State of Sikkim vs Shri Sonam Wangdi Lepcha

Wangdi, J.—This is to consider an Appeal filed by the State u/s 378 Cr.P.C. seeking to assail the judgment and order dated 31-03-2010 passed by the Learned Sessions Judge, South and West Sikkim at Namchi in Criminal Appeal No.6 of 2006 (hereinafter referred to as the "impugned judgment) setting aside the order of conviction against the Respondent and acquitting him of the offences under Sections 409/420 IPC.

1(a). The case of the prosecution in brief is that a written report was received by the Namchi P.S. on 10-031997 from Mr. K. N. Pradhan, Deputy General Manager (Operation), Sikkim Nationalised Transport [in short "DGM (Operation)" and "SNT" respectively], Jorethang, stating that the Annual Statutory Audit of Namchi SNT Booking Office held on 28-02-1997, revealed considerable reduction in the collection of passenger fares from August, 1993, onwards as compared to the earlier period. The Cash Book inspected on 28-02-1997 revealed collection ranging from Rs.2500/-to Rs.3000/-per day against proceeds from sale of tickets but the duplicate bank receipts for those were not made available at the Head Office, Gangtok. That the Respondent, Junior Traffic Assistant (in short "JTA") Namchi Booking Office, was suspected for committing fraud by mis-appropriating more than 20 lakhs during the period from August, 1993 to February, 1997, as Cash Book and Ticket Stock Registers from 1993-94 onwards were not handed over despite repeated instructions. Based upon this, Namchi P.S. Case No.9(3)1997 dated 10-03-1997 was registered against the Respondent under Sections 409/420/468/471/210 IPC and investigation taken up.

(b) Investigation revealed that the Respondent-Accused Sonam Wangdi Lepcha, a JTA at Namchi SNT Booking Office since 17-05-1993, was the sole in-charge of the sale of bus tickets and deposits of the revenue collected from there in the State Bank of Sikkim (in short "SBS"), Namchi Branch. The SNT Department printed their own Bank Receipt Forms that contained the names of the booking offices and supplied to the SBS in quadruplicate for use exclusively for transactions of the SNT. It is stated that in September, 1991, the SBS received such Forms with serial numbers from 11001 to 12000 from the DGM (Operation), SNT, Jorethang, as the earlier stock had been exhausted.

(c) Between 08-08-1993 to 13-02-1997, the Respondent-Accused had received bus tickets of different denominations worth Rs.30,46,200/-from the DGM (Operation), SNT, Jorethang, which ultimately worked out to Rs. 29,55,200/-on deduction of value of the unsold tickets worth Rs.98,900/-. As compared to this, the details in the statements provided by the Head Office of SBS at Gangtok, the actual deposits in the SBS, Namchi, made by the Respondent was only Rs.1,51,931/-. It was, therefore, alleged that the Respondent had misappropriated Rs.28,03,269/-after deduction of Rs.1,51,931/-from Rs.29,55,200/-.

(d) The false statements of deposits by forgery committed by the Respondent accounted for a deposit of Rs.26,65,429/-as some of the bank receipt numbers given in the statements were either found to have been repeated, or the numbers and dates missing or showing those issued by the Bank to other agencies and persons as having been issued to him. The statement also contained the particulars of some bank receipts with numbers not used by the Bank shown as having been issued to him and, in the others while the numbers tallied with those in the statements the dates and the amounts deposited did not.

(e) Thus, a prima facie case of criminal breach of trust committed by the Respondent while discharging his duties in the capacity of JTA of Namchi SNT Booking Office for mis-appropriating Rs.28,03,269/-by submitting forged statements to the DGM (Operation), SNT, Jorethang, having been made out against him, charge-sheet was accordingly filed for his trial.

2(a). It is relevant to note here that initially the matter was heard by Mr. P. W. Pulger, Chief Judicial Magistrate, South & West Sikkim at Namchi and disposed of by him vide his judgment dated 12-09-2002 as Criminal Police Challan Case No.86 of 1999. On remand in Appeal the case was again heard by Mrs. M. M. Rai, Chief Judicial Magistrate, South & West Sikkim at Namchi, as G. R. Case No.1 of 2004 and the Respondent convicted vide judgment dated 17-07-2004. On Appeal against this, the case was again remanded by the Learned Sessions Judge, South & West Sikkim at Namchi, with a direction to rewrite the judgment giving distinct findings on the charges for the four different periods of the offences that had been found by the Trial Court.

(b) The case having thus been remanded it was ultimately heard and disposed of by Mrs. K. C. Barphungpa, Chief Judicial Magistrate, South & West Sikkim at Namchi as G. R. Case No.1 of 2004. The Learned Chief Judicial Magistrate having found prima facie case against the Respondent for commission of the offences under Sections 409/420/468/471/201 IPC framed charges against him to which he pleaded not guilty and claimed to be tried.

(c) At the conclusion of the trial, the Respondent having been found guilty of the offences under Sections 409/420 IPC was convicted and sentenced to undergo simple imprisonment for three years u/s 409 IPC and to pay a fine of Rs.10,000/-only and, three years for the offence u/s 420 IPC with a fine of Rs.5,000/-only. In default of payment of fine, to undergo further simple imprisonment of ten months and six months respectively, with the orders of the sentence of imprisonment requiring to run concurrently.

(d) In the Appeal filed before the Learned Sessions Judge, South & West Sikkim at Namchi registered as Criminal Appeal No.6 of 2006, the order of conviction against the Respondent was set aside acquitting him of the charges by his impugned judgment. It is against this that the State has come up with the present Appeal.

3(a). Supporting the Appeal, Mr. J. B. Pradhan, Learned Public Prosecutor, submitted that the impugned judgment suffers from serious infirmity in as much as the Learned Sessions Judge has disregarded vital documentary evidence and has chosen to rely upon few sentences in the cross-examination of the prosecution witnesses. It was submitted that it was erroneous on the part of the Learned Sessions Judge to have held that "entrustment" required u/s 409 IPC had not been established when this was evident from the Tickets Issue Register, Exhibit MO-II that showed the issue of tickets to the Respondent and, the Ticket Requisition Forms, Exhibit 27 in which tickets requisitioned and received by the Respondent-Accused were found clearly recorded. As per the Learned Public Prosecutor, P.Ws. 1, 7, 10, 16, 17, 18 and 26, have set out the duties and functions of the Respondent-Accused as JTA as including the maintaining of Cash Book, sale of passenger tickets, deposit of cash in the Bank and preparing statements for requisition of bus tickets. It was established that in discharge of his function the Respondent had in his own hand, made requisitions for the bus tickets as contained in Exhibit 27 and were duly signed by him as his acknowledgment of receipt of the tickets. Similarly, the entries made by the Respondent-Accused in the Tickets Issue Register, Exhibit MO-II, clearly establishes the tickets having been issued to and, received by him thereby fully establishing the factum of "entrustment" and dominion over the bus tickets rendering the finding of the Learned Sessions Judge holding otherwise quite perverse. It is the submission of Mr. Pradhan that the function and duties of the JTA fully established by the prosecution assumes relevance for the purpose of them having satisfied of the requirement of "entrustment".

(b) It was then submitted that taking into consideration the enroute tickets in giving the Respondent the benefit of doubt was erroneous as those had to be discounted as not being part of and distinct from the transactions involved in the present case. The Learned Public Prosecutor urged that the Learned Sessions Judge had dealt only with the oral evidence by dis-regarding the documentary evidence and that, the fact that in his statement recorded u/s 313 Cr.P.C. the Respondent had either denied or had given no explanation when the circumstances appearing against him were put to him, had been overlooked by the Learned Sessions Judge, rendering the impugned judgment grossly erroneous and perverse.

(c) It may be pointed out that the Learned Public Prosecutor primarily stressed upon the Exhibit MO-II, the Tickets Issue Register and Exhibit 27, the Ticket Requisition Forms, in support of his submission that the requirement of "entrustment" u/s 409 IPC had been established against the Respondent. It was his submission that to prove criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, mis-appropriation or mis-application by the Respondent-Accused of the property entrusted. It only needs to prove entrustment and the onus to account for the same lies on the accused. In support of his submission, the following decisions were relied upon:

Jiwan Dass Vs. State,

Som Nath Puri Vs. The State of Rajasthan,

Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay,

Anwar Chand Sab Nanadikar Vs. State of Karnataka, and

Krishan Kumar Vs. The Union of India, .

