Prithwi Chand Das vs Central Bureau of Investigation (C.B.I.)

Joymalya Bagchi, J.—The appeals being directed against common judgment and order of conviction and sentence dated 16.09.2010 and 17.09.2010 passed by the learned Judge, Special (C.B.I.) Court, Bichar Bhawan, Calcutta-1 are heard analogously and disposed of together.

The prosecution case, as alleged, against the appellants is as follows: One D.K. Singh of NPCC Limited, Phansideoa (P.W.2) lodged a complaint with Phansideoa Police Station on 22.07.1997 alleging that 30000 empty cement bags had been pilfered from their office premises. The said bags were valued at Rs. 30,000/-. Subsequently Central Bureau of Investigation instituted a suo motu case on the basis of source information being CBI Case No. RC 45/97-Calcutta dated 12.11.1997 u/s 120B/409/465/471 of the Indian Penal Code and u/s 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 against one P.C. Das, Deputy Manager (P & A), NPCC Ltd. Teesta, Phase-1, Phansideoa, Darjeeling (appellant in C.R.A. No. 635 of 2010) and one Sitaram Das, Labour Supply Contractor at Teesta Phase-I (appellant in CRA No. 660 of 2010) alleging that they had entered into a criminal conspiracy and in further thereto had stolen 40,000 pieces of empty gunny bags and sold them in open market at a price of Rs. 80,000/- and instead of depositing the sale proceeds with NPCC Ltd. allegedly misappropriated the said amount thereby causing wrongful financial loss to NPCC Ltd. and consequent financial gain to themselves. It transpired that appellant P.C. Das used to look after the administration and establishment of the unit and maintain liaison within various Government departments/private agencies etc. and was not concerned with the stores or the store items of the unit. The appellant Sitaram Das was a distant relationship of P.C. Das and was working at Labour Supplier Contractor at Teesta, Phase-I. The appellant Sitaram Das was entrusted with 30950 pieces of empty cement bags by Sri Amar Majumdar, Junior Engineer (Civil) against four receipts dated 08.04.1997 for 4050 bags, dated 15.04.1997 for 8000 bags, dated 17.04.1997 for 11,900 bags, dated 19.04.1997 for 7000 bags being Exhibit 33 collectively to transport the bags from various sites to an empty garage in the office premises of Teesta Phase I Project. The empty bags were lying at various sites of the project and they were collected by contractor named Shri Kasimuddin Mohammad (P.W.6) with the assistance of appellant Sitaram Das at the direction of appellant P.C. Das and the same was stored in the garage of the office premises of Teesta Phase I project as there was no adequate space in the stores. Kasimuddin Mohammad was paid of Rs. 950/- through cheque no. 039251 dated 15.07.1997 against cash voucher no. 182 dated 15.07.97 duly verified by P.C. Das. It is also revealed that at the instance of P.C. Das empty cement bags were sold out to Brahmadeo Sahani (P.W. 4), dealer of empty cement bags, at a price of Rs. 40,000/- in cash and on 24.04.1997 the bags were taken away in two trucks bearing nos. WGY 8261 and WB-73/1779. The bags were loaded into two trucks by local labourers of Dali Mohammed (P.W. 8) under the supervision of P.C. Das. Such loading of empty cement bags was also done with the active assistance of Sitaram Das. The appellant P.C. Das deposited the monies received by him for such transaction in his savings bank account maintained with State Bank of India, S.F. Road Branch, Siliguri in the joint names of himself and his wife through pay-in-slip duly filled in his own handwriting. Sanction was obtained for prosecution of P.C. Das and in conclusion of investigation charge-sheet was filed against the appellants under Sections 120B, 409,465 and 471 of the Indian Penal Code against P.C. Das and Sitaram Das and under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against P.C. Das. Charge was framed against appellant P.C. Das under Sections 120B and 409 of the I.P.C. and under Sections 465/471 of the I.P.C. against P.C. Das and Sitaram Das u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against Sitaram Das and sentencing him to suffer simple imprisonment for one year and to pay a fine of Rs. 1000/- only in default to suffer simple imprisonment for one month and charge-sheet was also framed convicting the appellant, Sitaram Das, under Sections 120B/409 of the Indian Penal Code and sentencing to suffer simple imprisonment for one year an to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for one month on each count for the offence under Sections 120B/409 of the Indian Penal Code and the appellant was found not guilty of the charges under Sections 465/471 of the Indian Penal Code. Appellants pleaded ''not guilty'' and claimed to be tried. In the course of trial the prosecution examined as many as 25 witnesses and a large number of documents including the order of sanction were exhibited. The defence of the appellants was one of innocence and false implication. The defence did not examine any witness of its own but exhibited a letter dated 17.02.1997 written by P.W. 2, D.K. Singh to the Chief Vigilance Officer, NPCC, Phansideoa. In conclusion of trial, the learned Trial Judge by judgment and order dated 16.09.2010 and 17.09.2010 convicted the appellant P.C. Das for the offence punishable under Sections 120B and 409 of the Indian Penal Code and u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to suffer simple imprisonment for one year and to pay a fine of Rs. 1000/- only in default to suffer simple imprisonment of one month.

