Naba Kumar Ghosh vs State

Tirthankar Ghosh, J

The revisional application has been preferred against the judgement and order dated 30.8.2006 passed by the learned Additional Sessions Judge, 2nd Fast Tract Court, Hooghly, in Criminal Appeal No. 39 of 2005, wherein the learned Appellate Court was pleased to affirm the order of conviction passed by the learned Judicial Magistrate 3rd Court, Hooghly as also the sentenced so imposed by the learned Judicial Magistrate in connection with GR Case No. 1289 of 1994. Learned Magistrate by his judgement and order dated 21.5.2005 was pleased to impose sentence of three months S.I. and fine of Rs. 2000/- i.d. S.I. for another two months.

The prosecution case in short is that. The present petitioner on or about 29.10.1994 at about 11.30 a.m. submitted an application for loan against pledging of gold ornaments. To that effect the petitioner and one of his relative produced some gold ornaments before the respective officer of State Bank of India, Harit Branch and the said gold on being tested by gold smith were found to be not confirming to the standards rather they were found to be fake. The allegations by the bank authorities were to the effect that the accused/petitioner in collusion and conspiracy with another attempted to cheat the State Bank of India.

On the basis of the written complaint lodged by the Manager of the said branch of SBI with the Officer-in-Charge, Dadpur P.S. registered a case under Sections 420/511 of the Indian Penal Code. On conclusion of investigation charge sheet was filed under the same Section. After compliance with the required formalities the learned Trial Court was pleased to frame charge against the petitioner and another under Section 420/511 and 120B of the IPC. The charges were readover to the accused person to which they pleaded not guilty and claimed to be tried.

Prosecution in order to prove its case relied upon twelve witnesses and certain documents which included formal FIR, written complaint, two seizure lists, forensic report and sketch map.

I have perused the evidence which has been recorded by the learned trial Court and scrutinized by the learned Appellate Court. I have also scanned through the documents which have been admitted in evidence at the instance of the prosecution. Taking into account the evidence of both the courts below I find that there is a specific recording by the learned trial Court that PW-4, Smt. Dipali Maji is one of the seizure witnesses and she did not state anything against the accused person. To that effect the appellate Court's order on comparison reflects that "Naba Kumar Ghosh placed his recommended application by the then upopradhan Smt. Dipali Maji and produced some gold ornaments." On scanning through the documents so relied upon by the prosecution which has been marked as exhibits, I do not find any such loan application being seized or produced before the court, none of the seizure lists reflects in respect of such loan application being tendered by the accused person to the bank authorities. The loan application being the basic foundation of the case on the basis of which gold ornaments were to be pledged, do form a starting point as the learned appellate court has relied upon such a circumstance to arrive at its findings.

In view of the said loan application not being produced before the court it is difficult to come to a conclusion that the present petitioner made an attempt to cheat the bank. This in fact is manifest illegality on the part of the learned Appellate Court while affirming the order of conviction passed by the learned Trial Court.

Having due regard to the observations made above, I do not think that the finding of guilt arrived at by the learned trial Court and affirmed by the learned Appellate Court is on proper appreciation of the factual matrix of the case.

Accordingly, the order of conviction and sentence passed by the learned Judicial Magistrate 3rd Court, Hooghly Sadar dated 21.5.2005 as also the judgement and order dated 30.8.2006 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Hooghly in Criminal Appeal 39/2005 is hereby set aside.

The petitioner is acquitted from the charges, as he is on bail, he shall be discharged from the bail bonds.

Lower Court Records be forthwith sent down to the trial Court at once.

Urgent photostat certified copy of this order, if applied for, be given to the parties on the usual undertakings.