A criminal appeal was filed against the common Judgment of Conviction and Order of Sentence dated 09.10.2015 passed by the Special Judge, C.B.I., Dhanbad as Cr appeal (SJ) No. 943 of 2015, Cr. Appeal (SJ) No. 941 of 2015 and Cr. Appeal (SJ) No. 957 of 2015 which was allowed by HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY in Jharkhand High Court.
Facts
In the FIR, It is alleged that appellant convict-Baldin Ram who has been alluded to as B.D. Slam in the said FIR, while working as Senior Executive Engineer (Civil), Bhuli Town Administration, B.C.C.L., Dhanbad during the time of October 1993 to January 1994 went into a criminal conspiracy with the appellant- convict-Gopal Prasad Sinha-the Proprietor of M/s. Gopal Engineering, Pujari Prasad-a private individual and the co-convict-Bhagwan Das who died during the pendency of the trial and others. In assistance of said criminal conspiracy dishonestly and fraudulently misappropriation of 302.840 M.T. of non-coking coal, Grade-‘C’ worth Rs.1.50 lakhs which was intended for distribution among the employees of B.C.C.L. for domestic use was brought about by the accused persons of the case, making an improper misfortune the tune of Rs.1.50 lakhs to B.C.C.L., a Government of India Undertaking and unfair profit to themselves. During the investigation, it was also found that appellant convict-Baldin Ram was also granted the occupation of transportation of coal from different collieries of B.C.C.L. to Bhuli Township to M/s. Gopal Engineering of which the appellant-convict-Gopal Prasad Sinha is the owner.
The appellant-convict-Gopal Prasad Sinha has executed a power of attorney in favor of appellant-convict-Pujari Prasad. These powers were acted upon by the appellant-convict- Baldin Ram for the execution of a contract between B.C.C.L. and M/s. Gopal Engineering. The deceased Bhagwan Das made a report in respect to the transfer of the contract in his favor by forging the signature Pujari Prasad his brother-in-law and the said report was fraudulently entertained by the appellant- convict-Badlin Ram. It was likewise found during the examination that the appellants-convicts Pujari Prasad and R.S. Jha-who was the Auto Fitter in Sendra Auto Workshop, B.C.C.L., Dhanbad got 222.680 MT coal worth Rs.1, 28,174.60 paise from different collieries of B.C.C.L. based on said contract yet deceptively they didn’t convey the said coal at Bhuli Township Coal Depot and consequently they misused the coal endowed to them for conveying at Bhuli Township Depot.
Petitioner’s Arguments
The learned Senior Advocate A.K.Kashyap appearing for the appellants-convicts in Criminal Appeal (SJ) No.941 of 2015 presented that the learned court below has neglected to take into consideration that the criticized judgment of conviction and order of the sentence is terrible in law and against the weight of evidence in the record. It is next presented that the learned court below has neglected to take into consideration that to get back the charge for the offense under Section 409 of the Indian Penal Code, the basic ingredients are entrustment with the property being referred to or with any domain over it but the prosecution has hopelessly neglected to demonstrate either any entrustment or domain over the coal was given to any of the appellants-convicts.
Mr. Shekhar Prasad Sinha learned counsel for the appellant-convict in Criminal Appeal (SJ) No.943 of 2015 apart from adopting the submissions of appellant no.1 of criminal appeal (SJ) No.941 of 2015 that the appellant-convict of Criminal Appeal (SJ) No.943 of 2015 is just a name bank and he has not done anything regarding this case and there is no contest that the appealing party convict Gopal Prasad Sinha has executed a power of attorney for Pujari Prasad, the same has been proved and marked exhibit on behalf of the prosecution.
Mr. Anil Kumar Ganjhu learned counsel for the appellant-convict in Criminal Appeal (SJ) No.957 of 2015, other than adopting the submission of appellant no.1 of criminal appeal (SJ) No.941 of 2015 further presents that the learned court below has neglected to appreciate the evidence that the appellant-convict of Criminal Appeal (SJ) No.957 of 2015 is in the job of a fitter in Sendra Auto Workshop in B.C.C.L., Dhanbad and the appellant-convict has no association with the job of transportation of coal from the colliery to the warehouse at Bhuli Municipality.
Respondent’s Arguments
On the contrary, the learned counsel for the C.B.I Mr. Rohit Sinha defended the impugned judgment and presented that as rightly being held by the learned court below, the prosecution through the 31 witnesses inspected by it has proved all the fundamental ingredients for the offense punishable under Section 409 of Indian Penal Code as well as under Section 13 (2) read with Sections 13 (1) (c) & (d) of Prevention of Corruption Act, 1988 against the appellant no.1 of Criminal Appeal (SJ) No.941 of 2015 and the appellant of Criminal Appeal (SJ) No.957 of 2015.
It was further submitted that the offense engaged in this case is certainly not an ordinary or a conventional one consequently, a definitive goal was to utilize the public cash in a painstakingly arranged way for individual use with no option to do it in relationship with the co-convicts, thus, the learned trial court has rightly convicted and sentenced the appellants, these advances being with no legitimacy be excused.
Judgment
The court finds the Judgment of Conviction and Order of Sentence dated 09.10.2015 passed by the Special Judge, C.B.I., Dhanbad in R.C. Case No.14 (A) of 1995-D not sustainable on the grounds that the offense punishable under Section 409 of the Indian Penal Code is not sustainable to the appellant-convicts namely Baldin Ram, Gopal Prasad Sinha, Pujari Prasad, and Ravi Shankar Jha are cleared of all the charges by giving them the benefit of doubt. This results in these appeals being allowed by Hon’ble Mr. Justice Anil Kumar Choudhary.
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