Page No.# 1/8 GAHC010012742013 2025:GAU-AS:15069 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./446/2013 KALIRAM BORA S/O LT. MISIMAL BORA VILL- SAPMARI P.S. MORIGAON, DIST. MORIGAON, ASSAM. VERSUS THE STATE OF ASSAM AND ANR 2:DHANI RAM LARA S/O LT. MILARAM LARA VILL- AMARAWATI P.O. KHAPLANGKUCHI P.S. RAHA DIST. NAGAON ASSAM Advocate for the Petitioner : MR.I A HAZARIKA, MR.A AHMED,MR.H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM, , BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 31-10-2025 Heard Mr. A. Ahmed, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Addl. P.P. Assam appearing for the State/ respondent. 2. The present revision petition has been instituted assailing the judgment dated 24- Page No.# 2/8 10-2013, passed by the learned Sessions Judge, Morigaon in Crl. Appeal No. 18/2013, dismissing the appeal and thereby upholding the judgment dated 18-05-2013, passed by the learned Addl. Chief Judicial Magistrate, Morigaon in C.R. Case No. 1447/2009 convicting the petitioner, herein, under Section 408 IPC and sentencing him to undergo simple imprisonment for 03 (three) years and 06 (six) months and to pay fine of Rs. 10,000/- (Rupees Ten Thousand), in default of payment of fine to undergo simple imprisonment for another 03 (three) months. 3. The prosecution case, in brief, is that Sub-Divisional Engineer, BSNL, Morigaon had lodged an FIR before the Officer-in-Charge, Morigaon Police Station on 29-05-2008, inter- alia, alleging therein that the petitioner, herein, was deputed for depositing revenue collection of Rs. 4,13,544/- (Rupees Four Lakhs Thirteen Thousand Five Hundred Forty Four) [cash Rs. 3,91,559/- (Rupees Nine Lakhs Ninety One Thousand Five Hundred Fifty Nine) plus cheque Rs. 21,985/- (Rupees Twenty One Thousand Nine Hundred Eighty Five)] with the State Bank of India (SBI) counter and while in the Bank the said amount was stolen by the miscreants 12-05-2008. It was further deposed that the matter was informed by the petitioner, herein, to the informant on 29-05-2008 over telephone. In the FIR, it was alleged that the petitioner, herein, who was carrying the money was strongly suspected to have stolen the money through some of his other associates. The police on receipt of the said FIR, registered the same as Morigaon P.S. Case No. 150/2008, under Section 379 IPC. On conclusion of the investigation in the case, police submitted final report in the matter discharging the petitioner, herein, from the allegation so leveled against him. Page No.# 3/8 Being aggrieved by the submission of final report, in the matter, the complainant Dhaniram Lara, had instituted a complaint case before the court of learned Chief Judicial Magistrate, Morigaon. The complaint case was taken up for consideration by the learned Additional Chief Judicial Magistrate, Morigaon. The learned Trial Court framed charge under Section 408 IPC against the petitioner, herein, and summons came to be issued to him. On appearance of the petitioner, herein, before the Trial Court, the trial proceeded. On conclusion of the trial, the learned Trial Court, upon appreciating the evidences coming on record, proceeded vide judgment dated 18-05-2013, to convict the petitioner, herein, under Section 408 IPC and sentenced him as noticed, hereinabove. The petitioner, herein, being aggrieved by his conviction by the learned Trial Court vide judgment dated 18-05-2013, assailed the same by way of instituting an appeal being Crl. Appeal No. 18/2013 before the court of learned Sessions Judge, Morigaon. The learned Appellate Court upon appreciating the evidences coming on record proceeded vide judgment dated 24-10-2013 to dismiss the said appeal, thereby upholding the conviction of the petitioner, herein, by the learned Trial Court. Being aggrieved, the petitioner has instituted the present proceeding. 4. I have heard the learned counsel for the parties and also perused the materials available on record. 5. The learned Trial Court upon appreciating the evidences coming on record during the trial had proceeded to draw the following conclusions: “23. The allegation of the complainant against the accused is that the amount for land line connection has been deposited in the bank and rest amount Page No.# 4/8 could not be deposited since misappropriated 24. The factual matrix of the case can be presumed that approximately an amount of Rs. 5,56,000/-was taken by the accused person with a view to depositing it into the bank. Out of that amount, only amount involved in the landline connection has been deposited and the rest amount could not be deposited since some miscreants have snatched away the same from his hand. If it is the fact, the accused had to inform the matter first to the cashier of the bank, thereafter to the manager of the bank or to the duty guard of the bank that the said amount has been snatched away from him by the miscreants or to raise 'hullah.' But there is no iota of evidence on record that the accused person ever intimated the matter to the cashier or the branch manager or the duty guard or raised 'hullah' that such an amount of money has been snatched away from him by the miscreants. 25. The defence case is that after snatching away the amount meant for mobile connection, he informed the matter to the complainant and thereafter to the police. As per information the accused person and the complainant, police held an investigation and found no any clue in the bank that some miscreants had snatched away the amount from the hands of the accused person. 