Kul Chandra Baral Vs. State of Sikkim - Court Judgment

Excerpt:
1. fir no.r.c.6/99 dated 28-9-1999 under section 409, ipc was registered at vigilance police station, sikkim against the accused/petitioner on the basis of a complaint dated 28-9-1999 lodged by smt. jayshree pradhan, ias, commissioner-cum-secretary, food and civil supplies department, government of sikkim. 2. on completion of investigation and sanction being granted vide sanction order dated 25-7-2000 (extn.p-53) by (the complainant) smt. jayshree pradhan ias commissioner-cum-secretary, food and civil supplies department, government of sikkim, a charge-sheet for offence under section 409, ipc was filed with the chief judicial magistrate, east and north district at gangtok registered, as crl. case no.177/2000. 3. the allegations against the accused/petitioner were misappropriated of sale proceeds of rice and sugar from the food godown at pakyong, where the accused was posted as assistant sub-inspector, in-charge, food godown. the total misappropriates amount was worked out to rs.31,17,479.84. the trial court framed the charge against the accused on 29-01-2001. the accused pleaded not guilty and he was put to trial. 4. the prosecution examined as many as 22 witnesses including the investigating officer to prove the guilt of the accused/petitioner. the accused/petitioner also led defence evidence and examined 8 defence witnesses. the trial court vide its judgment dated 18-8-2001 convicted the petitioner for offence under section 409, ipc and vide order dated 21-8-2001 sentenced the petitioner to undergo simple imprisonment of seven years and imposed fine of rs.5,000/-. in default of payment of fine to undergo further simple imprisonment of six months. 5. the petitioner challenged his conviction and sentence in criminal appeal no.2 of 2002 before the sessions judge. (special division-i) sikkim at gangtok. the appellate court vide its judgment dated 13-8-2003 set aside the conviction and sentence ordered by the trial court and set the accused free. 6. dissatisfied with the judgment of the appellate court, the state of sikkim filed acquittal appeal being government appeal no.1 of 2003 against the judgment of acquittal dated 13-8-2003 passed by the sessions judge, (special division-i), sikkim at gangtok before this court. this court vide judgment dated 11-10-2004 set aside the judgment of acquittal passed by the sessions judge, (special division-i), sikkim ay gangtok and remitted the matter to him to decide the appeal afresh. learned sessions judge (special division-i), sikkim at gangtok, after hearing the parties, decided the appeal afresh vide judgment dated 28-6-2011, renumbered as criminal appeal no.9 of 2010 and upheld the conviction and sentence ordered by the learned chief judicial magistrate, east and north districts at gangtok vide its judgment dated 18-8-2001. the present revision petition has been preferred challenging the conviction and sentences awarded against the petitioner by the learned sessions judge (special division-i), sikkim at gangtok and chief judicial magistrate, east and north district at gangtok. 7. challenge to the impugned judgment is manifold. during the course of hearting, mr. d.k. sengupta, learned senior counsel appearing for the petitioner, however, emphasized the following:— (i) the sanctioning authority herself being the complainant became judge in her own cause, rendering entire proceedings against the petitioner vitiated in law; (ii) the prosecution has failed to prove beyond any shadow of doubt the entrustment as also misappropriation by the accused which are essential ingredients for commission of offence under section 409, ipc; (iii) charge framed against the accused/petitioner is defective and in contravention to specific provisions of section 212, cr.p.c. invalidating the entire trial; and (iv) there has been discrepancy in the alleged amount of misappropriation in the fir, sanction order, charge-sheet, physical verification report and the final judgment of the trial court as a result whereof charge of mis-appropriation against the accused is not established beyond doubt. 8. mr. j.b. pradhan, learned public prosecutor, appearing on behalf of the state seriously contested the case of the petitioner. according to him, the revision petition against the concurrent findings of fact regarding conviction of the petitioner is not maintainable in absence of any question of law. according to him, the entrustment has been established by the prosecution witnesses, p.ws. 14, 15 and 17. as regards the alleged deficiency in framing of charges is concerned, it is submitted that any irregularity in framing the charge does not ipso facto render the trial nullity, the same being only an irregularity, if any. on the question of grant of sanction by the complainant, it is submitted that unless prejudice and miscarriage of justice is established by the accused, any irregularity in sanction order does not in any manner vitiate the trial, particularly, when both the courts have concurrently recorded conviction. as regards the discrepancy in the amount is concerned, the argument is that the discrepancy is not substantial and prima facie case of misappropriation is established against the accused. 9. i have heard learned counsel for the parties at length and perused the records. the accused/petitioner was posted as assistant sub-inspector, in-charge, food godown, pakyong. prosecution case is that the accounts of the food godown at pakyong was showing difference in quota allotted and draft of sale proceeds deposited. in absence of detailed information from the in-charge, the sr. d.c.s.o. (east) and the accounts officer, food and civil supplies department collected the details of deposit from state bank of sikkim branch at pakyong on 14-9-1999. it is stated that on comparison, a short deposit in the account was found whereby a letter no.262/acctt/fscandca dated 15-9-1999 was issued to the in-charge indicating the difference and asking for his explanation. no reply was received from him. the sr. d.c.so. (east) and the sr. accounts officer, food and civil supplies department conducted a verification of records in the godown on 17-9-1999 in the presence of the in-charge and shortage in deposit of sale proceeds was detected, i.e. (i) rice account rs.31,02,173.78 and (ii) sugar account rs.15,306.06, total amount rs.31,17,479.84. it is further stated that a show cause notice dated 20-9-1999 was served upon the in-charge and since reply was not received, a complaint dated 28-9-1999 (exbt.p.23) was lodged by smt. jayshree pradhan, ias, commission-cum-secretary, food and civil supplies and consumer affairs department, government of sikkim to director, sikkim vigilance, department of police, gangtok regarding misuse of government money. on this complaint, an fir case no.rc-6/99 was registered on 28-9-1999 against the accused-petitioner. on registration of case, the petitioner was placed under suspension vide order no.213/fcsandca dated 31-12-1999. during the course of investigation, petitioner vide his application dated 13-3-2000 addressed to the additional secretary, food and civil supplies and consumer affairs department, government of sikkim, requested for withdrawal of the vigilance case. he also deposited an amount of rs.2,10,000/- with the government. on completion of the investigation, a prima facie case was found established by the investigating agency. the matter was placed before the government for grant of sanction and vide order dated 25-7-2000, sanction for prosecution of the petitioner was accorded under clause (b) of sub-section (1) of section 197 of the code of criminal procedure, 1973 by smt. jayshree pradhan, ias, commissioner-cum-secretary, food and civil supplies and consumer affairs department, government of sikkim. 10. the grievance of the accused/petitioner is against the sanction order dated 25-7-2000 passed by the sanctioning authority who is herself the complainant in the case. it is alleged that sanction is against all the cannons of justice. it is argued that the sanction is required to be granted by an independent authority as is the settled principle of criminal jurisprudence. in the present case, the complainant having granted sanction has assumed the role of a judge in her own cause. it has caused not only prejudice to the accused/petitioner, but is sufficient to inter miscarriage of justice rendering the entire trial illegal and vitiated. from the complaint (exbt.p-23), fir (exbt.p-22) and the sanction order (exbt.p-53), it is evident that the complainant is the sanctioning authority as well. there is thus no dispute that the sanction has been accorded by the authority who is the complainant in this case. the complainant has appeared as witness being pw.21 during the trial. her statement was recorded on 7-7-2001. from the statement including cross-examination, it appears that not even a single question has been asked to this witness regarding her conduct as a sanctioning authority. there is not even a suggestion about the allegation of her pre-conceived or biased mind in grant of sanction. it is true that the complainant has granted sanction for prosecution of the petitioner but there is nothing on record to suggest any prejudice having been caused to the petitioner. 11. mr. sengupta, learned senior counsel appearing for the petitioner submits that the mere fact that the sanctioning authority being herself a complainant, it is sufficient to infer that there has been no independent application of mind by the sanctioning authority and the sanction has been granted by a pre-conceived and baised mind vitiating the entire criminal proceedings against the petitioner. it is argued that under such circumstances, no further material is required to establish prejudice. in support of his contention, learned senior counsel has referred to and relied upon a case of tirath prakash v. state reported in 2001 cri lj 4028. in this case, honble delhi high court examined the question of validity of sanction in a case under the prevention of corruption act. emphasising the requirement of sanction it has been observed that the object underlying the grant of sanction is to save the public servant from harassment on frivolous or unsubstantiated allegations. the existence of valid sanction, thus, is a condition precedent for taking cognizance of the enumerated offences punishable under the act. on the question of validity of sanction it has been observed as under:— “10. validity of sanction depends upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials and evidence have been considered by the sanctioning authority, which must apply its won independent mind to the relevant facts of the case, the evidence collected and other incidental facts before granting sanction. as observed in mohd iqbal ahmeds case (1979 cri lj 633) (supra) grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act and must be strictly complied with before an prosecution can be launched against the public servant concerned. any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.” 12. grant of sanction for an offence under prevention of corruption act is a condition precedent for taking cognizance by the competent court. an offence under prevention of corruption act is so closely related with the discharge of official duty by the public servant that it is inseparable from his conduct as a public servant. however, the same principle may not be an absolute rule as regard the other offences are concerned, particularly, where the offence committed by a government servant though while acting as such public servant has no direct relation or nexus to the discharge of the official duties. under such circumstances, if the act constituting the offence is separable and can be put in a separate compartment and segregated from the usual discharge of duties by a govt. officer, the necessity of grant of sanction may not be a legal requirement. it depends upon facts of each case and the act complained or against the public servant. apart from arguing that the sanction has been granted by the complainant herself, the learned counsel for the petitioner has not shown any act of omission or commission emanating from the sanction order or even suggested non-application of mind by the sanctioning authority or non-consideration of any material fact rending the sanction illegal or suffering from vice of arbitrariness in any manner. no question was asked to the pw.21 (sanctioning authority) regarding her conduct as a sanctioning authority. the petitioner even did not raise this question during the trial or even at the first appellate stage. no doubt it would have been prudent and ideal situation that the matter would have been considered by some other competent officer, particularly, a superior officer than the pw.21 for grant of sanction, but that does not by itself invalidate the sanction. it is only after having suffered conviction and sentence this issue has been projected in the present revision. 