TOUFIQUE UDDIN J. - (1.) THIS appeal was directed against the judgment and order of conviction dated 15.02.2002 and 16.02.2002 passed by Sessions Judge, Howrah in Special Case No. 2 of 1996 and convicting the appellants thereby for commission of offence under Section 409/34/120B of the Indian Penal Code.
(2.) THE short background of this appeal is as follows: - A written complaint was lodged by one S.K. Jharihat, Superintendent of Uluberia S.D. Hospital with O.C. Uluberia P.S. alleging misappropriation of Government money amounting to Rs. 5,77,000/ - and odd during the period of February 1986 to July 1991. The West Bengal Audit Party audited the accounts of the Uluberia S.D. Hospital for the period from 02.02.1993 to 19.03.1993 and inspected the accounts for the period from 06.01.1986 to 19.01.1993. During such audit, the audit party detected misappropriation of Government money amounting to Rs. 5,77,000/ - and odd in the accounts of the said hospital. At the relevant point of time one Dr. K.R. Chatterjee was the Superintendent of the hospital and the other accused persons namely, Desranjan Sengupta - U.D.C., Brojendra Nath Sarkar - U.D.C. and Biswanath Roy - L.D.C. were attached to the Accounts Department and were responsible for drawing and disbursing the bill amount. The said amount was misappropriated by the accused persons. On the basis of the complaint, Uluberia P.S. Case No. 12 dated 17.02.1994 was started against three accused persons viz. Desranjan Sengupta, Brojendra Nath Sarkar and Biswanath Roy. After completion of the investigation, charge sheet has been submitted against those accused persons and Dr. K.R. Chatterjee under Section 409/120B/34 of Indian Penal Code. The Trial Court, on hearing of the both sides, framed charge against the accused persons. The contents of the charge, were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. To contest this case, the prosecution examined as many as 10 witnesses, while none was examined on the side of the defence. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross - examination of the witnesses and the replies given at the time of examination under Section 313 of the Code of Criminal Procedure was the denial of offence with a plea of innocence.
(3.) ON trial, the learned court below convicted the present appellants by the impugned judgment. Now, the point for consideration is if the said judgment suffers from any material irregularity and calls for any interference or not. Section 409/120B/34 of Indian Penal Code read as follows: - 1) Section 409 of I.P.C. - Criminal breach of trust by public servant, or by banker, merchant or agent. - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 2) Section 120B of I.P.C. - Punishment of criminal conspiracy. ­ (I) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (II) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. 3) Section 34 of I.P.C. - Acts done by several persons in furtherance of common intention. - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. To appreciate the case from a better angle some relevant pieces of evidence are required to be mentioned. The F.I.R is Ext. 7. It was lodged by the Superintendent of Uluberia Sub -Divisional Hospital on 12.02.1994. It was stated therein that the Accountant General, Audit Party detected the misappropriation of Government money amounting to Rs. 5,73,938.01 in the accounts of Sub -Divisional Hospital, Uluberia when Dr. Kumud Ranjan Chatterjee since retired on 31.08.1994 was the Superintendent of the S.D. Hospital. Desranjan Sengupta - U.D.C., Brojendra Nath Sarkar - U.D.C. and Biswanath Roy - L.D.C. were attached to the hospital. They were found involved in the foul play. P.W.1 was the Treasury Officer from 20th July, 1990 upto 12th October, 1995. On examination, he found that a total sum of Rs. 30,000/ - shown excess in the Bill of Group -D staff for the month of September, 1991. It was detected by dealing assistant, one Kanailal Das, since deceased. On verification, he found some type of amount relating to same group of employees was shown in the Bill for the month of August bearing No. 176 dated 27.08.1991. He did not find that excess amount was deposited. He informed the O.C. of Uluberia P.S. through S.D.O., Uluberia. Police came to his office and seized Bill No. 193 and 176 marked as Ext. 1. Police seized also other relevant documents. He said that the duty of the dealing assistant is to check the Bill and he is to see the bill was prepared in accordance with Treasury Rules and Government Orders. From the dealing assistant the bill goes to the Treasury Accountant. Accountant checks the bill. The witness stated that he has a duty to see the total of the bill and if any, arithmetical mistake. Three bills exhibited 1, 1A and 1B were passed without proper checking. He said that arithmetical accuracy could not be checked by him due to pressure of work. The fact was first detected in the pay bill of September, 1991 by Kanailal Das. P.W. 1 stated that Kanailal Das was L.D. Assistant, Gobinda Das Chatterjee was the Accountant of the Treasury at the relevant time. P.W.2 is the Treasury Officer at the relevant point of time. He proved three bills bearing No. 191 dated 20.08.1990, No. 147 dated 18.07.1990 and No. 458 dated 20.02.1990 which were passed by him. After checking and signing of the bill by the Accountant, the bills are sent to the Treasury Officer. He stated that it is the duty of the Treasury Officer to verify the accounts passed by the D.D.O. P.W.3 is the Upper Division Clerk of Uluberia Sub -Division Hospital. He is the signatory of the seizure list in respect of some documents including cash books, seized from the office. Those three cash books were marked Ext. 5, 5A and 5B. He stated that the auditor made audit from 1986 to July 1991and it was detected during that period there was a defalcation of Rs.;