4(a). Mr. A. Moulik, Learned Senior Counsel appearing on behalf of the Respondent-Accused, on the other hand, submitted that there was no error in the impugned judgment of the Learned Sessions Judge as the prosecution had failed to establish the guilt of the Respondent-Accused having committed the offence beyond reasonable doubts and that all aspects of the prosecution case and the evidence have been duly considered by the Learned Sessions Judge in concluding that the case of the prosecution was doubtful.

(b) It was the submission of Mr. Moulik that in the first instance the very requirement of "entrustment" u/s 409 IPC had not been proved even going by the evidence of the prosecution witnesses. By referring to the evidence of P.W.27, Bhaichung Bhutia, and P.W.33, Mrs. Kamala Chettri, it was submitted that contrary to the evidence of P.W.1, K. N. Pradhan, the DGM (Operation), SNT and P.W.7, Jaideep Sharma, DGM (Finance), Head Office, Gangtok and P.W.18, D. P. Chettri, the Superintendent of Transport, the staff in the Sub-Division including the JTA were allocated with specific works in writing. It has also come in the evidence of the prosecution witnesses that others also used to handle the sales counter and that the Respondent only used to receive the tickets and not the money. This as per Mr. Moulik is also evident from the Tickets Issue Register, Exhibit MO-II which only records the tickets that were issued to the SNT, Namchi Sub-Station. It was the submission of Mr. Moulik that Exhibit 27 series of documents which is the Ticket Requisition Forms pertaining to the period when the Respondent was holding the post of JTA, is the foundation of the prosecution case apart from Exhibit MO-II. That the prosecution has not been successful in proving whether or not the Exhibit 27 series of documents are in fact genuine as in the first instance, it was seized from Jorethang as will appear from the evidence of P.Ws. 1 and 33. Secondly, it has come in most clear terms in the evidence of P.Ws.10 and 18 that besides the Respondent as JTA, other staff also used to sell passenger tickets and deposit the sale proceeds during his tenure and, that Tickets Issue Register, Exhibit MO-II also contains the receipt of tickets by persons other than the Respondent-Accused marked Exhibit 32 to Exhibit 35. This as per the Mr. Moulik is in conflict with the case of the prosecution that the entire contents of Exhibit MO-II pertain to receipt of passenger tickets by the Respondent-Accused alone. Similarly, the document Exhibit 27 series also cannot be said to be reliable as ones authored by the Respondent as none of the witnesses have stated this specifically except to set out the duties and responsibilities of a JTA. That although it has come in the evidence of P.W.10, the Cashier at Jorethang SNT Sub-Division (Operation), that they were prepared by the Respondent-Accused in his own hand-writing but at the same time it has been admitted by him that he did not see the Respondent preparing Exhibit 27. As per him, even the opinion of the Hand-Writing Expert is inconclusive because it only states that the signature appearing in the handwritten statements contained in Exhibit 27 marked A1/1 to A4/1, A4/2 and A5/1 to A34/1 tallied with the specimen signatures of the Respondent-Accused but a definite opinion as to whether or not the contents of those documents were written by him could not be arrived at even when compared to the specimen hand-writing and specimen digital hand-writing of the Respondent-Accused and other materials made available to him. Serious doubts as to whether the specimen signature and the hand-writing are that of the Respondent-Accused or not also arises as there is no firm or credible evidence to establish this fact. P.W.25, Raj Kumar Gupta, one of the two attesting witnesses to the specimen hand-writing, specimen signatures and specimen numerical numbers, Exhibit P25A to Exhibit P25N, has deposed in most categorical terms that the Respondent-Accused did not write them in his presence and did not know as to who wrote those and, that the other attesting witness Sandeep Pradhan, had come only after he had put his signature on the documents. The Superintendent of Police, South at Namchi who as per P.W.31 directed him to seize those most vital documents and who was said to have been present during the time of the seizure was neither arrayed as a witness nor did he choose to enter the witness box. Therefore, as per Mr. Moulik, considering the entirety of the evidence appearing on the records there is no conclusive evidence that the author of Exhibit 27 is indeed the Respondent-Accused.

(c) Mr. Moulik then submitted that the manner in which Exhibit MO-II and Exhibit 27 were seized by a Police Officer, P.W.31, on 15-03-1997, when admittedly the I.O. was on tour just for two days, i.e., 14/15-03-1997 made the fairness of the investigation questionable. The seizure becomes even more doubtful when P.W.33 said to be the seizure witness stated that she did not know what were seized as those documents were not shown to her. These circumstances as per Mr. Moulik clearly raises the question as to whether or not the entire case against the Respondent-Accused was as a result of a conspiracy against him.

(d) It was further submitted that Exhibit 27 series of documents as per P.W.10 also contains at least 30 Requisition Forms of the value of Rs.22,60,500/-which admittedly were not received by him. That apart it is in the evidence of P.W.24 that Requisition Forms are printed in the Form of Books and the tickets were issued to the respective Depots through Issue Register but, the Issue Register relating to delivery of Requisition Forms connected to this case were not produced nor has it been proved that the exhibited Requisition Forms were issued to Namchi Office. That when the statement of journey tickets were only available in printed Forms the fact that those connected to the present case are hand-written raises a serious doubt as to its genuineness considered in the light of the other evidence.

(e) Mr. Moulik further went on to submit that the enroute tickets issued by the Namchi Office which admittedly were also issued out of the stock of tickets at the Sub-Station have not been taken into account. In fact, the statement of accounts and the bank receipts in respect of the enroute tickets which accounts for substantial amount of money were not at all seized by the Police. That during the period 09-11-1993 to 13-02-1997 to which Exhibit MO-II pertains, as per P.W.10, contains record of many others also having received passenger tickets and some entries in Exhibit MO-II struck out but is unable to say as to whether the statement of journey tickets, Exhibit 27 are correct or not and further that there is no column for issue enroute ticket in Exhibit 27.

(f) The other limb of the argument of Mr. Moulik is that the prosecution evidence is completely devoid of the proof of the Respondent handling the cash pertaining to the sale proceeds. In fact, it has come in evidence of P.W.26 that tickets were sold by others also which included the Office Peon and that the key remained with the Office Peon. Although, P.W.17 has stated that the sale proceeds used to be handed over to the Respondent-Accused, no evidence has been produced to support this. The witness has rather stated that he had no documents to show that the sale proceeds of the passenger tickets were handed over to the Respondent-Accused. In fact, he has confirmed the position that there used to be specific allocation of works amongst the staff by the concerned DGM (Operation), i.e., P.W.1. The other aspect stressed upon by Mr. Moulik was that although it is in the evidence of P.W.24 that Cash Book relating to sale of tickets of Namchi, Stock Register and Sale Register during the tenure of Respondent-Accused were consigned to the Record Section of the Head Office, the police did not seize the documents pertaining to present case from the Record Section thereby attracting the provisions of Section 114 of the Evidence Act to draw an adverse inference against the prosecution.

(g) As per Mr. Moulik when it has come in evidence that there were no adverse remarks as regards the Namchi Sub-Station when audits were conducted in the earlier years during the tenure of the Respondent-Accused as JTA, a position even confirmed by the Auditor Ashok Pradhan, P.W.30, the finding of the discrepancies in the present case raises grave doubt as to the bona fide of the prosecution. That becomes even more convincing when the FIR was lodged belatedly on 10-03-1997 for an offence of the year 1993 and that no explanation has been provided therefor. That merely because the signature of the Respondent-Accused appears in some of the documents does not necessarily mean that he had misused the government fund. It was, therefore, submitted that the prosecution has failed to establish the offence against the Respondent-Accused as the very foundational requirement of "entrustment" as required u/s 409 IPC has not been established.

