State Of Chhattisgarh vs Babulal Sao

Heard Mr. Gagan Tiwari, learned Deputy Government Advocate for the applicant/State as well as Mr. Rajendra Patel, learned counsel, appearing for the respondent on I.A. No. 1 of 2022, which is an application for condonation of delay.

After hearing the learned counsel for the parties and considering the reasons mentioned in the application, we are of the considered opinion that sufficient cause has been shown in the application and accordingly, I.A. No.1 of 2022 is allowed and delay of 351 days in filing the appeal is condoned.

The State has sought leave to appeal against the impugned judgment of acquittal dated 15.09.2021 passed in Criminal Appeal No. 19 of 2018 by the Court of learned 3rd Upper Sessions Judge, Balodabazar, District – Balodabazar-Bhatapara (C.G.), by which the respondent/accused has been acquitted from charges punishable under Sections 409, 420, 467, 468, 471 and read with Section 120B of the Indian Penal Code (IPC) in connection with Crime No. 111/2001, registered at Police Station – Bilaigarh, District – Balodabazar-Bhatapara (C.G.).

Case of the prosecution, in brief, is that

(i) The complainant, namely, G.S. Tomar (PW-7) was working as In-Charge Principal at Government Higher Secondary School, Bilaigarh. On 14.06.2001, the Block Education Officer directed the complainant to register FIR against Babulal Sao, Government Girls School Bhatgaon as per instruction received from the District Education Officer through his Complaint 2936/Raipur/dated 08.06.2001. In the complaint of District Education Officer, Raipur addressed to the In-charge Police Station-Bilaigarh dated 04.04.2001, it has been mentioned that the then Clerk B.B.S Banjare & Clerk Dhanesh K. Anant who was posted at Girls High School Bhatgaon had committed criminal conspiracy by making forged sanction order of bills of deposit in provident fund of teachers and employees of Girls High School Bhatgaon and further fraudulent withdrawal of Rs. 13,39,000/- & Rs. 09,65,000/-.

(ii) That after registration of the FIR, the police conducted preliminary enquiry with regard to the fraudulent withdrawal of Rs. 13,39,000/- and Rs.09,65,000/- by the accused persons and it was revealed that according to the records of the school, the amount has been withdrawn and paid through fake sanction orders of the provident fund account. Further, statements of complainant as well as witnesses have been recorded. In due course of further investigation the accused persons have been arrested after collecting the evidence against them.

(iii) After holding the due and necessary investigation, the charge-sheet was filed against accused persons and the present respondent was put to face charges before the learned Magisterial Court.

(iv) In order to prove its case the prosecution examined as many as 24 witnesses and cross examined 01 defense witness.

(v) After analyzing and appreciating the evidence available on record, the learned trial Magistrate believed the evidence proving guilt of the respondents and convicted them for the offences punishable under Sections 409, 420, 467, 468, 471 read with Section 120B of IPC and sentenced him to undergo R.I. for 3 years, 3 years, 3 years & 2 years respectively with fine of Rs. 1000/-, 1000/-, 1000/-, 1000/-, 1000/- in case of default thereof.

(vi) The learned Appellate Court after re-analyzing and appreciating the material available on record ultimately arrived at the conclusion that the learned trial Court has committed error, therefore, set aside the judgment dated 31.01.2018 in Criminal Case No. 236/2017 passed by the Court of Judicial Magistrate, First Class, Bilaigarh District – Balodabazar (C.G.) and acquitted the accused “Babulal Sao” from the charge of offence under Sections 409, 420, 467, 468, 471 read with Section 120 B of I.P.C.

(vii) The applicant/State is aggrieved by the aforesaid acquittal of the respondent and hence, had filed present petition seeking leave to appeal.

