SAIBUR RAHAMAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has been preferred by the petitioners challenging the order No. 6 dated 26.08.03 passed by the learned Special Judge, Special Court, Berhampore in Special Court Case No. 1 of 2002 thereby framing charge against the accused petitioners under sections 409/419/420 of the Indian Penal Code (hereinafter called the IPC).

(2.) Facts of the case, in short, is that one Joynuddin Sheikh as de facto complainant filed complaint in the Court of learned SDJM, Lalbagh praying for sending the petition of complaint to O.C., Bhagwangola P.S. for investigation under section 156(3) of the Code of Criminal Procedure (hereinafter called the Code) alleging therein that complainant is the son of late Raisuddin, an employee of Eastern Railway, who died on 19.11.81. Accused No. 2 is the father of accused No. 1 and accused No. 2 was also an employee of Eastern Railway and the accused persons and the said late Raisuddin were resident of same village. Accused No. 2 fraudulently concealing death of Raisuddin managed his son accused No. 1 Saibur Rahman to join in the said post of P.W. 2 Bhagwangola, Eastern Railway in the name of Raisuddin and accused No. 1 cheated Central Government by aforesaid act and caused financial loss to the Central Government by drawing salary working in fake name. Upon receiving the complaint the police started Bhagwangola P.S. Case No. 55 dated 30.09.01 under sections 406/408/409/407/418/419 and 420 of IPC against the accused persons and submitted charge sheet on March 16, 2002. Thereafter, the learned Judge, special Court framed charge against the accused No. 1 Saibur Rahman, under sections 409/419/420 of IPC read with section 109 of IPC.

(3.) Learned advocate for the accused petitioners contended that the learned Judge failed to apply his judicial mind and framed charge without perusing materials on record properly. The learned Judge did not consider that the accused petitioner No. 1 joined his duty on June 12, 1986 and the complaint was lodged after 14 years 10 months 8 days from the date of joining of accused petitioner No. 1 in service and after 19 years 5 months 1 day after the death of father of de facto complainant. The petition of complaint and the charge sheet do not constitute any offence under sections 409/419/420 of IPC. The accused No. 1 has his nickname Raisuddin and he has no connection with Raisuddin, father of de facto complainant. There cannot be any offence under section 409 of IPC in the form of taking salary because by rendering his services a person earns his salary and, therefore, there cannot be any entrustment nor defalcation of public money in the form of salary. He contended that statement of witnesses also did not make out any offence against the petitioners.