26 Not intimating the matter to the cashier or branch manager or to the duty guard present at that time, immediately after the incident proved that the accused had an mala fide intention for misappropriating the amount meant for mobile connection. 27. Since the accused person did not make any whisper about the incident inside the bank, hence the I.O. after investigating on the FIR filed by PW1 found no clue that any incident of snatching away money from the hands of the accused had been taken place. 28. Conduct and behaviour of the accused person apparently show his mala fide intention for misappropriating the amount meant for mobile connection. As per evidence of PW3, the incident took place at about 12 noon. The time of 12 noon is the highly pick-up time of the bank, where generally large number of people gather for making transaction in the bank. 29. Had the accused made any whisper about the snatching away of amount meant for mobile connection, the people gathered at the bank could know about the incident. But the I.O. during the investigation upon the FIR lodged by the complainant could not collect any evidence of witnesses for which the said FIR ended in F.R. ……………………….. 32. This fact of the case and discussion held above proved that there is a mala fide intention on the part of the accused person. 33. Sec.114 of the Evidence Act provides that Court may presume the Page No.# 5/8 existence of any fact which it thinks likely to have happened, regards being had to the common course of natural events human conducts, public and private business in their relation to the facts of the case. 34. The Hon'ble Supreme Court in the case of Pandurang Patil Vs State of Maharashtra, reported in AIR 2004 SC 3562, it has been held that it is not necessary in all cases that the commission of crime be proved by ocular evidence by examining before the court those person who have seen the commission. The principle of factum probandum may be proved indirectly by means of certain inferences drawn from factum probans i.e. through evidentiary facts. It if further not necessary that all the eye witnesses should specifically refer to distinct acts of each member. Even if there is discrepancy in this regard the evidence cannot be rejected. 35. Such as, in our case though there is no ocular evidence to prove the facts yet the conduct of the accused and circumstances of this case proved that it is none but the accused person who had committed the offence.” 6. Basing on the said conclusion, the learned Trial Court proceeded to convict the petitioner, herein, under Section 408 IPC and sentenced him as noticed hereinabove. 7. The learned Appellate Court in the appeal filed, upon appreciating the evidences coming on record vide judgment dated 24-10-2013, had drawn the following conclusions:- “7. Before examining correctness and legality of the impugned judgment, it is necessary to see whether the prosecution evidence has able to establish the essential ingredients of criminal breach of trust, i.e. (i) the accused was entrusted with the amount to deposit in the Bank, (ii) that the accused (a) dishonestly misappropriated or converted to his own use said amount or part of it (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust. On perusal of the evidence and the statement of the accused, it is found to be an admitted position that the accused was working in the office of the BSNL, Morigaon and was entrusted with an amount to deposit in S.B.I. Morigaon. PW-1 Dhaniram Lara stated that accused Kaliram Bora was working as clerk Group C Cadre in the office of BSNL, Morigaon and on 29.05.2008, he was sent to SBI, Morigaon to deposit an amount of Rs. 5,56,000/ escorted by Home guard Minaram Bora, in a vehicle driven by Sri Nijul Deka. Out of the said amount Rs. 3,91,000/ was for mobile connection and rest amount including cheque amount was for land line connection. Accused informed him that he could not deposit the amount of Rs. 3,91,000/ as it was snatched away by some miscreants. PW-1 Page No.# 6/8 immediately rushed to SBI, Morigaon and on enquiry, he came to know from the bank authority that the amount and cheque amount for land line connection has been deposited but an amount of Rs. 3,91,000/ meant for mobile connection has not been credited in their account. He went to Morigaon PS and found the accused there. He lodged ejahar. Witness was cross examined but failed to rebut his evidence. PW-2 Minaram Bora and PW-3 Nijul Deka supported the fact that they accompanied the accused to the S.B.I. Morigaon, on 29.05.2008, when accused was sent to deposit the amount. However, they could not say the amount. So, from the above evidence, it is found that entrustment of the amount to the accused was completed as and when he received the amount for deposit in the bank. Accused in his statement recorded under Section 313 Cr.P.C. also admitted said fact but stated the amount as Rs. 5,34,198/. Now, it is required to examine whether the entrusted amount was misappropriated by the accused to his own use or willfully suffering any person for violation of any direction, prescribing the mode in which such trust is to be discharged. 