SONGAL GAGRAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS revision is directed against the judgment and order dated 29.01.1999 passed in Criminal Appeal No. 30 of 1994 by the 1st Additional Sessions Judge, Singhbhum West at Chaibasa, whereby the judgment and order of conviction and sentence passed by Shri S.K. Choudhary, Judicial Magistrate, 1st Class, Porahat at Chaibasa in T.R. No. 16 of 1994 was confirmed and the petitioner was sentenced to undergo R.I. for one year.

(2.) THE brief facts of the prosecution case is that the petitioner was alloted the work for digging of 14 wells under the Jaldhara schemes No. 1/88 -89 to 14/88 -89. He executed and entered into the agreement with the B.D.O Bandgaon vide (Ext. 4 to 4/13) for completing digging of the wells by 30.06.1988. The petitioner received advance of Rs. 1,24,000/ - for completion of work with respect to the aforesaid schemes. That the petitioner did part work with respect to scheme No.1,2 and 5 and 13 amounting to Rs. 3, 272.03/ - only. Despite service of notice he did not complete the work for digging of the wells as per the agreement. He dishonestly mis -appropriated an amount of Rs. 1,20,000/ -. On the written report filed by the B.D.O. Keraikella, Bandgaon the police instituted and registered the case under Section 406 of the I.P.C. The petitioner faced the trial for charge under Section 406 and has been found guilty for the offence and on appeal the 1st Additional Sessions Judge, Chaibasa affirmed the conviction and sentence by the impugned order.

(3.) LEARNED counsel for the petitioner argued that the trial court and the appellate court have failed to appreciate the fact that the measurement book was not produced in the trial court. That the I.O. has not been examined and this has prejudiced the defence. That the dispute is entirely of civil nature and no criminal liability can be fastened on the petitioner. That the petitioner had completed the work and suggestions to this effect were given to the witnesses. That the trial court and appellate court failed to consider that P.W. -5 has stated that during inspection he found that work was done partially and he had advanced the moneywhich shows that the petitioner had done the work accordingly further advance was given to him. That P.W. -6 the Junior Engineer has not produced the measurement book and other witnesses have not supported the prosecution case. On the above grounds it is contended that the impugned judgment and order is fit to be set aside.