Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1918 of 2009 =========================================================== Ram Ekbal Singh S/o Ram Karan Singh, resident of village- Shekhpura, P.S.- Karpi, District- Jahanabad. .... .... Petitioner Versus State of Bihar .... .... Opposite Party. =========================================================== Appearance : For the Petitioner/s : Mr. Binod Kumar Pandey For the Respondent/s : =========================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH) 9. 19.01.2012 Heard learned counsel for the petitioner and learned A.P.P. for the State. This Revision application is directed against the order and judgment dated 19.11.2009 passed in Cr. Appeal No.38/06/03/2006 by the Additional Sessions Judge, 1st, Aurangabad by which the order and judgment of conviction and sentence awarded to the petitioner dated 27.03.2006 by the Judicial Magistrate 1st Class, Aurangabad in G.R. Case No. 1852/93/ Tr. No.1759/06 arising out of Deokund P.S. Case No. 25/93 under [STATUTE] ., by which the petitioner has been sentenced to undergo three years rigorous imprisonment and also pay fine of Rs.5000/- and on default to undergo further period of imprisonment of nine months, has been upheld. Learned counsel for the petitioner has submitted that in the present case as per the requirement of law the guilt of the petitioner has not been proved beyond the reasonable doubts and as such, the benefit of doubt should be given to the petitioner. Learned counsel submits that the ingredients required for holding person guilty for the offence punishable under [STATUTE] . are not fulfilled in the present case. There were charges of embezzlement against the petitioner and that he did not hand over charge of the post from which he was suspended. Learned counsel for the petitioner submits that only the Tax Collector had allegedly that his personal diary bore the signature of the Patna High Court CR. REV. No.1918 of 2009 dt.19-01-2012 2/4 petitioner, who was the Revenue Inspector at the relevant time but the same was never proved as to whether it is the signature of the petitioner or not. It is further contended that during investigation and trial it has come in the statement of the witnesses that even when the petitioner was suspended, money was paid to him, which according to him falsifies the case. He further submits that such trial was held without there being verification or expert opinion. The receipt or the signature without such verification could not be relied upon for proving the charges leading to conviction. The next contention of the learned counsel of the petitioner is that the Almirah, in which the documents relating to certain charges were kept, was broken and the documents relating to such charges were missing but it is only a presumption of defalcation and in the absence of such documents there cannot be any question of defalcation. Learned counsel submits that initially a report was called for from the Treasury but the same was not received and still in its absence, final judgment was passed. Learned counsel submits that there has been no audit and without the same, reaching to the conclusion about defalcation for any amount is untenable in the eyes of law. Earlier by order dated 4.8.2011 the case was admitted and the records were called for from the Court below, and the same have since been received. Learned counsel for the petitioner submits that PW 1, who is Mahanth Bhai Vidyapari, in his cross examination, stated that he did not disclose before the police that the money, which he handed over to anyone in turn was handed over to the petitioner. P.W.2 namely, Anirudh Pd. Singh, only says that the occurrence is of three years back but he himself does not have any knowledge about the petitioner that he had taken money. P.W. 3, namely, Shyam Narayan Tiwary, who is also informant, admits in his cross examination that the petitioner had not deputed anyone to take charge from the petitioner. Thus, learned counsel for the petitioner submits that the charge is of general nature and itself stands falsified and disproved from the cross examination of the informant himself. P.W. 4. namely, Tulsi Prasad Singh, who is Tahsildar, in his Patna High Court CR. REV. No.1918 of 2009 dt.19-01-2012 3/4 deposition has not stated anything against the petitioner. P.W.5, namely, Gyan Dayal Mistri, who is also an employee has only suggested that he had handed over certain revenue amounts to the petitioner during suspension period. At this juncture the learned counsel for the petitioner submits that the admission by the several witnesses that the petitioner was given certain amounts during suspension period stands falsified as there is no explanation as to why during suspension period the petitioner was given Government money collected from the public and thus deposition of P.W. 5 showing receipt given by the petitioner stands falsified. P.W. 6, namely, Deonarayan Singh, who was the Revenue Collector has also stated that he was not aware of any defalcation. P.W. 7, Sudhir Kumar Thakur, who was the Circle Officer has not stated anything incriminating against the petitioner. P. W. 8, Siyaram Singh, who was the Revenue Inspector, has also stated that how much the petitioner had received and from whom could not be said. Learned counsel for the petitioner in support of his contention has relied on the decision rendered in the following cases:- i) Dilbagh Singh Vrs State of Punjab reported in 2003 Cr. L. J. 2466, the relevant being at para-6 where the proposition is that in absence of audit being done, there cannot be any certainty about genuineness of the records and the case cannot be proved beyond doubt. The Court, thus, acquitted the accused. ii) Dine Nath Singh vrs. State of Bihar, reported in 2003(1) PLJR (SC) 284 in which the proposition is tha

Applicable IPC Section: 409

Statute Text:
Section 409 of the Indian Penal Code. Criminal breach of trust by public servant or by banker, merchant or agent, etc. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.