STATE OF MAHARASHTRA Vs. SAHADEO SITARAM BHAIP

JUDGEMENT

(1.) THIS is an appeal against the order of acquittal passed by the learned Judicial Magistrate, First Class, Malvan, District Ratnagiri, dated the 28th of June, 1947, acquitting the original accused, a Police Head Constable (at Rajapur) under sections 409, 468 and 477-A of the Indian Penal Code. Mr. Kamat, the Public Prosecutor, appearing on behalf of the State, pointed out to me that there are certain salient aspects of the case which require consideration by this Court to set aside the order of acquittal. He drew my attention to (Exh. 6) (page 27), the charge levelled against the accused person and stated that these charges were levelled after investigating the case on a written complaint supposed to have been filed by one Gunaji Bhau Kadam, Police Patil of Zarya, Taluka Rajapur, District Ratnagiri. The facts of the prosecution case are very simple. The accused at the relevant time, viz., between 1-1-1971 and sometime in 1973, was working as a Police Head Constable at Rajapur Taluka Police Station, District Ratnagiri; that it was part of the duty of this Police Head Constable, the accused, to pay the honorarium to various police patils, about 155 in number, who are the police patils of the various villages in the Taluka of Rajapur. The practice of payment of honorarium to the police patils was for every quarter. The quarters were 1.1 to 31.3, 1.4 to 30.6, 1.7 to 30.9 and 1.10 to 31.12. It is the case of the prosecution that for the quarter 1-1-1971 to 31-3-1971, the payments were required to be made to five police patils of five villages at the rate of Rs. 75/- each and according to the bill prepared, which has not been produced by the prosecution, there was one bill prepared for all the 155 police patils to be paid for the said quarter. It is further the case of the prosecution that on 4-5-1971 the accused, who was in-charge for these payments, had prepared two documents, viz., (1) an entry in the day-book, (Exh. 13), showing payments to five police patils at the rate of Rs. 75/- each, totalling Rs. 375/-. In these police patils one of the person names mentioned is Gunaji Bhaurao Kadam, police patil of village Zarye, Taluka Rajapur. According to the prosecution, a voucher was also prepared for the payment to these five police patils, but that voucher though was for Rs. 375/- as payment to five persons, only contained four names of four police patils and the name of Gunaji Bhaurao Kadam does not appear in that voucher, though the name of Gunaji Kadam appears in the daily entry, i.e., the day-book. Having had a complaint lodged by Gunaji Bhaurao Kadam bearing the date of 1st October, 1971 but actually received at the Rajapur Police Station on 2-11-1971, the matters were investigated against the accused Police Head Constable and after completing the investigation the accused was charge-sheeted under sections 409, 468 and 477-A I.P.C. as mentioned above. The accused was tried before the Judicial Magistrate, First Class, where various witnesses were examined. The important witnesses were, P.W. 1, Vishwasrao (page 37), P.W. 3 Shelar (page 53) Police Constable and P.W. 4 P.S.I. Wanjari (page 67). Mr. Kamat took me through the evidence of Police Head Constable Krishna Shelar (p. 56) and pointed out to me the regular practice as to how the payments were made, how the entries were made and how the accused was required to maintain accounts in respects of payments made to police patils every quarter. He drew my attention to (Exh. 11) (p. 45), the original complaint dated 1st October, 1971, an application of Gunaji Bhaurao Kadam presented before the police. He submitted that on receiving this complaint investigation was started and having come to notice the discrepancy between the daily-book and the voucher and where they found the amounts had tallied but the name of the complainant not having been found in the voucher it was thought desirable to prosecute the accused. It was pointed out to Mr. Kamat that this document is the very basis of this case, viz., the complaint dated the 1st October, 1971 purported to have been filed by the complainant Gunaji Bhaurao Kadam and it contains a reference to certain written documents, viz., that on 25th July, 1971 this Gunaji had gone to Rajapur Police Station for collecting his dues for the quarter 1-4-1971 to 30-6-1971; that thereafter on 27-7-1971 it is alleged in this complaint that Gunaji Kadam made a written application and submitted the same to the Police Station by registered post that he had not received his honorarium for the past three months, meaning thereby for the quarter 1-1-1971 to 31-3-1971. The complaint refers to a third document viz., that Gunaji had received a written acknowledgement of such a complaint having been sent by registered post dated 27-7-1971. In this very complaint it is further stated that inspite of this complaint lodged by him by registered post, he did not receive the payment and thereafter he had sent another application. That would the fourth document referred to in the complaint and in the last penultimate part of the complaint he writes that as he had not received the honorarium for the three months, viz., January, February and March, he requested the Police Station to make arrangements for sending the same to him. If one were to read this complaint, it clearly shows that it is not for the first time on 2nd November, 1971 when it is alleged that this complaint of 1-10-1971 was received by Rajapur Police Station, but, according to Gunaji, as early as on 27-7-1971, a written complaint was sent by registered post for not having received the money for the quarter 1-1-1971 to 31-3-1971. It is pertinent to note that according to the complaint if one were to believe the complaint to be true, on 25-7-1971 Gunaji appears to have gone to Rajapur and if he had received the money for the second quarter it is doubtful that he could not raised a protest at the very point of time in regard to the payment for the first quarter. But apart from