(h) In support of this submission, he sought reliance upon the decision of Jiwan Dass (supra), the relevant portions of which reads as under:

"2. The prosecution case in nutshell is that both the accused persons were posted in the Office of Government Heat Treatment Centre at Bahadurgarh and on 23.2.1982, they were authorised to bring 10,000 litres of light diesel oil from Indian Oil Corporation, Delhi. For that purpose the letter of authority as well as the bank draft to the tune of Rs28,275.83 were given to them. The said two accused persons deposited the bank draft with Indian Oil Corporation and took delivery of 10,000 litres of light diesel oil but ultimately the quantity of diesel was found to be less by 4300 litres, the value of which was Rs12,160. It is the prosecution case that both the accused persons committed embezzlement of the oil in question. The prosecution examined as many as eight witnesses to establish the case against the accused persons. The accused persons also examined two defence witnesses. The learned Sub-Divisional Judicial Magistrate, who tried this case by his judgment dated 25-7-1991 came to hold that the prosecution has been able to establish the charges beyond reasonable doubt against both the accused persons and accordingly convicted them u/s 409 IPC and sentenced them to undergo rigorous imprisonment for three years and imposed a fine of Rs3000, in default to further undergo imprisonment for three months. The accused persons preferred appeal before the Sessions Judge and the learned Sessions Judge affirmed the conviction and sentence passed by the learned Magistrate and dismissed the appeal. The matter was then carried to the High Court in revision and the High Court by the impugned Judgment having dismissed the said revision, the present appeals have been preferred.

Mr R.K. Jain, the learned Senior Counsel appearing for accused Jiwan Dass, appellant in Criminal Appeal No. 990 of 1995, contended that the bank draft in question which was handed over to accused Jiwan Dass having been duly deposited with Indian Oil Corporation and thereafter the diesel in question having been entrusted to accused Mittar Pal Yadav, and there being no entrustment of the said diesel to accused Jiwan Dass, which is the gravamen of the charge in the present case, the courts below committed error in convicting accused Jiwan Dass u/s 409 IPC. Mr Jain also further contended that Jiwan Dass being a senior officer had been sent with the bank draft as the amount was a heavy amount. Any dereliction on his part in not himself taking delivery of the diesel but the diesel having been entrusted to accused Mittar Pal Yadav, Jiwan Dass might have been negligent in discharging official duty but that would not tantamount to commission of offence u/s 409 IPC and, therefore, the conviction and sentence passed against Jiwan Dass is liable to be set aside.

Mr Ajay Siwach, the learned counsel appearing for the State of Haryana, on the other hand, contended that both the accused persons having been sent with the money with the direction to bring diesel and both of them having proceeded, both of them are liable for the commission of offence and the courts below, therefore, were justified in convicting them u/s 409 IPC. The learned counsel also contended that Jiwan Dass being the person who was authorised to take delivery of diesel, cannot be exonerated of his liability even though factually, delivery was taken by Mittar Pal Yadav inasmuch as in eye of the law it must be held that entrustment was to Jiwan Dass. The learned counsel further contended that even if it is held that there has been no entrustment of diesel to Jiwan Dass but yet it must be held that Jiwan Dass held the dominion over the diesel and, therefore, he has committed an offence u/s 409 IPC for shortage of the diesel oil.

In view of the rival submissions, the question that arises for consideration is whether both the accused persons or any one of them committed the offence u/s 409 IPC. At the outset it must be stated that there was no charge u/s 34 and both the accused persons were charged u/s 409 IPC alone. To bring home a charge u/s 409, what is necessary to be proved is that the accused is a public servant and in such capacity he was entrusted with the property in question or with dominion over it and that he committed criminal breach of trust in respect of it. The necessary elements constituted in the offence must be strictly proved by the prosecution. It is true that prosecution need not prove the actual mode of misappropriation and once entrustment of or dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with. In Exhibit PE, on the basis of which the police registered the case and started investigation it was specifically mentioned that Jiwan Dass and Mittar Pal Yadav were authorised to take 10,000 litres of light diesel oil from Indian Oil Corporation and a bank draft amounting to Rs28,275.83 had been given to Jiwan Dass, which draft he deposited. Thereafter they took delivery of 10,000 litres of light diesel oil but on actual measurement it was found to be less by 4300 litres. On an enquiry from Indian Oil Corporation, it was reported that delivery of 10,000 litres of diesel had been given and in token thereof Mittar Pal Yadav had put his signature. It was further stated in the said letter that Jiwan Dass on 2-3-1982 gave a writing that he would make up the deficiency. On the basis of the aforesaid letter and after completion of investigation, the police filed challan and the Magistrate took cognizance and the charge that was framed on 26-3-1984 was to the following effect:

That on 26-2-1982 in the area of Bahadurgarh, you being a servant in the employment of Government Heat Treatment Centre, Bahadurgarh, as Superintendent and Storekeeper respectively and in such capacity entrusted with a bank draft of Rs28,275.83 for purchase of 10,000 litres of high diesel oil and you committed criminal breach of trust in respect of 4300 litres of high diesel oil worth Rs12,158.60 and thereby committed an offence punishable u/s 409 of the IPC which is within the cognizance of this Court.

Mr Ajay Siwach, the learned counsel appearing for the State of Haryana however very strenuously argued that Jiwan Dass being a senior officer and having been deputed with the bank draft for the purpose of taking delivery of the oil and the letter of authority being in favour of Jiwan Dass, it must be held that the entrustment of diesel had been made to Jiwan Dass or at least he had dominion over the same. The mere fact that Jiwan Dass had taken the bank draft and that an authorisation had been given in his favour by his superior officers to take delivery of the diesel, cannot be the basis for coming to a conclusion that in fact the diesel had been entrusted to the said accused Jiwan Dass or he had dominion over the same. When in point of fact it is established beyond reasonable doubt that delivery had been taken by accused Mittar Pal Yadav and in token of the same he had signed the relevant papers and register, Jiwan Dass being a senior officer may be responsible for dereliction of his duty in not taking delivery of the diesel himself. But on that score, it cannot be said that in fact the prosecution has been able to establish that the diesel had been entrusted to Jiwan Dass and there has been shortage of the said diesel to the tune of 4300 litres. In our considered opinion the gravamen of the charge being misappropriation of 4300 litres of diesel oil which was found to be in shortage while measuring the diesel that had been brought and the said diesel having been delivered to Mittar Pal Yadav, who had signed the relevant documents in token thereof, the entrustment to or dominion over the diesel by Jiwan Dass has not been established and as such the prosecution has not been able to establish the charge u/s 409 IPC beyond reasonable doubt as against accused Jiwan Dass in respect of the shortage of diesel to the tune of 4300 litres. It is no doubt true that Jiwan Dass appears to have given in writing on 2-3-1982 that he would be completing the quantity of 10,000 litres of oil but that writing neither can be held to be a confession or admission of the guilt on the part of the accused Jiwan Dass, nor can that form the basis of convicting the accused Jiwan Dass for an offence u/s 409 IPC. In a prosecution for offence of criminal breach of trust if there is absence of legal and independent evidence with regard to the entrustment, then it would be improper either to put a question with regard to the entrustment to the accused and if put and an answer is obtained partially admitting entrustment, the same does not establish the case of entrustment. In the aforesaid premises and in view of our conclusion that the prosecution has failed to establish entrustment of the diesel to accused Jiwan Dass, the conviction of Jiwan Dass u/s 409 IPC cannot be sustained and we, accordingly set aside the conviction and sentence against the accused Jiwan Dass and acquit him of the charge levelled against him and Criminal Appeal No. 990 of 1995 is accordingly allowed and his bail bonds stand discharged."