13. sanction for prosecution of a public servant is required under section 197, cr.p.c. in respect to an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. the moot question is whether the act of misappropriation of public money can be said to be an act in discharge of official duty of a public servant. it is settled law that it is not that every act complained of against the public servant falls within the purview of section 197 and sanction is necessitated. in shreekantiah ramayya munipalli v. state of bombay, air 1955 sc 287, it has been held by the honble supreme court that it is not every offence committed by a public servant which require sanction under section 197 of the code nor even every act done by him while he is actually engaged for the purpose of his official duty. this dictum has been followed by the apex court in harihar prasad v. state of bihar (1972) 3 scc 89 : (1972 cri lj 707), wherein the honble supreme court considered the question of sanction for prosecution in respect to an offence under section 409 read with section 120-b of the ipc and held as under:— “66. ……the real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. as far as the offences of criminal conspiracy punishable under section 120-b read with section 409, indian penal code is concerned and section 5(2) of the prevention of corruption act are concerned they cannot be said to be of the nature mentioned in section 197 of the code of criminal procedure. to put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. want of sanction under section 197 of the code of criminal procedure is, therefore, no bar.” 14. the decision in harihar prasad (supra) has been consistently followed by the apex court in later decisions in the case of state of kerala v. v. padmanabhan nair (1999) 5 scc 690 : (air 1999 sc 2405), raghunath anant govilkar v. state of maharashtra, 2008 cri lj 2054: (air 2008 sc (supp) 1486) and state of uttar pradesh v. paras nath singh (2009) 6 scc 372 : (air 2009 sc (supp) 1615). in view of the ratio of the aforesaid judgments, sanction for prosecution for an offence under section 409, ipc is not a mandate of law. thus, validity or otherwise of the sanction has no bearing on the conviction of the petitioner. as noticed hereinabove, the petitioner never objected to the sanction by the pw.21 during the trial or even at the first appellate stage and suffered the conviction/sentence. it is for the first time in the revisional court the question of sanction is sought to be raised. section 465 of the code of criminal procedure, 1973 provides that no finding or sentence or order passed by a competent court is reversible on account of any error, omission or irregularity in sanction unless such irregularity or error has occasioned in failure of justice. sub-section (2) of section 465 further lays down that objection should be raised at an earlier stage of the proceedings. at the first place no sanction under section 197 read with section 409 was required and secondly, even if there have been some error in grant of sanction, the petitioner has failed to show any prejudice caused, failure of justice or miscarriage of justice in any manner. the honble supreme court in state of orissa v. mrutunjaya panda (1998) 2 scc 414 : (air 1998 sc 715) has held that if any point is not raised in the trial court and there is no finding by the courts below recording conviction that there has been failure of justice, no error or irregularity in grant of sanction could be a ground for reversing an order of conviction by appellate or revisional court. a similar view has been expressed by the apex court in central bureau of investigation v. v.k. sehgal (1999) 8 scc 501 : (air 1999 sc 3706) with the following observation:— “10. a court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. for determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. it has to be determined on the facts of each case. but an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court.……” 15. in the backdrop of the above settled legal position and failure on the part of the petitioner to raise the issues of any error in the grant of sanction during the trial, i am unable to agree with the contentions raised by mr. sengupta, learned senior counsel, for setting aside the judgment impugned on this ground. 16. the next argument which has been forcefully and vehemently put forth by mr. sengupta is regarding the failure of the prosecution to establish entrustment of the property. mr. j.b. pradhan, learned public prosecutor appearing on behalf of the state of sikkim has raised serious objection to the argument of mr. sengupta, learned senior counsel appearing for the petitioner/accused on the issue of proof of entrustment of the property of the accused. his contention, in short, is that the high court in exercise of its revisional jurisdiction under section 401 (439 old) cr.p.c. ought not interfere in the findings of the fact recorded by the courts below on appreciation of evidence. the submission is that the revisional jurisdiction by the high court is intended to be exercised in exceptional circumstances and cases where a glaring defects of the procedure or massive error on the point of law resulting in flagrant miscarriage of justice is found in the judgment impugned before the revisional court. it is further submitted that the high court should not venture into the question of re-appreciation of evidence to record its own conclusion even if a second view on appreciation of the evidence is possible. to support his contention reliance is placed upon kadiri kunhahammad v. the state of madras, air 1960 sc 661; sate of orissa v. nakula sahu (1979) 1 scc 328 : (ar 1979 sc 663); state of kerala v. puttamana illath jathavedan namboodiri (1999) 2 scc 452 : (air 1999 sc 981) and hydru v. state of kerala (2004) 13 scc 374. 17. section 405 of the ipc defines criminal breach of trust and reads as under:— “405. criminal breach of trust.— whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. offence under section 409, ipc is constituted on commission of criminal breach of trust by a public servant. definition of the expression “criminal breach of trust” has two essential ingredients — (i) entrustment or dominion over property and (ii) misappropriation or conversion to ones own use of the property in violation of or any direction of law prescribing the mode of discharging such trust. high courts powers of revision are prescribed under section 401 of the cr.p.c. relevant extract of this section is reproduced below:— “401. high courts powers of revision.— (1) in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the high court may, in its discretion, exercise any of the powers conferred on a court of appeal by sections 386, 389, 390 and 391 or on a court of session by section 307 and, when the judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) nothing in this section shall be deemed to authorise a high court to convert a finding of acquittal into one of conviction. (4) where under this code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) where under this code an appeal lies but an application for revision has been made to the high court by any person and the high court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the high court may treat the application for revision as a petition of appeal and deal with the same accordingly. 18. in nakula sahu (air 1979 sc 663) (supra), while examining the scope of revisional jurisdiction under section 401 (439 old) of the cr.p.c. the honble supreme court has observed as under:— “9. ……it is now well settled that normally the jurisdiction of the high court under section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a mainfest error on a point of law which has consequently resulted in flagrant miscarriage of justice.…… the power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. 9.in puttamana illath jathavedan namboodiri (air 1999 sc 981) (supra), the honble supreme court further commented upon the exercise of revisional jurisdiction by the high court under section 401 of the cr.p.c. with the following observations:— “5. ……in its revisional jurisdiction, the high court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. in other words, the jurisdiction is one of supervisory jurisdiction exercised by the high court for correcting miscarriage of justice. but the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. ordinarily, therefore, it would not be appropriate for the high court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the magistrate as well as the sessions judge in appeal, unless any glaring feature is brought to the notice of the high court which would otherwise tantamount to gross miscarriage of justice. ……” 20. it is true that under section 401 of the cr.p.c. the revisional court in its discretion is entitled to exercise the powers of the appellate court. however, it is settled principle of law that the discretion has to be exercised judicially and circumscribed by law so as not to frustrate the purposes for which the revisional power has been conferred upon the court. the revisional jurisdiction cannot be exercised in a routine manner as an appellate court to overset the findings of the courts below, particularly the concurrent findings. at the same time, the revisional court is not disarmed to exercise the revisional jurisdiction where the findings of fact recorded by the courts below are perverse in nature and/or are in gross violation of settled procedural safeguards or tantamount to miscarriage of justice. miscarriage of justice is occasioned where the admitted facts do not constitute an offence and the findings are recorded contrary to the admitted facts or based upon the erroneous interpretation thereof and do not merely fall within the domain of appreciation of evidence. 21. the principles enunciated in the above judgments empower the revisional court to invoke revisional jurisdiction only in exceptional circumstances illustratively noted above. it is undisputed that for constituting an offence under section 409 of the cr.p.c. the essential conditions/ingredients under section 405/409 must be satisfied. thus, it also becomes necessary to examine the question whether the culpability of the petitioner is established on the basis of the admitted facts. 22. in janeshwar das aggrawal v. state of u.p. air 1981 sc 1646, jiwan dass v. state of haryana (1999) 2 scc 530 : (air 1999 sc 1301) and kailash kumar sanwatia v. state of bihar, air 2003 sc 3714 it has been held that under section 409, ipc the prosecution must prove two essential ingredients—(i) the factum of entrustment and (ii) factum of misappropriation of the entrust, articles. mr. sengupta, learned senior counsel appearing for the petitioner has referred to a judgment of this court in puspa kumar rai v. state of sikkim, 1979 cri lj 1379, wherein a bus conductor of sikkim nationalised transport was charged with an offence of criminal breach of trust on his failure to deposit the sale proceeds of the tickets sold to passengers. it has been held that there has been no entrustment of the property to the bus conductor. 23. it is contended on behalf of the petitioner that the prosecution has failed to prove entrustment which is the first essential ingredient for an offence under section 409, ipc. in regard to the second ingredient, i.e. misappropriation, it has been pointed out that there is a clear and categorical finding by the trial court, affirmed by the appellate court that misappropriation has not been established. in order to prove the entrustment the prosecution case is that the accused as an assistant sub-inspector was in-charge of the food godown at pakyong and in his capacity as the in-charge, food godown, it is his function to receive the goods consigned to the godown and once the goods reach the godown, same are under his domain and deemed to be entrusted to him. it is further stated that thereafter, he distributes the goods to the fair price shops etc. to prove the duties of the accused the prosecution has examined (i) pw.11-jai dev sharma, sr. accounts officer, (ii) pw.13-punam rapgyal, accounts officer, (iii) pw.14-dilli prasad sharma, (iv) pw.15-kiran kharal, (v) pw.17-gyan prasad dahal and (vi) pw.21-smt. jayshree pradhan. according to the statements of these witnesses, the duties of the food godown in-charge are to receive the stores issued by the fci and to issue it to authorized retail outlets and mpcs on production of bank receipts for the cash involved. in-charge is also expected to keep detailed accounts of the transaction of all items. it is however admitted that except mr. l.m. pradhan, no other witness in his/her statement under section 161 of the cr.p.c. mentioned about the duties and functions of the assistant sub inspector, in-charge, food godown at pakyong. mr. l.m. pradhan in his statement under section 161 mentioned that the asi of the food godown is the sole in-charge of the food godown to look after the proper distribution of essential commodities through designated fair price shops and to maintain all books of accounts and to submit the weekly drafts of sale proceeds to the account section of the head office. on the question of entrustment the trial court recorded the following findings:— “138. coming to the question of entrustment, as to whether the accused received the foodgrain dispatched to him from fci rangpo, and whether foodgrains and sugar were entrusted to him. ld. p.p. submitted that entrustment of property to the accused was proved by the various exhibits i.e. exbt.p4(1) to exbt.p43(42) and the statement of p.w. gyan prasad dahal. ld. defence counsel on the other hand submitted that there is no office order regarding the entrustment, functions, duties and responsibilities of the accused proved before this court. neither has the investigating officer proved any office order showing entrustment. 