M.Rama Rao v. The State And ANR

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE KRISHNA RAO CRR/7/2025 M.Rama Rao ... Petitioner Vs The State and another ... Respondents For the petitioner : Mr. Deep Chaim Kabir, Sr. Adv.

Mr. S.Ajith Prasad For the State : Mr. Sumit Karmakar, Public Prosecutor Heard on : 08.07.2025 & 09.07.2025 Judgement on : 14.07.2025 KRISHNA RAO, J.

1.

The petitioner has filed the present revisional application challenging the judgment passed by learned Additional Sessions Judge, North & Middle Andaman at Mayabunder in Criminal Appeal No. 02 of 2024, thereby affirming the judgment and order passed by learned Chief Judicial Magistrate, Mayabunder, North & Middle Andaman in G.R Case No. 878 of 2007 by convicting the petitioner for the offence punishable under section 409 of the Indian Penal Code, 1860 by sentencing the petitioner to suffer simple imprisonment for a term of three years and to pay fine of Rs.10,000/- in default rigorous

imprisonment for six months. The petitioner is also convicted and sentenced to suffer Simple Imprisonment for a term of two years and fine of Rs.5,000/- in default to suffer rigorous imprisonment for three months for the offence under section 468 of the Indian Penal Code. The petitioner is further convicted for the offence under section 471 of the Indian Penal Code and sentenced to suffer Simple Imprisonment for two years and fine of Rs.5,000/- in default to suffer rigorous imprisonment for three months.

2.

On 30.08.2007 one Shri Sanjay Mistry had made a written complaint to the Station House Officer, PS Billiground alleging that his father Late Dhiren Mistry was admitted at Primary Health Centre, Tugapur during the month of February, 2007 for treatment and his father expired on 03.03.2007. The Agriculture Department has excavated a pond through Muster Roll in the allotted land of a Settlers at Prafulla Nagar village during the month of February, 2007. The Muster Roll payment for the aforesaid pond was manipulated by the employee of Agriculture Department along with present Pradhan, Basantipur Gram Sabha mentioning name of his father, mother and elder brother along with other persons who did not work during the excavation of the said pond. The payment for Muster Roll for the above mentioned persons was drawn by putting their false signature. 3.

On the basis of the said complaint, the police of PS Billiground initiated a case being FIR No. 62 of 2007 dated 30.08.2007, under section 468/471/420 of the Indian Penal Code against the employees of

Agriculture Department along with the present Pradhan of Basantipur. On completion of investigation the police has submitted charge sheet for the offence under section 468/471/419/409/34 of the Indian Penal Code against Shri Sushanta Biswas the Pradhan and the petitioner Shri M. Rama Rao.

4.

Learned Magistrate has framed the charges under section 468/471/34 of the Indian Penal Code against the petitioner and Sushanta Biswas. Against the petitioner further charge under section 409 of the Indian Penal Code was also framed. Against the Pradhan namely Sushanta Biswas charge under section 419 of the Indian Penal Code was framed.

5.

Mr. Deep Chaim Kabir, learned Sr. Advocate representing the petitioner submits that money was never entrusted to the petitioner in any form and it is not the case of the prosecution, the petitioner has misappropriated the money. He submits that as per the case of the prosecution, the petitioner used to maintain attendance register and he entered the names of the persons who actually did not work. He submits that the specimen signatures and handwriting of the petitioner are compared against the attendance register and found to be matching in Government Examiner Question Documents (GEQD) report, but there is no case has made out that the signature or handwriting are there in any other document including acquittance roll, thus, no charge under section 468/471 is proved.

6.

Mr.Kabir submits that as per the evidence on record, money was being dealt by Vinod Kumar, Soil Conservator Assistant, but the prosecution to protect him has made him as a witness. He submits that since no entrustment was made to the petitioner and there is no allegation that the petitioner has misappropriated or utilized any amount of his own use, thus, no case under section 409 is made out. 7.

Mr. Kabir submits that the documents relied by the prosecution shows that the work was actually under the supervision and management of three persons i.e. Shri G.B. Singh, Assistant Director, Shri Vinod Kumar, Soil Conservator Assistant and Shri Ramesh Kumar, Graduate Civil Engineer, but the police instead of making them as accused has made them as witness in the instant case against the petitioner, though, the petitioner has not played any role for the alleged offences.

8.

