The State of Tripura v. Sri Nayan Das

Order

16/03/2023 Whether fit for reporting : YES. HON’BLE THE CHIEF JUSTICE(ACTING) JUDGMENT AND ORDER Both these appeals are heard and taken up together for disposal since they arise from common Judgment and Order and similar question of facts and law are involved.

2. The brief fact of the case is that the respondent of

Crl.A. No.18 of 2021, Sri Rajat Acharjee on 21.09.2007 took over the charge of Rajnagar Government Food Godown as Junior Store-Keeper from his predecessor i.e. the respondent of Crl.A. No.17 of 2021 Sri Nayan Das, in presence of and to the satisfaction of then Additional Sub-Divisional Magistrate, Belonia, Sri Hiralal Debbarma, who certified that there was no discrepancy or shortage of any goods, as per the charge-list. But, subsequently during the period of Rajat Acharjee, Sri. Ranjit Kr. Das (Food Inspector) inspected the Go-down and reported him to arrange for a special verification as he suspected discrepancies and a shortage of a huge quantity of rice. In reply to this anxiety, the informant i.e. Sub- Divisional Magistrate, Belonia directed the then DCM, Rajnagar, Sri Bhaswar Bhattacharjee to make verification about the matter. Sri Bhattacharjee then submitted a report that a huge quantity of rice, related to several Government schemes is missing from the Go-down which was astonishing, and also requested the informant to arrange for physical verification of the concerned records and registers related to the last 02 (two) years. Owing to the above report, the informant stated to have directed the then BDO, Rajnagar, Sri Subhashish Bandopadhyay to cause another verification of the matter who then submitted a report afresh stating that a total quantity of 1,61,306.805 kgs of rice was found short from the Go-down for the period when Rajat Acharjee was In- Charge. The informant supplied the last report to the Directorate, Food, Civil Supplies & Consumer Affairs, Government of Tripura, and based on the said report, the Director, Food, Civil Supplies & Consumer Affairs, Government of Tripura issued one communication to respondent-Rajat Acharjee under immediate suspension and directed another official to lodge an FIR against him for alleged misappropriation of Government property. Based on the report submitted by BDO, Rajnagar, it was apparent that the respondent-Rajat Acharjee was involved in the misappropriation of Government rice weighing 1,61,306.805 Kgs and thus FIR was lodged before O.C. P.R. Bari P.S. for legal action. Though initially, the FIR was lodged against the respondent- Rajat Acharjee, but investigation of the matter was done by the local Police of P.R. Bari P.S. and subsequently by the CID, Agartala submitted a report (charge- sheet) against both the respondents herein namely Rajat Acharjee and Nayan Das under Section 409 of the Indian Penal Code.

3. Cognizance of this case was taken under Section 409 read with Section 34 of IPC. Learned trial Court after observing all formalities framed charge against the accused persons under Section 409 of IPC. To prove the case before the learned trial Court as many as 39 (thirty-nine) witnesses were examined by the prosecution and they are; Sri Bhajan Kr. Saha as PW-1, Sri Jyoti Mohan Majumder as PW-2, Smt. Manju Saha as PW-3, Sri Bibhu Das as PW-4, Sri Ranjit Kr. Das as PW-5, Sri Manik Ch. Saha as PW-6, Sri Jitendra Shil as PW-7, Sri Ranjit Kar (Informant) as PW-8, Sri Subhasish Bandopadhyaya as PW-9, Sri Biplab Paul as PW-10, Sri Hiralal Debbarma as PW-11, Sri Babul Ch. Saha as PW-12, Sri Manik Lal Das as PW-13, Sri Amar Nag as PW-14, Sri Sangram Saha as PW- 15, Sri Bhaswar Bhattacharjee as PW-16, Sri Satyajit Parial as PW-17, Sri Anjan Kr. Dhar as PW-18, Sri Jitendra Ch. Nama as PW-19, Sri Haripada Das as PW-20, Sri Sudhir Roy as PW-21, Sri Apu Basak as PW-22, Sri Rabindra Kr. Das as PW-23, Smt Padmini Gupta as PW-24, Sri Kajal Sinha as PW25, Sri Subal Ch. Das as PW-26, Sri Lalit Debbarma as PW- 27, S.I. Swapan Sarkar (R.O.) as PW-28, Sri Kumbharai Reang as PW-29, Sri Ranjan Deb as PW-30, Sri Subrata Kr. Das as PW-31, Sri Nilmoni Debbarma as PW-32, Sri Siba Prasad Das as PW-33, Sri Anil Rudra Paul as PW-34, S.I. Rajib Debnath (I.O.) as PW-35, DSP, Babul Das (I.O.) as PW-36, Inspector Anup Kr. Das (I.O.) as PW-37, S.I. Krishnadhan Das (I.O.) as PW-38 and SDPO Sri Ratan Das (I.O.) as PW-39. Based on that evidence, the learned trial Court came to the conclusion that the accused persons are guilty of the offence punishable under Section 409 of IPC, and, accordingly, the learned Trial Court sentenced them to suffer R.I. for 3(three) years and also to pay a fine of Rs.25,000/-, in default to suffer S.I. for another 5(five) months.

