In a case that has risen from Civil dispute, involvement of criminality generally is not found: Jharkhand High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 10312 Ravi Shankar Kumar son of Sri Sangeet Prasad Singh Resident of Village Oraina P.S. Muffasil District NawadaAt present residing at Retired Colony Chakradharpur District West Singhbhum… … The State of Jharkhand Versus CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Through: Video Conferencing … … Opp. Party Petitioner 09 16.11.2021 1. Heard Mr. Yogesh Modi the learned amicus curiae appearing on behalf of the petitioner. 2. Heard Mr. Arup Kumar Dey the learned A.P.P. appearing on behalf of the Opposite Party State. The present criminal revision has been instituted on the basis of an application preferred by the petitioner directly from jail. There was delay of 19 days in preferring the criminal revision which was condoned vide order dated 04.01.2013. In the present criminal revision the legality and validity of the judgment dated 31.01.2012 passed by the learned 1st Additional Sessions Judge West Singhbhum at Chaibasa in Criminal Appeal No. 44 2011 is under challenge. The learned appellate court has confirmed the judgment of conviction and the order of sentence dated 07.04.2011 passed by the learned Chief Judicial Magistrate West Singhbhum at Chaibasa in G.R. Case No. 549 2009 arising out of Sadar P.S. Case No. 76 2009 and has dismissed the criminal appeal. The learned trial court had convicted the petitioner under Sections 406 and 427 of the Indian Penal Code and had sentenced him to undergo Rigorous Imprisonment for two years under Section 406 of the Indian Penal Code and Rigorous Imprisonment for one year under Section 427 of the Indian Penal Code. Both the sentences were directed to run concurrently and the period of custody was directed to be set Arguments on behalf of the petitioner Learned amicus curiae appearing on behalf of the petitioner submitted that the entire dispute in the present case arises out of civil dispute between the parties inasmuch as the case of the prosecution was that the petitioner being the Secretary of the NGO was entrusted with certain clothes for stitching skirts and shirts for school children. But upon measurement those skirts and shirts were not found fit as per the tender or specification given from the side of the prosecution. He submitted that the learned courts below have not recorded any finding regarding dishonest intention on the part of the petitioner rather the entire finding is in connection with entrustment and not discharging the work entrusted to the petitioner as per the specification. The learned amicus curiae submitted that in such circumstances the basic ingredients for offence under Section 405 of the Indian Penal Code which defines “criminal breach of trust” are missing and the entire dispute is in the realm of civil dispute. The learned amicus curiae further submitted that there were two categories one was for the students from Class V to VII and the other was for the students from Class VIII to X and while taking the measurement the petitioner was never informed and as per the records only one sample of skirt and shirt for each class was given under each of the category i.e. altogether four samples were given for measurement. He submitted that a number of skirts and shirts were stitched and measurement of one skirt and one shirt with regard to each category could not have led to the conclusion that the entire stock was not matching with the specifications of the tender. He further submitted that as per the evidence of P.W. 1 two persons namely Shekhar Pradhan and Badrinath Munda were entrusted for the purpose of measurement of finished dresses. But so far as the evidence of P.W. 6 Meghnath Gope is concerned who is said to have measured the clothes no such work of measurement was assigned. He submitted that the evidence of P.W. 6 is of no consequence as he was never directed to measure the stitched skirts and shirts. The learned amicus submitted that the aforesaid aspects of the matter have not been properly considered by the learned courts below and accordingly the impugned judgments are perverse and cannot be sustained in the eyes of law. The learned amicus curiae also submitted that there is no evidence on record to indicate as to what was the total length of cloth handed over to the petitioner and it is not the case of the prosecution that any portion of the length of cloth entrusted to the petitioner has been misappropriated by him. He also submitted that it is a simple case of entrustment of clothes for stitching and the final stitched items were not found satisfactory in terms of the parameters prescribed as per the contract between the parties and as such no criminality is involved in the present case. He also submitted that the entire prosecution case is based on the measurement taken at the back of the petitioner. Arguments on behalf of the Opposite Party State The learned A.P.P. appearing on behalf of Opposite Party State on the other hand opposed the prayer and submitted that the impugned judgments are well reasoned judgments based on the evidences on record and they are neither perverse nor illegal and no material irregularity has been indicated by the learned amicus curiae appearing on behalf of the petitioner calling for any interference in revisional Findings of this Court 10. The prosecution case is based on the typed report of Sanjay Kumar Thakur District Welfare Officer West Singhbhum at Chaibasa stating therein that an advertisement was published on 20.11.2008 in daily newspaper ‘Dainik Jagran’ inviting tender for stitching of half shirt full shirt half pant full pant and skirt for the students of Class I to X residing in the residential school hostel run under the welfare department for the Financial Year 2008 2009. In view of the tender the proposal of the NGO ‘Siddhant’ was accepted in terms of the conditions contained in the Office Letter No.1135 K dated 17.09.2009. The clothes worth of Rs.1 84 944 was made available to the NGO for stitching which was received by its Secretary namely Ravi Shankar and the NGO was directed to deliver the dresses to the B.D.O. Manoharpur and to obtain receipt from there and to submit the receipt in the office of the District Welfare Officer for needful. It was further stated that the dresses were stitched and 1150 pieces of shirts and skirts each were delivered to the B.D.O. Manoharpur by Binod the Office in charge of the NGO and bill of Rs.46 000 towards charge of stitching was produced before the District Welfare Officer West Singhbhum at Chaibasa. Thereafter the B.D.O. Manoharpur was directed to submit a report regarding the quality of the supplied materials. Subsequently the B.D.O. Manoharpur submitted its report that the stitched items were found below the required measurement and that the NGO saved the clothes during stitching and also damaged the clothes. 