Mr. Kabir submits that as per the document relied by the prosecution reveals that the petitioner was merely assigned to assist the said three officers in their work. He submits that all matters relating to estimate, supervision, management of the work, were entirely the responsibility of the three officers and the petitioner being a junior staff deputed to assist them in the said work.

9.

Mr. Kabir submits that the work of the petitioner was limited for the maintenance of the attendance register. Beyond the said work he had no role in the entire matter. He submits that it is the case of the prosecution, that the names and the identification of the workers being

done by the Pradhan and PRI members as the petitioner is not the local resident of the said area, thus, the question that the petitioner have any involvement in giving wrong names or identity does not arise as the petitioner had no knowledge of who were the workers or what their actual identities, as this responsibility was solely upon the Pradhan and other PRI members.

10.

Mr. Kabir submits that admittedly the work was completed and the money was disbursed. There is no allegation or evidence laid by the prosecution to show where the money actually gone, if the workers were not genuine. He submits that the allegation made by the complainant regarding his father Dhiren Mistry is found to be false as the money regarding his father was refunded by the officers to the Government Treasury under appropriate challan and it was noted in the acquittance roll. He submits that even the police witnesses have admitted that the pond work was executed and the wages were disbursed, thus, there is no evidence to say that the Government had suffered any wrongful loss or the petitioner has misappropriated any amount. 11.

Mr. Kabir submits that the entire case and the proceeding initiated by the police is an abuse of a process of law and motivated by malafides against the petitioner. He submits that those who were actually incharge and responsible and handling the money, were investigated, but never prosecuted. On the other hand, they have been made as star witness to the case.

12.

Mr. Kabir submits that the examination of the petitioner under section 313 of the Cr.PC was conducted in the perfunctory manner. He submits that only one compound question on the prosecution material was asked to the petitioner and that too was vague and did not give the petitioner a fair opportunity to explain the circumstances appearing in the evidence against him. He submits that the prosecution has examined altogether 21 witnesses and 43 voluminous and detailed documents were exhibited, none of these materials sought to be relied by the prosecution were at all put to the petitioner under section 313 of Cr.PC nor the petitioner was given opportunity to explain the circumstances that were sought to be created by the prosecution to justify conviction.

13.

Mr. Kabir submits that the Trial Court as well as the Appellate Court did not properly consider and appreciate the materials on record and wrongly convicted the petitioner.

14.

Mr. Sumit Karmakar, learned Public Prosecutor submits that the learned Trial Court as well as the learned Appellate Court considering the evidence available on record have properly convicted the petitioner. He submits that this Court sitting in the revisional jurisdiction cannot reappreciate the evidence. He submit that there is a concurrent finding of two Courts that the petitioner has committed the offence and thus, in the revisional jurisdiction the Court cannot come to an other findings. 15.

Mr. Karmakar, submits that admittedly the petitioner is a Government Servant and the work entrusted to the petitioner and the

petitioner has not denied regarding the entrustment of work, thus, Section 409 of Indian Penal Code is duly proved. He submits that it is the specific evidence of the PW.2that the money was handed over to the petitioner for disbursement and it is the specific case that the petitioner has maintain the attendance register who has worked for the excavation of the pond.

16.

Mr. Karmakar, submits that the prosecution has examined altogether 21 witnesses and 43 documents were exhibited and after scrutiny of the evidence and the documents, the learned Trial Court has categorically held that the petitioner has committed the alleged offence. He submits that the Prahdan could not be convicted as during the pendency of the case the Pradhan passed away and case against the Pradhan was filed forever.

17.

Mr. Karmakar, relied upon the evidence of PW.2 an submitted that, as per the evidence of PW.2 it is categorically stated that the petitioner was assigned to supervise the work and to take measurement for making payment for the work of the said Panchayat. He submits that PW.2 has also stated that the petitioner has prepared attendance sheet and acquittance roll for payment to the labourers for the said work.

18.

Mr. Karmakar, submits that PW.2 in his evidence has categorically stated that he has collected the fund of Rs.1,62,060/- from the Assistant Director and handed over to the petitioner who was directed to make payment in consultation with PRI members.

19.

Mr. Karmakar by referring exhibit-17 and exhibit-18, submitted that from the said documents, it is proved that the petitioner was entrusted with the duty and the same has not been denied by the petitioner during the cross examination.

20.

