BIHARI RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application in revision is directed against the judgment and order dated 29 -11 -95, passed by the Addl. Sessions Judge, IInd, Patna in Cr. Appeal No. 23/92, by which he dismissed the appeal and confirmed the judgment and order of conviction dated 3 -3 -92, passed by the Judicial Magistrate, Ist Class, patna, in G.R. No. 336/ 89, convicting the petitioner under Section 409, I.P.C. and sentencing him to undergo rigorous imprisonment for three years.

(2.) THE prosecution case in brief is that the Booking Supervisor, Patna lodged a written report on 20 -1 -89 addressed to the Officer Incharge, Govt. Railway Police, alleging therein that on 4 -1 -89, it was brought to his notice that excess fare tickets book having ticket No. 800224 to 800249, was handed over to Mr. Bihari Ram, the petitioner at 14 hours on 4 -1 -89 after issuing of the ticket up to 800224 of the said book by Sri Binod Kumar Singh, ABC/PMBE for further issue. But the petitioner, Bihari Ram did not mention in CS book the accountal of the book issued by him during his duty hour from this book. On being asked vide letter No, 27/ BS/PMBE/89, dated 6 -1 -89, the petitioner did not reply and the matter was reported to Sr. DES/DMR on 11 -1 -89, who advised to lodge the FIR as well as a complaint was filed. On the basis of the aforesaid written report, Patna GRP instituted a case being case No. 27 dated 20 -1 -89, under Section 409, I.P.C. and after investigation submitted charge -sheet and the trial proceeded in the Court below.

(3.) THE defence of the petitioner is that the alleged EFT book bearing No, 800200 to 800249 was received by him from the Booking clerk, Binod Kumar Singh and the book was kept at the table of the booking counter in the room of the booking office and he went to drink water from the tape water, and when he returned back, he did not find the said book on the table. He enquired from the employees working there and also made search, but could not locate the book. He brought the matter to the notice of then Booking Supervisor (the informant, Sukhdeo Choudhary), who ordered to issue other EFT book. At that time, he also mentioned the said fact in the daily trains cash cum summary book. Oh the next day, the accused -petitioner again searched for the EFT book but could not find the same and then he informed the matter through telegram to the higher authorities at Howrah and Sr. D.E.S. Danapur on 5 -1 -89. The further defence of the petitioner is that he has not committed any offence as alleged and he has been implicated in this case at the instance of some employees who did not like him to be promoted in near future. The defence also examined 3 D.Ws., namely, D.W. 1 Bihari Ram, D.W. 2, Sitaram Singh and D.W. 3, Bharti Bhushan Raut and also brought on the record the photocopy of the telegram sent by him, to Howrah on 5 -1 -89, marked as Ext. 'X'.