139. in my opinion the existence or non existence of trust in every individual case is not dependent on the application of legal terms but upon the actual facts of the case. xxx xxx xxx xxx 141. perusal of challans exby.p4(1) to exbt.p4(40) dispatched from fi rangpo to food godown pakyong show that the same on receipt have been signed. the rubber stamp shows the name of k.c. baral incharge/food inspector, food godown. exbt.p5(1) to exbt.p5(44) are also challans, wherein foodgrains have been dispatched from fci rangpo to pakyong food godown. these also bear the rubber stamp of k.c. baral incharge/food inspector. exbt.p40(1) to exbt.p40(40) are the challans showing dispatch of foodgrains from fci rangpo for the month of june 99 wherein the accused has signed at the place written “name and designation of centre incharge”. the signatures therein have been identified by pw.15 kiran kharel, chowkidar of the said food godown as being that of k.c. baral, the accused. the identification of the signatures of the accused have not been demolished in the cross-examination of he said witness. the witness has stated “it is true that neither the driver nor the incharge signed in my presence” but the signatures being that of the accused is not denied. exbt.p41(1) to exbt.p41(41) are also the challans showing deposit of foodgrains from rangpo fci rangpo. the signature of the accused are identified as exbt.p42(1) to exbt.p42(43) and in exbt.p43 as 43(1) to exbt.p43(42). these challans are for the different months of july 99, aug99 and sep99. as pointed out by ld. p.p. the witness gyan prasad dahal has also identified the aforesaid challans, which had been sent to pakyong during his tenure, showing dispatch of foodgrains and sugar. 142. the above facts show that the accused admittedly was the assistant sub inspector of food, incharge of pakyong food godown. the goods were, as per the documents obviously received by him. since he has signed on the challans as in-charge which therefore means that the property was entrusted to him and he had dominion over it. xxx xxx xxx xxxx 144. the fact that no office order has been produced showing the duties of the accused does not quell the fact that entrustment was made to the accused. as has been discussed earlier the existence or non-existence of trust in any individual case does not depend upon the use of legal terminology, but upon the actual facts of any particular case. 145. therefore, i am of the opinion that the goods i.e. foodgrains and sugar had been entrusted to the accused and was in his dominion. the evidence of d.w.1 ram kumar tamang to the effect that “…the chowkidar of the food godown delivers rice and sugar to us” cannot make the accused escape his responsibility as in-charge. the fact remains that he was in-charge of the godown and what duties he has as in-charge then delegated to others is his responsibility. in fact entrustment is affirmed even by the examination of the defence witnesses as, d.w.1 ram kumar tamang has deposed in his cross-examination to the effect that chowkidar used to deliver the foodgrains and sugar to them on the instructions of the in-charge food godown when he used to be there. xxx xxx xxx xxx 147. the evidence of d.w.6, rup raj rai also established the prosecution allegation of entrustment as he states in his examination-in-chief “it is true that it is within my personal knowledge that there was no shortage of rice and sugar during the tenure of k.c. baral”. the facts of the instant case therefore establishes entrustment of goods to the accused beyond doubt and i am of the opinion that the defense witnesses have themselves hammered the last nail in establishing the fact of entrustment to the accused.” 24. from the above findings, it appears that the trial court has inferred from the nature of the duties of the accused/petitioner that property was entrusted to him in his capacity as in-charge of the food godown at pakyong and the challans exbt.p4(1) to exbt.p4(40) dispatched from fci, rangpo to food godown, pakyong, which bear the signatures of the accused along with the rubber stamp of his name. to prove the signatures of the accused on the challans, the prosecution has produced pw.14, pw15 and pw.17. pw-14 d.p. sharma in his statement has proved exbt.p39, which is certificate of handing and taking over of the charge of food godown, pakyong between him and the accused in the year, 1999. he identified the signatures of the accused on the handing and taking over charge memo (certificate). he has not said anything about the challans whereby the fci office from rangpo dispatched the food grains, e.g. rice, sugar etc. to the food godown, pakyong. pw.15-kiran kharel was working as a chowkidar of pakyong food godown wherein the accused was in-charge. his statement reads as under:— “i know the accuses person standing in the dock as he was food godown in-charge of pakyong and i was working as chowkidar of pakyong food godown. the accused was in-charge of pakyong food godown for about 6 months. the duties of in-charge is to receive the essential commodities i.e. rice, sugar and k. oil and to dispatch the same to the public and to dispatch to the fair price shops. essential commodities that the dispatched to the fair price shops only after the fair price shops owner deposit money in the bank for the commodities to be taken to him. the food commodities sent from the fci are received in the godown and the food commodities are sent along with a challan showing the amount of food grains i.e. sugar etc. thereafter, it is received in the concerned godown by the in-charge. the receipt from fci are signed by the concerned in-charge when he receive it. exbt.p4(1) to (40) already marked, exbts.p5(1) to (44) already marked and exbt.p40(1) to (40), are the challans for the month of june 99 and exbt.p40(1)(a) to exbt.p40(40)(a) are the signatures of the accused which i identify. exbts.p41(1) to (41) are the challans for the month of july 99 and exbt.p41(1)(a) to exbt.p41(41)(a) are the signatures of the accused which i identify. exbt.p42(1) to 42(3) are the challans for the month of aug99. exbt.p42(1) to (42) are the challans for the month of sep99 and exbt.p43(1)(a) to exbt.p42(3)(a) are the signatures of the accused which i identify. exbt.p43(1) to (42) are the challans for the month sep.99 and exbbt.p43(1)(a) to (42)(a) are the signatures of accused which i identify. exbt.p19 already marked is the hading and taking over memo and exbt.p19(f) is my signature. wherein i was witness to the handing and taking over between the new in-charge shri d.p. sharma and the accused. exbt.p18 already marked is the seizure memo dated 1/10/99 vide which (1) daily stock register of pakyong food godown i.e. exbt.p16 already marked, daily issue register of pakyong food godown i.e. exbt.p17 already marked and statement copies of sbs of pakyong branch and vehicle challans were seized from my possession by the i/o of the case. exbt.p18(c) is my signature of exbt.p18 already marked. the duties of the chowkidar of godown is to open the office and godown and to close the same.” in his cross-examination, the witness stated — “……… i do not know about any office under detailing the concerned duties and responsibilities of the accused. i also did not tell the i/o about the office order and the functions and duties of the accused. i am only a chowkidar and i do not have any office functions. my duties essentially are confined the godown. it is true that whenever any vehicle comes to the godown the goods are unloaded and then weighed and put into the godown. ……it is true that neither the driver nor the in-charge, signs in my presence. the body writing on the challans exbts.p4, p5, p40, p41, p42, p43, series i do not know.……”. pw.17 stated as under:— “i know the accused person standing in the dock as he was working as as1, of pakyong food godowns and during the year i.e. from 1998 to 2001 was working as in-charge, pakyong food godown (fci). my duty as i/c of fci of godown is to dispatch essential commodities to different food godown and specially to east and north and on emergency to south and west. exbts.p4, p5, p40, p42 and p43 already marked are the challans (original) which was sent from fci rangpo during my tenure as i/c, fci rangpo depo.” in cross-examination, he stated as under:— “………i have no knowledge as to what happens at fci, godown at rangpo. i was never asked by the i/o about the signature of the accused i also cannot identify the signature of the accused on exbt.p4, p5, p40, p41, p42 and p43 already marked.” pw.17 was in-charge, rangpo food godown (fci), who used to dispatch the essential commodities to food godown, pakyong vide various challans. he has categorically stated that he cannot identify the signature of the accused on the challans exbts.p4, p5, p40, p41, p42 and p43 which were already marked. thus he only witness, who has identified the signature of the accused on the challans whereby the food godown, pakyong received the food commodities sent from rangpo, is pw.15-kiran kharel, who is a chowkidar posted as food godown, pakyong. in his examination-in-chief, he has identified the signature of the accused on the challans exbts.p4(1) to (40) and exbits.p5(1) to (44) as also p40(1)(a) to exbt.p40(4)(a) and challans exbt.p41(1) to (41), p41(1)(a) as also exbits.p42(1) to p42(3) and exbits.p42(1)(a) to p42(3)(a). these are challans whereby food grains etc. were dispatched from rangpo to food godown, pakyong. however, in his cross-examination, this witness has stated that he did not know about the officer order detailing the duties and responsibilities of the accused. he has further stated that he is only a chowkidar and does not have any officer functions. his duties are essentially confined to the godown. he has also stated that whenever any vehicle comes to the godown the goods are unloaded and then weighed and put into the godown. as regards the signature of the accused, he has stated that neither the driver nor the in-charge signs challans in his presence. he has also expressed his ignorance regarding the writings/text of the challans exbts.p4 to p43. he claimed to be only class vi passed and has no knowledge of english language. all the challans whereby the goods are said to have been sent from rangpo to pakyong food godown are in english. even the signatures of the accused are in english. the signatures on the challans were never appended by the accused or the driver of the vehicles bringing the grains in his presence. according to his own statement his job is confined only to keep watch and ward of the godown and to open and close the office and godown when any vehicle comes to the godown. he does not perform any function in office though in the findings recorded by the trial court it is stated that he used to deliver the foodgrains and sugar to various outlets on the instructions of the accused. he has not proved the contents of the challans. a document can be proved either by a person who is the author or executant of the document. a person who does not fall within the above categories can also prove the handwriting and signature of a person on the document under section 47 of the evidence act in accordance with stipulations contained therein. section 47 of the evidence act, 1872 thus reads as under:— “47. opinion as to hand­writing, when relevant—when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to have been written or signed, that it was or was not written or signed by that person, is a relevant fact. explanation — a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. under this section, handwriting of a person by whom any document was written or signed can be proved by another person who is acquainted with handwriting of author/signatory. explanation appended to the section defines the expression “acquaintance” means a person has seen the other person writing the document or has received the document purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person or in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. a chowkidar is not a person with whom the accused could have any correspondent, even in the ordinary course of business. according to his own statement, he never saw the accused writing or signing the challans. admittedly, the challans were prepared at rangpo by the assistance of pw.17 who was in-charge of fci godown at rangpo. he also is not concerned with the receipt of the food grains etc. at pakyong. his only job is to dispatch the foods grains through challans from rangpo. 25. from the above evidence, it appears that prosecution has failed to prove the signature of accused on challans exbts.p4 to p43. 26. mr. j.b. pradhan, learned public prosecutor appearing for the respondent has submitted that even if it is presumed that the prosecution has failed to prove the signature of the accused on the challans by any legal evidence, the court has itself compared the signature of the accused on the challans. reference is made to paragraph 27 of the judgment of the appellate court. the relevant observations are reproduced hereunder:— “27. vide exts.p-8 and p-32, the above road challans were seize by the police in presence of the witnesses and the witnesses have proved the seizure of the same in the court including the rubber stamp which shows the name of appellant kul chandra baral, in-charge of food godown. mere comparison of the signatures of the appellant appearing in the statement made u/s.313 of cr.p.c. and in the challans including the memo of appeal are found same. it is settled law that the court can take judicial notice of the signatures appearing in the documents. simple denial of the signatures of the appellant in the above documents will not prove his innocence especially when he has failed to make prayer to the court for comparison and examination of the signatures in the challans by the handwriting expert. thus, in view of above facts and the evidence of prosecution witnesses including the documents exhibited before the trial court, i do not find any merit in the argument of ld. defence counsel.” 