8. From the evidence on record, it is found that accused deposited the amount meant for land line connection, which consists cheque amount also, but could not deposit cash amount of Rs. 3,91,000/ meant for mobile connection. Accused admitted the fact of depositing land line connection amounting to Rs. 1,42,639/ in his statement recorded under Section 313 Cr.P.C. But, he could not deposit the amount meant for mobile connection on the plea that it was snatched away by miscreants from the Bank counter. Accused did not examine any witness in support of his said plea. Bank counters are generally filled with customers of the bank and there also remain armed guard in the bank. So, any such incident that occurred in the bank counter, the persons present there, including the bank employees, must have aware of the fact. But, no such person was examined by the accused. When the entrustment of the amount was not disputed and the accused took the plea that he could not deposit due to snatching of the amount, then onus of proving said fact shifted to the accused. In the instant case, prosecution has discharged its burden about entrustment of the amount, but the accused failed to discharge the onus of proving the fact of snatching away of the amount. It is also found that the accused had no explanation as to the fact why he deposited the amount partly. It is hard to believe that the miscreant snatched away the amount from the accused at the Bank counter, while he deposited part of the amount. Accused could have tendered the whole amount to the bank official, when he arrived the bank counter, but surprisingly he tendered only the land line connection amount. This act of the accused gives rise the fact that he failed to deposit the amount in violation of the direction given at the time of entrustment causing loss/sufferance to BSNL, Morigaon, which amounts to dishonest misappropriation of the amount. 9. I have also carefully gone through the questions put to the appellant/accused relating to incriminating materials, while his statement was recorded under Section 313 Cr.P.C. and found that learned trial Court put all Page No.# 7/8 incriminating materials to the accused, giving him opportunity to explain the materials found against him in the prosecution evidence. After careful scrutiny of the impugned Judgment, I have found that the prosecution evidence was discussed properly and no such material irregularity is found. Learned counsel for the appellant placed reliance in the case law reported in 2013 CRI.L.J. 3140, Sujit Biswas Vs State of Assam and 2013 CRI. L.J. 3276, Raj Kumar Singh alias Raju alias Batya Vs State of Rajasthan. I have gone through the case laws. Learned counsel submits that appellant/accused is entitled to be acquitted in complying the decision of Sujit Biswas's case (supra) as the circumstances in the instant case is not consistent with the hypothesis of guilt of the accused. But, as discussed above, I have found no force on the submission and hence it is graciously rejected. In Raj Kumar Singh's case (supra), Hon'ble Supreme Court hold that the circumstances which are not put to accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded. On perusal of the impugned Judgment, it is found that all the circumstances and materials which were considered by the learned trial Court, were put to the accused in his examination. So, the submission of learned counsel for accused is liable to be discarded. 10. Thus, on overall consideration of the facts and circumstances of the case and the evidence in its entirety and having careful scrutiny of the deposition of witnesses and the exhibits on record, I have come to the conclusion that the learned trial Court has rightly arrived at the conclusion in holding the appellant/accused guilty under Section 408 I.P.C. and I do not find any illegality or impropriety in the impugned judgment dated 18.05.2013 passed in G.R. Case No. 1447/2009 in coming to the said conclusion.” 8. This Court has carefully perused the conclusions drawn by the learned Trial Court as well as by the learned Appellate Court, in the light of the evidences coming on record and on such examination, this Court finds that the conclusions drawn, to have been so drawn on due and proper appreciation of the evidences coming on record and no infirmity is found therein. The evidences coming on record had clearly established, beyond reasonable doubt, that the amount in question was entrusted to the petitioner, herein, for being deposited in the Bank account and the amount was dishonestly misappropriated by the petitioner, herein. The evidences coming on record clearly point to the fact that the petitioner had misappropriated the said amount, no infirmity in the conclusion drawn by Page No.# 8/8 the learned Trial Court and the learned Appellate Court has been highlighted by the petitioner. Accordingly, the conviction of the petitioner under Section 408 IPC would be required to be upheld. 9. Considering the nature of offence, this Court is of the considered view that the petitioner, herein, is not entitled to be extended with the benefit of the Probation of Offenders Act, 1958. 10. In view of the above discussions, the conviction of the petitioner under Section 408 IPC stands upheld. The judgments dated 18-05-2013 passed by the learned Trial Court and the judgment dated 24-10-2013 passed by the learned Appellate Court stand upheld. 11. The petitioner to surrender before the learned Trial Court within a period of 02 (two) months from today and undergo the punishment imposed by the learned Trial Court in the matter. 12. With the above observations and directions, the present criminal revision petition stands dismissed. 13. Registry to send back the TCR forthwith along with a copy of the present order for information and necessary action. JUDGE Comparing Assistant