By the self-same judgment and order the learned Judge convicted appellant Sitaram Das for commission of offence punishable u/s 120B/409 of the Indian Penal Code and sentenced to suffer simple imprisonment for one year and to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for one month on each count for the offence under Sections 120B/409 of the Indian Penal Code. Both the appellants were found not guilty of the charges under Sections 465/471 of the Indian Penal Code and accordingly acquitted of such charges.

Being aggrieved by the aforesaid judgment and order of conviction and sentence P.C. Das has preferred the Criminal Appeal No. 635 of 2010 and Sitaram Das preferred the Criminal Appeal No. 660 of 2010.

Learned Senior Counsel, Mr. Basu appearing with Mr. Roy, learned Counsel for the appellant, P.C. Das, submitted that the prosecution had failed to prove entrustment of the empty cement bags to the appellants. They argued that P.W. 5 was the custodian of the bags in question and there is no written permission to him for handing over the bags to P.C. Das. The prosecution case that P.W. 5 was instructed by P.C. Das to keep the bags in the garage is not borne out by the entry made by him in the note sheet being Exhibit-6 wherein P.W. 5 had recorded "we have collected 30950 bags and kept in store behind office". It is further argued that in the absence of entrustment the prosecution case of criminal breach of trust is bound to fail. It is further argued that there is no evidence on record that the appellant had contacted with P.W. 4 for removal of the goods. P.W. 14 had not supported the prosecution case that he had introduced the appellant P.C. Das to P.W. 4. It is also argued that money receipts with regard to monies paid by P.W. 4 to the appellant P.C. Das have not been proved. Evidence with regard to removal of bags is unreliable. Accordingly, it was prayed that the appellant P.C. Das be acquitted of the charges levelled against him.

Mr. Ganguly, learned Counsel appearing on behalf of appellant, Sitaram Das, submitted that Exhibit-33 does not establish entrustment of the goods in his hands. He submitted that he was directed to remove the goods from various sites to the garage space in the office premises as the stores did not have sufficient empty space to accommodate the empty cement bags. Accordingly, the bags were removed to the garage space and hence after depositing of the bags in the garage space the appellant, Sitaram Das, cannot not be said to be in custody of the same. He further submitted that evidence of P.W. 4 and P.W. 18 regarding Sitaram''s role in removal of bags do not inspire confidence and ought to be disbelieved. He argued that even if such evidence is believed the same constitutes the offence of theft for which no charge had been framed. Accordingly, he prays for acquittal of the appellant, Sitaram Das.

Mr. Ali, learned Counsel appearing on behalf of the Central Bureau of Investigation, submitted that the prosecution evidence with regard to entrustment and/or dominion over the misappropriated property of the appellant is established from Exhibit-4 which clearly states that P.C. Das had been handed over the empty cement bags as per the direction of superiors. He further submits that the removal of bags at the behest of appellants for valuable consideration has clearly been established through prosecution evidence and the sale proceeds thereof has been misappropriated. Therefore no interference is called for in the instant case.

Let me analyse the evidence on record.

