Suvra Ghosh, J.
1. The criminal appeal is directed against judgment and order of conviction dated 24-08-2011 passed by the learned Additional Sessions Judge, 1st Court (Special Court), Paschim Medinipur in Special Trial No. 12 of 2004. By the judgment impugned, the learned trial court convicted the appellant and sentenced him to suffer rigorous imprisonment for 10 (ten) years and to pay fine of Rs. 5000/- (Rupees five thousand only), in default, to suffer rigorous imprisonment for another two years.
2. One Ashim Chakraborty, branch manager of Indian Bank, Kharagpur branch at the relevant time and defacto complainant of the case, lodged complaint before Kharagpur police station to the effect that the accused- appellant Purna Chandra Soren joined Kharagpur branch of the bank on 08-06-2000 as Assistant Manager on account of his transfer from Indian Bank, Allahabad branch and accordingly, his N.S.C. II loan account was also transferred to his new place of posting along with documents pertaining to the said loan. The accused was entrusted with the charge of the loan section of the bank and dealt with loans with regard to other staff of the bank, members of public as well as his own loan account. The defacto complainant alleged that accused Purna Chandra Soren availed of additional loan on 19 occasions amounting to rupees 3,12,882/- without pledging the necessary N.S.Cs to secure the said loan and without obtaining any sanction therefor from the competent authority, in violation of the rules of the bank, thereby defalcating the entire fund. The accused availed of other loans of considerable amount similarly and made fictitious entries so that his loan account appeared to be closed, in order to escape scrutiny during regular inspection of the bank. Further, the accused disbursed additional loan on nine occasions to Akshoy Mukherjee without sanction of the competent authority, thereby causing huge financial loss to the bank. The accused admitted his acts in his letter dated 21-04-2004 and undertook to make good the loss incurred by the bank, thereby admitting his guilt.
3. On receipt of the complaint, KGP(T) police station case no. 273 of 2004 dated 25-10-2004 under Section 409/468/420 of the Indian Penal Code (in short the IPC) was started. After completion of the investigation, charge sheet was submitted against the accused- appellant under Section 409/468/420 of the IPC. The case was committed to the court of the Ld. Sessions Judge and subsequently transferred to the Ld. Additional Sessions Judge, 1st Court (Special Court), Paschim Medinipur for trial. Charge was framed against the accused- appellant under Section 409 of the IPC. Substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined three witnesses in support of its case and the defense case, as it appears from the trend of cross examination as well as statement of the accused under Section 313 of the Cr.P.C, is a denial of the prosecution case and a plea of innocence.
4. PW-1 Mala Soren is the husband of the appellant and appears to have no knowledge about the offence.
5. PW-2 who is the defacto complainant stated that loans were disbursed by the accused to several borrowers on various occasions without pledging N.S.C in violation of the rules of the bank and income of the bank was diverted to his personal account on several occasions. The matured amounts of the N.S.Cs were encashed by the accused without forwarding the same to the bank. Such N.S.Cs ought to have been encashed by the bank from the post office upon maturity but as the same were not pledged with the bank, the bank had no access to them. Twenty-six such certificates in the name of the accused were seized by the investigating officer in course of investigation and the sundry deposit ledger sheets of the bank revealed that an amount of Rs. 4,16,012/- was deposited by the accused with the bank on 23-04- 2004 and a further amount of Rs. 9029/- was transferred from his savings account on 26-05-2004.
6. PW-3 Y.L Suryanarayana was the Assistant Manager of the bank at the relevant time and spoke in tune with the previous witness.
7. The investigating officer of the case expired during pendency of the case and therefore could not be examined by the prosecution.
8. It is submitted by the learned advocate for the appellant that the evidence on record is too weak to arrive at a definite conclusion regarding the guilt of the appellant. In granting loan as an Assistant Manager of the bank, the appellant complied with all the rules and procedures of the bank and is not guilty of the offence alleged. Even if it is held that the appellant did not observe the necessary procedure for granting of loan, such act of the appellant does not constitute an offence under Section 409 of the IPC. The evidence of PW-2 is tainted with contradictions and cannot be safely relied upon. The investigating officer of the case has not been examined and as such, the contradictions between the statement made by PW-2 in evidence and before the investigating officer did not surface. The charge against the appellant has not been proved beyond reasonable doubt and the appellant is entitled to an order of acquittal.
