N.C. Mukherji, J.
1. Criminal Appeal No. 441 of 1973 arises out of Special Court Case No. 6 of 1967 against an order of conviction and sentence passed by Shri S. K. Ghosh, Judge, Special Court, Nadia, dated 30-7-73 under Section 409 I. P. C. sentencing the appellant to suffer r. i. for 2 years and to pay a fine of Rs. 8.000/-, in default, to suffer r. i. for another term of 2j years. Criminal Appeal No. 442 of 1973 arises against an order of conviction and sentence passed in Special Court Case No. 1 of 1968 passed by Shri S. K. Ghosh, Judge, Special Court, Nadia, dated 31-7-73 sentencing the appellant to suffer r. i. for 2 1/2 years and to pay a fine of Rs. 1200/- in default, to suffer r. i. for another term of 3 years. The accused was also sentenced to suffer r. i. for one year under Section 468 I. P. C. on each of the two counts, and to pay fine of Rs. 500/- on each of the two counts, in default, to suffer r. i. for another term of 3 months on each count. It was ordered that the substantive terms of imprisonment will run concurrently.
2. The prosecution case in Special Court Case No. 6 of 1967 is as follows : - During the period from 16-12-62 to 30-3-63 accused Kalyan Kumar Lahiri was at the material time an Assistant Revenue Officer of Birnagore under the Sub-divisional Officer, Ranaghat. His duties included realisation of different kinds of Government loans, such as Agricultural loan, cattle purchase loan, Artisan loan, Fertiliser loan, House Building loan and other loans from the debtors and depositing the money in the Ranaghat Branch of the State Bank of India. During the period from 16-12-62 to 30-3-63 the accused realised a total sum of Rupees 12753.17 paise from the various loanees as per 6 duplicate carbon receipt books. But, instead of depositing the entire money with the above Bank or crediting it to the Government, committed criminal breach of trust in respect of Rupees 11070.56. Shri B. N. Mondal, the then Subdivisional Officer of Ranaghat, lodged a written F. I. R. on 4-4-64 with Ranaghat Police Station alleging Criminal misappropriation of Government money by the accused. The police received the said F. I. R. on 12-4-64, started a case and took up investigation. Documents were seized. Witnesses were examined. The accused was arrested. Specimen writings and signature along with the questioned writings were sent to the handwriting expert. A prima-facie case was made out under Section 409 I. P, C. A Government order allotting this case to the Special Court was obtained. A complaint was filed to the said court by the Public Prosecutor on 9-8-67, The police submitted charge-sheet after several witnesses were examined. A charge was framed by the learned Judge under Section 409 I. P. C.
3. The accused pleaded not guilty. He admitted realisation by him of the entire amount in question. But totally denied the misappropriation. According to him, he deposited the entire amount in the State Bank of India, Ranaghat Branch, in instalments, sometimes personally and sometimes through his peon Abhimanyu, since deceased. The learned Judge found that the accused committed criminal breach of trust in respect of Rs. 4322.84 and convicted and sentenced him as stated above. Being aggrieved by the aforesaid order of conviction and sentence the present appeal has been filed.
4. The prosecution case in Special Court Case No. 1 of 1968 is that from the period between 21-12-61 to 30-3-62 the accused realised a total sum of Rupees 8637.00 from various loanees of Betai collection Block under 5 duplicate carbon receipt books. But, instead of depositing the said amount in the Bank or crediting it to the Government, misappropriated the same after forging some of the pages of the said D. C. R. books on 24-1-62 and 8-2-62. A written F. I. R. was lodged by Shri B. Bakshi, Officer-in-charge of Loans, Krishnagore, on 25-9-63 with Tehatta Police Station. The police started a case, seized documents, examined witnesses, arrested the accused, took specimen writings and signature along with the questioned writings and sent the same to the handwriting expert. A Government order for allotting the case to the Special Court was obtained on 16-1-68. A complaint was filed by the Public Prosecutor on 16-1-68. In all 94 witnesses were examined by the prosecution in support of their case. On the materials on record a charge of criminal breach of trust under Section 409 I. P. C. in respect of Rs. 8637.00 and another for forgery for the purpose of cheating under Section 468.1. P. C. on two counts were framed by the learned Special Judge.