P.W. 1 was a transporter who let out two trucks bearing No. WBY 8261 and WB 73/1779 to P.W. 4 for carrying empty cement bags from Lichipukuri to Siliguri. He exhibited relevant entries in his log book in support of such claim.

P.W. 2 was the Superintendent Engineer and Unit Head of Teesta Phase I project. He lodged complaint with police with regard to the removal of the empty bags from office premises (Exhibit 5). Upon receipt of complaint dated Exhibit 4 he directed enquiry into the matter. He proved letter written by Mr. Majumdar, Executive Engineer stating that at the relevant point of time no cash payment was made to appellant P.C. Das. He handed over documents to CBI Officials during investigation.

P.W. 3 was the driver of truck No. WBY 8261 which was used for removal of empty cement bags. He identified the appellants in Court as persons who were involved in loading operation. He stated that P.W. 4 paid hire charges.

P.W. 4 was the dealer of old gunny bags. He purchased 30,000 gunny bags at a price of Rs. 1/- per bag from P.C. Das. He paid Rs. 5,000/- in cash to P.C. Das on 23.04.1997 and Rs. 25,000/- on the next day. He proved removal of the bags from the office premises to the CBI Officials during investigation.

P.W. 5 was the Junior Engineer (Civil) to supervise power houses and colony. He stated that cement bags were requisitioned from the store under indent. After consumption empty bags were returned to store. Due to shortage of space in store upon instruction of appellant P.C. Das he handed over 30,950 bags to appellant Sitaram Das which were kept in the garage space at the office premises. After bags were removed he wrote a letter dated 21.07.1997 to P.W. 2 stating the aforesaid facts and requesting him to lodge complaint. He also made endorsement in his notesheet which is exhibited as Exhibit 6. He gave a reminder to Unit Officers (P.W. 2).

P.W. 6, Kasimuddin Md. was tendered for cross-examination.

P.W. 7 was the Store-in-Charge who deposited that 30,950 bags were kept in the office premises due to shortage of space and the bags were removed in two trucks from the said place.

P.W. 8, Dalia Md., engaged labourers and loaded the empty cement bags to trucks for removal. He identified the appellants as persons supervised loading. He received payment from the appellant P.C. Das.

P.W. 9 was posted as Office Superintendent at Teesta Phase I. He proved the despatch register (Exhibit 16) as well as signature of P.C. Das thereon. She also proved the work orders issued to Sitaram Das being Exhibit 17.

P.W. 10 was posted at Teesta Phase I project. He was supervising civil works. He identified notesheet written by P.W. 5 (Exhibit 6). He stated that the bags were removed by the appellant. He identified the appellant.

P.W. 11 was a contractor of NPCC. He was declared hostile.

P.W. 12 was the Bank Manager who proved the statements of account of the Savings Bank Account maintained in the name of P.C. Das and his wife at his bank being Exhibited 19 and 20. He proved the Joint Passbook (Exhibit 21) and stating Rs. 30,000/- was deposited in the said account. He also proved the receipt voucher (Exhibit 19).

P.W. 13 stated that he had not typed letter dated 24.04.1997 written by the appellant P.C. Das to Unit Officer.

P.W. 14, Niranjan Agarwal, who was the owner of a STD Booth-cum-Electric shop. He identified P.C. Das and stated that he occasionally came to the booth. He did not support the prosecution case that he had introduced P.W. 4 to P.C. Das. He declared hostile.

P.W. 15 was declared hostile. He was posted as Accountant in the office and he proved payment made to P.W. 6 and 8.

P.W. 17 corroborated the evidence of P.W. 16.

P.W. 18 was the Executive Engineer (Mechanical) posted at Teesta Phase I Unit at the relevant point of time. He proved the work order issued to Sitaram Das. He stated that on 24.04.1997 at about 10.30/11.00 a.m. he saw two trucks came to the office premises. He found that the labourers of the P.W. 8 loaded the trucks under the supervision of a gentleman who was wearing a Dhoti and Kurta talked to appellant P.C. Das in his office. He also found appellant Sitaram Das counting bags.