Mr. Karmakar, submits that during investigation specimen signatures of all suspects and the connected persons of the said work was obtained and was sent for expert report and on receipt of the expert report, the investigating officer find that the petitioner is involved in the matter and accordingly after obtaining sanction from the competent authority has filed charge sheet and during evidence the expert was examined and the report is duly exhibited and proved. 21.

Mr. Karmakar, submits that though, there is no documentary evidence that the amount was not handed over to the petitioner, but during the evidence, the witnesses have categorically stated that the amount was handed over to the petitioner. Mr. Karmakar submits that the case against the petitioner is duly proved and the learned Trial Judge has rightly convicted the petitioner and the learned Additional Sessions Judge has rightly affirmed the order of conviction. 22.

During evidence, the prosecution has examined altogether 21 witnesses including investigating officer and 43 documents were exhibited. In the judgment the learned Trial Court has relied upon all the evidence and the documents, but at the time of examination of the petitioner under section 313 of Cr.PC only six questions were asked to the petitioner which are as follows:

i.

Did you hear the evidence given by the witnesses of the prosecution ?

Ans: Yes.

ii. Listen I shall asking some questions on the basis of the evidence adduced by the prosecution to which you may or may not give any answer, but if you give answer to the questions, it may be used against you at the time of delivery of the judgment of this case . Do you understand ?

Ans: Yes.

iii. Listed prosecution witnesses deposed before this Court that you have manufactured and fabricated false documents in the name of others among whom some were dead at that point of time and by fabricating the documents you have misappropriated the Government money in digging a pond in the name of those innocent persons. What is your say in this regard ?

Ans: I am innocent.

iv. Do you want to say anything more regarding the alleged accusation against you in this case ?

Ans: No.

v. Listen do you want to file written statement under section 313 (5) Cr.PC in this case ?

Ans: No.

vi. Do you want to adduce any defence witness in this case ?

Ans: No.

23.

Section 313 of the Code of Criminal Procedure reads as follows: "313: Power to examine the accused :- (1).In every enquiry or trail, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary ; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filling of written statement by the accused as sufficient compliance of this section." 24.

In the case of Asraf Ali -vs- State of Assam reported in(2008) 16 SCC 328 the Hon'ble Supreme Court held that Section 313 of the Code of Criminal Procedure casts duty on the Court to put in an enquiry or trail question to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstances appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and

failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

25.

The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the Trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have cause miscarriage of justice or prejudiced. In the case of S. Harnam Singhvs- The State reported in 1976 CRLJ 913 the Hon'ble Court held that non-indication of inculpatory materials in its relevant facets by the Trial Court to the accused adds to vulnerability of the prosecution case. Recording of statement of the accused under section 313 is not a purposeness exercise.

26.

In the present case, while delivering judgment by the learned Trial Court has discussed the evidence of all twenty one witnesses as well as 43 exhibits and relying upon all the evidence and documents the learned Trial Court had convicted the petitioner for the offence under section 409/468/471 of the Indian Penal Code, but learned Magistrate while examining the petitioner under section 313 of the Cr.PC only one collective question with regard to the document and witnesses of the prosecution was put to the petitioner, but no question

with regard to each and every evidences and the document which was used by the learned Magistrate while convicting the petitioner was put to the petitioner. The petitioner has not been given opportunity to explain the incriminate document which the learned Magistrate as relied upon in the judgment. The learned Additional Sessions Judge being the appellate court has also ignored that the learned Magistrate while examining the petitioner under section 313 of the Cr.PC, the petitioner has not been given an opportunity to explain the evidences and the document relied by the Trial Court while convicting the petitioner.

27.

Section 313 of the Cr.PC itself declares the objects in explicit language that it is "or the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In the case of Jai Dev-vs- State of Pujab reported in (1963) 3 SCR 489 the Hon'ble Supreme Court held that the ultimate test in determining whether or not the accused has been fairly examined under section 342 would be to enquire whether, having regard to all questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If, it appears that the examination of the accused was defective and thereby a prejudiced has being caused to him, that would no doubt be a serious infirmity. 28.

In the present case, though, 21 witnesses have been examined and 43 documents has been exhibited and the learned Magistrate has considered all the evidence and document while convicting the

petitioner but has not put specific questions to the petitioner at the time of examination of the petitioner under section 313 of the Cr.PC. Thus, this Court finds that the petitioner was not given an opportunity to explain the incrementing materials relied by the prosecution and the petitioner was convicted.

29.

