KRISHNA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS criminal revision application is directed against the judgment, dated 14.8.1997 passed by the 5th Additional Sessions Judge, Dhan - bad, in Criminal Appeal No. 164 of 1994 affirming the judgment of conviction and sentence, dated 16.9.1994 passed by the judicial Magistrate, 1st Class, Dhanbad, by which the learned trial Court convicted the petitioner under Section 409 of the Indian Penal Code and sentenced him to undergo simple imprisonment for a period of three years.

(2.) THE short case of the prosecution as alleged is that one Ramashray Singh (the complainant) filed a complaint before the Chief Judicial Magistrate, Dhanbad, which was registered as Complaint Case No. 351 of 1988 and it was sent to the police officer for investigation. The police investigated the case and submitted final report showing mistake of fact but the complainant had filed a protest petition which was inquired into under Section 202 of the Code of Criminal Procedure and thereafter, cognizance was taken for the offence under Sections 409 and 420 of the Indian Penal Code.

(3.) THE learned counsel appearing on behalf of the petitioner at the very out - set submitted before me that though the trial Court convicted and sentenced the petitioner under Section 409 of the Indian Penal Code only but there is no evidence or cogent material to constitute the offence under Section 409 of the Indian Penal Code. The Court below did not find the case true under Section 420 of the Indian Penal Code. It is further argued that the whole amount taken in advance of Rs. 2,800/ - was already deducted from the salary of the petitioner in the month of August 1987, whereas this case was initiated on the basis of the complaint after one year of the said adjustment, i.e., 11.8.1988. It is further argued that actually, the complainant Ramashray Singh was dismissed from service on the report of the petitioner and this false case was filed out of vengeance in order to harass the petitioner though the petitioner was duly promoted in the office as there was no departmental inquiry held against him nor he was found guilty in discharging his duty at any point of time and the police has rightly submitted final report after due investigation.