- (1.) The appeal is directed against the judgment and order dated 19th/20th September, 2006 passed by the learned Judge, Special Court-I, Nadia convicting the appellant for commission of offence punishable under Section 409 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- in default to suffer further rigorous imprisonment for six months more.
(2.) The prosecution case, in short, is as follows: One Tapan Kumar Sarkar, P.W. 4, was the Sub-Postmaster of Gangnapur Sub-Post Office under Ranaghat Police Station at the time of occurrence. He lodged a written complaint with Ranaghat Police Station alleging misappropriation of Government money from Gangnapur Sub-Post Office by the appellant, who was posted as Treasurer of the said Sub Post Office at the relevant time. It was alleged therein that the appellant, being the treasurer of Gangnapur Sub-Post Office, absconded from 18.03.1994 and on 19.03.1994 counting the hard cash and other valuables in the cash chest of the post office, a sum of Rs. 1,02,064.55p was found to be misappropriated by the appellant. P.W. 4 sought for necessary legal action against the appellant. On receipt of such written complaint, Ranaghat P.S. Case No. 97/1994 dated 19.03.1994 under Section 409 of the Indian Penal Code was registered. Subsequently a corrigendum was submitted at the police station stating that the misappropriate sum was Rs. 99,935.55. In completion of investigation, charge sheet under Section 409 of the Indian Penal Code was against the appellant. The trial court framed charge under Section 409 Indian Penal Code against the appellant. It is the specific case of the appellant that he was suffering from heart ailment and had become ill on 17.03.1994. He handed over his key of the iron chest containing cash, stamps, etc. to P.W. 4 and left the office submitting leave application. He could not come to office on 18.03.1994 and 19.03.1994 due to ailments. Hence, there was no case of absconding on his part and he cannot be said to be guilty of the charge levelled against him. The prosecution in order to prove its case examined as many as seven witnesses and exhibited a number of documents. The appellant, however, did not examine any witness to probablise his defence. In conclusion of trial, the learned Judge by the impugned judgment and order convicted the appellant for the commission of offence punishable under Section 409 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- in default to suffer further rigorous imprisonment for six months more.
(3.) Mr. Mallick, learned counsel appearing for the appellant submitted that the amount stated in the First Information Report was incorrect. Subsequently, corrigendum was submitted by P.W. 3 on 22.03.1994. He criticised such conduct of P.W. 3 and argued that the subsequent corrigendum was lodged on 22.03.1994 in order to cover the misdeeds of P.W. 4 who was primarily responsible for the misappropriation of money and had been suspended by the departmental authorities. In this connection he submitted that the prosecution case is an unnatural and concocted one and the evidence of P.W. 3 as to how he came to know of the incident cannot be believed. P.W. 3 stated that on 19.03.1994 he came to know from one Dilip Sarkar, Night Guard of Gangnapur Sub Post Office, that the appellant was not attending office since 18.03.1994. Mr. Mullick submitted that the said Dilip Sarkar has not been examined in the case whereas P.W. 4 started that one Haripada Biswas was the night guard at the sub-post office. Mr. Mallick further submitted that although the subsequent complaint of P.W. 3 spoke of the iron chest being broken open in the presence of independent witnesses, no such witnesses was examined. Prosecution relied on the version of P.W. 4 who cannot be said to be free of suspicion in the matter of misappropriation of the said money. It was most improper to base the conviction primarily on the evidence of P.W. 4. Mr. Mallick strenuously argued that no effort was made to know the whereabouts of the appellant on 18.03.1994 and 19.03.1994 although his residence was not at a far away place and the iron chest was not broken after giving him due notice or the superior authorities. He, accordingly, submitted that the prosecution case has not been proved beyond reasonable doubt and the appellant ought to be acquitted.;