(i) In the case of Janeshwar Das Aggarwal Vs. State of Uttar Pradesh, it has been held as under:

According to the prosecution, the appellant who was an overseer was put incharge of tubewells and some open godowns which were attached to those tubewells. These godowns contained cement, bricks and coal. Although the High Court has found that the articles in the godowns were entrusted to the appellant, there is no evidence at all to show that any such entrustment was made. No document in the nature of a list or charge has been shown to show that physical charge of the articles after being regularly counted in the godowns was made over to the appellant. This fact has not been seriously disputed by Mr. Bhat, appearing for the State. In fact, the godowns were in the physical charge of Chowkidars and if there was any shortage, it was not the appellant but the Chowkidars who would be liable. Even assuming that some sort of entrustment was there, there is absolutely nothing in this case to show that the appellant had misappropriated the goods from the godowns which were found to be short, particularly because the godowns being open the goods could have been pilfered by anyone else without the knowledge of the appellant. Before a conviction u/s 409 Indian Penal Code can be recorded, the prosecution must prove two essential facts : (1) the factum of entrustment and, (2) the factum of misappropriation of the entrusted articles. Even if it be assumed that entrustment was proved in this case there is absolutely no evidence to show, either direct or circumstantial, that the appellant had misappropriated any of the articles in the godowns. As the godowns were open and accessible to all and sundry, the possibility of the goods having been pilfered or stolen away by others cannot be excluded. The High Court was, therefore, clearly wrong in holding that as the appellant has not given any explanation for the shortage, he must be presumed to have misappropriated the articles kept in the godowns. In the present state of evidence, no such legal inference could be drawn. Mr. Bhat also conceded that there is no legal evidence to show that there was any misappropriation by the appellant. Even the two Chowkidars who were in physical charge of the godowns had not been examined to prove who caused the shortage. In view of this unsatisfactory nature of the evidence, it is impossible for us to sustain the conviction of the appellant.

5(a). Upon consideration of the entire evidence available on the records and the rival contentions placed by the Learned Counsels for the parties, we find that the most vital evidence that require consideration are Exhibit MO-II and Exhibit 27, Tickets Issue Register and the Ticket Requisition Forms respectively, upon which the entire case of the prosecution rests. This indeed is also the position stressed upon by Mr. Pradhan, Learned Public Prosecutor and Mr. A. Moulik, Learned Counsel for the Respondent accused. As per Mr. Pradhan, those documents are relevant for the purpose of arriving at a finding as to whether the Respondent-Accused was entrusted with the valuable properties coupled with his dominion over it in his capacity as a JTA and, once this is established the rest would follow by implication and reasonable inference. We also agree that the finding on the documents Exhibit MO-II and Exhibit 27 would be most crucial in deciding the present Appeal as it shall also be determinative on the question of entrustment of property on the Respondent-Accused as alleged by the prosecution. Therefore, apart from other critical aspects we shall be confining our findings substantially on this question.

(b) However, before embarking upon the question, it would be essential for us to lay down the principle governing an offence u/s 409 IPC. In the ''Law of Crimes'' by Ratanlal and Dhirajlal, 26th Edition, the following are the essential ingredients for an offence under the Section:

(i) The accused must be a public servant;

(ii) He must have been entrusted, in such capacity with property;

(iii) He must have committed respect of such property.

(c) We have also seen that in the case of Janeswarlal Aggarwal (supra) cited by Mr. Pradhan, it has been held that before a conviction u/s 409 IPC can be recorded, the prosecution must prove two essential facts : (i) the factum of entrustment and (ii) the factum of mis-appropriation of the entrusted articles. We may also refer to the case of Jiwan Dass (supra) cited by both the Learned Counsels on this point and the principle laid down in the case of Anwar Chand Sab (supra) cited by the Learned Public Prosecutor, that it is also to be borne in mind to prove criminal breach of trust the prosecution is not obliged to prove the precise mode of conversion, mis-appropriation or mis-application by the accused of the property entrusted while deciding as to whether an offence has been made out u/s 409 IPC or not.

6(a). In the light of the above proposition of law, we may now examine as to whether the prosecution has been able to prove "entrustment" and as to whether the finding of the Learned Sessions Judge to the contrary has been correctly arrived at.

(b) In order to establish "entrustment" the Learned Public Prosecutor relied upon the evidence of P.W.1, the DGM (Operation), P.W.10, the Cashier, P.W.16, Station Master and P.W.17, the Traffic Inspector, who in their statements have stated in substance that the duty of a JTA involves maintenance of Cash Book, sale of passenger tickets, deposit of cash in the SBS, preparation of statement for requisition of bus tickets and to make requisition for fresh stock of tickets through the concerned cashier. The procedure laid down for issue of passenger tickets as stated by P.W.17, the Traffic Inspector, is that the Namchi SNT Sub-Depot makes requisition of passenger tickets with the statement of sales and stock to the DGM (Operation), Jorethang, who after verification issues the passenger tickets. Thereafter, the concerned JTA enters the receipt of tickets into the Stock Register and maintains Cash Book for its deposit and sale proceeds.

(c) In the present case as per the Learned Public Prosecutor the requisitions and statements collectively marked as Exhibit 27 has been proved to have been prepared by the Respondent-Accused in his own handwriting and had been submitted by him to the Jorethang SNT Office. The Tickets Issue Register, Exhibit MO-II, also clearly establishes that the tickets were issued to the Respondent-Accused on the basis of the requisitions made by him and the Respondent-Accused had acknowledged the receipt of the tickets by signing on the Ticket Requisition Forms, Exhibit 27. Under such circumstances, the Learned Public Prosecutor submitted that the factum of entrustment of the valuable property to the Respondent-Accused stand fully established.

(d) Mr. Pradhan went on to submit that the principle that "a person authorised to collect moneys on behalf of another is entrusted with the money when the amounts are paid to him" as laid down in the case of Som Nath Puri (supra) applies in force in the present case as it has come in the evidence already discussed that the Respondent-Accused had been authorised to sell and collect the tickets on the basis of his own requisition. As per him, the contradictions or inconsistencies in the prosecution evidence pointed out by Mr. Moulik are immaterial and insignificant in view of the firm and credible evidence that appear against the Respondent-Accused. In any case, such omissions, contradictions and discrepancies are not such as to discard the entire evidence of the prosecution. Reference in this regard has been made to the case of State represented by Inspector of Police vs. Saravanan and Another : (2008) 17 SCC 587 and Prithu @ Prithi Chand and Another Vs. State of H.P., .

(e) In order to meet the assertion on behalf of the Respondent of the failure of the Investigating Officer in seizing the vital documents from the records maintained in the SNT Head Office at Gangtok, Mr. Pradhan relying upon the decision of State of Rajasthan Vs. Kishore, , submitted that the "mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account".

(f) As we have seen, the submission made on behalf of the prosecution by the Learned Public Prosecutor is that the offence u/s 409 IPC would be established if the factum of entrustment is proved. We are, however, unable to agree with this proposition in the light of the requirement of law as enunciated in the comments contained in the Law of Crimes -Ratanlal and Dhirajlal (Supra) and in the case of Janeshwarlal Aggarwal (supra). On a plain reading of Section 409 IPC we find that it requires more than that. We may for convenience reproduce Section 409 IPC which are as follows:

Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

(g) It is clear from the above that apart from the entrustment or the dominion over property in the person in his capacity of a public servant, it also requires proof of commission of "breach of trust" in respect of that property. Therefore, the essential ingredient for the offence is entrustment and dominion over property coupled with the commission of criminal breach of trust in respect of that property.

7(a). First of all, let us examine as to whether entrustment of and dominion over the property upon the Respondent-Accused has been established as asserted by the Learned Public Prosecutor. The evidence relied upon for this purpose by the prosecution are the depositions of P.Ws.1, 7, 10, 16, 17 and 26. However, on close examination of the depositions of these witnesses we find that they have only stated what the duties of a JTA are. The relevant portions of their evidence are set out as under:

P.W.1 - K. N. Pradhan, DGM (Operation), SNT, South & West at Jorethang.

..............................................................................

....... As a J.T.A. their duty involves to maintain Cash book, for sell of passenger tickets, deposit of cash in the State Bank of Sikkim, to prepare statement for requisition of bus tickets. They also maintain accounts of carriage of goods from respective sub-stations. During my tenure the accd was J.T.A. Namchi and one Kailash Rai purchase assistant.

................................................................................

.............. The accd was found to have maintained accounts, registers well at times ................

.................................................................................