5. The accused pleaded not guilty. He admitted realisation by him of the entire amount in question. But, totally denied the misappropriation. According to him, he duly deposited the entire money with the Bank to the credit of the Government and produced the relevant challans before the Loans Officer. He denied to have forged any D. C. R. book. The learned Judge found that the accused committed criminal breach of trust in respect of a .sum of Rs. 6337.04. He also found that the accused was guilty of forgery on two counts. In that view of his finding, the learned Judge convicted and sentenced the appellant as stated above. Being aggrieved, the present appeal has been filed.
6. We shall first take up Criminal Appeal No. 441 of 1973. It has been proved by the prosecution that the accused at the relevant time was a public servant. It has also been proved by P. W. 3 and the loanees that he was entrusted with the amounts as stated by the prosecution. In fact, the matter of entrustment has not been denied by the accused. The prosecution states that the amounts were not deposited with the State Bank which the accused was bound to deposit while it is the case of the accused that the entire amount with which he was entrusted had been deposited by him. The prosecution case as has been stated earlier is that the accused fealised a total sum of Rs. 12753.17 and if not depositing the entire sum he committed criminal breach of trust in respect of Rs. 11070.56. The learned Judge, however, found on evidence that the accused committed criminal breach of trust in respect of Rupees 4322.84. The prosecution mainly relies on the evidence of P. W. 3 who was at the relevant time Deputy Collector, Loans Department of the Office of the S. D. O. at Ranaghat. P. W. 3 proves the challan numbers with dates appearing at the top of each page of the D. C. R. books in question being written by the accused. It is contended by Mr. Mukul Gopal Mukherji, learned Advocate appearing on behalf of the appellant, that if the evidence of P. W. 3 is left out of consideration, then it must be said that the prosecution has not succeeded in proving the case against the accused. Mr. Mukherji contends that P. W. 3 died on 12-9-69 before he could be called for cross examination after the framing of the charge on 29-4-69, In such circumstances, the evidence given by P. W. 3 in his examination in chief before the framing of the charge is not admissible according to the provisions of Section 33 of the Indian Evidence Act, Mr. Mukherji submits that it is true that the accused declined to cross examine the witness before the framing of the charge. But, even then the evidence of such a witness is not admissible under Section 33 unless the accused had a right and opportunity 'to cross-examine the witness after the framing of the charge. In support of his contention Mr. Mukherji relies on several decisions. He first refers to a decision reported in : AIR1954Cal395 (Brahmachari Ajitananda v. Anath Bandhu Dutt). In this case, it has been held
In order that the evidence of a witness in the earlier proceeding be admissible under Section 33, Evidence Act, one of the conditions is that the opposite party should have had right and opportunity to cross-examine him.
It was further held
On a consideration of the provisions of Chapters 18, 20, 21 and 23, it is clear that in a Warrant, Case an accused has no right to cross-examine before charge. His right to cross-examine prosecution witnesses arises after charge. Where in a prosecution under Section 420, I. P. C, the complainant dies before charge after his examination but without being cross-! examined, it cannot be said that the opposite party had the right to cross-examine the complainant before he died. Therefore, the complainant's evidence given before charge is inadmissible under Section 33, Evidence Act.
Mr. Mukherji next relies on a decision reported in : AIR1950Cal435 (S.C. Mitter v. The State). It has been held, in this case that
the accused has no right to cross-examine the witness before framing of the charge within the meaning of Section 33, Evidence Act.
The next case relied on by Mr. Mukherji has been reported in (1952) 57 Cal WN 69 (Arabinda Dey v. State), It has been laid down that
the deposition of a witness in the Court of the Committing Magistrate is admissible provided, that the adverse party in the first proceeding had the right and opportunity to cross-examine in such proceeding. Where the accused had no right to cross-examine, the deposition does not become admissible under Section 33 of the Evidence Act, because there was cross-examination.
Mr. Mukherji lastly relies on a decision, reported in : AIR1959Cal677 (Sanatan Daw v. Dasarathi Tah). In this case, it has been held that
the evidence given by a witness in examination-in-chief before framing of a charge in a warrant case is not admissible if the witness could not be produced for cross-examination.