27. from the above finding, it appears that the learned sessions judge has virtually shifted the burden of proof of the signature on the challans to the accused rather than the prosecution and itself assumed the role of expert by comparing the signature of accused on the statement under section 313, cr.p.c. this approach of appellate court is contrary to the settled principles of criminal jurisprudence which, inter alia, cast a duty upon the prosecution to establish the allegations/charge against the accused beyond any shadow of doubt. mr. pradhan has referred to following judgments to argue that the court has power to compare the signature. 28. in sukhvinder singh v. state of punjab (1994) 5 scc 152, the honble supreme court examined how the handwriting/signature of the person can be proved in a case in accordance with the provisions of indian evidence act. the following observations are relevant in this regard. “18. under the indian evidence act, two direct methods of proving the handwriting of a person are: (a) by an admission of a person who wrote it; (b) by the evidence of some witness who saw it being written by that person. apart from these, there are some other methods of proof of handwriting by opinion. they are: (1) by the evidence of a handwriting expert (section 45). 2) by the evidence of a witness acquainted with the handwriting of the person who is said to have written the disputed writing (section 47). 3) opinion formed by the court itself on comparison made of the disputed writings with the admitted or specimen writings (section 73). we are concerned here primarily with the third mode. 19. a subsequent writing of an accused taken under the direction of the court is in substance a specimen writing obtained for comparison of the disputed writing with it. though, section 73 does not specifically say as to who could make such a comparison but reading section 73 as a whole, it is obvious that it is the court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert, to put before the court all the material, together with reasons, which induce the expert to come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. the function of a handwriting expert is to opine after a scientific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two sets of writings.” 29. in ajit savant majagvai v. state of karnataka (1997) 7 scc 110 : (air 1997 sc 3255), while considering the same issue, the honble supreme court observed as under:— 37. this section consists of two parts. while the first part provide for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the court to have been written by the same person, the second part empowers the court to direct any person including an accused, present in court, to give his specimen writing or finger prints for the purpose of enabling the court to compare it with the writing or signature allegedly made by that person. the section does not specify by whom the comparison shall made. however, looking to the other provision of the act, it is clear that such comparison may either be made by a handwriting expert under section 45 or by anyone familiar with the handwriting of the person concerned as provided by section 47 or by the court itself. 38. as a matter of extreme caution and judicial sobriety, the court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. but this does not mean that the court has not power to compare the disputed signature with admitted signature as this power is clearly available under section 73 of the act. (see : state (delhi admn.) v. pali ram (air 1979 sc 14).” 30. based upon the above judgments, it is argued by mr. pradhan that the learned sessions judge was well within his/her right and jurisdiction to compare the signature of the accused on the challans (documents tendered by way of evidence) with the signature of the accused appended on his statement under section 313 of the cr.p.c. to arrive at a conclusion whether the signatures on challans were that of the accused or not? to contrary, mr. sengupta, learned senior counsel for the petitioner/accused has relied upon state of maharasthra v. sukhdev (1992) 3 scc 700 : (air 1992 sc 2100), wherein the honble supreme court, while acknowledging the authority of the court to compare signatures of disputed documents with the admitted documents refused to do so with the following observations:— “32. it was then submitted, relying on section 73 of the evidence act, that we should compare the disputed material with the specimen/ admitted material on record and reach our own conclusion. there is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. for this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused 1 and 2. although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. we have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. we have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.” 31. from the dictum of the aforesaid judgments, it emerges that the court does have the power and jurisdiction to compare the disputed signature with admitted one on record to arrive its own conclusion regarding the handwriting of a person whose handwriting/signature is subject-matter of proof before the court. the court, however, should refrain from taking responsibility upon its own shoulder and leave it to the field of the experts. in my humble opinion, this word of caution to refrain from talking upon itself the responsibility to compare the signature must be more seriously adhered to and observed in criminal matters. in the present case, learned sessions judge has herself compared disputed signatures on the challans with the statement of the accused under section 313. this comparison has been made even without putting the accused to notice and at the stage of the final judgment when the accused had no opportunity to tender any explanation. this is a dangerous trend, particularly, under the criminal jurisprudence and amounts to violation of principles of natural justice. 32. notwithstanding the fact that the prosecution has not proved the signatures of the accused/petitioner on challans (exbt.p-4 to exbt.p-43), the accused when confronted with the evidence against him did not deny his signature on the challans. question no.31 and answer thereto by the accused is reproduced hereunder:— “q.31 it is in the evidence of the same witness that ext.p-4 to ext.p-43 are the various challans covering the month of june 99 to september 99 wherein you have signed. what have you to say? ans: i have nothing to say about it.” 33. apart from the fact that the prosecution has tried to prove entrustment of the stores through these challans, the accused has admitted the entrustment of the same as a part of his duty. question no.10 and his answer thereto is reproduced hereunder:— “q.10. it is in the evidence of the same witness that the function of the food godown in-charge is to receive goods which are consigned to the godown and the goods which reaches the godown are under his domain entrusted to him thereafter he distributes to fair price shop. what have you to say? ans: yes.” 34. at the first place, it is the bounden duty of the prosecution to establish the guilt of the accused by evidence. as noticed hereinabove, signatures of the accused on challans (exbt.p-4 to exbt.p-43) have not been proved. the prosecution has argued that by virtue of the duties of the petitioners entrustment is proved. the prosecution witnesses (i) pw.11-jai dev sharma, sr. accounts officer, (ii) pw-12-l.m. pradhan, (iii) pw.13-punam rapgyal, accounts officer, (iv) pw.14-dilli prasad sharma, (v) pw.15-kiran kharal, (vi) pw.17-gyan prasad dahal and (vii) pw.21-smt. jayshree pradhan, all being official witnesses and having knowledge of duties of the petitioner, have consistently and specifically narrated about the duties of the petitioner as in-charge, food godown at pakyong. the accused/petitioner in his statement under section 313 of the cr.p.c. while replying to question no.10, admitted entrustment of the food articles in his capacity as the food godown in-charge. this admission is fully corroborated by the statements of p.ws. noticed hereinabove. their statements sufficiently established the entrustment of the property to the accused/petitioner as in-charge, food godown at pakyong, notwithstanding the failure of the prosecution to prove the signature of the accused on challans (exbt.p-4 to exbt.p-42). both the courts have concurrently relied upon not only the challans but oral evidence of the above-mentioned prosecution witnesses. even if the documents (exbt.p-4 to exbt.p-43) are excluded to prove the entrustment, oral evidence, referred to above, cannot be ignored, particularly when pws are well versed with the nature of duties of the petitioner. the evidence is reliable. the petitioner has not been able to demolish the statements of these witnesses or to show why the evidence of these prosecution witnesses should not be believed or relied upon. thus, i am of the considered opinion that the prosecution has established entrustment on the basis of the oral evidence independent of exbt.p-4 to exbt.p-43. under such circumstances, it is inappropriate rather imprudent for this court to reappraise the evidence in exercise of the revisional jurisdiction even if a second view than adopted by the courts below is possible. 35. after having held that the prosecution has established the entrustment of the property, the moot question needs to be considered is the misappropriation by the petitioner/accused as noticed above. the trial court in paragraph 119 of its judgment held that the prosecution has not proved misappropriation. relevant observations of the trial court are reproduced hereunder:— “119. although there is no evidence of misappropriation of the defalcated sum of money, it can easily be inferred that the amount has been defalcated or misappropriated by the accused person from the facts and circumstances of the case.” taking cue from this finding of the trial court, mr. sengupta, learned senior counsel has argued that misappropriation being an essential ingredient of offence under section 409 of the cr.p.c. the accused/petitioner needs to be acquitted and the findings of the courts below on the issue of misappropriation are perverse warranting interference in revisional jurisdiction. no doubt the prosecution has led no evidence to prove the misappropriation of the food articles either by sale or conversion or any other manner except to prove that entire sale proceeds were not deposited with the bank. under such circumstances, a pertinent question arises whether the prosecution was under legal obligation to establish and prove the misappropriation rendering the accused defenceless or is it sufficient to establish the entrustment and then accused becomes liable to account for. the prosecution with a view to establish the misappropriation has relied upon exbt.p-34, a letter dated 13-3-2000 written by the petitioner/accused to the additional secretary, food and civil supplies and c.a. department, government of sikkim. the letter is reproduced as hereunder:— “to the additional secretary, food and civil supplies and ca department, government of sikkim, gangtok. sub: withdrawal of vigilance case. sir, i bed to lay down the following lines of prayer for your favourable orders:— that during the physical verification conducted by the sr. accounts officer and sr. dcso (east) it was detected some shortages which unfortunately occurred during my tenure as in-charge pakyong food godown. in this connection, i am depositing rs.2,10,000/- (rupees two lakhs ten thousand) only drawn in favour of the commissioner-cum-secretary/food vide no.emg/e 462612 dated 10-3-2000 in the central bank of india. since, i believe the amount supposedly misappropriated by me was wrongly verified, i shall be grateful if the file is returned back to the department and re-verification conducted thoroughly in the department itself. even if some amount is detected short during the re-verification, i may be allowed to pay the shortages on instalment basis. thanking you, yours faithfully, sd/- 13-3-2000 (kul chandra baral) a.s.i.” 36. from the contents of the letter, it appears that the accused admitted shortage during his tenure on physical verification of the stocks. he also offered to deposit an amount of rs.2,10,000/- (rupees two lakhs and ten thousand) only, which, in fact, was deposited by him on 10-3-2000. he disputed the verification and asked for the re-verification and also offered to pay further amount on installment basis if shortage is found. mr. sengupta submitted that this letter cannot be construed as an admission on the part of the accused. according to him, the accused disputed verification and asked for the re0verification and it was in this context that he deposited some amount. the petitioner has not disputed either the contents of this letter or its existence or signature thereon. even if this letter is not considered to be an admission of guilt on the part of the petitioner as per the requirement of the evidence act, however, the letter surely is a circumstance against the accused coupled with the deposit of the part of the amount allegedly misappropriated by him and un undertaking to deposit further on re-verification. this letter at least leads to admission of some amount which is a component of the misappropriated property. the submissions of mr. sengupta on this account are not sustainable in law. it is settled law that the prosecution need not establish the mode and manner of misappropriation. 37. in krishan kumar v. union of india, air 1959 sc 1390, the honble supreme court observed as under:— “(9) it is not necessary or possible in every case to prove in what precise manner the accused person

