T.AMARNATH GOUD,J. - (1.)This is an application under Sec. 401 read with Sec. 399 of the Cr.P.C., 1973 for setting aside the judgment dtd. 27/1/2020 passed in Criminal Appeal No. 03(1) of 2018 by the learned Sessions Judge, Gomati District, Udaipur, affirming the order of conviction and sentence dtd. 13/12/2017 passed by the learned Chief Judicial Magistrate, Gomati, Udaipur in case No. GR 347 of 2011 convicting the petitioner under Sec. 403/409 of the IPC and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs.5000.00 in default to pay the said amount to suffer further rigorous imprisonment for one month for the commission of the offence punishable under Sec. 403 of the IPC and further sentenced him to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.10,000.00 defaulting to suffer rigorous imprisonment for a period of two months for the commission of the offence punishable under Sec. 409 of the IPC with a direction to run both the sentence concurrently.
(2.)For the sake of brevity the parties are referred to as in the cause title of GR 347 of 2011. The brief fact of the prosecution case is that accused Sri Khagendra Acharjee was Head Clerk cum Cashier of the Sub-Registry officer, Udaipur and accused Sankar Sarkar(now deceased) was Sub-Registrar and accused Sri Khagendra Acharjee was made as cashier by the then DM and Collector by order No. F.1(12)/DR/S/2000/92-95, dtd. 1/2/2010 with effect from 25/1/2010 and accused Sri Khagendra Acharjee has taken over the charge of cashier from earlier cashier Sri Uttam Kr. Das 25/1/2010 and an audit team after audit submitted a report on 3/6/2011 that an amount of Rs.23,04,900.00 collected as registration fee, searching fee, copying fee etc. from the month of January, 2011 to May, 2011 was not deposited in the treasury and on verification of cash book, they found cash Rs.1,60,200.00 only was lying in chest which is kept in the Almirah of accused Sri Khagendra Acharjee and accused Sri Khagendra Acharjee committed cheating and misappropriated the government money and accused Sankar Sarkar (now deceased) was negligent and liable and, accordingly, stating the above mentioned fact along with other fact informant filed FIR before the O.C. RK. Pur P.S.
(3.)On receipt of FIR, the officer-in-charge of R.K. Pur P.S. has registered the case No. 244/11, dtd. 9/6/2011 under Ss. 420/409/109 of IPC and, thereafter endorsed the case to SI Subrata Barman for investigation of the case. Thereafter, again the case was endorsed to the SI Rajib Saha (CID) on 14/7/2011 as per order of the SP (CID) and he received the case docket from the O/C, R.K. Pur P.S.
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