Jyotirmoy Chatterjee vs The State

Mr Bose, learned Assistant Public Prosecutor is present. Since the sole appellant, Jyotirmoy Chatterjee, is not represented and Mr Anand Farmania, learned advocate of this court, voluntarily expressed to assist the court as amicus curiae to defend the appellant and since this court has no doubt about reasonable competence of Mr Farmania in conducting the criminal case, taking note of the instant appeal being the year of 1987 under section 374 Code of Criminal Procedure Mr Farmania is appointed as amicus curiae to lend assistance to this court for disposal of such one of the oldest appeals. Mr Farmania for the purpose has been given access to the record for his preparation. Since Mr Farmania assisted this court to defend the appellant as an amicus curiae appointed by this court, he is at liberty to submit appropriate application before the appropriate authority of the State of West Bengal attaching server copy of this order for raising bill as admissible to him for lending assistance to this court in defending the appellant for disposal of one of the oldest criminal appeals.

Mr Bose appearing for the State submitted that the charge against the appellant was for the offence punishable under section 409 IPC when the appellant was an extra departmental postmaster of Bandipur Branch post office under Haripal PS in Hooghly. According to Mr Bose, the trial court by examining as many as fourteen prosecution witnesses held that the charge has been proved; and, therefore, the conviction order, though it was recorded very leniently, need not be interfered with by this court.

On the other hand, Mr Farmania submitted that the judgment in conviction ought not to be recorded by learned trial court, rather benefit of doubt ought to have been allowed, since within the documents as exhibited it was not only the appellant but also other departmental persons had access. In effect, supporting the plea of innocence as adopted by the appellant all along Mr Farmania submitted to set aside the order of conviction and to set the appellant free of his bail bond.

From the evidence on record it reveals as an established fact that accused Jyotirmoy Chatterjee was the successor in office who received the charge of Bandipur Branch post office from PW1 who was a seizure witness. Though he admitted about preparation of seizure lists where he also put his signature as one of the witnesses, but he failed to remember the names of the articles as were seized. PW2 told about seizure of some rubber stamps and other papers by breaking open the drawer and the table used by the appellant. In crossexamination though PW2 stated about seizure of some rubber stamps and other documents, but could not provide details thereof from memory due to lapse of time. PW3 being the then sub postmaster of Keota Latbagan post office deposed that some documents were seized in his presence. He, however, confirmed by virtue of Ext.4 that he had perused the contents. In cross-examination he, however, failed to remember as to from whose custody those articles or documents were seized. PW4 is the formal witness who registered Haripal PS case on receipt of the complaint and he endorsed the case to SI A.K. Ghosh for investigation. The evidence of PW5 and PW6 need not be discussed at length, since their evidence did not strengthen the prosecution case and since amongst them PW5 was not cross-examined.

PW7 is one of the key witnesses who had narrated in detail about the discrepancies in the account book which were held at the instance of the appellant. Though as the PW7 was cross-examined in detail but so far as the discrepancies as were detected in maintaining the account book, passbook and other related documents, the appellant could not be able to brush it aside. PW8, a police officer, is examined as one of the seizure list witnesses. PW9 was one of the investigating officers who had sent the incriminating documents to the Government examiner for examination and report about the question documents through the then learned SDJM, Chandannagar though he had made over the charge of the investigation case to one SI Ranjit Kumar Sar on January 24, 1972 as a consequence of his transfer. He again took up the charge of further investigation on and from January 30, 1973 and submitted the charge-sheet of the prosecution of the appellant for the offence under section 409 IPC. PW10 is one of the investigating officers of this case who had conducted the investigation during the intervening period before submitting charge-sheet. He also collected the specific handwritings and signatures of the appellant since earlier specimen handwritings and signatures as were sent for forensic examination were insufficient for the purpose of comparison. PW11 is one of the formal witnesses at whose instance the admitted specimen signatures of the appellant were taken in his presence in open court. PWs12 and 13 are also noticed to be formal witnesses which need not be discussed at length. PW14 is the examiner of the question documents who arrived at the conclusion that the specimen signatures as were obtained were tallying with the disputed signatures or handwritings, meaning thereby continuation of paper works by the appellant was proved beyond any doubt on the basis of which the appellant had managed misappropriation of public money. Though PW14 was cross-examined, but the defence could not extract any such material by which the report of the expert would be held as non-acceptable. Rather PW14 having examined the documents - both impugned and admitted - following the norms learned trial court rightly accepted the same to hold that the charge for the offence under section 409 IPC was proved against the appellant beyond all reasonable doubt.

This court also examined the result of examining the appellant under section 313 CrPC. Though with reference to the substantive evidence as many as twenty-four numbers of questions were put to him, except his ignorance and innocence, he did not state any specific answer or even did not adduce any witness in support of his defence so that the court may allow any benefit of doubt. Though the appellant was virtually disowning about his remaining incharge of the sub post office, but up to the stage of examination under section 313 CrPC he took the defence that he was not the postmaster of the post office. Such defence was not accepted by learned trial Judge and this court also on scrutiny of evidence of record is not taking any second view but to hold that on the basis of the given evidence learned trial court did not commit any illegality or jurisdictional error in convicting the appellant.

Though the span of sentence under section 409 IPC is much, but learned trial Judge for the reasons as observed sentenced the appellant rigorous imprisonment for a period of only five years and to pay fine of Rs. 7000, in default further rigorous imprisonment for two years. This court, however, is not inclined to enhance the span of imprisonment as put by learned trial Judge taking note of age of the criminal appeal. Therefore, upholding the judgment of conviction and sentence the appeal is hereby dismissed.

Be it mentioned that since the appellant was sentenced to rigorous imprisonment for a period of five years along with payment of fine of Rs. 7000, in default to undergo for further period of two years for the offence under section 409 IPC, but the LCR is not found as indicative as to what happened immediately after the order of sentence where of course the appellant was given the liberty of setting off with the period of detention already undergone in connection with the case.

However, looking back to the LCR this court finds that the appellant on the strength of production warrant was produced before learned trial court for the first time on June 5, 1982 and all along till before March 7, 1987 he had faced the trial by remaining in custody. Therefore, though upon hearing both sides, since this court upholds the judgment of sentence dated March 31, 1987 passed by learned Judge, 2nd Special Court, Hooghly, the appellant is to serve out the remaining period of the sentence, if the same has not been concluded by this time.

Therefore, the department of this court is directed to send a copy of this order along with the LCR to learned trial court for issuing warrant of arrest ensuring production of the appellant-convict before learned trial court and then to issue jail warrant to serve out the remaining period of sentence, if the appellant did not undergo with the rigorous imprisonment for remaining period by this time. Seized documents be returned to the concerned department if they were not returned by this time.

Certified photostat copy of this order, if applied for, shall be given to the parties.