STATE OF SIKKIM Vs. SHRI SONAM WANGDI LEPCHA

JUDGEMENT

(1.) THIS is to consider an Appeal filed by the State under Section 378 Cr.P.C. seeking to assail the judgment and order dated 31-03-2010 passed by the Learned Sessions Judge, South and West Sikkim at Namchi in Criminal Appeal No.6 of 2006 (hereinafter referred to as the "impugned judgment) setting aside the order of conviction against the Respondent and acquitting him of the offences under Sections 409/420 IPC.

(2.) (a). The case of the prosecution in brief is that a written report was received by the Namchi P.S. on 10-03- 1997 from Mr. K. N. Pradhan, Deputy General Manager (Operation), Sikkim Nationalised Transport [in short "DGM (Operation)" and "SNT" respectively], Jorethang, stating that the Annual Statutory Audit of Namchi SNT Booking Office held on 28-02-1997, revealed considerable reduction in the collection of passenger fares from August, 1993, onwards as compared to the earlier period. The Cash Book inspected on 28-02-1997 revealed collection ranging from Rs.2500/- to Rs.3000/- per day against proceeds from sale of tickets but the duplicate bank receipts for those were not made available at the Head Office, Gangtok. That the Respondent, Junior Traffic Assistant (in short "JTA") Namchi Booking Office, was suspected for committing fraud by mis-appropriating more than 20 lakhs during the period from August, 1993 to February, 1997, as Cash Book and Ticket Stock Registers from 1993-94 onwards were not handed over despite repeated instructions. Based upon this, Namchi P.S. Case No.9(3)1997 dated 10-03-1997 was registered against the Respondent under Sections 409/420/468/471/210 IPC and investigation taken up.

(3.) (a). Supporting the Appeal, Mr. J. B. Pradhan, Learned Public Prosecutor, submitted that the impugned judgment suffers from serious infirmity in as much as the Learned Sessions Judge has disregarded vital documentary evidence and has chosen to rely upon few sentences in the cross-examination of the prosecution witnesses. It was submitted that it was erroneous on the part of the Learned Sessions Judge to have held that "entrustment" required under Section 409 IPC had not been established when this was evident from the Tickets Issue Register, Exhibit MO-II that showed the issue of tickets to the Respondent and, the Ticket Requisition Forms, Exhibit 27 in which tickets requisitioned and received by the Respondent-Accused were found clearly recorded. As per the Learned Public Prosecutor, P.Ws. 1, 7, 10, 16, 17, 18 and 26, have set out the duties and functions of the Respondent-Accused as JTA as including the maintaining of Cash Book, sale of passenger tickets, deposit of cash in the Bank and preparing statements for requisition of bus tickets. It was established that in discharge of his function the Respondent had in his own hand, made requisitions for the bus tickets as contained in Exhibit 27 and were duly signed by him as his acknowledgment of receipt of the tickets. Similarly, the entries made by the Respondent-Accused in the Tickets Issue Register, Exhibit MO-II, clearly establishes the tickets having been issued to and, received by him thereby fully establishing the factum of "entrustment" and dominion over the bus tickets rendering the finding of the Learned Sessions Judge holding otherwise quite perverse. It is the submission of Mr. Pradhan that the function and duties of the JTA fully established by the prosecution assumes relevance for the purpose of them having satisfied of the requirement of "entrustment".