............. It is true that no written allocation of duties is issued to the J.T.A. except his appointment order. It is true all the J.T.A. of S.N.T. has common duties and function. It is true as D.G.M. operation S/W I did not issue any instruction to the accused as J.T.A. for deposit of cash, sale of tickets maintenance of registers, and the witness voluntered (sic) to say as the accused was already functioning as J.T.A. at Namchi. ................... It is true that one Kailash Rai used to perform duties of J.T.A. when the accused used to go on leave. It is true there was no written instruction in favour of Kailash Rai (P.W-26) to wrok (sic) as J.T.A. in-charge. ...................

.............................................................................

P.W.7 - Jaideep Sharma, DGM (Finance), SNT Head Office, Gangtok.

................................................................................

In Sikkim the Department of SNT has it''s sub stations in different places under DGM (operation) SNT. The sub stations are maned (sic) by J.T.A. Challen (sic) Books, bus tickets of sub statiins (sic) are maintained by J.T.A. and its sale proceed are deposited to different SBS Branches. The SBS Branches sent copy of the B.R. to its Head Office at Gangtok whereby a copy of the B.R. is sent to SNT Head Office. On the basis of the copy of B.R. received by the SNT Head Office accounts of receipt are maintained in a receive register. Bus tickets of SNT Department are printed by the SNT Head Office The J.T.A. of the Sub-station filed their requisition of passengers bus tickets to the concerned DGM(Operation). The DGM on the basis of the requisition of J.T.As recommend the requisition for tickets to the Head Office. The Head Office issued the tickets to the D.G.Ms and the D.G.Ms issue the tickets to J.T.As on the basis of their requisition.

For the purpose of collection of sale proceeds the J.T.As are required to maintain daily Cash Collection Register, ticket sale cum-stock registers and one cashbook, in the sub stations. The, requisition filed by the J.T.As are checked and verified by the concerned DGM(Operation) before it is recommended to the head Office.

..........................................................................................

P.W.10 -Robin Kumar Rai, Cashier, SNT, Jorethang.

..........................................................................................

...........When I joined at Jorethang in the year 1987 the accused was already working in the SNT. During the relevant time he was J.T.A. SNT at Namchi. As J.T.A. he used to file requisition for passengers ticket alongwith statement of tickets. As such, I am well acquinted (sic) with his hand writing and identify his handwriting and signature.

................................................................................

P.W.16 -B. S. Bista, Station Master, SNT, Jorethang

..............................................................................

...................... J.T.A. are posted as I/C of the SNT Sub-Depot of different places. Their duty is to regulate Transport from his sub-depot, sell passengers tickets maintained it''s (sic) stock and accounts in the sub-depot. The J.T.As as per their requirement filed requisition of tickets to the concerned DGM (Operation) with required statement of sale of tickets collection and stock. The DGM after duly verification issue fresh stock of tickets as per the requisition through the concerned cashier. In the sub -depot the J.T.As also maintained cash book.

.............................................................................

P.W.17, Tenzing Norbu Bhutia, T.I., SNT, Namchi

.................................................................................

........... However, the daily accounts and deposit of sale proceed used to be maintained by the accused himself as J.T.A. during the relevant period. The sale proceeds is to be deposited in the S.B.S. Namchi Br. on the following day, in case of holidays on the first working day and the J.T.A. used to maintain a cash book register for collecting of sale proceeds and deposit in the S.B.S. I can indentify handwriting and signature of the accd. Daily collection of revenue has been recorded by the accused in the relevant register marked Ext. P-1 (a) (1) [Exbt MO - III) to Ext. P- 1(a) (14) [Exbt MO-XVI] in his own hand writing which are marked as Ext. P-X.

...............................................................................................

P.W.26, Kailash Kumar Rai, Purchase Assistant, SNT Booking Office, Namchi.

...............................................................................................

During 1991 to 1993 May I was posted at Namchi in the capacity of J.T.A.As a J.T.A. it''s function and duty is to regulate SNT transport vehcicle (sic) from Namchi to differnt (sic) destination, to maintain sell and accounts passengers tickets in the booking office, to maintain proper account of sale proceed and different registeres (sic) and to deposit the collection in S.B.S. Br. against the B.R., to maintain such accounts on ticket sell (sic) register and cash book are maintained where the original B.R. issued by the Bank are also affixed against the particular amount in the cash book. For requisition of passengeres (sic) tickets statement showing the stock and sell of such tickets are also filed with the requistion (sic) to the Divisional Office. Tickets stocks registeres (sic) and passengers tickets are also maintained by J.T.A. at Namchi Booking Office.

...............................................................................

(b) Relying upon the above portions of the evidence, it is the case of the prosecution that the Respondent-Accused as the JTA was the sole person to perform the above duties. However, we have to bear in mind that the case has been lodged against the Respondent-Accused only when the Special Audit was conducted in the Namchi Sub-Station during which time it is alleged that the sale proceeds during the tenure of the Respondent had diminished substantially and that the deposits made in the Bank when compared with the Bank Receipts recovered and seized from the Bank revealed a large number of discrepancies reflecting a huge loss of public revenue in terms of sale proceeds of the tickets. It is, therefore, necessary to examine as to whether it was the Respondent-Accused alone who performed the duties as stated by the prosecution witnesses set out above as the finding on this will determine as to whether it was the Respondent-Accused who was the sole person to make the deposits of the sale proceeds of the bus tickets.

(c) In cross-examination of these witnesses, it has come out most unambiguously that the position was otherwise. The statement of P.W.1, K. N. Pradhan, that during his inspection of the Namchi Sub-Station from time to time the Respondent was found to have maintained account, registers well but, at times had detected delay in deposit, assumes significance in view of its generality and vagueness as can be gathered from the later portion of his evidence in cross-examination where he states that there is no written allocation of duties issued to the JTA and that all the JTA of SNT have common duties and function and further that one Kailash Rai used to perform the duties of JTA when the Respondent went on leave. However, it is essential to consider the evidence of these witnesses in the light of what have emerged in their cross-examinations and that of P.W.18, D. P. Chettri, set out as under:

P.W.1 - K. N. Pradhan, DGM (Operation), SNT, South & West at Jorethang.

.........................................................................................

.................... It is true that Ext.P-4(a) [MO XXV] ticket stock register does not bear signature of supervising officer to verifiy (sic) the interes (sic) of contains. It is true there is no signature of Supervising Officer to verify the entries from page 51 to 56 of register Ext.P-14 [MO II]. It is true the above said entries in page No.52 & 53 some portion of entrries (sic) has been scored crossed. It is not a fact that above entries are manufactured for the purpose of this case.

P.W.7 - Jaideep Sharma, DGM (Finance), SNT Head Office, Gangtok.

....................................................................................

....................... I am not aware as to whether the J.T.As are required to maintain daily cash collection statement, of respective sub-station.......... It is true that I did not state before the police that the J.T.A. maintains accounts of bustickets in the sub-station and its sale oroceeds (sic) are deposited to SBS Branches. It is true that I did not state before the police that the DGM on the basis of the requistion (sic) of J.T.As recommend the requisition of tickets to the Head Office. It is not a fact that I am deposing falsely.

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P.W.10 -Robin Kumar Rai, Cashier, SNT, Jorethang.

.................................................................

............... It is true at some time tickets were issued by my subordinate also vide requisition form Ext.P-13-D [Exbt -27].

.........................................

P.W.17, Tenzing Norbu Bhutia, T.I., SNT, Namchi

.....................................

.......... As I am instand (sic) in the SNT Booking Office at Namchi tickets were sold sometimes by Office Chowkidar by late Yongden tamang one Kailash Rai, the accused and sometimes I also used to help to sell of passengers tickets....................

.................................................................

Deposits of collection from SNT sub depot are made by any reliable officials of the office including Office peon...........................

.................................................................

It is true that although passengers tickets were also sold by other staffs as stated by me in my examination in chief. The entries in the tickets sale register are made by the staff who sold the tickets and the sale proceed used to be handed over the concerned JTA. I have no documents to show that the sale proceed of the passenger tickets sold by me or other staff of the deport (sic) were handed over the accused as JTA..................... The concerned deputy General Manager Operation alocate (sic) work to different staffs. Mr. K. N. Pradhan PW-1 was the DGM Operation during the relevant time.................................