Mr. Gagan Tiwari, learned Deputy Government Advocate, appearing for the applicant/State would submit that the impugned judgment passed by the learned trial court is erroneous and contrary to the settled principles of law and the evidence available on the record. The learned trial court has failed to appreciate the evidence tendered by the prosecution in its correct perspective. The evidence brought on record clearly pointed towards the involvement of the respondent in the commission of the alleged offence. He further submitted that the learned trial Court has failed to appreciate the evidence with regard to the involvement of the present respondent in the crime in question because on the date of incident the present respondent was working as Principal and also taken charge of DDO, therefore, he was under liability to enquire about the records as well as cash book, transit register and others, but he ignored the same and committed criminal conspiracy.

Learned State counsel further contended that the learned trial court has relied on completely irrelevant considerations for recording the finding of acquittal of the accused. The learned trial court failed to appreciate that with the assistance of the present respondent other co-accused persons got obtained sanction order of bills of deposit in provident fund of teachers and employees of Girls High School Bhatgaon and further fraudulent withdrawal of Rs. 13,39,000/- and Rs. 09,65,000/-, which is further corroborated by the evidence of Smt. Pratima Awasthi (PW-14). The learned trial court has committed grave error in observing that there was discrepancy on the evidence available on record. The learned trial Court has failed to realize that the evidence available on record is sufficient for conviction of the respondent. Thus, learned trial Court is absolutely unjustified in acquitting the respondent/accused from the aforesaid offence by recording a finding which is perverse to record. Therefore, leave deserves to be granted.

On the other hand, learned counsel, appearing for the respondent submit that the learned trial Court after considering all the aspects of the matter has rightly passed the order and the appeal filed by the State, in which no interference is called for.

We have heard learned counsel appearing for the parties, considered their submissions and gone through the records filed along with this appeal.

Learned 3rd Upper Sessions Judge while acquitting the respondent has recorded the finding in paragraphs 41 and 42 as follows :

“41. Witness Pratima Awasthi (PW-14), who was the District Education Officer during the said period and whose signature was alleged to have been made, the said witness has denied the occurrence of the said incident. Her specimen signature has not been displayed and certified by the prosecution before the trial Court. Witness Umakant Verma (PW-16) has stated in his examination-in-chief before the trial Court that he had gone with the audit team as an associate and he was not aware of what was found in the investigation. Thus, the said witnesses have not supported the incident and other witnesses in the case have also not supported the incident and the Investigating Officer of the incident and none of the prosecution witnesses have also told how many teachers and amount of GPF and part final was embezzled by the accused.

From the above evidence analysis, it is clear that in the year 2000-2001, the appellant/accused had prepared fake applications for withdrawal of funds from the GPF accounts of the teachers posted in Government Girls High School, Bhatgaon and had prepared the fake seal and signature of the District Education Officer. The embezzlement of the amount of Rs. 23,04,000/- by presenting a bill for payment in the Sub-Treasury, Bilaigarh, by conspiring and withdrawing it has not been proved by the prosecution, yet the trial court has committed a legal error by concluding that the offence under Sections 409, 420, 467, 468, 471 read with 120B of the IPC has been proved against the appellant/accused. This has been done and without proper analysis of the evidence on record, the appellant/accused have been held guilty of the offence under Sections 409, 420, 467, 468, 471 read with 120B of the IPC and by doing so, the trial Court has committed a serious error and there is a need for intervention. Therefore, the judgment dated 31.01.2018 passed by the trial Court is set aside and the appellant/accused-Babulal Sao is acquitted by giving the benefit of doubt on the charges of crime under Sections 409, 420, 467, 468, 471 read with 120B of the IPC.”

Taking into consideration and the finding recorded by the learned 3rd Upper Sessions Judge, the appellate Court in paragraphs 41 and 32, wherein witnesses not support the case of the prosecution, it cannot be held that the findings recorded by the learned 3rd Upper Sessions Judge, Balodabazar, District Balodabazar-Bhatapara (C.G.), acquitting the respondent/accused from aforesaid offences, are perverse or contrary to record. We do not find any reason to allow Criminal Miscellaneous Petition seeking grant of leave to appeal.

Accordingly, the application is rejected and consequently, acquittal appeal is also dismissed.