STATE OF GUJARAT Vs. DINKARBHAI RAMJIBHAI THAKKAR

JUDGEMENT

(1.) THE appellant State has preferred this appeal under Section 378 of the Code of Criminal Procedure and challenged the judgement and order of acquittal passed by learned Chief Judicial Magistrate, Surat, on 20.8.1999 in Criminal Case No. 6520 of 1993 acquitting the respondent-accused for the offence punishable under Section 409 of Indian Penal Code.

(2.) ACCORDING to the prosecution case, Hamirsinh Deepsinh Vasaiya lodged a complaint before Bardoli Police Station on 21.10.1991 alleging that he was serving as Postal Superintendent in Bardoli Division at Bardoli since last two years and at about 16 hours accused came to him and informed him that on 19.10.1991 when he was going to deposit Rs. 90,000/- at Bajipura Post Office from Bardoli Post Office, when he went to answer natural call leaving the bag with the amount in the truck, the truck in which he was travelling left and his bag containing the amount remained in the truck and he does not know truck number. On receiving this information, he made a telephone call to Bajipura Post Office and Sub-Post Master there informed him that the accused has not given the amount at the Bajipura Post Office. On verification from the Head Post Office it was found that the accused withdrew Rs. 90,000/- on 19.10.1991 to deposit at Bajipura Post Office. On enquiry about the amount with the accused, he gave evasive reply. Therefore, complaint was filed against the accused for criminal breach of trust.

(3.) IT appears from the impugned judgement that the trial Court recorded acquittal of the respondent-accused on the ground that sanction to prosecute the accused was not obtained as required under Section 197(1) of the Code of Criminal Procedure. Under Section 197(1) of the Code when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of Central Government in case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union. In the present case, it appears from the allegations made in the complaint Exh. 15 that the respondent-accused was a Divisional Postal Inspector appointed in the Postal Department. Therefore, the respondent-accused was employed in connection with the affairs of the Union. The allegations made in the complaint also indicate that on the day of incident the accused in discharge of his official duty of taking the amount from Bardoli Head Post Office to Bajipura Post Office was entrusted with Rs. 90,000/- but did not deposit the amount with Bajipura Postal authority and thereby allegedly committed criminal breach of trust in respect of the amount entrusted to him. In order to prove the entrustment, the prosecution has examined PW-1 Hamirsinh Deepsinh Vasaiya at Exh. 14. The witness at the relevant point of time was working as Superintendent of Post Office at Bardoli Division in the Postal Department and the accused was working as Sub-Divisional Inspector. The evidence further indicates that on the day of incident, amount of Rs. 90,000/- was entrusted to him to send it to Bajipura Post Office but the amount was not received by Bajipura Post Office. The witness has been cross-examined by the accused. In the cross-examination, question was put to the witness that whether he is aware that sanction of the Department is required to be obtained to initiate criminal proceeding for any act committed while discharging the official duty. The witness in the reply has stated that as he was Superintendent of the Post Office, he was not required to obtain any sanction.