SAILENDRA NATH CHATTERJEE Vs. STATE

JUDGEMENT

(1.) THIS is a revisional application at the instance of the accused and is directed against an appellate order directing retrial of the petitioner on a charge under Section 406. I.P.C.

(2.) THE petitioner was found guilty by the trial Court and convicted under Section 406, I.P.C. and sentenced to suffer S.I. for, three months and to pay a fine of Rs. 5,000/ -, in default to S.I. for two years.

(3.) THE learned Magistrate trying the case found the petitioner guilty and sentenced him in the manner aforesaid. The petitioner preferred an appeal. The learned court of appeal below has found that the prosecution allegation with regard to both these charges could not be said to have been proved on the evidence on record beyond doubt. Precisely he observed that the cheque by which the sum of Rs. 8,500/ was alleged to have been withdrawn was not even proved. He further found that the signature appearing on the cheque and purportedly of the petitioner was also not proved to be of the petitioner himself. The possibility of the signature being a forgery could not be ruled out in view of the evidence of court witness No. 2 who was on staff of the Bank. The liability for the alleged misappropriation was sought to be fixed upon the petitioner on the, ground that the withdrawal of the sum of Rs. 8,500/ - was not entered in the cash book of the school. It was, therefore, complained by the prosecution that the appellant himself had misappropriated the money. The learned lower appellate Court observed that the clerk of the school Sailendra Nath Bhattacharjee who was responsible for writing the cash book was a very material witness but has not been examined during trial. He was a charge -sheet witness but no explanation was given why he was not examined. After considering all these the learned lower appellate Court concluded 'In my opinion, the evidence on record does not prove beyond doubt that the appellant had, withdrawn Rs. 8,500/ -from the savings bank account of the school on 20.9.1971 and misappropriated the same'.