarding the incident, he could not remember how many persons had gathered and stated that a quarrel and verbal altercation had taken place. He could not say whether accused No. 1 took away the Transfer Certificate book on the day of the quarrel or subsequently. He denied that he was deposing falsely at the complainant's instance. In response to a question by the Court, he stated that accused No. 2 was his nephew and that he had no relationship with accused No. 1.

PW5, Adinath Vishwekar, deposed that on 16.07.2012 at about 2:30 p.m., he had brought his cattle for watering and tied them to a tree near Mahatma Basweshwar Vidyalaya. He stated that a quarrel was taking place between Sadhana Vishwekar and the accused, and that PW3, Prabhu Kale, was with him. According to him, accused More had held Sadhana Vishwekar while accused Kawale was walking away with a register and office files in a bag. He stated that More was pushing her and that, when he and PW3 intervened to separate them, the accused threatened and intimidated them. He further stated that Sadhana Vishwekar was the President of the school and was working as Headmistress at the relevant time.

. While under cross-examination, he admitted that Sadhana Vishwekar was related to him and that her husband was his nephew. He stated that he did not ordinarily visit the school and was unaware of the activities of its teachers and staff. He had no document showing that Vishwekar was the Headmistress and knew that accused Kawale had been Headmaster. He stated that he learnt about Kawale's suspension and Vishwekar's appointment from Vishwekar herself. He further explained that, after hearing the noise, he tied his four cattle and entered the school within five to ten minutes. He stated that he had told the police that he was watering and tying the cattle but could not explain why the relevant detail was not recorded in his statement. He maintained that Kawale had taken the register from the cupboard and denied the suggestions that he was deposing falsely at the complainant's instance or that his examination-in-chief was false.

PW6, Satyavijay Lagade, deposed that his son Rahul was studying in Standard X at Basveshwar Vidyalaya, Zinnar, in 2013 and had failed. When he approached Randive, the Headmaster, for a Transfer Certificate, he was informed that the certificate could not be issued as the relevant register was unavailable and was advised to contact Kawale. On contacting Kawale, he was directed to Narsing More, who gave him a register for photocopying. PW-6 obtained a photocopy of the page containing his son's name and returned the original register to More. He thereafter approached Randive again, who initially stated that a Transfer Certificate could not be issued on the basis of a photocopy but subsequently issued the certificate. PW-6 produced a photocopy of the Transfer Certificate bearing his son's name, which was marked Article 'A', and identified the accused.

. While under cross-examination, he stated that he could not say who was the Headmaster in 2013. He denied that Kawale had issued the Transfer Certificate and maintained that Randive had issued it and signed it. He stated that the photocopy had been made at Kumbhar's Xerox Centre and that More was a peon in the school. He further stated that nobody else was present when More handed over the register to him. He denied that the contents of his examination-in-chief were false or that he had given false evidence.

PW7, Dhanaji alias Dhananjay, deposed that he had been working as a teacher at Dasmegaon-Zinnar Vidyalaya since 25.06.1998. He stated that, by an order dated 29.12.2012 issued by the Education Officer, Osmanabad, he was directed to function as In-charge Headmaster of Mahatma Basweshwar Vidyalaya, Zinnar, with effect from 01.11.2012. Upon taking charge, he found that several records, including the General Register, Transfer Certificate files, Green Sena Register, E.B.C. allotment register, teachers' muster and State Bank of India passbook, were unavailable in the school. According to him, S. R. Kawale had previously been looking after the work of Headmaster and had not returned the records to him. He further stated that, when Rahul Lagade's father approached him for a Transfer Certificate, he informed him that the certificate would be issued after obtaining the relevant register from Kawale. The parent subsequently returned with a photocopy of the General Register obtained from Kawale, on the basis of which PW7 issued the Transfer Certificate using the old muster. He identified the Transfer Certificate at Article 'A'.

