THE STATE OF BIHAR Vs. D.N. MUNDGIL

JUDGEMENT

(1.) This is an appeal under Sec. 417(1) of the Code of Criminal Procedure by the State of Bihar against an order of acquittal of the respondent, who had been charged and tried for the offence under Sec. 409, Indian Penal Code. The case of the prosecution briefly stated is as follows: Shri D.N. Mundgil, who is the respondent in this case was working as I.C.M.F.D., Sarju during the year 1960 -61 and in such capacity it was a part of his duty to receive and weigh grass that was supplied by the contractors. M.F.D. (Military Farm Depot), Sarju is under the Military Farm, Namkum. The respondent used to receive and make entries about the quantity of grass received from different supplies on different dates in a book called 'Weigh Book' and which used to be maintained by him. He used to show in this book the quantity of the grass which he used to receive from different sources also like the Government Department. The figures shown by him in the Weigh Book also represented the figures after conversion of green grass into hay and the wastage in this process was also shown in this very Register. Monthly statements used to be sent by the respondent on the basis of this Register to the Deputy Director, Military Farm, Central Command, Lucknow as well as to the Officer in Charge (Manager), Military Farm, Namkum. The Manager during the relevant period was one Shri Guru Bux Singh and it was he who used to go to Sarju Depot for making payments to the suppliers by Shri Mundgil, that is, the present respondent. All such payments had been shown in the payment register which was duly certified by Shri Mundgil, Shri Guru Bux Singh and the Cashier actually handled the cash. It was found that according to the entries made by the respondent in the Weigh Register, he had received in his stock a total quantity of 12.83,224 lbs. of hay (both baled and loose) from various sources during the period from November, 1960 to July, 1961. During the same period the total loss in the process of baling had been shown in the Register to be 42,630 lbs. The total issues including handling loss were shown to be 1,26,910 lbs. and consequently the balance in the hand at the end of July, 1961 should have been 11,56,314 lbs in the form of baled as well as loose hay, but in October, 1961 when Shri Guru Bux Singh was succeeded by Shri R.S. Pandey, he found that although the baled hay as per book balance the loose hay was found to be totally absent. There was not even a single pound of loose hay out of the 3,26,314 shown in record in stock to be found in Sarju Depot. No stock of loose hay was found also.

(2.) A report initially was submitted by Shri B.P. Singh, who was the Superintendent of Police, S.P.E. Bihar Branch, Patna and it was sent to the Deputy Commissioner, Ranchi. The report was dated 20.9.1963 and in this report the aforesaid Superintendent of Police merely stated that information had been received to the effect that No. RVE 7029 Jamadar D.N. Mundgil while posted as Depot Incharge Military Farm Depot, Sarju during the years 1960 -61 misappropriated a sum of Rs. 800/ - paid for 40,000 lbs of thatching grass having forged relevant registers in conspiracy with Shri Guru Bux Singh, the then Manager, Military Farm, Namkum and he also stated that a case under Sec. 120B read with Ss. 409 and 471 of the Indian Penal Code was, therefore, registered. Investigation in the case was made and thereafter chargesheet was submitted only against this present respondent and according to the chargesheet a prima facie case under Sec. 409 of the Indian Penal Code was made out against him. The respondent was, therefore, consequently put up for trial.

(3.) The defence of the respondent was to the effect that he was Junior Commissioned Officer in the Army and, therefore, he could not be tried in the ordinary criminal court and the criminal court of a Magistrate had no jurisdiction over him to try for this offence. It was also his defence that he had not committed any offence at all and rather if any offence had been committed, it was by Shri Guru Bux Singh, who had not been sent up for trial.