HIMADRI ADHIKARI Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment passed by the Judge, 5th Additional Special Court, Calcutta on 15-6-1981 in connection with Case No. 3 of 1975 whereby the accused/appellant Sri Himadri Adhikari alias Thakur was convicted of the offence under Section 409 of the Indian Penal Code and sentenced to six months R. I. and a fine of Rs. 500/- in default to three months R. I. In respect of two heads of charges framed against him.

(2.) The prosecution case briefly put is that in connection with a Govt. scheme known as Urban Artificial Insemination Scheme attached to the Bengal Veterinary College, insemination fees at the rate of Rs. 2/- for a cow and Rs. 3/- for a buffalo used to be realised by the Inseminators directly from the parties on the spot. The fees so collected by the Inseminators used to be handed over to the Field Inspectors and the latter used to hand over the money to the Clerk-cum-Cashier, Himadri. In this way, so the prosecution story runs, a sum of Rs. 2098/- on account of such fees for the period from 30-1-1969 to 3-12-69 was received by Himadri. Again a sum of Rs. 1890/- on account of such fees for a different period namely for the period from 13-2-70 to 10-12-70 was received by the selfsame Cashier Himadri from the Inspectors. Grievance of the prosecution is that the cashier did not show the amount in the cash book and that instead he dishonestly mis-appropriated the sums as a public servant. Two charges were framed against Himadri for the two period aforesaid under Section 409 of the Indian Penal Code. Himadri pleaded not guilty. His defence was that he was never appointed as a Clerk-cum-Cashier, that he was never entrusted with the sums as alleged, that he never misappropriated the money himself, that the Inspector themselves had misappropriated the sums and that the defalcation was really committed by the officers superior to him. As many as 38 P.Ws. were examined by the prosecution. Relying upon the evidence of those P.Ws. the learned Judge, Special Court convicted and sentenced the accused as Indicated above. Being aggrieved by the aforesaid judgment of conviction and sentence Himadri has filed the instant appeal.

(3.) Mr. Amal Kanti Banik, learned Advocate appearing for the appellant has raised several contentions before us. First of all, he has contended that the joinder of the two charges under section 409 I.P.C. for two different periods covering more than a year is absolutely illegal and that it has vitiated the trial. Now it transpires from the judgment of the trial court that the court found out the illegality but at the same time the trial court found that the accused was never prejudiced by the said illegality of the charge and as such that defect was curable under section 464 Cr. P.C. We are, however, unable to agree with this view of the learned Special Court. For it would appear from the materials on the record that there were innumerable items of the alleged receipt of money by Himadri from the Field Inspectors from time to time. All these innumerable items were lumped together to the prejudice of the accused. Indeed, it is difficult to understand and appreciate as to what specific sums of money were defalcated by the accused at a particular point of time. Moreover, it is for the appellate and the revisional court and not for the trial court to adjudge as to whether an irregularity is curable under section 464 Cr. P.C.