9. The State has supported the judgment and order impugned and has submitted that the documents on record, specially the letter of the appellant addressed to the bank authority admitting his guilt, are sufficient and adequate to substantiate the charge brought against the appellant. PW-2 who was the branch manager of the bank at the relevant time gave a detailed account of the acts of the appellant in the capacity of Assistant Manager and the evidence led by this witness gives a clear picture of the offence committed by the appellant. According to learned advocate, the prosecution has succeeded in proving the case to the hilt and the appeal should be dismissed.
10. It is clearly enumerated in Section 409 of the Penal Code, 1860 that "Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
11. In the case in hand, the appellant was admittedly the Assistant Manager of Indian Bank, Kharagpur branch from October 2000 to April 2004. It is alleged that the appellant misappropriated an amount of Rupees 5, 80,804/- by misusing his position while dealing with grant and maintenance of loans to staff, members of the public as well as himself. It appears from the seizure list that two ledger books depicting loans taken by the appellant in his favour were seized in course of investigation. But the said ledger books were not produced in evidence. The National Savings Certificates issued in the name of the appellant and seized by the investigating officer from the custody of the bank suggest that such certificates were deposited by the appellant against loan taken by him from the bank. The certificates were not pledged with the bank and as such, the bank had no authority to encash them against the loan upon maturity of the certificates.
12. In admitting grant of loans to several customers, the appellant claimed to have observed all requisite formalities and rules while granting such loan. Strangely enough, though several allegations of misappropriation of fund were slapped upon the appellant, no document was produced by the prosecution in support of the said allegations. It remains undisputed that out of the alleged defalcated amount Rs. 5,80,804/-, the appellant deposited Rs. 4,16,012/- with the bank on 23-04-2004 and a further amount of Rs. 9029/- was transferred from the savings account of the appellant on 26-05-2004.
13. The letter sent by the appellant to the Deputy General Manager and Circle Head, Indian Bank, Circle Office, Kolkata on 21-04-2004 suggests that the appellant admitted taking loan from the bank on various occasions by debiting National Savings Certificates from 5-11- 2002 to 17-04-2004, amounting to Rs. 5,80,804/- . In the said letter the appellant undertook to repay the said loan within three days hence. Contents of the letter were not denied by the appellant in his statement under Section 313 of the Cr.P.C. and the appellant admitted his signature therein. Though he denied writing or typing the letter himself, it can still be inferred that the letter was drafted on his instruction/dictation.
14. On careful scrutiny of the evidence on record including the letter of the appellant addressed to the bank authority, the sundry deposits ledger sheet and the National Savings Certificates, there remains no doubt that the appellant is guilty of committing criminal breach of trust by defalcating public money amounting to Rs. 5, 80,804/- in his official capacity as an Assistant Manager of the bank. The charge under Section 409 of the Indian Penal Code has been proved against the appellant beyond all reasonable doubt and the appellant is not entitled to an order of acquittal.
15. However, considering the period of incarceration of the appellant during pendency of the appeal which was preferred in 20
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11, and even earlier, this court is of the view that the sentence of imprisonment of the appellant should be reduced to the period of imprisonment already undergone by him, in the interest of justice. 16. C.R.A. 633 of 2011 be disposed of accordingly, affirming the judgment and order of conviction passed by the ld. trial Court and reducing the sentence of 10(ten) years of rigorous imprisonment to the period already undergone by the appellant. 17. The appellant is directed to pay the fine of Rs. 5,000/- (rupees five thousand only) in terms of the judgment impugned, in default to suffer rigorous imprisonment for another two years. 18. The appellant be released at once if not wanted in any other case. 19. Copy of the judgment alongwith the lower Court records be sent to the ld. trial Court at once. 20. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities. I agree. Joymalya Bagchi, J.