Judgment:

1. FIR No.R.C.6/99 dated 28-9-1999 under Section 409, IPC was registered at vigilance Police Station, Sikkim against the accused/petitioner on the basis of a complaint dated 28-9-1999 lodged by Smt. Jayshree Pradhan, IAS, commissioner-cum-Secretary, Food and Civil Supplies Department, Government of Sikkim.

2. On completion of investigation and sanction being granted vide Sanction Order dated 25-7-2000 (Extn.P-53) by (the complainant) Smt. Jayshree Pradhan IAS Commissioner-cum-Secretary, Food and Civil Supplies Department, Government of Sikkim, a charge-sheet for offence under Section 409, IPC was filed with the Chief Judicial Magistrate, East and North District at Gangtok registered, as Crl. Case No.177/2000.

3. The allegations against the accused/petitioner were misappropriated of sale proceeds of rice and sugar from the Food Godown at Pakyong, where the accused was posted as Assistant Sub-Inspector, In-charge, Food Godown. The total misappropriates amount was worked out to Rs.31,17,479.84. The trial Court framed the charge against the accused on 29-01-2001. The accused pleaded not guilty and he was put to trial.

4. The prosecution examined as many as 22 witnesses including the Investigating Officer to prove the guilt of the accused/petitioner. The accused/petitioner also led defence evidence and examined 8 defence witnesses. The trial Court vide its judgment dated 18-8-2001 convicted the petitioner for offence under Section 409, IPC and vide Order dated 21-8-2001 sentenced the petitioner to undergo simple imprisonment of seven years and imposed fine of Rs.5,000/-. In default of payment of fine to undergo further simple imprisonment of six months.

5. The petitioner challenged his conviction and sentence in Criminal Appeal No.2 of 2002 before the Sessions Judge. (Special Division-I) Sikkim at Gangtok. The appellate court vide its judgment dated 13-8-2003 set aside the conviction and sentence ordered by the trial Court and set the accused free.

6. Dissatisfied with the judgment of the Appellate Court, the State of Sikkim filed acquittal appeal being Government Appeal No.1 of 2003 against the judgment of acquittal dated 13-8-2003 passed by the Sessions Judge, (Special Division-I), Sikkim at Gangtok before this Court. This Court vide judgment dated 11-10-2004 set aside the judgment of acquittal passed by the Sessions Judge, (Special Division-I), Sikkim ay Gangtok and remitted the matter to him to decide the appeal afresh. Learned Sessions Judge (Special Division-I), Sikkim at Gangtok, after hearing the parties, decided the appeal afresh vide judgment dated 28-6-2011, renumbered as Criminal Appeal No.9 of 2010 and upheld the conviction and sentence ordered by the learned Chief Judicial Magistrate, East and North districts at Gangtok vide its judgment dated 18-8-2001. The present revision petition has been preferred challenging the conviction and sentences awarded against the petitioner by the learned Sessions Judge (Special Division-I), Sikkim at Gangtok and Chief Judicial Magistrate, East and North District at Gangtok.

7. Challenge to the impugned judgment is manifold. During the course of hearting, Mr. D.K. Sengupta, learned Senior Counsel appearing for the petitioner, however, emphasized the following:—

(i) the sanctioning authority herself being the complainant became Judge in her own cause, rendering entire proceedings against the petitioner vitiated in law;

(ii) the prosecution has failed to prove beyond any shadow of doubt the entrustment as also misappropriation by the accused which are essential ingredients for commission of offence under Section 409, IPC;

(iii) charge framed against the accused/petitioner is defective and in contravention to specific provisions of Section 212, Cr.P.C. invalidating the entire trial; and

(iv) there has been discrepancy in the alleged amount of misappropriation in the FIR, Sanction Order, Charge-sheet, Physical Verification Report and the final judgment of the trial Court as a result whereof charge of mis-appropriation against the accused is not established beyond doubt.

8. Mr. J.B. Pradhan, learned Public Prosecutor, appearing on behalf of the State seriously contested the case of the petitioner. According to him, the revision petition against the concurrent findings of fact regarding conviction of the petitioner is not maintainable in absence of any question of law. According to him, the entrustment has been established by the prosecution witnesses, P.Ws. 14, 15 and 17. As regards the alleged deficiency in framing of charges is concerned, it is submitted that any irregularity in framing the charge does not ipso facto render the trial nullity, the same being only an irregularity, if any. On the question of grant of sanction by the complainant, it is submitted that unless prejudice and miscarriage of justice is established by the accused, any irregularity in Sanction Order does not in any manner vitiate the trial, particularly, when both the Courts have concurrently recorded conviction. As regards the discrepancy in the amount is concerned, the argument is that the discrepancy is not substantial and prima facie case of misappropriation is established against the accused.

9. I have heard learned counsel for the parties at length and perused the records. The accused/petitioner was posted as Assistant Sub-Inspector, In-charge, Food Godown, Pakyong. Prosecution case is that the accounts of the Food Godown at Pakyong was showing difference in quota allotted and draft of sale proceeds deposited. In absence of detailed information from the in-charge, the Sr. D.C.S.O. (East) and the Accounts Officer, Food and Civil Supplies Department collected the details of deposit from State Bank of Sikkim branch at Pakyong on 14-9-1999. It is stated that on comparison, a short deposit in the account was found whereby a letter No.262/ACCTT/FSCandCA dated 15-9-1999 was issued to the in-charge indicating the difference and asking for his explanation. No reply was received from him. The Sr. D.C.SO. (East) and the Sr. Accounts Officer, Food and Civil Supplies Department conducted a verification of records in the godown on 17-9-1999 in the presence of the in-charge and shortage in deposit of sale proceeds was detected, i.e. (i) rice account Rs.31,02,173.78 and (ii) sugar account Rs.15,306.06, total amount Rs.31,17,479.84. It is further stated that a show cause notice dated 20-9-1999 was served upon the in-charge and since reply was not received, a complaint dated 28-9-1999 (Exbt.P.23) was lodged by Smt. Jayshree Pradhan, IAS, Commission-cum-Secretary, Food and Civil Supplies and Consumer Affairs Department, Government of Sikkim to Director, Sikkim vigilance, Department of Police, Gangtok regarding misuse of Government money. On this complaint, an FIR Case No.RC-6/99 was registered on 28-9-1999 against the accused-petitioner. On registration of case, the petitioner was placed under suspension vide Order No.213/FCSandCA dated 31-12-1999. During the course of investigation, petitioner vide his application dated 13-3-2000 addressed to the Additional Secretary, Food and Civil Supplies and Consumer Affairs Department, Government of Sikkim, requested for withdrawal of the vigilance case. He also deposited an amount of Rs.2,10,000/- with the Government. On completion of the investigation, a prima facie case was found established by the investigating agency. The matter was placed before the Government for grant of sanction and vide Order dated 25-7-2000, sanction for prosecution of the petitioner was accorded under clause (b) of sub-section (1) of Section 197 of the Code of Criminal Procedure, 1973 by Smt. Jayshree Pradhan, IAS, Commissioner-cum-Secretary, Food and Civil Supplies and Consumer Affairs Department, Government of Sikkim.

10. The grievance of the accused/petitioner is against the sanction order dated 25-7-2000 passed by the sanctioning authority who is herself the complainant in the case. It is alleged that sanction is against all the cannons of justice. It is argued that the sanction is required to be granted by an independent authority as is the settled principle of criminal jurisprudence. In the present case, the complainant having granted sanction has assumed the role of a Judge in her own cause. It has caused not only prejudice to the accused/petitioner, but is sufficient to inter miscarriage of justice rendering the entire trial illegal and vitiated. From the complaint (Exbt.P-23), FIR (Exbt.P-22) and the Sanction Order (Exbt.P-53), it is evident that the complainant is the sanctioning authority as well. There is thus no dispute that the sanction has been accorded by the authority who is the complainant in this case. The complainant has appeared as witness being PW.21 during the trial. Her statement was recorded on 7-7-2001. From the statement including cross-examination, it appears that not even a single question has been asked to this witness regarding her conduct as a sanctioning authority. There is not even a suggestion about the allegation of her pre-conceived or biased mind in grant of sanction. It is true that the complainant has granted sanction for prosecution of the petitioner but there is nothing on record to suggest any prejudice having been caused to the petitioner.

11. Mr. Sengupta, learned Senior Counsel appearing for the petitioner submits that the mere fact that the sanctioning authority being herself a complainant, it is sufficient to infer that there has been no independent application of mind by the sanctioning authority and the sanction has been granted by a pre-conceived and baised mind vitiating the entire criminal proceedings against the petitioner. It is argued that under such circumstances, no further material is required to establish prejudice. In support of his contention, learned Senior Counsel has referred to and relied upon a case of Tirath Prakash v. State reported in 2001 Cri LJ 4028. In this case, Honble Delhi High Court examined the question of validity of sanction in a case under the Prevention of Corruption Act. Emphasising the requirement of sanction it has been observed that the object underlying the grant of sanction is to save the public servant from harassment on frivolous or unsubstantiated allegations. The existence of valid sanction, thus, is a condition precedent for taking cognizance of the enumerated offences punishable under the Act. On the question of validity of sanction it has been observed as under:—

“10. Validity of sanction depends upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials and evidence have been considered by the sanctioning authority, which must apply its won independent mind to the relevant facts of the case, the evidence collected and other incidental facts before granting sanction. As observed in Mohd Iqbal Ahmeds case (1979 Cri LJ 633) (supra) grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act and must be strictly complied with before an prosecution can be launched against the public servant concerned. Any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio.”

12. Grant of sanction for an offence under Prevention of Corruption Act is a condition precedent for taking cognizance by the competent Court. An offence under Prevention of Corruption Act is so closely related with the discharge of official duty by the public servant that it is inseparable from his conduct as a public servant. However, the same principle may not be an absolute rule as regard the other offences are concerned, particularly, where the offence committed by a Government servant though while acting as such public servant has no direct relation or nexus to the discharge of the official duties. Under such circumstances, if the act constituting the offence is separable and can be put in a separate compartment and segregated from the usual discharge of duties by a Govt. officer, the necessity of grant of sanction may not be a legal requirement. It depends upon facts of each case and the act complained or against the public servant. Apart from arguing that the sanction has been granted by the complainant herself, the learned counsel for the petitioner has not shown any act of omission or commission emanating from the sanction order or even suggested non-application of mind by the sanctioning authority or non-consideration of any material fact rending the sanction illegal or suffering from vice of arbitrariness in any manner. No question was asked to the PW.21 (sanctioning authority) regarding her conduct as a sanctioning authority. The petitioner even did not raise this question during the trial or even at the first appellate stage. No doubt it would have been prudent and ideal situation that the matter would have been considered by some other competent officer, particularly, a superior officer than the PW.21 for grant of sanction, but that does not by itself invalidate the sanction. It is only after having suffered conviction and sentence this issue has been projected in the present revision.

13. Sanction for prosecution of a public servant is required under Section 197, Cr.P.C. in respect to an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The moot question is whether the act of misappropriation of public money can be said to be an act in discharge of official duty of a public servant. It is settled law that it is not that every act complained of against the public servant falls within the purview of Section 197 and sanction is necessitated. In Shreekantiah Ramayya Munipalli v. State of Bombay, AIR 1955 SC 287, it has been held by the Honble Supreme Court that it is not every offence committed by a public servant which require sanction under Section 197 of the Code nor even every act done by him while he is actually engaged for the purpose of his official duty. This dictum has been followed by the Apex Court in Harihar Prasad v. State of Bihar (1972) 3 SCC 89 : (1972 Cri LJ 707), wherein the Honble Supreme Court considered the question of sanction for prosecution in respect to an offence under Section 409 read with Section 120-B of the IPC and held as under:—

“66. ……The real question therefore is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offences of criminal conspiracy punishable under Section 120-B read with Section 409, Indian Penal Code is concerned and Section 5(2) of the Prevention of Corruption Act are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.”