................................... It is true that the accused himself as a JTA need not necessarily collect passenger tickets from Jorethang sub-divisional office........... During the absence of the accused he used to leave the key of the Godrej drawer were (sic) the passenger tickets is to be kept. and I as well as the other staff used to take out the tickets and sale in his absence. There was no written order that in absence of the accused as JTA the key of the Godrej drawer to be handed over to the peon or the other staff.................

..........................

P.W.18 - D. P. Chettri, Superintendent of Transport, SNT

...................................................................

Requisition and statements collectively marked as Ext.13(d) [Exbt-27] are prepared by the accused in his handwriting and submitted by him at Jorethang SNT Office. I can identify his signature.........................

.................................................................

....... I have not seen the accused preparing documents Ext. P-13(d) [Exbt 27].

.................. There was no written order for JTA for SNT sub-Depot to sale passengers ticket deposit. the sale proceed etc as their duties. Passenger tickets are sold by any staff of the depot.

It is true that besides the accused as JTA, Namchi other staffs also used to sale the passengers tickets and deposits the sale proceeds during his tenure................

P.W.26, Kailash Kumar Rai, Purchase Assistant, SNT Booking Office, Namchi.

......................

........ It is true that during the absence of the accused I used to performed (sic) the duty of accused of J.T.A....... The passengers tickets were kept in side the drower (sic) in the sell counter during the working hour and after the account of the sell is closed the tickets are kepts (sic) under lock and key. It is true that the key used to remain in the custody of office peon......................

(d) From the above, we find vital contradictions in the prosecution case. Clearly deducible from their evidence is that (a) during the absence of the Respondent-Accused others also used to perform his function; (b) that it is not clear as to whether the JTAs are required to maintain daily cash collection statement of respective Sub-Stations; (c) that during the questioned period tickets also received by persons other than the Respondent-Accused; (d) that tickets in the SNT Booking Office at Namchi were sold sometimes by Office Chowkidar, Late Yongden Lama, one Kailash Rai, the Respondent himself and sometimes by P.W.17; (e) that deposit of collection from SNT Sub-Depot are made any reliable Official of the Office including Office Peon; (f) that it is not certain as to who would remain in-charge of the Namchi SNT Sub-Station in the absence of the Respondent; (g) that the entries in the Ticket Sale Register are made by the staff who sold the tickets; (h) that it is not necessary that the Respondent-Accused himself as JTA collected passenger tickets from Jorethang Sub-Divisional Office; (i) that during the absence of the Respondent the key of the Godrej drawer containing the tickets used to be left behind in the Office; (j) that other staff also used to take out the tickets and sell them; and (k) that the key of the drawer containing the tickets used to remain in the custody of the Office Peon. Apart from these serious contradictions, none of the witnesses except for the generality and vagueness of the duties of the Respondent-Accused, has specifically stated that it was he who collected and deposited in the Bank the sale proceeds in question.

The answers given to questions no.4 and 7 in this regard by the Respondent-Accused in his examination u/s 313 would also be material. For convenience, the questions and the answers by the Respondent-Accused thereto are reproduced below:

Question No. 4. In the financial year 4.4.1996 to 13.2.1997 he says he issued bus tickets worth Rs.8,98,000/-( Rupees Eight lakhs Ninety eight thousand) only to you. He has stated the amounts so given in detail in his deposition for each financial year, which he says in also reflected in Exbt 36 i.e. detail of amounts. He stated that the details of tickets issued by him to you are reflected in pages 51 to 56 of M.O.II maintained by him, when he was posted at Jorethang SNT Sub-Division (Operation) as a cashier and during which period you were working in SNT at Namchi as a J.T.A and when you used to file requsitions (sic) for passenger tickets along with statement of tickets. What have you to say?

Answer: That from the year 1993 to 1997 I was not the in-charge of S.N.T. Namchi Tickets issued by SNT Sub-Division at Jorethang were brought to Namchi by several people. I was only the J.T.A. at Namchi at the relevant time. It is true that I along with several others used to file requisitions for passenger tickets along with statement of tickets as part of my clerical duty.

Question No. 7. Do you have any statement to make in your defence?

Answer: Several persons had worked in Namchi Sub Depot (SNT) during the relevant period. One Kailash Rai was in-charge at the relevant and was present even before I joined Namchi and who continued after me with a one year break. No charge was given to me during this period."

In the above facts and circumstances, the question that would arise is that has the prosecution been able to pass the test laid down in the case of Jiwan Dass (supra) that to bring home a charge u/s 409 IPC, the necessary elements constituted in the offence must be strictly proved by the prosecution? [we may refer to paragraph 6 of the judgment]

(e) Our answer to the question would be in the negative. The grave discrepancies visible in the prosecution witnesses indicated above as regards the allegation of Respondent-Accused being the sole person responsible for all the acts stated by the prosecution witnesses in their examination-in-chief, in our view, negatives the factum of ''entrustment'' of the collection, receipt, sale and deposit in the Bank of the passenger tickets and the dominion over it solely upon the Respondent-Accused. The allegations certainly cannot be said to have been established firmly free from any doubt and, therefore, that makes it difficult for us to agree with the submissions on behalf of the prosecution otherwise. In the case of Janeshwarlal Aggarwal (supra) and Roshan Lal Raina vs. State of Jammu & Kashmir : (1983) 2 SCC 429 in the facts and circumstances quite pari materia to the present case, it was held that case u/s 409 IPC charged against the accused persons had not been made out.

(f) There is the other aspect of the matter that calls for consideration. As per the Learned Public Prosecutor, the Ticket Requisition Forms, Exhibit 27, clearly establishes that it was the Respondent-Accused who had made the requisition for the tickets and that he had also received them which is indicative by his signature appearing on Exhibit 27. The Tickets Issue Register, Exhibit MO-II, further establishes that the tickets were issued by the SNT, Jorethang, on the requisitions made by him. As per the Learned Public Prosecutor, these were clinching evidence appearing against the Respondent. However, upon careful scrutiny of these Exhibits considered in the light of the depositions of the witnesses, we find it difficult to convince ourselves in accepting these assertions. Most crucial witnesses in respect of these documents are P.Ws.1, 17, 24, 25, 26 and the documentary evidence Exhibit 19.

P.W.1 - K. N. Pradhan, DGM (Operation), SNT, South & West at Jorethang.

.....................................................................................................

It is true that the requsiton (sic) for tickets collectively marked Ext.P-13(D) [Exbt 27] has correction and overwriting and in some of them does not bear any intitial (sic) of the officer concerned and seal of the office. It is true that on the face the statement of journey tickets collectively marked Ext.P-13(d) [Exbt 27] do not show the particulars (sic) of Office from where the same was sent and the office where the same was received. It is a fact that the statement of journey tickets (passenger) collectively marked Ext.P-13(d) [Exbt 27] does not indicate office from which it is issued and the office by which and to which it is addressed except the signature of the accused....................................

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P.W.10 - Mr. Robin Kumar Rai, Cashier SNT Department, Jorethang.

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.............. The statement marked Ext. P13(d) [Exbt 27] and the requisition for tickets marked Ext.P-13(d) [Exbt 27] are prepared by the accused in his own hand writing which I can identify....................

................................................................................

It is true that I did not see the accused prepared statement of tickets and the requisition marked Ext.P13(d) [Exbt 27].

It is a fact that documents marked Ext.P-13-d [Exbt 27] namely the requistion (sic) forms and the statement of journey tickets werenot retained or prepared in my presence. The same were required and sent to Jorethang Office. It is true that Ext.13-D [Exbt 27] requisition forms namely bearing No.3148, 3552, 3561, 3562, 3568, 3569, 3573, 3578, 3580, 3582, 3584, 3585, 3586, 3588, 3589, 3590, 20155, 3592, 20156, 20158, 19227, 20159, 20162, 19229, 19230, 20164, 19228, 20165, 20167, 20166, does not bear the signature of the officer or person receiving the tickets. It is true that the statement of journey tickets Ext.P-13D [Exbt 27] are not in printed form bear no Sl. No. nor it carries any seal of any office. It is true that Ext.P-13-D [Exbt 27] namely the statement of journey do not show the issuing office from where the same were retained or dispatched.......... It is true that in some requisition forms Ext.P-13-D [Exbt 27] tickets were receipt (sic) by persons other than accused.