7. Mr. D. P. Dutta, learned Advocate appearing on behalf of the State, submits that the accused had the right and opportunity to cross-examine the witness before framing of the charge. But he chose not to cross-examine him. This being the position, it must be said that the evidence of P, W. 3 is admissible in evidence under Section 33 of the Evidence Act. In support of his contention Mr. Dutta relies on a decision, reported in : 1973CriLJ687 (Jose v. State of Kerala). In this case, one of the witnesses was laid up with paralysis at the relevant time and he was not in a position to attend the Court and give evidence. The learned Sessions Judge marked his deposition before the committal court as an Ext.'' and treated it as substantive evidence, The High Court also considered this matter and upheld the order of the Sessions Court treating the deposition as substantive evidence. The learned Judges of the Supreme Court were in agreement with the High Court on this point. Mr. Dutta next relies on a case reported in : 1974CriLJ1171 (Mulkh Raj Sikka v. Delhi Administration); In this case, it has been held that
where in a Sessions trial, the witness] whose deposition recorded by the committing', Magistrate was sought to be brought on record, could not be found in spite of reasonable steps taken, including the one taken by the High Court during the hearing of appeal, and further although the accused had a right to cross-examine that witness in the committing Court, the counsel had preferred not to cross-examine at that stage and had reserved it for the Sessions Court, both the conditions of Section 33 were satisfied and the evidence of such witness recorded in a committal court was admissible in sessions, trial.
In our opinion, the principle laid down in the cases cited by Mr. Dutta has no application to the facts of the present case. On a consideration of the principle laid down in the cases cited by Mr. Mukherji we are in agreement with him and hold that the evidence of P. W. 3 is not admissible in evidence. In such circumstances, we are left only with the evidence of P. W. 22 who has proved the challan ' register and P. W. 131-a State Bank employee who has proved the scroll book. P. W. 22 was not examined by the I. O. On a close scrutiny of the evidence of P. Ws. 22 and 131 we are of opinion that it will be risky to convict the accused relying on the evidence of P. Ws. 22 and 131 in the absence of anything else. In the result, the order of conviction passed against the accused cannot be upheld and he should be acquitted of the charge.
8. Now, we shall take up Criminal Appeal No. 442 of 1973. As has been stated earlier, in this case the accused has been convicted under Sections 409 and 468 I. P. C. As in the other case, in this case also the prosecution has succeeded in proving that at the relevant time the accused was the Assistant Revenue Officer, that is, a public servant. It has also been satisfactorily proved and the fact is not denied by the accused, that he was entrusted with the amount which he collected from different loanees. The further allegation of the prosecution is that he committed criminal breach of trust in respect of Rs. 8637.00. The learned Judge, on evidence, found that the undeposited amount was to the tune of Rs. 6337,04 and the learned Judge further found that the accused committed criminal breach of trust in respect of the said amount. Mr, Balai Chandra Roy, learned Advocate appearing on behalf of the appellant, contends that P. Ws. 11 and 90 do not say anything about the writings of the accused on the D. C. R. books. It is only P, W. 33 who comes forward to prove the writings of the accused. When the other two employees of the same Office did not ; say anything about the writings of the accused on the D, C. R. books, it will be risky to rely on the uncorroborated evidence of P, W. 33. Mr. D. P. Dutta, learned Advocate appearing on behalf of the State, on the other hand, submits that there is absolutely no reason why P. W, 33 should be disbelieved. P. W. 33 at the relevant time worked in the Loans Department of Nadia Collectorate, It is his evidence that he was working there for. about 25 years. He very well knew the accused. Pie was an Assistant Revenue Officer in Betai Block within Tehatta Police Station. He, in details, enumerates the duties of the Assistant Revenue Officer. He proves the entries in the Register-marked X/22 for identification which are in his own handwriting. The entries have been marked collectively as Ext. 31. He proves the 5 dated signatures as of the accused. It is his evidence that ha knew the handwritings and signatures o! the accused. The five dated signatures have been collectively marked Ext. 31/1. The witness proves a number of carbon copies of the receipts contained in the duplicate carbon receipt books being in the handwriting of the accused. This witness further proves that in the duplicate carbon receipt books the note about the challan number with date at the top are in the handwriting of the accused. Nothing has been elicited in cross-examination, from which it can be said that the accused did not state correctly when he proved a number of writings and signatures of the accused on D. C, R. books and also the writings and signatures at the top. Thus, the challan Nos. with date, written by the accused in Ms own hand at the top of each page of the D. C. R. books in question, purport to show that the entire amount of Rupees 8605/- was deposited by him with the Bank by different challans on 8 different dates of 29-12-61, 3-1-62, 8-1-62, 10-1-62, 24-1-62. 