14. The decision in Harihar Prasad (supra) has been consistently followed by the Apex Court in later decisions in the case of State of Kerala v. V. Padmanabhan Nair (1999) 5 SCC 690 : (AIR 1999 SC 2405), Raghunath Anant Govilkar v. State of Maharashtra, 2008 Cri LJ 2054: (AIR 2008 SC (Supp) 1486) and State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372 : (AIR 2009 SC (Supp) 1615). In view of the ratio of the aforesaid judgments, sanction for prosecution for an offence under Section 409, IPC is not a mandate of law. Thus, validity or otherwise of the sanction has no bearing on the conviction of the petitioner. As noticed hereinabove, the petitioner never objected to the sanction by the PW.21 during the trial or even at the first appellate stage and suffered the conviction/sentence. It is for the first time in the revisional Court the question of sanction is sought to be raised. Section 465 of the Code of Criminal Procedure, 1973 provides that no finding or sentence or order passed by a competent Court is reversible on account of any error, omission or irregularity in sanction unless such irregularity or error has occasioned in failure of justice. Sub-section (2) of Section 465 further lays down that objection should be raised at an earlier stage of the proceedings. At the first place no sanction under Section 197 read with Section 409 was required and secondly, even if there have been some error in grant of sanction, the petitioner has failed to show any prejudice caused, failure of justice or miscarriage of justice in any manner. The Honble Supreme Court in State of Orissa v. Mrutunjaya Panda (1998) 2 SCC 414 : (AIR 1998 SC 715) has held that if any point is not raised in the trial Court and there is no finding by the Courts below recording conviction that there has been failure of justice, no error or irregularity in grant of sanction could be a ground for reversing an order of conviction by appellate or revisional Court. A similar view has been expressed by the Apex Court in Central Bureau of Investigation v. V.K. Sehgal (1999) 8 SCC 501 : (AIR 1999 SC 3706) with the following observation:—

“10. A Court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the Court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate Court.……”

15. In the backdrop of the above settled legal position and failure on the part of the petitioner to raise the issues of any error in the grant of sanction during the trial, I am unable to agree with the contentions raised by Mr. Sengupta, learned Senior Counsel, for setting aside the judgment impugned on this ground.

16. The next argument which has been forcefully and vehemently put forth by Mr. Sengupta is regarding the failure of the prosecution to establish entrustment of the property. Mr. J.B. Pradhan, learned Public Prosecutor appearing on behalf of the State of Sikkim has raised serious objection to the argument of Mr. Sengupta, learned Senior Counsel appearing for the petitioner/accused on the issue of proof of entrustment of the property of the accused. His contention, in short, is that the High Court in exercise of its revisional jurisdiction under Section 401 (439 old) Cr.P.C. ought not interfere in the findings of the fact recorded by the Courts below on appreciation of evidence. The submission is that the revisional jurisdiction by the High Court is intended to be exercised in exceptional circumstances and cases where a glaring defects of the procedure or massive error on the point of law resulting in flagrant miscarriage of justice is found in the judgment impugned before the revisional Court. It is further submitted that the High Court should not venture into the question of re-appreciation of evidence to record its own conclusion even if a second view on appreciation of the evidence is possible. To support his contention reliance is placed upon Kadiri Kunhahammad v. The State of Madras, AIR 1960 SC 661; Sate of Orissa v. Nakula Sahu (1979) 1 SCC 328 : (AR 1979 SC 663); State of Kerala v. Puttamana Illath Jathavedan Namboodiri (1999) 2 SCC 452 : (AIR 1999 SC 981) and Hydru v. State of Kerala (2004) 13 SCC 374.

17. Section 405 of the IPC defines criminal breach of trust and reads as under:—

“405. Criminal breach of trust.— Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”.

Offence under Section 409, IPC is constituted on commission of criminal breach of trust by a public servant. Definition of the expression “Criminal breach of trust” has two essential ingredients — (i) entrustment or dominion over property and (ii) misappropriation or conversion to ones own use of the property in violation of or any direction of law prescribing the mode of discharging such trust. High Courts powers of revision are prescribed under Section 401 of the Cr.P.C. Relevant extract of this Section is reproduced below:—

“401. High Courts powers of revision.—

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.

18. In Nakula Sahu (AIR 1979 SC 663) (supra), while examining the scope of revisional jurisdiction under Section 401 (439 old) of the Cr.P.C. the Honble Supreme Court has observed as under:—

“9. ……it is now well settled that normally the jurisdiction of the High Court under section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a mainfest error on a point of law which has consequently resulted in flagrant miscarriage of justice.…… The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system.

9.In Puttamana Illath Jathavedan Namboodiri (AIR 1999 SC 981) (supra), the Honble Supreme Court further commented upon the exercise of revisional jurisdiction by the High Court under Section 401 of the Cr.P.C. with the following observations:—

“5. ……In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. ……”

20. It is true that under Section 401 of the Cr.P.C. the revisional Court in its discretion is entitled to exercise the powers of the appellate Court. However, it is settled principle of law that the discretion has to be exercised judicially and circumscribed by law so as not to frustrate the purposes for which the revisional power has been conferred upon the Court. The revisional jurisdiction cannot be exercised in a routine manner as an appellate Court to overset the findings of the Courts below, particularly the concurrent findings. At the same time, the revisional Court is not disarmed to exercise the revisional jurisdiction where the findings of fact recorded by the Courts below are perverse in nature and/or are in gross violation of settled procedural safeguards or tantamount to miscarriage of justice. Miscarriage of justice is occasioned where the admitted facts do not constitute an offence and the findings are recorded contrary to the admitted facts or based upon the erroneous interpretation thereof and do not merely fall within the domain of appreciation of evidence.

21. The principles enunciated in the above judgments empower the revisional Court to invoke revisional jurisdiction only in exceptional circumstances illustratively noted above. It is undisputed that for constituting an offence under Section 409 of the Cr.P.C. the essential conditions/ingredients under Section 405/409 must be satisfied. Thus, it also becomes necessary to examine the question whether the culpability of the petitioner is established on the basis of the admitted facts.

22. In Janeshwar Das Aggrawal v. State of U.P. AIR 1981 SC 1646, Jiwan Dass v. State of Haryana (1999) 2 SCC 530 : (AIR 1999 SC 1301) and Kailash Kumar Sanwatia v. State of Bihar, AIR 2003 SC 3714 it has been held that under Section 409, IPC the prosecution must prove two essential ingredients—(i) the factum of entrustment and (ii) factum of misappropriation of the entrust, articles. Mr. Sengupta, learned Senior counsel appearing for the petitioner has referred to a judgment of this Court in Puspa Kumar Rai v. State of Sikkim, 1979 Cri LJ 1379, wherein a Bus Conductor of Sikkim Nationalised Transport was charged with an offence of criminal breach of trust on his failure to deposit the sale proceeds of the tickets sold to passengers. It has been held that there has been no entrustment of the property to the Bus Conductor.

23. It is contended on behalf of the petitioner that the prosecution has failed to prove entrustment which is the first essential ingredient for an offence under Section 409, IPC. In regard to the second ingredient, i.e. misappropriation, it has been pointed out that there is a clear and categorical finding by the trial Court, affirmed by the appellate Court that misappropriation has not been established. In order to prove the entrustment the prosecution case is that the accused as an Assistant Sub-Inspector was in-charge of the Food Godown at Pakyong and in his capacity as the in-charge, Food Godown, it is his function to receive the goods consigned to the godown and once the goods reach the godown, same are under his domain and deemed to be entrusted to him. It is further stated that thereafter, he distributes the goods to the fair price shops etc. To prove the duties of the accused the prosecution has examined (i) PW.11-Jai Dev Sharma, Sr. Accounts Officer, (ii) PW.13-Punam Rapgyal, Accounts Officer, (iii) PW.14-Dilli Prasad Sharma, (iv) PW.15-Kiran Kharal, (v) PW.17-Gyan Prasad Dahal and (vi) PW.21-Smt. Jayshree Pradhan. According to the statements of these witnesses, the duties of the food godown in-charge are to receive the stores issued by the FCI and to issue it to authorized retail outlets and MPCS on production of bank receipts for the cash involved. In-charge is also expected to keep detailed accounts of the transaction of all items. It is however admitted that except Mr. L.M. Pradhan, no other witness in his/her statement under Section 161 of the Cr.P.C. mentioned about the duties and functions of the Assistant Sub Inspector, in-charge, Food Godown at Pakyong. Mr. L.M. Pradhan in his statement under Section 161 mentioned that the ASI of the food godown is the sole in-charge of the food godown to look after the proper distribution of essential commodities through designated fair price shops and to maintain all books of accounts and to submit the weekly drafts of sale proceeds to the account section of the Head Office. On the question of entrustment the trial Court recorded the following findings:—

“138. Coming to the question of entrustment, as to whether the accused received the foodgrain dispatched to him from FCI Rangpo, and whether foodgrains and sugar were entrusted to him. Ld. P.P. submitted that entrustment of property to the accused was proved by the various exhibits i.e. Exbt.P4(1) to Exbt.P43(42) and the statement of P.W. Gyan Prasad Dahal. Ld. defence counsel on the other hand submitted that there is no office order regarding the entrustment, functions, duties and responsibilities of the accused proved before this Court. Neither has the Investigating Officer proved any office order showing entrustment.

139. In my opinion the existence or non existence of trust in every individual case is not dependent on the application of legal terms but upon the actual facts of the case.

Xxx xxx xxx xxx

141. Perusal of challans Exby.P4(1) to Exbt.P4(40) dispatched from FI Rangpo to Food Godown Pakyong show that the same on receipt have been signed. The rubber stamp shows the name of K.C. Baral incharge/Food Inspector, Food Godown. Exbt.P5(1) to Exbt.P5(44) are also challans, wherein foodgrains have been dispatched from FCI Rangpo to Pakyong Food godown. These also bear the rubber stamp of K.C. Baral Incharge/Food Inspector. Exbt.P40(1) to Exbt.P40(40) are the challans showing dispatch of foodgrains from FCI Rangpo for the month of June 99 wherein the accused has signed at the place written “name and designation of Centre incharge”. The signatures therein have been identified by PW.15 Kiran Kharel, Chowkidar of the said Food godown as being that of K.C. Baral, the accused. The identification of the signatures of the accused have not been demolished in the cross-examination of he said witness. The witness has stated “it is true that neither the driver nor the incharge signed in my presence” but the signatures being that of the accused is not denied. Exbt.P41(1) to Exbt.P41(41) are also the challans showing deposit of foodgrains from Rangpo FCI Rangpo. The signature of the accused are identified as Exbt.P42(1) to Exbt.P42(43) and in Exbt.P43 as 43(1) to Exbt.P43(42). These challans are for the different months of July 99, Aug99 and Sep99. As pointed out by Ld. P.P. the witness Gyan Prasad Dahal has also identified the aforesaid challans, which had been sent to Pakyong during his tenure, showing dispatch of foodgrains and sugar.