. While under cross-examination, he stated that the school had accused No. 1 as Headmaster, one clerk, four school servants and other staff members. He stated that no one other than himself and accused No. 1 had looked after the work of Headmaster. He further stated that he worked as Headmaster from 29.12.2012 until June 2015, after which accused No. 1 became Headmaster. However, he also stated that accused No. 1 was the Headmaster on 29.12.2012 and that he had not taken charge from anyone, as accused No. 1 had not handed over the charge to him. He stated that he had issued a letter to the Education Officer and accused No. 1 in that regard and that no other person was appointed to take over the charge. He denied that he was falsely claiming to be Headmaster or that the contents of his examination-in-chief were false.

PW8, Yuvraj Ram Terkar, Police Head Constable, deposed that he was posted at Police Station, Washi, in 2012 and that the investigation of M. Crime No. 10 of 2012 was entrusted to him by the Police Station Officer. He stated that he visited the spot of the incident in the presence of panch witnesses Kashinath Kale and Ram Waghmare and prepared the spot panchnama at Exhibit-23. According to him, the complainant showed him the place of the incident within the premises of Mahatma Basaveshwar Vidyalaya, Zinnar, and informed him that the school register had been stolen. He stated that the premises contained one iron cupboard and one wooden cupboard, in which other documents were kept, but the documents alleged to have been stolen were not found. He further deposed that the investigation disclosed that the school register, salary slips, General Register, society registration register, grants register, bank passbook and E.B.C. distribution register had been taken away. He referred to the statement of Satyavijay Lagade concerning the obtaining of a photocopy of the General Register through school peon Narsing More for the issuance of his son's Transfer Certificate. He stated that the Transfer Certificate was shown to him and marked Article 'A'. He thereafter filed the charge-sheet against the accused.

. While under cross-examination, he stated that he filed the charge-sheet on 03.09.2012 and thereafter, conducted further inquiry but found nothing. He admitted that he had no documentary evidence confirming that the complainant was working as In-charge Headmistress and had not personally approached the District Education Officer or Block Education Officer to verify her appointment. He stated that the stolen documents were not found in the cupboards but admitted that he had no personal knowledge of which other documents had previously been kept there. He stated that the spot panchnama was conducted on 04.09.2012, when the school was open and Randive was working as Headmaster. He had recorded Randive's statement but had not asked him how long he had been functioning as Headmaster. He further admitted that he had not inquired into the number and designations of the society's directors or recorded the statements of the officers from the Education Department and the Charity Commissioner, despite making inquiries with those offices. According to him, both offices informed him that they had no record indicating whether the complainant was the In-charge Headmaster. He also admitted that he had not made inquiries with other staff members or students of the school. He denied the suggestions that the complainant had no connection with the school, that the investigation and panchnama were false, or that he had filed a false charge-sheet at the complainant's instance.

Learned Counsel for the appellant would submit that appellant was not only in-charge Headmistress on the date of incident, but she was also the President of Educational Institution. That, accused No.1 respondent No.2 herein, who was working as Headmaster, was already suspended, whereas accused No.2 was Peon. He pointed out that on 16.07.2012, both the respondents/accused barged into the chamber of appellant and they indulged in manhandling her and moreover, accused No.1 dishonestly removed documents, registers and files from the cupboard without consent of appellant. That, there is eye witness account of the entire incident. That, as FIR was not entertained by police, appellant was required to institute private complaint and in consequence to it, crime was registered and both accused were duly tried by learned Judicial Magistrate First Class, who, on correct appreciation of evidence and finding essential ingredients were available in prosecution evidence, convicted both accused. That, it was a well reasoned judgment. There was no need to interfere in the same, however, in appeal by present respondents, learned Additional Sessions Judge, Bhoom, overturned the well reasoned judgment. He would submit that learned Trial Court erred in holding that appellant/complainant was not Headmistress and that she did not draw salary and on the strength of such material, accused are acquitted.

