IN THE HIGH COURT OF JUDICATURE AT PATNA GOVT. APPEAL (SJ) NO.4 OF 2003 Against the judgment of acquittal dated 31.07.2002 passed by Sri Ram Chandra, Judicial Magistrate, Ist Class, Saharsa in Trial No.294 of 2002(G.R.Case No.573 of 1995). The State Of Bihar.... .... Appellant Versus Nagender Kumar Singh, Son of Bhairav Singh, Resident of village-Sonpura, P.S.Simri Bakhtiyarpur, District-Saharsa ------- Respondent With CRIMINAL REVISION NO. 978 OF 2002 1. Yogendra Prasad Yadav, Son of late Adhiklal Mandal, Resident of village and Post-Khamoti, Police station-Simri Bakhtiyarpur, ex-headmaster, Primary School, Mobarakpur, under Police station and Anchal-Salakhua, District-Saharsa. 2. Mohammad Rakibuddin, son of Mohammad Zahiruddin, Resident of Village-Madhuban, Post-Khamoti, Police Station-Simri Bakhtiyarpur, ex-headmaster, Primary Makhtab, Puraini under Police Station and Anchal- Salakhua, District-Saharsa. 3. Dhaneshwar Sharma, son of Shri Ramrup Sharma, Resident of village-Nayatola, Post-Bariyarpur, Police Station-Simri Bakhtiyarpur, presently functioning as Headmaster, Primary School, Goriyari, under Police Station and Anchal-Salakhua, District-Saharsa. 4. Kamleshwari Prasad Yadav, son of late Mauji Lal Prasad Yadav, resident of Village-Ramgeeliyan, Police Station-Simri Bakhtiyarpur, ex-Headmaster, Primary School, Ghordaur, under Police Station and Anchal-Salakhua, District-Saharsa. 5. Syed Akmal Ashraf, son of late Syed Mohsin Ashraf, resident of village-Makdumchak, Post and Police Station-Simri Bakhtiyarpur, Ex-Assistant Teacher, Urdu Middle School, Phensaha, under Police Station and Anchal-Salakhua, District-Saharsa. 6. Surendra Prasad Yadav, son of late Madhusudan Prasad Yadav, Resident of Village-Korlaha, Post-Harewa, Police Station-Salakhua, ex-Headmaster, Primary School, - 2 - Korlaha, under Police station and Anchal-Salakhua, District-Saharsa. 7. Mohammad Razaullah, son of late Mohammad Sagiruddin, Resident of Village, Post and Police Station-Simri Bakhtiyarpur, ex-Incharge Headmaster, Urdu Middle School, Pheasaha, presently functioning as Headmaster, Middle School, Gamroho, Police Station- Mahishi, Anchal-Mahisi, District-Saharsa. 8. Kumari Asha, daughter of Shri Satyanarain Prasad Yadav, Resident of Village and Post-Mobarakpur, Police Station-Salakhua, ex-Assistant Teacher, Primary School, Mobarakpur, presently functioning as Assistant Teacher, Simri Bakhtiyarpur, under Police station and Anchal-Simri Bakhtiyarpur, District- Saharsa. 9. Ram Prasad Singh, son of Shri Anuplal Singh, Resident of village-Bhoraha, Police station and Post-Simri Bakhtiyarpur, Ex-Headmaster, Primary School, Korlaha, under Police station and Anchal- Salakhua, District-Saharsa. .... .... Petitioners Versus 1. State Of Bihar through the Collector, Saharsa. 2. Nagendra Kumar Singh, son of late Bhairav Prasad Singh, Resident of Village-Sonepura, Post and Police Station-Simri Bakhtiyarpur, District-Saharsa(since dismissed)ex-Headmaster, Middle School, Gosepur, under Anchal and Police Station-Salakhua, District- Saharsa. .... .... Opposite Parties. For the Appellant: Sri S.N.Prasad, Advocate. For the Respondent: Sri Ratan Kumar, Advocate (In Govt. Appeal(SJ)No.4 of 2003) For the Petitioners: Smt. Nutan Sahay Amicus Curiae For the Opposite Parties: Sri Ratan Kumar, Advocate (In Cri.Rev.No.978 of 2002). P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The appeal has been preferred by the State of - 3 - Bihar to challenge the propriety of order of acquittal dated 31.07.2002 passed by Sri Ram Chandra, Judicial Magistrate, Ist Class, Saharsa in Trial No.294 of 2002(G.R.case No.573 of 1995)by which the learned Magistrate acquitted the solitary respondent Nagender Kumar Singh of the charges under Sections 419, 420, 429, 409, 467, 468 and 474 IPC holding that the prosecution was guilty of withholding the documentary evidence which was duly in its custody and had produced only the oral evidence which was not trustworthy. The State wants the order of acquittal to be upset with a further direction to the court below to retry the solitary respondent by passing an order of conviction against him and further passing the appropriate order of sentence against the respondent. The revision petition also seeks the retrial of the case on similar ground and for the same reliefs due to which the two connected matters have been heard together as indicated above and are being disposed of by this composite judgment. 