It is a fact that in the register Ext.P-14 [MO II] for receipt of tickets for the period from 9.11.93 to 13.2.97 beside that the accused other has also receipt passenger tickets which are marked Ext.P-14-B [Exbt 32] to Ext.P14-E [Exbt 35]............................... It is true that entries relating to some tickets at page 52 of Ext.P-14 [MO II] has been struck out................... It is true that Ext.P-14 [MO II] is relating to Namchi station from page No.51 to 56 does not bear my signature or signature of any body as the issuing officer of the tickets. It is not a fact that none of the tickets at pages No.51 to 56 relating to Namchi booking office were received by the accused. It is true that the statemnt (sic) showing the journey tickets and the requistion (sic) collectivelly (sic) marked Ext.P-13-D [Exbt 27] do not show that the same were received by SNT jorethang. Ext.P-13-D [Exbt 27] statement of journey tickets are generally verified by the compeliation (sic) section It is only the head office Gangtok that the verify the genuineness of the entries made in the statement of the journey tickets. I can not say whether the entries in statement of journey tickets and bear Ext.P-13-D [Exbt 27] are correct or not........................

......................................................................

It is true that as per MO II (previously marked Ext P14A) several persons namely, Tenzing, Chungku, Yongden, Mingma Sherpa, G. B. Rai & D.G.M. Operation himself had received passengers tickets during the relevant period.

................................................................

It is true there are corrections, deletions, erasers, reflected as the requisition forms without being signed by the in dealing or receiving officer such as requisition No 3148, 3552, 3554, 3555, 3558, 3560, 3561, 3562, 3563, 3564, 3568, 3569, 3572, 3573, 3575, 3576, 3577, 3578, 3580, 3582, 3583, 3584, 3585, 3587, 3586, 3588, 3589, 3590, 20155, 3592, 3591, 20156 and as well as all the other remaining other 11 requisition in Ext 27................................

.................................................................

P.W.16, B. S. Bista, Station Master, SNT Office, Jorethang.

.....................................................................

..................... It is true that I did not see accused preparing document marked Ext.P-3(a) [Exbt 16] and it being submitted by the accused. Similarly, I did not see preparation requisition and statement marked Ext.P13(d) [Exbt 16] by the accused. ...................

P.W.17 -Tenzing Norbu Bhutia, T.I., SNT, Namchi

.....................................................................

........... I did not see accused prepared documents collectively marked Ext. P-13(d) [Exbt 27] & Ext.P-3(a)........................

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P.W.24 - Samuel Ago Tshering Simick, Chief Accounts Officer and Addl Director (Accounts), SNT, Gangtok.

......................................................................

................... It is true that all the official stationaries (sic) including requisition of tickets form, statement of accounts form, cash book registere (sic), stock register of tickets, sale register of tickets etc. are in printed form printed by head office for entire state

Thereafter, it is supplied to different SNT office including Namchi. ........... It is true that the passengers tickets printed and issued by the head office are duly recorded and maintained by the head office. It is true that statements collectively marked Ext.P-13-d [Exbt 27] are not in printed forms and does not bear Sl. No. and official seal of the SNT office. During the relevant time, such forms for statement of tickets were available tin printed forms................................

P.W.25 - Raj Kumar Gupta, Business man, Namchi.

...................................................................

I am a resident of Namchi bazar. That on 1.9.97 the then O.C., Namchi P.S., I.O. of the case, myself and accused was present at the P.S. One Sandeep Pradhan of Namchi bazar was also present. As per the instruction of I.O. P.I., G. Bhutia I attested my signature marked Ext. P-18. [Exbt 25] P.-18(a) [Exbt 25(a)], to Ext. P-18(a) (14) [Exbt 25(h)].

...................................................................

When I attested my signature Ext. P-18 (a) [Exbt 25(a)] to Ext. P - 18(a)(14) [Exbt 25(h)] the accd did not write the specimen hand writing, his signature and speciment (sic) numerical numbers. I do not know as to who has written the specimen hand writing, signatures and numerical numbers on the papers where I have signed marked Ext. P-18 (a) [Exbt 25(a)] to Ext. P18(a) (14) [Exbt 25(h)]. It is a fact that Sandeep Pradhan arrived at the P.S. after I put my signature mentioned above.

P.W.26 -Kailash Kumar Rai, Purchase Assistant, SNT Booking Office, Namchi.

..................................................................

It is true that I did not witness the accused preparing Ext.P-3 (a) and Ext. P-13 (d) [Exbt 27] in his hand writing. And also did not witness the accused writing his signature marked Ext.P - 13(e) [Exbt 27] and Ext.P-3(d) [Exbt 27].........................

............................

(g) From the prosecution evidence as extracted above, we find that despite the denials by some of the witnesses the very fact as to whether the entries made in Exhibit MO-II and Exhibit 27 was indeed made by the Respondent appears to be quite doubtful. We find that apart from that of the Respondent-Accused the documents also contain entries made by others. Discrepancies as regards the entries are also apparent in view of the admitted erasures and the lack of attestation in others. On careful examination of Exhibit 27 series of documents, we find a large number of them written in hand when it is the admitted case that printed format of such documents were available at the relevant time.

(h) The report Exhibit P-19 of the Examiner of questions documents no doubt states that the signatures contained in the documents are that of the Respondent but there is no firm evidence that the entries contained therein were made by the Respondent-Accused. The strange manner in which these documents were seized makes the very seizure of the document questionable. It is revealed from the evidence of P.W.1, DGM K. N. Pradhan and P.W.31, SI Bijoy Subba that the seizures were made on 15-03-1997 when the I.O. of the case was on tour only for two days, i.e., 14-03-1997 and 15-031997. No doubt it has been brought in evidence that the action was taken by P.W.31 under the orders of the concerned Superintendent of Police but neither has the Superintendent of Police been arrayed as a witnesses nor was he produced later on.

(i) Even as to whether the specimen hand-writing, Exhibits 25 to 25(d), specimen signatures, Exhibits 25(f) to 25(i) and specimen numerical numbers, Exhibits 25(j) to 25(n) are really those of the Respondent-Accused is not clear in view of the evidence of P.W.25, Raj Kumar Gupta that the Respondent did not write those in his presence and did not know who had written them. Sandeep Pradhan, the other witness as per P.W.25 had arrived at the police station only after he had signed. Strangely, Sandeep Pradhan has not been arrayed as a prosecution witness and naturally was not examined. We have noticed from the extracts of their depositions that although in examination-in-chief P.Ws. 10, 16, 18 and 26, have stated that the entries in Exhibit MO-II and Exhibit 27 are in the hand-writing of the Respondent-Accused but in their cross-examination they have admitted that they had not seen him making those entries. Thus, it is unclear as to whether or not the hand-writings found in Exhibit MO-II and Exhibit 27 and the specimen handwriting and numerical numbers are those of the Respondent-Accused. In our view, considering the vagueness of the evidence it cannot be said that these facts stand proved but, on the contrary, it remains in the realm of doubt and unreliability.

In any case, it is well-settled that the evidence of a Hand-Writing Expert is not a substantive piece of evidence. In the case of Smt. Bhagwan Kaur Vs. Shri Maharaj Krishan Sharma and Others, it has been held as follows:

26........................ The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be vary to give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat and Others, this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.

In the present case, we find that the Hand-Writing Expert was not examined but, that by itself may not have been sufficient to discard his opinion, had the other evidence been firm and convincing. Quite contrary to this, we have already noted that not only is the opinion unreliable but the other prosecution evidence are also far from being positive.