8-2-62, 12-3-62 and 30-3-62. But, it transpires from the Bank's scroll (Ext. 189) that no deposit of any money was made by the accused with the said Bank on 3 of the above dates, that is, 24-1-62, 8-2-62 and 30-3-B2. It further transpires from the said scroll of the other five dates that the accused actually deposited In the Bank in his capacity as A. R. O., Tehatta or Betai, a total sum of Rs. 4400.73. out of it Rupees 2267.96 relates to or forms part of the disputed sum of Rs. 8605.00. It was contended before the learned court below on behalf of the accused and it has again been contended before us that the scrolls which were produced from the Bank were not the original scrolls and as such reliance ought not to have been placed on the said scrolls. It is true that the scrolls which have been exhibited are not the original ones, sent by the Bank to the Treasury. But those were duly certified by the competent Bank authorities to be the true copies and as such admissible in evidence under the Bankers' Books Evidence Act to the same extent as its original itself. There is nothing to show that the certified copies of the scrolls (Exts, 182 to 189) are defective or wrong in any way. It is true that as regards the challan numbers with dates appearing at the top of the pages of D. C. R. books the handwriting expert (P. W. 94) did not examine those portions of the D. C. R. books and as such, did not express any opinion thereon. But, as has been stated earlier, the learned Judge did not find anything to disbelieve the evidence of P. W. 33 and we also do 'not find any. P. W. 33 proves the entries in the challan register and states that the deposits were not made by the accused. It is true that it appears that in all the D. C. R. books in question there is an endorsement 'checked' at the end of each of the books by P. W. 90, the Loans Deputy Collector. But, for the fact stated earlier, it must be said that checking was done perfunctorily/ The checking was not confirmed by any genuine duplicate or triplicate copy of the challans received by the Treasury and through it the Loans Office from the Bank. P. W. 91 who was an assistant in the Krishnagore Branch of the State Bank of India produced the scrolls which were called for from the Bank covering 8 dates. It is his evidence that the agent had sent the certified copies of the scrolls for 8 days, that is, 29-12-61, 3-1-62, 8-1-62, 10-1-62, 24-1-62. 8-2-62, 12-3-62 and 30-3-62. He proves these scrolls which are Exts. 182 to 189. It is his further evidence that when any amount is deposited by Government Officer, his designation is also noted in the scroll under the heading 'particular'. The defence suggestion that the scrolls may be incorrect or that the other scrolls have been withheld is without any basis and cannot be accepted. For the reasons stated above, we are in agreement with the learned Judge that in this case, the prosecution has succeeded in proving that the writings at the top of the D. C. R. books are in the handwriting of the accused under his signatures and that the accused for the purpose of misappropriating the Government money made false entries at the top of the D. C. R. books. He had, therefore, been rightly convicted under Section 468 I. P. C. We also find that the accused committed an offence under Section 409 in respect of a sum of Rs. 6337.04 and as such, he was rightly convicted under Section 409 I. P. C. We are conscious of the fact that the incident took place towards the end of 1961 and the beginning of 1962. The Special Court Cases started in 1968. The appeal in this Court was filed in 1973. Taking into consideration these facts we are inclined to reduce the sentence.
9. In the result, Appeal No. 441 of 1973 is allowed. The order of conviction and sentence passed against the accused is set aside. The accused is found not guilty of the charge under Section 409 I. P. C. and is acquitted. Appeal No. 442 of 1973 is dismissed. The order of conviction passed by the learned Judge under Sections 409 and 468 I. P. C. is upheld. The sentence is reduced. The accused is sentenced to R. I. for six months under Section 409 I. P. C. and to pay a fine of Rs. 6000/-, in default, to R. I. for one year. Under Section 468 I. P. C. the accused is sentenced to R. I. for six months. The substantive sentences of imprisonment will run concurrently. The accused is directed to surrender to his bail-bond and to serve out the sentence.
Sudhindra Mohan Guha, J.
10. I agree.