11. On the basis of the typed report the case was registered as Sadar P.S. Case No. 76 2009 under Sections 406 409 427 120(B) and 420 of the Indian Penal Code against the petitioner and one Binod Kumar. After completion of investigation charge sheet was submitted against the petitioner and investigation against Binod Kumar. On 19.03.2010 cognizance of the offence under Sections 406 409 427 420 and 120(B) of the Indian Penal Code was taken and thereafter charges were framed under the same sections to which the petitioner pleaded not guilty and claimed to be tried. In course of trial the prosecution examined altogether 11 witnesses to prove its case. P.W. 1 is Sanjay Kumar Thakur District Welfare Officer who is the Informant of the case P.W. 2 is Dilip Kumar Mukhiya Assistant posted at District Welfare Office Chaibasa P.W. 3 is Dinesh Jha Head Clerk posted at District Welfare Office Chaibasa P.W. 4 is Baidyanath Oraon Block Development Officer Manoharpur P.W. 5 is Uma Shankar Prasad In charge Block Welfare Office at Manoharpur Block P.W. 6 is Meghnath Gope who claimed himself as a tailor P.W.7 is Shekhar Pradhan who claimed himself as a tailor running his shop named ‘Puja Ladies Tailor P.W. 8 is Sikandar Prasad Yadav A.S.I. who brought the Material Exhibits finished clothes) before the trial court P.W. 9 is Badri Nath Singh Munda Choukidar Welfare Office at Manoharpur Block P.W. 10 is Shyam Sundar Mandal A.S.I. who Investigating Officer of the case and P.W. 11 is Dhaneshwar Pahan who is an employee of District Welfare Office. 13. After closure of prosecution evidence the statements of the petitioner were recorded under Section 313 of Cr.P.C. wherein he denied the incriminating evidences put to him and further denied to have caused any loss or damage to the Government and also denied any act of conspiracy in the matter. He stated in his defence that he had obtained information from different departments under the Right to Information Act 2005 on the basis of which he has filed complaints before the Hon’ble Lokayukt Jharkhand. On 30.11.2009 the D.C. Chaibasa had admitted the allegations and informed him that his predecessor had adopted irregularities in connection with the development funds. Out of 10 complaints 9 are still pending. He further stated that he had filed two writ petitions and P.I.L. before the Hon’ble Jharkhand High Court. Due these reasons local district administration became biased and instituted the present false case against him. The petitioner did not adduce any evidence in his defence. 14. The learned trial court considered the materials on record and recorded its findings that the petitioner received bundle of clothes entered in the Stock Register maintained at the office of the District Welfare Officer Chaibasa and he and his N.G.O. was entrusted to complete the work for supplying the finished school dresses for which a valid tender was advertised in ‘Dainik Jagran’ daily. The trial court recorded that the material exhibits brought on record by P.W. 8 and evidences of two tailors P.W. 6 and P.W. 7 clearly proved the fact that the school dresses supplied by the petitioner and his N.G.O. were short in size what was required in terms of the advertisement tender. Therefore a case of criminal breach of trust was established beyond all reasonable doubts. The learned trial court further recorded that a considerable loss and damages to the property of the Government has been caused by the conduct of the petitioner and his N.G.O. The learned trial court convicted the petitioner under Sections 406 and 427 of the Indian Penal Code and sentenced him as mentioned above. However the learned trial court acquitted the petitioner from the charges under Sections 409 120(B) and 420 of the Indian Penal Code. 15. The learned appellate court also considered the materials on record and recorded its findings at Para 6 which read as The base of the case is the measurement of clothes made by two tailors. The evidence of those of the tailors have been recorded as P.W. 6 and P.W. 7. They have categorically stated that the sample of two pieces of stitched shirt and skirt were brought before them which were not found as per their measurement and PW 3

Summary: The case arose out of a commercial transaction between the parties, the same had no bearing in the matter so long as the basic ingredients of the offence were satisfied in the case. Such an opinion was held by The Hon’ble High Court of Jharkhand before The Hon’ble Mrs. Justice Anubha Rawat Choudhary in the matter of Ravi Shankar Kumar Vs. The State of Jharkhand [Cr. Revision No. 1031 of 2012].  The facts of the case were associated with an application for criminal revision by the petitioner directly from jail. The said application was filed to challenge the legality and validity of the judgment passed by the learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa dated 31.01.2012. According to the said impugned judgment, the learned Chief Judicial Magistrate had dismissed the criminal appeal. The petitioner was convicted under Sections 406 and 427 of the Indian Penal Code by the learned trial court. The Trial court had sentenced him to undergo Rigorous Imprisonment for two years under Section 406 and Rigorous Imprisonment for one year under Section 427 of the IPC. Amicus curiae for the petitioner submitted that the petitioner’s entire dispute case arose from a civil dispute between the parties. The petitioner was the Secretary of the NGO and was entrusted with stitching clothes for school children. As per the tender, the clothing was not found fit. He also submitted that nothing on record was found regarding the dishonest intention on the part of the petitioner by the courts below. The amicus curiae also stated that no evidence was found regarding the total length of cloth handed over to the petitioner. He submitted that no criminality was found in the instant case. He contended that the whole case was based upon the measurement taken at the back of the petitioner. The counsel for the opposition stated the impugned judgments were well reasoned and were based on proper evidence and no material irregularity was indicated.  Considering all the facts, The Hon’ble Court stated that “… This Court finds no illegality or material irregularity or perversity in the impugned judgments calling for interference under revisional jurisdiction. Accordingly, the judgment of conviction and the order of sentence passed by the learned trial court and confirmed by the learned appellate court is upheld and the present criminal revision is hereby dismissed.”