142. The above facts show that the accused admittedly was the Assistant Sub Inspector of Food, incharge of Pakyong Food godown. The goods were, as per the documents obviously received by him. Since he has signed on the challans as in-charge which therefore means that the property was entrusted to him and he had dominion over it.

Xxx xxx xxx xxxx

144. The fact that no office order has been produced showing the duties of the accused does not quell the fact that entrustment was made to the accused. As has been discussed earlier the existence or non-existence of trust in any individual case does not depend upon the use of legal terminology, but upon the actual facts of any particular case.

145. Therefore, I am of the opinion that the goods i.e. foodgrains and sugar had been entrusted to the accused and was in his dominion. The evidence of D.W.1 Ram Kumar Tamang to the effect that “…the Chowkidar of the Food godown delivers rice and sugar to us” cannot make the accused escape his responsibility as in-charge. The fact remains that he was in-charge of the godown and what duties he has as in-charge then delegated to others is his responsibility. In fact entrustment is affirmed even by the examination of the defence witnesses as, D.W.1 Ram Kumar Tamang has deposed in his cross-examination to the effect that Chowkidar used to deliver the foodgrains and sugar to them on the instructions of the in-charge food godown when he used to be there.

Xxx xxx xxx xxx

147. The evidence of D.W.6, Rup Raj Rai also established the prosecution allegation of entrustment as he states in his examination-in-chief “It is true that it is within my personal knowledge that there was no shortage of rice and sugar during the tenure of K.C. Baral”. The facts of the instant case therefore establishes entrustment of goods to the accused beyond doubt and I am of the opinion that the defense witnesses have themselves hammered the last nail in establishing the fact of entrustment to the accused.”

24. From the above findings, it appears that the trial Court has inferred from the nature of the duties of the accused/petitioner that property was entrusted to him in his capacity as in-charge of the Food Godown at Pakyong and the challans Exbt.P4(1) to Exbt.P4(40) dispatched from FCI, Rangpo to Food Godown, Pakyong, which bear the signatures of the accused along with the rubber stamp of his name. to prove the signatures of the accused on the challans, the prosecution has produced PW.14, PW15 and PW.17. PW-14 D.P. Sharma in his statement has proved Exbt.P39, which is certificate of handing and taking over of the charge of Food Godown, Pakyong between him and the accused in the year, 1999. He identified the signatures of the accused on the handing and taking over charge memo (certificate). He has not said anything about the challans whereby the FCI office from Rangpo dispatched the food grains, e.g. rice, sugar etc. to the Food Godown, Pakyong. Pw.15-Kiran Kharel was working as a Chowkidar of Pakyong Food Godown wherein the accused was in-charge. His statement reads as under:—

“I know the accuses person standing in the dock as he was food godown in-charge of Pakyong and I was working as Chowkidar of Pakyong food godown. The accused was in-charge of Pakyong food godown for about 6 months. The duties of in-charge is to receive the essential commodities i.e. rice, sugar and K. Oil and to dispatch the same to the public and to dispatch to the fair price shops. Essential commodities that the dispatched to the fair price shops only after the fair price shops owner deposit money in the Bank for the commodities to be taken to him. The food commodities sent from the FCI are received in the godown and the food commodities are sent along with a challan showing the amount of food grains i.e. sugar etc. Thereafter, it is received in the concerned godown by the in-charge. The receipt from FCI are signed by the concerned in-charge when he receive it.

Exbt.P4(1) to (40) already marked, Exbts.P5(1) to (44) already marked and exbt.P40(1) to (40), are the challans for the month of June 99 and Exbt.P40(1)(a) to Exbt.P40(40)(a) are the signatures of the accused which I identify. Exbts.P41(1) to (41) are the challans for the month of July 99 and Exbt.P41(1)(a) to Exbt.P41(41)(a) are the signatures of the accused which I identify. Exbt.P42(1) to 42(3) are the challans for the month of Aug99. Exbt.P42(1) to (42) are the challans for the month of Sep99 and Exbt.P43(1)(a) to Exbt.P42(3)(a) are the signatures of the accused which I identify. Exbt.P43(1) to (42) are the challans for the month Sep.99 and Exbbt.P43(1)(a) to (42)(a) are the signatures of accused which I identify. Exbt.P19 already marked is the hading and taking over memo and Exbt.P19(f) is my signature. Wherein I was witness to the handing and taking over between the new in-charge Shri D.P. Sharma and the accused. Exbt.P18 already marked is the seizure memo dated 1/10/99 vide which (1) daily stock register of Pakyong food godown i.e. Exbt.P16 already marked, daily issue register of Pakyong food godown i.e. Exbt.P17 already marked and statement copies of SBS of Pakyong branch and vehicle challans were seized from my possession by the I/O of the case. Exbt.P18(c) is my signature of Exbt.P18 already marked.

The duties of the Chowkidar of godown is to open the office and godown and to close the same.”

In his cross-examination, the witness stated —

“……… I do not know about any office under detailing the concerned duties and responsibilities of the accused. I also did not tell the I/O about the office order and the functions and duties of the accused. I am only a Chowkidar and I do not have any office functions. My duties essentially are confined the godown. It is true that whenever any vehicle comes to the godown the goods are unloaded and then weighed and put into the godown. ……It is true that neither the driver nor the in-charge, signs in my presence. The body writing on the challans Exbts.P4, P5, P40, P41, P42, P43, series I do not know.……”.

PW.17 stated as under:—

“I know the accused person standing in the dock as he was working as AS1, of Pakyong food godowns and during the year i.e. from 1998 to 2001 was working as in-charge, Pakyong food godown (FCI). My duty as I/C of FCI of godown is to dispatch essential commodities to different food godown and specially to east and north and on emergency to south and west. Exbts.P4, P5, P40, P42 and P43 already marked are the challans (original) which was sent from FCI Rangpo during my tenure as I/C, FCI Rangpo depo.”

In cross-examination, he stated as under:—

“………I have no knowledge as to what happens at FCI, godown at Rangpo. I was never asked by the I/O about the signature of the accused I also cannot identify the signature of the accused on Exbt.P4, P5, P40, P41, P42 and P43 already marked.”

PW.17 was in-charge, Rangpo Food Godown (FCI), who used to dispatch the essential commodities to Food Godown, Pakyong vide various challans. He has categorically stated that he cannot identify the signature of the accused on the challans Exbts.P4, P5, P40, P41, P42 and P43 which were already marked. Thus he only witness, who has identified the signature of the accused on the challans whereby the Food Godown, Pakyong received the food commodities sent from Rangpo, is PW.15-Kiran Kharel, who is a Chowkidar posted as Food Godown, Pakyong. In his examination-in-chief, he has identified the signature of the accused on the challans Exbts.P4(1) to (40) and Exbits.P5(1) to (44) as also P40(1)(a) to Exbt.P40(4)(a) and challans Exbt.P41(1) to (41), P41(1)(A) as also Exbits.P42(1) to P42(3) and Exbits.P42(1)(a) to P42(3)(a). These are challans whereby food grains etc. were dispatched from Rangpo to Food Godown, Pakyong. However, in his cross-examination, this witness has stated that he did not know about the Officer Order detailing the duties and responsibilities of the accused. He has further stated that he is only a Chowkidar and does not have any officer functions. His duties are essentially confined to the godown. He has also stated that whenever any vehicle comes to the godown the goods are unloaded and then weighed and put into the godown. As regards the signature of the accused, he has stated that neither the driver nor the in-charge signs challans in his presence. He has also expressed his ignorance regarding the writings/text of the challans Exbts.P4 to P43. He claimed to be only Class VI passed and has no knowledge of English language. All the challans whereby the goods are said to have been sent from Rangpo to Pakyong Food Godown are in English. Even the signatures of the accused are in English. The signatures on the challans were never appended by the accused or the driver of the vehicles bringing the grains in his presence. According to his own statement his job is confined only to keep watch and ward of the godown and to open and close the office and godown when any vehicle comes to the godown. He does not perform any function in office though in the findings recorded by the trial Court it is stated that he used to deliver the foodgrains and sugar to various outlets on the instructions of the accused. He has not proved the contents of the challans. A document can be proved either by a person who is the author or executant of the document. A person who does not fall within the above categories can also prove the handwriting and signature of a person on the document under Section 47 of the Evidence Act in accordance with stipulations contained therein. Section 47 of the Evidence Act, 1872 thus reads as under:—

“47. Opinion as to hand­writing, when relevant—When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to have been written or signed, that it was or was not written or signed by that person, is a relevant fact.

Explanation — A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

Under this Section, handwriting of a person by whom any document was written or signed can be proved by another person who is acquainted with handwriting of author/signatory. Explanation appended to the Section defines the expression “acquaintance” means a person has seen the other person writing the document or has received the document purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person or in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. A Chowkidar is not a person with whom the accused could have any correspondent, even in the ordinary course of business. According to his own statement, he never saw the accused writing or signing the challans. Admittedly, the challans were prepared at Rangpo by the assistance of PW.17 who was in-charge of FCI godown at Rangpo. He also is not concerned with the receipt of the food grains etc. at Pakyong. His only job is to dispatch the foods grains through challans from Rangpo.

25. From the above evidence, it appears that prosecution has failed to prove the signature of accused on challans Exbts.P4 to P43.

26. Mr. J.B. Pradhan, learned Public Prosecutor appearing for the respondent has submitted that even if it is presumed that the prosecution has failed to prove the signature of the accused on the challans by any legal evidence, the Court has itself compared the signature of the accused on the challans. Reference is made to paragraph 27 of the judgment of the Appellate Court. The relevant observations are reproduced hereunder:—

“27. Vide Exts.P-8 and P-32, the above road challans were seize by the police in presence of the witnesses and the witnesses have proved the seizure of the same in the Court including the rubber stamp which shows the name of appellant Kul Chandra Baral, in-charge of Food Godown. Mere comparison of the signatures of the appellant appearing in the statement made u/S.313 of Cr.P.C. and in the challans including the memo of appeal are found same. It is settled law that the Court can take judicial notice of the signatures appearing in the documents. Simple denial of the signatures of the appellant in the above documents will not prove his innocence especially when he has failed to make prayer to the Court for comparison and examination of the signatures in the challans by the handwriting expert. Thus, in view of above facts and the evidence of prosecution witnesses including the documents exhibited before the Trial Court, I do not find any merit in the argument of Ld. Defence Counsel.”