2. It appears that joint and individual petitions were received by the District Magistrate, Saharsa alleging that the solitary respondent Nagender Kumar Singh, who was the Headmaster of Salkhua Guchcha(cluster) of schools and on that account was the drawing and disbursing officer of teachers and employees of different schools attached to that cluster of schools, by fabricating and forging - 4 - records, had withdrawn different sums of money under different heads, like, salary, bonus, provident fund and had without making payment to the real beneficiaries manipulated the records showing that the amounts had really been paid. It appears that the District Magistrate, Saharsa ordered an enquiry through the District Superintendent of Education, Saharsa and, accordingly, a report was submitted indicating that the respondent had indeed indulged into the acts complained of upon which Sri Nasim Akhtar, Block Development Officer, Salkhua was directed to file a report with the police. Accordingly, Salkhua P.S.Case No.52 of 1995 was drawn up and the investigation was taken up by the police. After close of investigation, the solitary respondent was sent up for trial and, accordingly, he was acquitted by the impugned judgment. 3. During the course of the hearing of the two connected matters, I was taken through the evidence of witnesses. It is useless to go to the individual evidence of witnesses which have been properly dealt with by the learned Magistrate as regards their claim of not having received the payment of different sums of money from the salary payment. If the court was to go by the oral testimony of as many as eleven prosecution witnesses, then the order of acquittal could not have been passed, but what appears the fallacy in the prosecution of the - 5 - respondent was that all the witnesses examined by the prosecution had admitted that different sums of money, which were claimed not paid to them or paid partially to them, were drawn through proper bills which bore the signatures of the beneficiaries as also the present respondent. Not only that the payments were duly entered into the acquittance roll and the signatures of the beneficiaries had to be obtained and had been obtained in case of all payments of any sum of money. Some of the witnesses stated that they had been paid part of the amount which they were entitled to and the respondent instead of obtaining their signatures in token of receipt of some of the money, had obtained the receipt from them on a plain paper over which a revenue stamp had been affixed to, but in spite of having known the rules that no payment could be acknowledged under law unless they had signed the acquittance roll, they were not raising any objection nor filing any complaint petition before any higher authority in respect of the misappropriation and forgery of records which was indulged into by the solitary respondent. Thus, what appears admitted from the evidence of witnesses was that there were definitely documents existing in possession of the prosecution which could have either proved or disproved the charges which were slapped upon the respondent. 4. While perusing the evidence of the witnesses - 6 - and considering the discussion of the same in different paragraphs of the impugned judgment what I came across was that the learned Magistrate has considered this aspect of non-production of the documentary evidence which could have been the only evidence in proof or non-proof of the charges. Not only that the learned Magistrate has also noted very carefully that if there was any allegation from the witnesses that the acquittance roll or the connected documents, like, the bills were not containing his or their signatures, then it was incumbent upon the prosecution to produce the evidence in that behalf that those connected documents were not bearing the signatures of the witnesses who were now claiming not to have received any payment or part of the payment. 5. After having gone through the evidence and discussion thereof by made the learned Magistrate in the judgment so as to recording the order of acquittal, what this court finds is that the learned Magistrate was acting as per the primary principle of evidence that where there was a documentary evidence available in proof or disproof of a fact, the prosecution was bound to produce that document so as to proving the charges. If the prosecution had failed in producing those documents, then it could be held guilty of suppressing the material evidence and an inference has to be drawn and it appears that the learned Magistrate has drawn an inference and thereby had held - 7 - that the charges were not proved. It appears a perfectly justified judgment passed by the learned Magistrate acquitting the respondent in the light of the evidence which was adduced during trial before him. 6. Considering the above, I find no demerit in the order of acquittal. It does not suffer from any perversity which may compel this Court to direct retrial of the solitary respondent. The appeal and the revision petition both fail and both are dismissed. 7. However, it is made very clear that if the solitary respondent had received any sentence in any domestic enquiry held properly then the present order of acquittal shall have no effect on that order of punishment passed upon the respondent. 8. In the light of the assistance which has been rendered by Smt. Nutan Sahay, Amicus Curiae, I recommend payment to her a fee of argument by the Patna High Court Legal Services Committee. Patna High Court, Dated, the 3rd day of November, 2011, Brajesh Kumar, NAFR ( Dharnidhar Jha,J.)