P.W. 20, Gulab Chand Khandelwal, was an Accountant of Jajori Market Complex, Siliguri. He stated that one Protush Das took a room on rent in the market complex for keeping entry. He failed to produce the rent receipts.

P.W. 21 is the hand writing expert in the instant case.

P.W. 22 had proved the payment of Rs. 900/- to P.W. 2 Dali Md.

P.W. 23 is the Inspector attached to CBI who proved the first information report.

P.W. 24 and 25 are the Investigating Officers of the case.

The prosecution case of entrustment of the empty cement bags in the hands of the appellants is primarily dependant on the evidence of P.Ws. 2, 5 and 7. P.W. 5 stated that at the relevant time he was the Junior Engineer (civil) at Teesta Phase I. As Junior Engineer (Civil) he supervised power house and colony. He used to take cement by issuing indent. After the consumption of cement, empty bags were kept in the site and thereafter the bags were collected and sent to the office. Some bags were consumed by the labourers. Store keeper received the bags and after putting his signature on the store return notes. He deposed that the appellant, P.C. Das, took some bags from him under the signature of his representative viz. the appellant Sitaram Das but subsequently the bags were not traced. He proved Exhibit-4. He stated that from the said exhibit it is clear that 30950 bags were received by P.C. Das through his representative Sitaram Das. He also proved Exhibit-6 and Exhibit-9 which is a reminder letter issued by him. In cross-examination he stated that the appellant P.C. Das was not his Superior Officer. He admitted that the Executive Engineer is his Superior Officer. He, however, stated that empty bags were given to Sitaram Das as per instruction of P.C. Das. He admitted that there was no written order of handing over the empty bags to Sitaram Das. 30950 empty bags were not deposited in the store due to want of accommodation. He stated that the place where the empty bags were stored in the garage is within the office premises. There was no lock and key but there was a fencing and a chowkider who was responsible for looking after the said bags. P.W. 2 is the Superintendent Engineer who was the Unit Officer at Teesta, Phase-I. He submitted that he received Exhibit-4 written by P.W. 5 on 22.07.1997. In the said letter P.W. 5 requested that First Information Report be lodged and enquiry be made with regard to the removal of the empty cement bags which he claimed was handing over to the appellant P.C. Das in presence of Unit Officer. He proved written complaint which was lodged pursuant to the receipt of Exhibit-4 being Exhibit-5. He also admitted that the note-sheet was prepared by P.W. 5 in that regard and also proved his endorsement thereon (Exhibit 6/1) directing an enquiry into the matter. In cross-examination, he admitted that the appellant P.C. Das was in charge of Personal and Administration Department only and he was not a technical person. P.C. Das was entrusted with administration work and he was no connection with Civil and Mechanical Departments. P.W. 5 was not under the control of P.C. Das. He admitted that no permission was obtained by P.W. 5 to deliver empty bags of cement to the appellant P.C. Das. He stated that there was Security Officer and Security Staff to guard the office for 24 hours. He admitted that there was no departmental proceeding against the appellants. Materials were under the control of the store keeper wherefrom the materials were carried out after requisite challans and gate-passes were issued. P.W. 7 was the store in charge who was declared hostile. He, however, admitted 30,950 bags were not deposited in store and were kept in the office premises from where they were removed by two trucks.