27. From the above finding, it appears that the learned Sessions Judge has virtually shifted the burden of proof of the signature on the challans to the accused rather than the prosecution and itself assumed the role of expert by comparing the signature of accused on the statement under Section 313, Cr.P.C. This approach of appellate Court is contrary to the settled principles of criminal jurisprudence which, inter alia, cast a duty upon the prosecution to establish the allegations/charge against the accused beyond any shadow of doubt. Mr. Pradhan has referred to following judgments to argue that the Court has power to compare the signature.

28. In Sukhvinder Singh v. State of Punjab (1994) 5 SCC 152, the Honble Supreme Court examined how the handwriting/signature of the person can be proved in a case in accordance with the provisions of Indian Evidence Act. The following observations are relevant in this regard.

“18. Under the Indian Evidence Act, two direct methods of proving the handwriting of a person are:

(a) by an admission of a person who wrote it;

(b) by the evidence of some witness who saw it being written by that person.

Apart from these, there are some other methods of proof of handwriting by opinion. They are:

(1) by the evidence of a handwriting expert (Section 45).

2) by the evidence of a witness acquainted with the handwriting of the person who is said to have written the disputed writing (Section 47).

3) opinion formed by the Court itself on comparison made of the disputed writings with the admitted or specimen writings (Section 73).

We are concerned here primarily with the third mode.

19. A subsequent writing of an accused taken under the direction of the court is in substance a specimen writing obtained for comparison of the disputed writing with it. Though, Section 73 does not specifically say as to who could make such a comparison but reading Section 73 as a whole, it is obvious that it is the Court which has to make the comparison and it may form the opinion itself by comparing the disputed and the admitted writings or seek the assistance of an expert, to put before the Court all the material, together with reasons, which induce the expert to come to a conclusion that the disputed and the admitted writings are of one and the same author so that the court may form its own opinion by its own assessment of the report of the expert based on the data furnished by the expert. The function of a handwriting expert is to opine after a scientific comparison of the disputed writing with the admitted (specimen) writing with regard to the points of similarity and dissimilarity in the two sets of writings.”

29. In Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110 : (AIR 1997 SC 3255), while considering the same issue, the Honble Supreme Court observed as under:—

37. This Section consists of two parts. While the first part provide for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. (See : State (Delhi Admn.) v. Pali Ram (AIR 1979 SC 14).”

30. Based upon the above judgments, it is argued by Mr. Pradhan that the learned Sessions Judge was well within his/her right and jurisdiction to compare the signature of the accused on the challans (documents tendered by way of evidence) with the signature of the accused appended on his statement under Section 313 of the Cr.P.C. to arrive at a conclusion whether the signatures on challans were that of the accused or not? To contrary, Mr. Sengupta, learned Senior Counsel for the petitioner/accused has relied upon State of Maharasthra v. Sukhdev (1992) 3 SCC 700 : (AIR 1992 SC 2100), wherein the Honble Supreme Court, while acknowledging the authority of the Court to compare signatures of disputed documents with the admitted documents refused to do so with the following observations:—

“32. It was then submitted, relying on Section 73 of the Evidence Act, that we should compare the disputed material with the specimen/ admitted material on record and reach our own conclusion. There is no doubt that the said provision empowers the Court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the Accused 1 and 2. Although the section specifically empowers the Court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.”

31. From the dictum of the aforesaid judgments, it emerges that the Court does have the power and jurisdiction to compare the disputed signature with admitted one on record to arrive its own conclusion regarding the handwriting of a person whose handwriting/signature is subject-matter of proof before the Court. The Court, however, should refrain from taking responsibility upon its own shoulder and leave it to the field of the experts. In my humble opinion, this word of caution to refrain from talking upon itself the responsibility to compare the signature must be more seriously adhered to and observed in criminal matters. In the present case, learned Sessions Judge has herself compared disputed signatures on the challans with the statement of the accused under Section 313. This comparison has been made even without putting the accused to notice and at the stage of the final judgment when the accused had no opportunity to tender any explanation. This is a dangerous trend, particularly, under the criminal jurisprudence and amounts to violation of principles of natural justice.

32. Notwithstanding the fact that the prosecution has not proved the signatures of the accused/petitioner on challans (Exbt.P-4 to Exbt.P-43), the accused when confronted with the evidence against him did not deny his signature on the challans. Question No.31 and answer thereto by the accused is reproduced hereunder:—

“Q.31 It is in the evidence of the same witness that Ext.P-4 to Ext.P-43 are the various challans covering the month of June 99 to September 99 wherein you have signed. What have you to say?

Ans: I have nothing to say about it.”

33. Apart from the fact that the prosecution has tried to prove entrustment of the stores through these challans, the accused has admitted the entrustment of the same as a part of his duty. Question No.10 and his answer thereto is reproduced hereunder:—

“Q.10. It is in the evidence of the same witness that the function of the Food Godown in-charge is to receive goods which are consigned to the Godown and the goods which reaches the Godown are under his domain entrusted to him thereafter he distributes to fair price shop. What have you to say?

Ans: Yes.”

34. At the first place, it is the bounden duty of the prosecution to establish the guilt of the accused by evidence. As noticed hereinabove, signatures of the accused on challans (Exbt.P-4 to Exbt.P-43) have not been proved. The prosecution has argued that by virtue of the duties of the petitioners entrustment is proved. The prosecution witnesses (i) PW.11-Jai Dev Sharma, Sr. Accounts Officer, (ii) PW-12-L.M. Pradhan, (iii) PW.13-Punam Rapgyal, Accounts Officer, (iv) PW.14-Dilli Prasad Sharma, (v) PW.15-Kiran Kharal, (vi) PW.17-Gyan Prasad Dahal and (vii) PW.21-Smt. Jayshree Pradhan, all being official witnesses and having knowledge of duties of the petitioner, have consistently and specifically narrated about the duties of the petitioner as in-charge, Food Godown at Pakyong. The accused/petitioner in his statement under Section 313 of the Cr.P.C. while replying to question No.10, admitted entrustment of the food articles in his capacity as the Food Godown in-charge. This admission is fully corroborated by the statements of P.Ws. noticed hereinabove. Their statements sufficiently established the entrustment of the property to the accused/petitioner as in-charge, Food Godown at Pakyong, notwithstanding the failure of the prosecution to prove the signature of the accused on challans (Exbt.P-4 to Exbt.P-42). Both the Courts have concurrently relied upon not only the challans but oral evidence of the above-mentioned prosecution witnesses. Even if the documents (Exbt.P-4 to Exbt.P-43) are excluded to prove the entrustment, oral evidence, referred to above, cannot be ignored, particularly when PWs are well versed with the nature of duties of the petitioner. The evidence is reliable. The petitioner has not been able to demolish the statements of these witnesses or to show why the evidence of these prosecution witnesses should not be believed or relied upon. Thus, I am of the considered opinion that the prosecution has established entrustment on the basis of the oral evidence independent of Exbt.P-4 to Exbt.P-43. Under such circumstances, it is inappropriate rather imprudent for this Court to reappraise the evidence in exercise of the revisional jurisdiction even if a second view than adopted by the Courts below is possible.

35. After having held that the prosecution has established the entrustment of the property, the moot question needs to be considered is the misappropriation by the petitioner/accused as noticed above. The trial court in paragraph 119 of its judgment held that the prosecution has not proved misappropriation. Relevant observations of the trial Court are reproduced hereunder:—

“119. Although there is no evidence of misappropriation of the defalcated sum of money, it can easily be inferred that the amount has been defalcated or misappropriated by the accused person from the facts and circumstances of the case.”

Taking cue from this finding of the trial Court, Mr. Sengupta, learned Senior Counsel has argued that misappropriation being an essential ingredient of offence under Section 409 of the Cr.P.C. the accused/petitioner needs to be acquitted and the findings of the Courts below on the issue of misappropriation are perverse warranting interference in revisional jurisdiction. No doubt the prosecution has led no evidence to prove the misappropriation of the food articles either by sale or conversion or any other manner except to prove that entire sale proceeds were not deposited with the Bank. Under such circumstances, a pertinent question arises whether the prosecution was under legal obligation to establish and prove the misappropriation rendering the accused defenceless or is it sufficient to establish the entrustment and then accused becomes liable to account for. The prosecution with a view to establish the misappropriation has relied upon Exbt.P-34, a letter dated 13-3-2000 written by the petitioner/accused to the Additional Secretary, Food and Civil Supplies and C.A. Department, Government of Sikkim. The letter is reproduced as hereunder:—

“To

The Additional Secretary,

Food and Civil Supplies and CA Department,

Government of Sikkim,

Gangtok.

Sub: Withdrawal of Vigilance case.

Sir,

I bed to lay down the following lines of prayer for your favourable orders:—

That during the physical Verification conducted by the Sr. Accounts Officer and Sr. DCSO (East) it was detected some shortages which unfortunately occurred during my tenure as in-charge Pakyong Food Godown. In this connection, I am depositing Rs.2,10,000/- (Rupees Two Lakhs Ten Thousand) only drawn in favour of the Commissioner-cum-Secretary/Food vide No.EMG/E 462612 dated 10-3-2000 in the Central Bank of India.

Since, I believe the amount supposedly misappropriated by me was wrongly verified, I shall be grateful if the file is returned back to the department and re-verification conducted thoroughly in the department itself. Even if some amount is detected short during the re-verification, I may be allowed to pay the shortages on instalment basis.

Thanking you,

Yours faithfully,

Sd/-

13-3-2000

(KUL CHANDRA BARAL)

A.S.I.”

36. From the contents of the letter, it appears that the accused admitted shortage during his tenure on physical verification of the stocks. He also offered to deposit an amount of Rs.2,10,000/- (Rupees Two lakhs and Ten thousand) only, which, in fact, was deposited by him on 10-3-2000. He disputed the verification and asked for the re-verification and also offered to pay further amount on installment basis if shortage is found. Mr. Sengupta submitted that this letter cannot be construed as an admission on the part of the accused. According to him, the accused disputed verification and asked for the re0verification and it was in this context that he deposited some amount. The petitioner has not disputed either the contents of this letter or its existence or signature thereon. Even if this letter is not considered to be an admission of guilt on the part of the petitioner as per the requirement of the Evidence Act, however, the letter surely is a circumstance against the accused coupled with the deposit of the part of the amount allegedly misappropriated by him and un undertaking to deposit further on re-verification. This letter at least leads to admission of some amount which is a component of the misappropriated property. The submissions of Mr. Sengupta on this account are not sustainable in law. It is settled law that the prosecution need not establish the mode and manner of misappropriation.

37. In Krishan Kumar v. Union of India, AIR 1959 SC 1390, the Honble Supreme Court observed as under:—

“(9) It is not necessary or possible in every case to prove in what precise manner the accused person