- (1.) MRINAL Kanti Sinha, J : This appeal has been directed against the Judgment and Order passed by Sri S.K. Das, learned Judge, Midnapore 1st Special court, (Additional Sessions Judge, 1st Court, Midnapore) in Special Trial Case No.3 of 1984 (arising out of G.R. Case No.189 of 1977), on 14.07.1988, whereby the learned Judge found the appellant/accused guilty under Sections 409, 465, 467, 471 and 477A of the Indian Penal Code and convicted him under the said sections and sentenced him to undergo rigorous imprisonment for four years under Section 409 of the Indian Penal Code only, but passed no separate sentence for the rest proven charges.
(2.) IT was the case of the prosecution that the appellant/accused, the then Anchal Pradhan of Anchal No.1, Sultanpur, Ghatal Block, took charge of re-sinking or repairing four derelict tube wells in March, 1977, and filed documents showing expenditure of Rs.850/- for the work done. But Mr. R.I. Singh, Sub-Divisional Officer, Ghatal on personal inspection of the site on 18.05.1977 found that nothing was done regarding the work of the said tube wells, Sri R. I. Singh, the then Sub-Divisional Officer, Ghatal, forwarded his report to the Officer-in-Charge of Ghatal Police Station for investigation and taking necessary action on 27.05.1977 vide Memo No.216C dated 27.05.1977. Inspector Santosh Kumar Chakraborty, the then Officer-in-Charge of Ghatal Police Station, started Ghatal Police Station Case No.18 dated 28.05.1977 in that regard after receiving the said complaint and treating the same as F.I.R and endorsed the case to Sub Inspector S.K. Lahiri for investigation, who after completion of investigation submitted charge-sheet against the appellant/accused receiving reports of the finger-print expert Kamal Kumar Mukherjee and handwriting expert Shankar Prasad Sinha. Thereafter the appellant/accused faced trial before the learned Judge, 1st Special Court, Midnapore, on the aforesaid allegations. It appears that after receipt of the F.I.R. from the S.D.O., Ghatal, G.R. Case No.189 of 1977 was initiated under Sections 406/477A/420 of the Indian Penal Code and after investigation into the case police submitted a chargesheet against the appellant/accused under Sections 409, 467, 471 and 477A of the Indian Penal Code. Thereafter charges under Section 409, 465, 467, 471 and 477A were framed against the accused on the basis of the FIR lodged by the defacto complainant, which were read over and explained to the accused/appellant, who pleaded not guilty and claimed to be tried, and then evidence of the P.Ws. were taken. In support of its case the prosecution examined 20 witnesses, who were cross-examined by the defence, and submitted some documents, which have been marked Exhibits. Thereafter the accused was examined under Section 313 of the Code of Criminal Procedure, 1973. From the trend of cross-examination as well as from the examination of the accused under Section 313 of the Code of Criminal Procedure the defence case appears to be the denial of the prosecution case. It was also the case of the defence that a tube well 'mistri' named Banamali Basrdolui undertook the repairing work of the derelict tube wells and an amount of Rs.850/- was paid to him as advance and he admitted receipt of the said amount. It was also the case of the defence that as the B.D.O.of Ghatal had grudge against the appellant/accused on the ground that he did not comply with his request to sink a tube well in a vicinity of his father-in-law's house, so the appellant/accused was entangled in the said case. The defence examined no D.W. nor submitted any document in support of its case. Thereafter hearing the argument of the parties Judgment was delivered by the learned Trial Court.
(3.) MR. Sudipta Moitra, learned Counsel for the appellant/accused has assailed the impugned judgment and order on the ground that the conviction and sentence passed by the learned Judge of the Court below is against evidence. It has also been submitted that the learned Court below overlooked the lacunae in the prosecution case and evidence and practically based its finding on the evidence of P.W.17, the Block Development Officer, Ghatal, and P.W.s 14, 15, 16, and did not at all consider the evidence of P.Ws 2, 3, 4, 5, 6, 9 and 10, who deposed that P.W.18 Banamali Bardolui was actually paid a sum of Rs.850/- for repairing the defunct tube wells, who actually performed that job and admitted receipt of the said amount as remuneration, but as under ground water level receded by the time when the B.D.O and S.D.O concerned inspected the locale, so they could not ascertain then as to why water was not coming out as the underground water level receded then. Moreover, it took sometime for P.W.18 Banamali Bardolui to complete the work beginning the same before March 31, 1977, as there was apprehension of refunding back of the money by the end of that financial year. The Block Development Officer, Ghatal, or the S.D.O., Ghatal, themselves not being an expert, did not take any expert with them at the time of their alleged visit there to ascertain the activity of the said tube wells, though it has been stated by the P.W.5 and P.W.18 that during summer the water level of that area recedes. All these matters were stated by the appellant/accused at the time of his examination under Section 313 of the Criminal Procedure Code, 1973, but his statement was not considered by the learned Trial Court. Some witnesses like P.Ws 2, 3, 4, 5, 6, 9, 10 and 15 stated about the re-sinking of tube wells there, but none of them has been declared hostile by the prosecution nor there is any such case that they have been gained over. As some of the P.Ws like P.Ws 2, 3, 4, 5, 6, 9, 10 and 15 have stated about the fact of re-sinking or repairing of the derelict tube wells by said Banamali Bardolui, so they have been depicted as defence witnesses by the learned Trial Court, which is not at all just and proper. Rather, it can be ascertained from the evidence of those P.Ws that there was some truth in the defence version, which was absolutely ignored by the learned Trial Court at the time of passing his Judgment, and this fact also raises a suspicion about the genuineness of the prosecution case. Moreover, though there is allegation against a public servant, yet no sanction under Section 197 of the Code of Criminal Procedure was obtained before his prosecution. It also appears that the appellant/accused has undergone a protracted trial for more than 35 years and has suffered mental agony during that period and the sentence given to him by the learned Trial Court was not also just and proper. Learned counsel for the accused has also submitted that the proof of entrustment of dominion over the property is essential in case of allegation of criminal breach of trust, and has relied upon the decision reported in AIR 1965 SC 1433 in the case of Velji Raghabji Patel Vs. State of Maharastra in this regard. Learned counsel for the appellant has also submitted that the appointment of the Panchayat Pradhan and other members are made by the State Government as per the provisions of West Bengal Panchayat Act, 1973, and as per the provision of Section 213 of the West Bengal Panchayat Act, 1973, the State Government may remove the Pradhan or Upa Pradhan, and from that point of view if they are termed as public servant, then entrustment of dominion over the property in question is essential for proving the case of criminal breach of trust.;