From the aforesaid evidence it is clear that P.W. 5 was the person who was in charge of the materials including cement bags which had been indented out from the store. After consumption of cement, empty cement bags were required to be collected from the various sites and deposited to the store. It is the specific prosecution case that due to inadequate accommodation in the store, 30,950 empty bags had been handed over to appellant Sitaram Das on the instruction of appellant P.C. Das and had been kept in the garage beside the office premises. Prosecution has heavily relied on Exhibit-4 in that regard. From a perusal of Exhibit 4 it appears that P.W. 5 claimed that P.C. Das had directed him to stock the empty cement bags in the car garage in the office premises in the presence of Unit Officer i.e. P.W. 2. P.W. 2 in his cross-examination stated that he did not give such instruction. That apart, P.W. 2 also stated that the appellant P.C. Das was not a Superior Officer of P.W. 5 and he was not authorized to give instruction to him. No written instruction also had been produced in the instant case directing P.W. 5 to hand over the bags to the appellants. On the other hand, it appears from Exhibit-6 that the empty cement bags had been collected by P.W. 5 and kept in the store behind office. There is no whisper in Exhibit-6 that such collection and storage of bags was upon the instruction of P.C. Das. The prosecution strongly relied on Exhibit-33 to establish that the bags had been handed over to the appellant Sitaram Das as representative of appellant P.C. Das for storage purpose. Exhibit 33 merely shows that Sitaram Das collected the empty bags from various sites. It does not show he was acting as representative of P.C. Das. It is the evidence of P.W. 5 that the appellant Sitaram Das had collected the bags from various sites for depositing them in the office premises. It is nobody''s case that bags were not deposited by Sitaram at the office premises. Exhibit-33, therefore, cannot create any circumstance establishing custody or control over the bags in Sitaram after they were deposited at the garage space in the office premises. Thereafter the empty bags were kept in the empty garage space which though fenced had no lock and keys there was a chowkidar guarding the area.

The aforesaid evidence do not establish that P.W. 5 who was officially in custody of the empty cement bags had, in fact, handed over custody or dominion of such bags to the appellants. Sitaram Das had been handed over the bags to carry them from various sites to the garage space. Admittedly the bags have been misappropriated in the course of transportation from the various sites to the garage place. Accordingly, I am constrained to hold that the prosecution has failed to prove its case that the appellants had exclusive custody or dominion over the empty cement bags at the time of commission of the alleged offence. On the other hand, notings made by P.W. 5 in the note sheet clearly belies the prosecution case of entrustment of empty bags to the appellants. Exhibit 6 reads as follows:

"We have collected approx 30,950 (Thirty thousand Nine Hundred fifty only) and kept in store behind office.

We have got no proper space to keep these bags RPNN main store have refused to take return due to storage of space. The bags are likely to be damaged.

Hence it is requested to sale/dispose off the above Empty Cement bags."

This note is prepared on 21st April, 1997. There is no whisper of handing over the bags to the exclusive custody of the appellants or keeping them at the office premises as per instruction of P.C. Das. Such version appears, for the first time in the letter dated 21.7.1997 written by P.W. 5 to P.W. 2 (Unit Office) (Exhibit-4) wherein P.W. 5 claimed empty cement bags were stacked in the car garage as per instruction of P.C. Das in presence of Unit Officer. P.W. 2 (Unit Officer) does not support such claim in evidence. Hence, the claim of P.W. 5 in Exhibit 4 appears to be an after thought and cannot form the foundation for holding that the appellants were entrusted with the empty cement bags which were misappropriated from the office premises.

The prosecution however, has been able to prove the misappropriation of the said bags by the appellants in the instant case. The prosecution case in that regard is hinged on the evidence of P.W. 1, 3, 4, 8 and 18.

P.W. 1 has stated that he is a transporter and that on 24th April, 1997 two trucks bearing no. WGY 8261 and WB-73/1779 were hired by P.W. 1 for carrying empty cement bags from Lichipukuri to Siliguri. He received hire charges for such trucks. He has also proved two log books Exhibits 1 and 1/1 establishing that the vehicles were used for the journey from Lichipukuri to Siliguri and hire charges received by him in respect thereof.

P.W.3 is the driver of one of the said trucks bearing number WGY 8261. He stated that he went to Lichipukuri with his vehicle for loading empty cement bags. He further stated that another truck of the transport company had also accompanied him for loading purposes. He stated that they loaded about 30,000 empty cement bags in their trucks. He stated that the loading was done under the supervision of P.W. 4 and the appellants whom he identified in the dock.

