BIRAJ CHANDRA MAZUMDAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure, 1973 for quashing of charge framed against the petitioner by the Judicial Magistrate, 1st Class, Hajo under section 409 of the Indian Penal Code. The material facts are as follows: The petitioner was a Senior Inspector of Co-operative Societies, Gauhati and at the relevant time posted at Hajo as Secretary of a Co-operative Society, namely, No. 1, Ramdia Gaon Panchayat Samabay Samity. Simultaneously, the petitioner was also holding charge of another Co-operative Society, namely, No.2, Ramdia Gaon Panchayat Samabay Samity which is situated at a distance of over 8 miles from the first society. The two proforma respondents Narayan Chandra Talukdar and Siba Nath Deka were Chairman and manager of No.1 Ramdia Gaon Panchayat Samabay Samity. This was in the year 1974. In course of audit of the accounts of the said society, some discrepancy to the tune of Rs. 10,470.31 was noticed by the audit party and observation was made that the money was recoverable from the proforma respondents 2 and 3. On the basis of the said report, a complaint was lodged with the police and the Manager of the society Siba Nath Deka was arrested in that connection. He claimed that the said amount had been deposited with the petitioner. In support of this claim two receipts allegedly issued by the petitioner on 20.8.1974 and 28.8.1974 were produced by him.

(2.) To verify the genuineness, the said two receipts were sent by the police to the Forensic ScienceLaboratory. The investigation was started by the police in 1974 and it continued for long six years.It was only on 15.5.1981 that the police filed a charge sheet in the court of the Chief Judicial Magistrate, Gauhati naming the petitioner and the two proforma respondents as accused. In the charge sheet there was a reference to the certain documents which were numbered as M.R. No.15/75. These documents were not in the case record. The petitioner wanted to inspect the same.The learned Chief Judicial Magistrate, therefore, directed the prosecution to produce the same.

(3.) Years rolled, repeated orders were passed by the Court directing the prosecution to produce those documents but there was no compliance. Those documents were not produced. These documents were, in fact, the receipts allegedly issued by the petitioner on the basis of which the petitioner was sought to be involved. In the meantime, the case got transferred to the file of the Judicial Magistrate, 1st Class, Hajo. He look up the case for consideration on 29.4.1989 for framing the charge. In his order he discussed how the prosecution, despite repeated reminders from the court for years together, failed to produce the relevant documents. It was ultimately without those documents that the case was considered for framing charge. The learned Magistrate observed that M.R. Case No. 65/75 contained the admitted documents of the accused Siba Nath Deka, proforma respondent No.3 herein. On the basis of this observation, the court arrived at a finding that there was a prima-facie case against the three accused persons under section 409 of the Indian Penal Code.