In this circumstances, this Court held that the examination of the petitioner under section 313 of the Cr.PC is defective and the petitioner has prejudiced as the petitioner could not get an opportunity to explain the materials relied by the learned Magistrate at the time of delivery of judgment.

30.

Though this Court held that the examination of the petitioner under Section 313 of the Cr.PC is defective but this Court is of further view that merit of the case can also be decided in the present revisional application.

31.

Exhibit 11 is the document wherein the amount of Rs. 1,62,060/- is paid to Assistant Director/ Nodal Officer (RGRP) being wages for farmers as per sanction order. The said document reveals that the amount is received by the Assistant Director, Agriculture, Mayabunder. The signature appearing in exhibit 11 was also sent for examination and it was found that the signature is of the Assistant Director only and there is no evidence that the said signature is being forged. Thus exhibit 11 proves that the amount of Rs. 1,62,060/- is received by Assistant Director, Agriculture, Mayabunder and not by the petitioner.

32.

Exhibit 16 is the Running Account Bill (first and final) maintained by Assistant Director, Agriculture and Soil Conservator Assistant, Mayabunder. The signature appearing in the said document was also sent for examination and it is found that the signature appearing in the said running Account Bill is of Assistant Director and Soil Conservator Assistant. Exhibit 16 also reveals that the amount of Rs. 1,62,060/- was received by the Assistant Director, Mayabunder and not by the petitioner.

33.

Exhibit 12 also reveals that the amount of Rs. 1,62,060/- was disbursed to the Assistant Director.

34.

Exhibit 39 is the acquittance roll for the month of January and February, 2007 for construction of MI Pond in the field of Jaganath Sikdar, Prafulla Nagar under RGRP wherein altogether 40 persons except in serial no. 22 have received the amount. Signatures appearing in exhibit 39 at serial no. 18 to serial No.40 except serial No. 34,35& 36 were sent for GEQD. In the said exhibit there is no signature of the petitioner is available. In the said document signature and stamp of Assistant Director and Pradhan, Gram Panchayat is appearing. In the said document it is recorded that the payment of the persons mentioned at serial No. 1 to 40 has been paid before me except serial No.22 and the certificate is issued by the Assistant Director, Agriculture. In exhibit 39 it also reveals that as regard the payment of serial No.22 i.e. Dhiren Mistry who is the father of the complainant (PW-1), the amount of Rs. 3770/- is deposited to the SBI being cheque

No. 25 date 05.07.2007. In the said document there is no signature of the petitioner is available. There is no document or evidence to establish that Exhibit-39, acquittance roll is prepared or signed by the petitioner though as per evidence of prosecution witness, the petitioner maintained attendance register and acquittance roll. Thus, it is clear that the petitioner is not involved with regard to payment to the farmers who worked for digging of MI Pond and maintained acquittance roll. 35.

Exhibit 28 is the letter issued by the Assistant Director, Agriculture to the Station House Officer furnishing information during investigation dated 14.11.2008. In the said letter it is categorically mentioned that "No specific order/receipt is available on the handing over of the amount of Rs. 1,62,060/- to Shri. M. Rama Rao, Surveyor against the excavation of MI Pond in the field of Shri Jaganath Sikder, R/o of Prafulla Nagar". Considering the vast locality of working jurisdiction the Soil Conservator Assistant and field staff along with Shri Ramesh Kumar, GCE was engaged in the disbursement of payment. From the said document it further proves that no document is available or produced during the trial to establish that any amount is given to the petitioner for disbursement of payment to the labourers. 36.

Exhibit-8 is the Order No.4 dated 27.11.2006 issued by the Assistant Director (Soil) Department of Agriculture, wherein the petitioner has been assigned the area Basantipur, Harinagar and Swadeshnagar. As per the said order the daily attendance and field register of the pond to be excavated in the Gram Panchayat and also to

maintain on daily basis and weekly progress of the work carried out will be verified by the committee members formed by the Administration for creation of water bodies. The prosecution has relied upon the said document and submitted that from the said document it is proved that the work was entrusted to the petitioner and thus, the Section 409 is attracted. This Court finds that, though the petitioner has been assigned the work of Basantipur Gram Panchayat, Hari Nagar Gram Panchayat and Swadesh Nagar Gram Panchayat. In the present case the work is connected with Basantipur Gram Panchayat. The said order does not reflect that the petitioner has been assigned the duty for receipt and disbursement of payment to the workers. The order particularly stipulates that the daily attendance and field register and the weekly progress work carried out will be verified by the committee members formed by the Administration. Thus, the Exhibit-8 does not prove that the petitioner has been assigned with the work of estimate, supervision, management or payment.