. He seeks reliance on the judgments of Hon’ble Apex Court in the case of State of Maharashtra v. Sujay Mangesh Poyarekar, (2008) 16 SCC 394, on the point of grant of leave to appeal; in the case of Chandrappa v. State of Karnataka, (2007) 4 SCC 415, on the powers of Appellate Court to re-appreciate the evidence in appeal against acquittal; and also relied on the judgment in the case of Muralidhar @ Gidda v. State of Karnataka, (2014) 5 SCC 730, on the point that Appellate Court while reversing conviction must engage with the Trial Court’s reasoning, failing which it is open to interference.

Per contra, learned Counsel for respondent Nos.2 and 3/original accused would justify the judgment and order of acquittal by pointing out that, as prosecution had failed to satisfy the essential ingredients of Section 381 of the IPC and as there was failure on the part of the learned Judicial Magistrate First Class to consider and appreciate this crucial aspect, learned first Appellate Court rightly interfered and acquitted the present respondent.

Here, there are allegations of commission of offence under Section 381 of the IPC, which reads as under :-

In order to bring home the offence under Section 381 of the IPC, it is incumbent upon the prosecution to prove the following :

Private complaint seems to have been instituted by present appellant and the same is at Exhibit-01. Appellant/complainant claims that she was President of Bajrang Shikshan Prasarak Mandal, Zinnar and was also in-charge Headmistress of Mahatma Basveshwar Mahavidyalaya, Dasmegaon. It is noted in the complaint that accused No.1 was suspended Headmaster, whereas accused No.2 was Peon. Sum and substance of the complaint is that on 16.07.2012, at around 2.00 p.m., both accused went to the school premises, beat complainant by fists and kick blows and while she was held by accused No.2, accused No.1 broke lock of the cupboard and took away all documents, registers, papers and thereby committed theft.

On above private complaint, learned Judicial Magistrate First Class was pleased to exercise powers under Section 156(3) of the Code of Criminal Procedure and directed investigation at the hands of police, who charge-sheeted the accused. At Trial, case of prosecution is based on testimonies of as many as eight witnesses, whose testimonies are already reproduced above.

Record shows that the Trial at the hands of learned Judicial Magistrate First Class ended up in conviction, but in appeal said judgment was set aside by allowing the appeal of present accused.

In order to bring home the charge of Section 381 of the IPC, it is incumbent upon the prosecution firstly to demonstrate and substantiate that accused were clerk or servant and that complainant herself was the master and custodian of the stolen property, which was dishonestly removed. Therefore, here, this provision requires master servant relation to be in existence.

Here, as stated above, complainant has claimed herself to be the in-charge Headmistress as well as President of the Educational Trust. Holding office of President or Secretary is an executive post. Admittedly, this school is an educational institution run by a Trust having several trustees. Accused are not employed by complainant herself alone, rather accused must have been appointed by the Educational Trust and as such, there is no master servant relationship.

Further, accused No.1, who allegedly actually removed the registers and documents, was the Headmaster and he was not appointed by complainant in personal capacity, rather he was appointed by the entire school management/Trust.

Under such circumstance, there does not seem to be master servant relationship between complainant and accused No.1. Same is the case with accused No.2, who is a Peon and appointed by Management. Moreover, though complainant claimed herself to be the in-charge headmistress, there is no supportive documents to that extent. For such reasons, there is no master servant or employer employee relationship between accused and complainant. Hence, the essential ingredients and requirements are missing in the case in hand.

Though there is direct eye witness account in the form of PW5 and PW6, when the essential requirements for attracting the charge of Section 381 of IPC are not met, no fault can be found on the part of learned Additional Sessions Judge in interfering in the judgment and order of learned Judicial Magistrate First Class, who has lost sight of essential requirements for attracting Section 381 of the IPC. In the considered opinion of this Court, there being no merits in the appeal, it deserves to be dismissed. Hence, the following order :-

. Criminal Appeal is dismissed.