P.W. 4 is the most vital witness in this regard. He has stated that he is a dealer in old gunny bags and other kinds of bags. In April, 1997 he purchased 30,000 empty cement bags from the appellant P.C. Das. He had a talk with P.C. Das at his office. He purchased the bags at the cost of Rs. 30,000/-. He took delivery of the empty cement bags from the office campus of the Nigam at Phansidewa. On 23rd April, 1997 he paid Rs. 5,000/- under a receipt. On the next date he paid the remainder sum and issued another receipt. He hired two trucks bearing no. WGY 8261 and WB-73/1779 from P.W. 1 for carrying the bags and he paid hire charges at the rate of Rs. 520/- per truck to P.W. 1. At the time of taking delivery of the cement bags, the appellants were present. P.C. Das handed over documents at the time of delivery of the cement bags to him. He handed over such documents to CBI officers during investigation which were seized under a seizure list. He proved his signature on seizure list. In cross-examination he stated that he was introduced to appellant P.C. Das by P.W. 14, Niranjan Agarwal. He stated that he has a partner named Md. Alauddin. He stated that he went to the Nigam office at 10 a.m. and after loading gunny bags came back after 12 p.m. He further stated that he had borrowed Rs. 20,000/- from money lender to pay Rs. 30,000/-. He also stated the name of the money lender.

P.W. 8 is the person who arranged labourers for loading empty cement bags over the truck. He stated that he got Rs. 900/- for such purpose. He identified the appellants being present at the time of loading and he proved his signature on the voucher for receipt of such payment.

P.W. 18 is one of the Executive Officers (Mechanical) posted at NPCC Limited at the material point of time. He stated that on 24th April, 1997 at about 10.30 a.m. while he was working in the workshop of Phase I Unit he saw two small size trucks enter the office in front of the store. When the trucks entered, men of the stores asked him whether goods would be lifted. He replied in the negative. He saw a person clad in Dhoti and Kurta standing in front of the trucks and labourers of P.W. 8 were conversing with the said man and there was discussion going on. He found that the person clad in Dhoti and Kurta was talking with appellant P.C. Das in his chamber and then the P.W. 8 and other labourers went to the chamber of appellant P.C. Das. He could not hear what was the conversation going on between them. Then he found that the empty cement bags which were in the garage in the office were loaded in the two trucks and appellant Sitaram Das was counting bags and noting the same on a paper. After holding talks in the chamber of P.C. Das, the gentleman clad in Dhoti and Kurta went away. He further stated that appellant P.C. Das has no authority to clear bills for labour payment. In cross-examination, he stated that the goods when loaded and unloaded in the stores by vehicles, entries made regarding such vehicle. He further stated that there was security at Tista Phase I project at that material time.

It has been argued on behalf of the appellants that the money receipts issued by P.W. 4 have not been exhibited. It has also been argued that neither the partner of P.W. 4 nor the money lenders/Mahajan who advanced Rs. 20,000/- to P.W.4 have been examined. It has also been argued that there was no opposition made by the security guards in the matter of surreptitious removal of the goods rendering the version of P.Ws. 4 and 18 improbable. P.W. 14 has also not supported P.W. 4 that the latter was introduced to P.C. Das by him. I find from the prosecution evidence that P.W. 4 had hired two vehicles from P.W. 1 on payment of hire charges. Contemporaneous log books showing movement of the vehicles and/or payment of hire charges have been exhibited. Evidence of P.Ws. 1 and 4 is corroborated by the driver P.W. 3 who stated that he brought his vehicle to Tista Project 1 office and cement bags were loaded therein. P.W. 3 also identified the appellants being present at the time of loading of cement bags. P.W. 8 and his labourers loaded the empty cement bags in the said vehicles and received payment to the tune of Rs. 900/- for such purpose from P.C. Das. P.W. 18 who was the executive engineer (Mechanical) in charge of stores stated that he had seen the vehicles coming to the place of occurrence and that P.W. 8 along with one person clad with Dhoti and Kurta was talking with appellant P.C. Das in his office. Thereafter the goods were loaded into two vehicles and the appellant Sitaram Das counted the bags and noted them on a paper. A faint plea had been taken by P.C. Das that he did not have his office at the office premises. However, no evidence has been led on this score to probabilise such defence. The aforesaid consistent version of the prosecution witnesses clearly establishes beyond reasonable doubt that the appellants actively colluded with one another had sold the empty cement bags which were kept at the garage space in the office premise to P.W. 4 for valuable consideration. It is true that receipts issued by P.W. 4 have not been exhibited. However in the face of convincing ocular evidence of the prosecution witness as aforesaid, there is no room for doubt that the appellants had played an active role in the removal of goods from the office premises by two trucks at the behest of P.W. 4 for valuable consideration. P.W. 14 has however not supported the case of P.W. 4 that he had introduced the latter to appellant P.C. Das. The association between the P.W. 4 and P.C. Das is well established from the evidence of P.Ws. 3, 8 and 14 who found that the appellants actively assisted P.W. 4 in removal of the goods from the office premises. Hence, version of P.W. 14 that he did not introduce P.W. 4 to P.C. Das would not render prosecution case vulnerable.