37.

During investigation, the police has seized the acquittance roll being Exhibit-39, wherein altogether name of 40 workers is appearing and out of which signature appearing from serial no. 18 to 40 except serial no.22,34,35 and 36 the question signatures were sent for expert opinion being Q 29 to Q 47, but there is no report that the said signatures are of the petitioner. The specimen signature of the petitioner is marked as S-22 to S-31 being Exhibit-40 and the admitted signature of the petitioner is marked as A-10 and A-11, but there is no

report whether Q 29 to Q47 is similar writing of S-22 to S-31 or A-10 to A-11. The prosecution has not produced any evidence to establish that the petitioner has either forged the acquittance roll i.e. Exhibit-39, wherein the payments were made to the labourers nor any document is produced to establish that the petitioner has misappropriated any amount.

38.

PW.2, Mr. C. Vinod Kumar who is also one of the employee of the Agriculture Department stated that he has collected the amount of Rs.1,62,060/- from Assistant Director and handed over the said amount to the petitioner for payment in consultation with PRI members, but there is no document to support the statement of PW.2 that at any point of time the amount was handed over to the petitioner, on contrary the document i.e. Exhibit-39 which is the acquittanceroll, wherein it shows that the payments were made to the labourers, in the said document the Assistant Director (Agriculture) had certified that the payment of the persons mentioned at serial no. 1 to 40 has been paid before him except serial no.22. Thus, the oral evidence of PW.2 is contrary to the documentary evidence.

39.

Mr. S.B. Singh is examined as PW.3, who is the Assistant Director (Agriculture) and during his evidence, he has stated that Ramesh Kumar, M.Rama Rao prepared Muster Roll of the job for making payment to the worker except one worker who died before receiving payment the remaining entire amount had been disbursed to the workers being identified by the Pradhan and Panchayat members

and one respectable person of the village. From the said evidence, it is proved that the petitioner has no role to play with regard to the identification of the workers and no amount is misappropriated by the petitioner.

40.

PW.7 is Mr. M. Ramesh Kumar, who was also the employee of Agriculture Department at that relevant point of time and during his cross examination he has stated that " it is fact that myself and Rama Rao did not know any of the labourers who were used to receive the payment and they used to be identified by Pradhan". He has also categorically stated that as regard the payment of Dhiren Mistry no payment was made to him.

41.

The allegation of the defacto complainant regarding the payment of Dhiren Mistry found to be totally false. From the evidence, it reveals that though the name of Dhiren Mistry is appearing in the Muster Roll, but the documentary evidence and the oral evidence proves that no amount is made to Dhiren Mistry and the amount of Dhiren Mistry is deposited back in the bank. From the evidence of PW.2, PW.3 and PW.7, shows that the petitioner did not have independent knowledge of the identities of the workers and has acted on the identification by the Pradhan and PRI Members.

42.

The prosecution failed to demonstrate that any Government property or funds were entrusted to the petitioner or the petitioner dishonestly misappropriated the same. PW.20 and PW.21 have admitted that the pond work was executed and wages disbursed, thus,

there is no wrongful loss to the Government. It is not the case of the prosecution, the work was not performed, but the amount was paid or the amount was misappropriated.

43.

This Court finds that the Trial Court as well as the Appellate Court have not considered the materials available on record and have wrongly come to the conclusion that the petitioner has committed an offence under section 468/471/409 of the Indian Penal Code. 44.

In view of the above, this Court finds that the prosecution is not been able to prove the case against the petitioner and thus, the prosecution case failed and the accused is entitled to be acquitted. 45.

The judgment passed by the learned Chief Judicial Magistrate, North & Middle Andaman, Mayabunder in G.R Case No. 878 of 2007 (T.R. No.1195 of 2010) in connection with FIR No. 62 of 2007 dated 30.08.2007 of PS Billiground under section 468/471/409 of the Indian Penal Code and the judgment passed by the learned Additional Sessions Judge, North & Middle Andaman, Mayabunder in Criminal Appeal No. 02 of 2024 dated 31.12.2024 are set-aside and quashed. 46.

The petitioner is acquitted from the case and discharged from bail bond.

47.

CRR 7 of 2025 is allowed.

(KRISHNA RAO, J.)