4. Thereafter, being aggrieved and dissatisfied with the order of conviction and sentence, passed by the learned Trial Court, the respondent-Nayan Das preferred an appeal vide Crl. Appeal No.15 of 2018 and respondent Rajat Acharjee preferred appeal vide Crl. Appeal No.12 of 2018 before the learned Sessions Judge, South Tripura, Belonia. After hearing the parties and also considering the materials and documents on record, the learned First Appellate Court passed a common Judgement dated 05.02.2021 thereby setting aside the order of conviction & sentence by the learned Trial Court in Case No.G.R.418 of 2008 on 28.05.2018. Accordingly acquitted both the respondents herein from the charge framed against them under Section 409 of IPC.

5. Being aggrieved by and dissatisfied with the order of acquittal passed by the learned Session Judge, South Tripura Belonia in Crl. Appeal No.12 of 2018 and Crl. Appeal No.15 of 2018, the appellant-State has preferred these instant appeals praying for setting aside the impugned Judgment and order of acquittal dated 05.02.2021 passed by the learned Sessions Judge, South Tripura, Belonia in Criminal Appeal No.15 of 2018 and Criminal Appeal No.12 of 2018 arising out of order of conviction and Sentenced dated 28.05.2018 passed by learned Chief Judicial Magistrate, South Tripura, Belonia in G.R. No.418 of 2008 whereby the respondent and another were convicted under Section 409 of IPC and sentenced them to suffer R.I. for three years and also to pay a fine of Rs.25,000/- in default, to suffer SI for another five years.

6. Heard Mr. R. Datta, learned P.P. appearing for the appellant-State and Mr. S. Sarkar, learned Sr. counsel assisted by Ms. S. Banik, learned counsel appearing for the respondent of Crl.A. No.17 of 2021 i.e. Sri Nayan Das and Mr. H. Debnath, learned counsel assisted by Ms. U. Chanda, learned counsel appearing for the respondent of Crl.A No.18 of 2021 i.e. Sri Rajat Acharjee.

7. The learned P.P. appearing for the petitioner- State has pointed out that Exbt-M.O.9 and Exbt-M.O.10 series clearly established that there was a misappropriation and defalcation of public rice/food grain and learned Trial Court after proper appreciation of all the evidence convicted the respondents herein but the learned First Appellate Court failed to appreciate so. Learned P.P. also submitted that the main ingredient of Section 409 of IPC is entrustment and misappropriation; here the respondents never denied that they were not entrusted. Nowhere they have stated that from

01.04.2007 to 05.11.2007 they were not entrusted with their duties, rather they admitted so. Learned P.P., relied upon the evidence of P.W.8, the informant, P.W.-5 the Food Inspector, P.W.9, BDO Rajangar, P.W.13, Dy. Director Food South, P.W.16, DCM Rajnagar. Learned P.P. also relied upon the evidence on P.W.-25, P.W-26, P.W.-27, and P.W.-34 who were the Audit team members. Learned P.P. further submitted that the Judgment and Order as passed by the Lower Appellate Court is perverse wherein it has been observed that there are no specific exhibits i.e. M.O.9 series and 10 series were marked. His further observation was as to how in absence of any specific exhibits, the Trial Court has relied on the exhibited documents. Stating thus, he contended that the order passed by the Trial Court is just and proper and the Lower Appellate Court has erred in not appreciating the Trial Court Judgment and prayed to set aside the Judgment and Order as passed by the Lower Appellate Court and allow this present appeals.

8. Mr. Subrata Sarkar, learned counsel appearing for the petitioner of Crl.A. No.17 of 2021 i.e. Sri Nayan Das contended that the order of the Lower Appellate Court is not perverse and this scope of revision is very limited and placed reliance upon Paras-12 to 21 of the Apex Court Judgment reported in (2010) 9 SCC 189 titled as Babu Vs. The State of Kerala which is reproduced herein-below:- “12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v.