that, the police who had investigate this case, did not produce the materials for the honorarium received by the police patil for the second quarter, i.e., 1-4-1971 to 30-6-1971. The prosecution was unable to produce the alleged application given in writing on 27-7-1971 and sent by registered post for which the acknowledgment was received and held by Gunaji and neither Gunaji nor anybody on his behalf taken care to produce the same. THIS is not all in the complaint; there is further reference to a further application in writing which was made prior to the complaint itself dated 1-10-1971. That document is also not produced. When I pointed out that these four documents have not been produced, Mr. Kamat said that it is true that at least three of the documents are supposed to be in the possession of the police who could have produced the same except for the acknowledgment in possession of Gunaji and we have nothing to show that acknowledgment was taken by the Police. When asked why the three documents, as alleged by the complainant, should not have been produced before the Court to corroborate this complaint especially when the trial was going on Gunaji was dead and not available for the prosecution to be examined, Mr. Kamat frankly admitted that he was not able to give any reason for the non-production of these documents. It is pertinent to note that the evidence of P.W. 1, Vishwasrao, is that Gunaji could not have received the money on 4-5-1971 when payment of the honorarium was made to the five police patils for the first quarter because Gunaji was in the J.J. Hospital for treatment and after receiving the treatment he returned back to the village in the month of June 1971. In this connection it may be noted that neither the witness Shelar nor the witness P.S.I. Wanajari, the Police Constable and the officer respectively, have stated that payment of the honorarium could be made only to the police patil himself and not to anybody else. Even the voucher prepared for disbursement of the honorarium does not show the name of Gunaji and therefore Gunaji could not have come to Rajapur Police Station to receive the payment. It is not clear that nobody could have received the honorarium on behalf of Gunaji Kadam. In my opinion, this lacuna of the prosecution case of non-production of the three important documents throws considerable doubt on the prosecution case itself and a suspiction is raised in the mind of the Court that the complaint might not contain the entire truth. There are a number of possibilities from these circumstances and the prosecution wants to jump to the conclusion that Gunaji must have done everything indicated in the complaint and whatever may have been stated therein may be true, but I need not speculate on these circumstances and go in the details, but in my opinion the absence of these documents renders the compliant so weak and moreover the complaint dated 1-10-1971 required one month and one day to reach the Police Station at Rajapur, i.e., on 2-11-1971. Again the contents of the complaint are very clear. THIS fact of the Police Station receiving the complaint dated 1-10-1971 on 2-11-1971 is stated by P.W. 4, P.S.I. Wanjari. But it matters very little whether this complaint was received on 2-11-1971 or a little earlier, what is important, in my opinion, is that before any action was taken a proper investigation ought to have been done and if the complaint itself refers to certain documents it was the duty of the police who was investigating the case not only to take charge of those documents but to have produced them in the Court for supporting the allegations. It is pointed by Mr. Kamat that though in the opening paragraph of Wanjaris evidence it is stated that the complaint was received on 2-11-1971, this made clear in paragraph that the complaint dated 1-10-1971 was received at the Police Station on 11-10-1971 and was endorsed by this Police Officer on 2-11-1971. But whatever may be the position, according to me the investigating agency ought to have known that these documents which are referred to in the original complaint, if available from the police record, why they should not have been produced. One point emphasised by Mr. Kamat on behalf of the State is that apart from the fact that the complainant was not available for examination because he was dead and apart from the fact that certain documents referred to in the complaint were not produced by the prosecution, still one circumstance is looming large and it has been established which must lead the Court to the conclusion that the amount must have been misappropriated and false entries made and this circumstance has been stated in the earlier part of the judgment in the narration of the facts. I have stated every such police patil may not be personally known to the Head Constable making such payment and it would be difficult even for a police havaldar to remember as to who have produced the Sanad of police patils and obtained the money. Mr. Kamat fairly admitted that there is clearly evidence on record to show that on the authority of Gunaji some one had received money for the honorarium due to Gunaji. The learned Judicial Magistrate, First Class, having considered the entire evidence had come to the conclusion after careful reasoning that the prosecution had failed to establish the prosecution case had exhonerated the accused of all the offences for which he is charged and I am in entire agreement that the prosecution had failed to prove their case against the accused and as pointed out above nobody is to be blamed, it is the prosecution agency itself which at the stage of investigation itself had not taken care to place the documents referred to in the complaint or produce the same before the Court. Moreover, when the complainant was not available for the prosecution as he was dead, it was the duty of the prosecution to have caused the documents referred to in the complaint to be produced before the Court. In the result the appeal fails, and is dismissed. Bail bond to stand cancelled.