Next is the issue of misappropriation of sale proceeds by the appellants. Evidence has come on record that during the relevant time no cash payment had been made to P.C. Das. Such fact is established by P.W. 2 who has proved the letter written by the then Executive Engineer of Tista Phase 1 dated 19th March, 1998 showing that no cash has been paid to P.C. Das during the relevant time. On the other hand, it has been proved that P.C. Das had deposited a sum of Rs. 30,000/- in cash in his savings bank account. No explanation is forthcoming from him for such deposit. It is also the evidence of P.W. 7 that the empty cement bags had not been accounted for and had not been kept at the stores. Hence it is clear that sale proceeds received in respect of disposal of the cement bags by the appellants had not been accounted for and had been misappropriated. It is, therefore, clear that the empty cement bags which were kept in the garage space of the office premises within the knowledge of the appellants had been dishonestly sold to P.W. 4 and sale proceeds thereof misappropriated causing wrongful gain to the appellants and wrongful loss to NPCC.

It has been argued that such act, if believed, would constitute an offence of theft for which no charge had been framed. From the prosecution evidence, as discussed earlier, it is not clear as to in whose possession goods had been kept. Articles were kept in a garage space due to lack of accommodation in the store which was not under lock and key. It has not been proved beyond reasonable doubt that there was exclusive custody or dominion over the articles in the hands of the appellants. However, the appellants knew that the goods did not belong to them. Yet they dishonestly sold the bags and misappropriated the sale proceeds thereof causing wrongful gain themselves and wrongful loss to NPCC. Such facts clearly constitute the offence of criminal misappropriation punishable u/s 403 of the Indian Penal Code which is a lesser offence to criminal breach of trust. No separate charge is required to be framed to reconsider conviction in respect of a lesser offence. The appellant P.C. Das is also a public servant and had clearly abused his official position for the purpose of committing criminal misappropriation of public property. Such facts establish beyond doubt the ingredients of the offence punishable u/s 13(1)(d) and 13(1)(2) of the Prevention of Corruption Act. The appellant Sitaram Das aided and abetted the appellant P.C. Das in dishonest removal of the empty cement bags knowing fully well that the bags were not owned by them and misappropriation of sale proceeds thereof.

Accordingly appellant P.C. Das is convicted of the offence punishable u/s 120B and 409 of the Indian Penal Code and u/s 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. Appellant Sitaram Das is convicted of the offence punishable u/s 120B and u/s 409 of the Indian Penal Code.

Coming to the issue of sentence, I find that the appellant P.C. Das was a public servant who abused his official position to misappropriate public property. Accordingly his sentence is maintained and he is directed to suffer simple imprisonment for one year and to pay fine of Rs. 1,000/-, in default, to suffer simple imprisonment for one month more on each count for the offence punishable u/s 120B and 403 of the Indian Penal Code and u/s 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988, all the sentences to run concurrently.

Appellant Sitaram Das aided and abated the principal accused. Bearing in mind the extend of his role and participation his sentence is reduced. Appellant Sitaram Das is directed to suffer simple imprisonment for three months and to pay find of Rs. 1,000/-, in default, to suffer simple imprisonment for one month more on each count for the offence punishable u/s 120B and 409 of the Indian Penal Code, both the sentences to run concurrently.

The appeals are allowed to the aforesaid extend. The appellants are forthwith directed to surrender before the trial Court and serve out their sentences in accordance with law.

Copy of the judgment along with the lower court records be sent down to the learned Court below at an early date.