(j) Under the circumstances, we have no hesitation to hold that the prosecution has failed to prove beyond reasonable doubt that the entries in Exhibit MO-II and Exhibit 27 had been made by the Respondent-Accused. Therefore, on this account also the factum of entrustment cannot be said to have been proved. When the entire edifice of the prosecution case primarily rests on the document Exhibit 27 series as admitted by the I.O., P.W.32, onus lay heavily upon the prosecution to prove the document to the hilt. However, we find that the documents are rather questionable and the evidence in proof thereof riddled with contradictions as has already been alluded to above.

8a). The other aspect that has stuck us, is that the Audit Report, Exhibit P16(c) [renumbered as Exhibit 26(b)] carried out by P.W.30, based upon which the FIR was lodged as per his deposition, was a "special report in respect of SNT, Namchi depot prepared and submitted to the department for the purpose of lodging FIR". Therefore, the correctness and veracity of the Special Audit Report would be foundational to arrive at a finding as to whether the investigation was correctly launched against the Respondent. We, however, find a serious deficiency in this in view of the unambiguous statement of P.W.30 in his evidence that he conducted audit of only the cash book and the B.Rs. and that in the absence of the Ticket Sale Register the accounts in the cash book register could not be cross-checked but was later done by examining the cash book maintained by the Head Office at Gangtok. He has admitted that his "report Ex.P.16 C [Exbt -26(b)] is not a conclusive report because the cash book maintained at Namchi along with the ticket sale register and ticket stock register were not available for verification with H.O., SNT at the relevant time". Even P.W.32, the I.O. of the case is silent as regards this and there is no evidence at all of the cash book pertaining to the period having been seized by the police. For these reasons we find the very basis of the case launched against the Respondent-Accused to be doubtful.

(b) The other aspect of the matter which, in our view, further erodes the case of the prosecution is the matter pertaining to the "enroute" tickets. In this regard, we may examine the evidence of various prosecution witnesses which are set out as under:

P.W.1 - K. N. Pradhan, DGM (Operation), SNT, South & West at Jorethang.

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It is a fact that enroute passenger tickets to Namchi ofothe SNT Bus are issued by SNT Office Jorethang to conductors and the collection from enroute tickets are deposited at Jorethang Office. All enroute tickets for SNT bus for different routes within the Dist of (S&W) are issued from Jorethang SNT Office to respective bus conductors who shall inturn deposit their collection at Jorethang. Passenger tickets issued to J.T.A. in different Sub-Stations are sold in the Office to the passenger for departure to different routs (sic) from the sub-station.

It is not a fact that the enroute tickets are issued by the JTA in the SNT Sub-Stations to conductor of the different bus departing from Sub-Station. ..................

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................ I had informed the I.O. during the course of investigation of the enroute bass (sic) tickets.

It is true that when the enroute tickets are exhosted (sic) with the conducto they can obtain passenger ticket from the nearest SNT booking office as stated by PW-10 Rabin Kr. Rai on receipt of proper receipt and sell procede is deposited the casher (sic) at Jorethang, subdivision office........................................

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P.W.10 -Robin Kumar Rai, Cashier, Jorethang, SNT.

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........... It is a fact that if the enroute tickets /hand tickets are exhausted in the course of journey the bus conductors can also obtain passengers tickets from nearest SNT sub-stations on proper receipt. In such cases the concerned conductor shall submit his account before the cashier at Jorethang Office. The enroute collection of passengers ticket are deposited with the cashier at Jorethang by the bus conductor. Thereafter it is deposited in the Bank. ......................

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..... It is true that during the tenure of the accused at Namchi SNT office enroute tickets were issued by him to the buss (sic) conductors from out of his stock. and sale proceed of the same used to be deposited by the conductors at Jorethang subdivision office. Accounts relating to enroute tickets issued from Namchi SNT office were maintained at Jorethang sub-division. I cannot estimate if the sale of enroute tickets were about 10 lakhs or more than deposited during the tenure of the accused in respect of Namchi SNT Office. Collection from enroute tickets relating to Namchi depot were deposited at SBS Jorethang. The statment (sic) of accounts relating to the deposite (sic) enroute tickets including the bank receipt of sale proceed of enroute tickets were not seized by the police...................................

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........... The bus conductors while receiving tickets from Namchi sub-station used to sign on an enroute ticket issue register. It is true that the sale proceeds for the said tickets were deposited by the conductors at their respective sub station at Gangtok or Jorethang. It is true the sale proceeds for the same are not deposited at Namchi. Accounts for the en-route tickets at maintained at Gangtok and Jorethang.........

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P.W.24 - Samuel Ago Tshering Simick, Chief Accounts Officer and Addl Director (Accounts), SNT, Gangtok.

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.............. It is a fact that conductors were issued with enroute tickets to sell the same to the passenger in the bus and such tickets were collected by the conductor even from Namchi office of SNT. in the event when the passenger ticket is exhosted (sic) in route................

P.W.30 - Ashok Pradhan, Chartered Accountant, Calcutta

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............. It is true that the SNT issues en-route tickets to passengers in the bus. The en-route tickets are issued by the SNT Division office viz. Jorethang, Geyzing and Gangtok Booking Office and the collection of the same are deposited at the division office and Gangtok Booking Office, from where the en-route tickets are issued. As such, the collection of en-route passenger tickets are not deposited at Namchi SNT office. So, I did not verify collection of en-route ticket at Namchi during my audit. I have no knowledge Namchi STN depot also issues en-route bus tickets...............

P.W.32 - G. Bhutia, O.C., Namchi P.S.

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............ I did not make any investigation of the en route tickets and its collections, since the case pertains to past occurrence. I did not seized (sic) register of en route tickets and its collection. It is true I also did not seize unsold tickets..........................

(c) From the above, what clearly emerges is that enroute tickets were also issued by the Sub-Stations to the bus conductors from the common stock of tickets requisitioned and received by them and the sale proceeds deposited by them at the Jorethang Sub-Station Office. That such enroute tickets issued to the bus conductors, if exhausted on the way, could also be obtained by them from the nearest SNT Sub-Station on proper receipt subject to submission of accounts before the Cashier at Jorethang Office who then would deposit it in the Bank. Strangely, even though it is in the evidence of P.W.1 that he had informed the I.O. regarding the enroute tickets, the latter neither seized those documents nor did he find it necessary to make investigations on this aspect when contrary to his statement, the system was in vogue even during the tenure of the Respondent. Even P.W.30, who prepared the Special Audit Report for the purpose lodging the FIR, did not consider it necessary to take this aspect into consideration. In fact he had no knowledge of Namchi SNT Depot also issuing such tickets. The fact that this aspect was not at all considered during the course of investigation makes the case of the prosecution further unreliable. Although the Learned Public Prosecutor submitted rather lightly that the enroute tickets were not relevant for this case as being distinct transactions, he was unable to explain as to why and how it was so.

From the above discussions, we find that the prosecution has failed to establish beyond reasonable doubt charge u/S 409/420 IPC against the Respondent-Accused. We find that Exhibit 27 and Exhibit MO-II which, admittedly are the foundational documents for the prosecution case, have not been proved to be beyond reproach. We also do not find any unimpeachable proof or evidence that it was the Respondent-Accused alone who used to sell the tickets, collect the cash and deposit them in the Bank. We rather find that these duties were performed by all and sundry including the Office Peon of the SNT who used to also retain the keys to the drawer containing the transactions. To base a conviction against the Respondent on the basis of such evidence is fraught with risk. No doubt the circumstances do raise grave suspicion against the Respondent but, it is settled that suspicion alone cannot take the place of proof.

Although the scope of interference in an Appeal against acquittal is well-settled we may for reassurance refer to the case of State of Rajasthan Vs. Talevar and Another, where it has been held as under:

The instant appeal has been prepared by the State against the judgment and order of acquittal of the respondents by the High Court. The law on the issue is settled to the effect that only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court''s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

In the present case we neither find compelling circumstances nor the impugned judgment to be perverse that calls for our interference and see no reason to differ with the views expressed by the Learned Sessions Judge, South and West, in the impugned judgment and, therefore, uphold the order of acquittal of the Respondent.

In the result, the Appeal is hereby dismissed.

No order as to costs. Let a copy of the judgment be transmitted to the Learned Trial Court along with the original case records forthwith for compliance.