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IN THE GAUHATI HIGH COURT
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JUDGMENT ORDER, Fairness of trial does not mean that the trial has to be fair to the. accused alone Equally important is that the trial is fair to the person. aggrieved or whose near and dear ones are aggrieved When police. registers a case the State assumes the responsibility of conducting an. investigation Having assumed the responsibility of investigating the truth. or veracity of the allegations which the police receive the State cannot act. nor can its Investigating agency act without a sense of impartiality It is. not merely a trial which has to be impartial No less important it is that the. investigation too is impartial Fairness of trial will carry with it the. fairness of investigation and fairness of investigation will carry with it the. impartiality in investigation besides the investigation being efficient un. biased not aimed at helping either the prosecution or the defence In. short an investigation must not suffer from any ulterior motive or hidden. agenda to either help a person or harm a person This is the principle. which Article 21 of the Constitution of India read with Article 14 thereof. enshrines when we say that our Constitution guarantees fair trial See. Rana Sinha Sujit Sinha vs The State of Tripura Ors reported in 2011 5. 2 With the help of this application made under Section 482 Cr P C. the petitioner who is the informant of Margherita Police Station Case No. 111 of 2008 Corresponding to GR Case No 276 of 2008 under Sections. 408 420 IPC has sought for setting aside and quashing the order dated. 16 12 2009 passed by the learned Judicial Magistrate 1st Class Margherita. declining to direct further investigation into the said case in terms of the. Crl Pet No 17 of 2010, provisions of Section 173 8 Cr P C on the grounds that cognizance had. already been taken process has already been issued against the accused. opposite party No 3 herein namely Sri Ashutosh Talukdar the accused. opposite party No 3 has already entered appearance and that Section 311. Cr P C read with Section 319 Cr P C give sufficient power to the Court to. unearth the truth and in the context of the facts of the present case no. order for further investigation as has been sought for by the informant is. 3 The material facts emerging from the record and leading to the filing. of the present application under Article 482 Cr P C are in brief set out as. i The informant is a company incorporated under the. Company s Act 1956 with its registered office at Kolkata and owns. various tea gardens in the State of Assam including a tea garden which is. run under the name and style of Namdang Tea Estate situated at. Margherita in the district of Tinsukia, ii The accused opposite party No 3 herein namely Sri. Ashutosh Talukdar was initially appointed on 12 11 1984 as office clerk. in Grade III in Namdang Tea Estate of the petitioner company and with. effect from 18 03 2000 he was posted as Head Clerk of Namdang Tea. Estate Being the Head Clerk the opposite party No 3 according to the. petitioner was entrusted with the duty to prepare vouchers for. disbursement of payments to different persons his additional duty being. preparation and maintenance of cash books in the computer as well as in. printed version The accused as Head Clerk according to the petitioner. Crl Pet No 17 of 2010, was also entrusted with the duty to not only prepare vouchers but make. iii Describing the manner in which the cash books in computer. as well as in printed version are maintained and various amounts which. were disbursed to the third parties the petitioner states that based on. approximate amounts payable by the said tea estate to various persons. cash is withdrawn from the bank by the said tea estate and kept in the safe. which remains in the custody of the Manager of the said tea estate the said. safe of the petitioner s tea estate being operated jointly with two different. keys at a time while one key remains with the Manager of the said tea. estate the other is kept by the Head Clark and that the Head Clark takes. out cash from the safe in the presence of Manager according to the. requirement of a given day The cash lying in the safe is either withdrawn. on the same day or the subsequent day by the Head Clark as per. exigencies The cash is withdrawn on the basis of the vouchers which the. Head Clark prepares and the amounts mentioned in the vouchers are. entered into the computer of the said tea estate and upon making entry in. this regard the computer generates a cash book in the printed form and. thereafter the printed cash book is signed by the Manager. iv The informant company s auditor namely M S BM Chatrath. and Company found upon conducting audit of the accounts of Namdang. Tea Estate that the accused as Head Clark had manipulated the cash. books which he was entrusted to prepare and maintain and. misappropriated huge amount of money The manipulation as well as. misappropriation done by the accused came to be unearthed by. Crl Pet No 17 of 2010, conducting audit by one Sri Tejash Kr Bhattacharjee one of the auditors of.
M S BM Chatrath and Company the process of manipulation resorted to. by the accused being that he manipulated the entries by showing in the. computer system cash payments of higher amounts than the amounts. actually paid The consequence was that the cash entries made in the. computer were larger than that of the physical cash book which the. accused himself had maintained and during the audit the total of such. entries made in the computer were found to be different and varying. from the day s total of cash payments in the cash book maintained by the. accused It was also found according to the informant that the accused. had fraudulently prepared different cash books with missing entries and. wrong total of payments and produced the same before the Manager The. auditor also found that false and fictitious entries had been made in the. computer system which were not backed by relevant vouchers. v The manipulation committed by the accused was revealed. when the auditors checked the printed cash book signed by the Manager. The modus operandi of the accused according to the informant was thus. The day s total of cash payments in the cash copies were manipulated by. showing a higher total disbursement than the actual amounts paid and a. lower cash balance and thereby the requirement for cash were inflated. Under such circumstances the auditors counter checked the entries of cash. payments in the system and found that the number of cash entries. appearing in the system were more as compared to the entries in the cash. book in physical form signed by the Manager and the total of the extra. entries appearing in the system exactly matched with the difference. Crl Pet No 17 of 2010, found in the day s total of cash payments in the copies of cash book signed. by the Manager This reflected that the accused who had been entrusted. with the responsibility to prepare cash book and produce the same before. the Manager for latter s signature had fraudulently prepared different. cash books with missing entries and wrong total for payment and. produced the same before the Manager All the additional entries of cash. payments appearing in the cash book in the computer system and not in. printed form were not supported by any voucher whatsoever the entries. thus being all fake and willfully inserted in the system to cover up the. difference between the actual and enhanced cash expenses The accused. also deleted suppressed in the system the fake entries and the print outs. of the cash book showing genuine cash expenditure in the entries. suppressing the voucher were given in the printed form by the Head. Clark to the Manager and he accused got the latter s signatures obtained. thereon However the day s total in the system being not changeable in. the system remained unaltered in the printed cash book copies signed by. the Manager As an illustration the informant while describing the modus. operandi of the accused states that the accused in maintaining and. preparing the cash book in the computer would enter 100 entries of which. 10 entries would be fraudulent and fictitious entries While printing out. the said cash book prepared in the computer the accused manipulated the. system wherein only 90 entries would be mentioned however the total of. the 90 entries which were reflected in the printed version of the cash book. and the 100 entries which were reflected in the cash book maintained in. the computer system the total would always remain the same In other. Crl Pet No 17 of 2010, words the total of 100 payment vouchers and the total of 90 genuine. payment vouchers maintained in the printed form in the cash book. would be the same The extra amount i e the total 10 fraudulent. vouchers so drawn out from the safe were misappropriated by the. accused By this way the accused had misappropriated an amount of Rs. 25 40 137 44p belonging to the petitioner, vi Upon the report so supported by the auditors a First. Information Report was lodged with Margherita Police Station which. came to be registered as indicated above as Margherita Police Station. Case No 111 of 2008, vii Following the registration of the FIR the investigating officer. concerned seized on various occasions following documents. i On 27 06 2008 the following documents were seized. a One Safe Book of Namdang Tea Estate containing Reg NO 1 to. b One Audit Report of Namdang Tea Estate done by M s B M. Chatrath Co Chartered Accountant for the financial year. c One Audit Report of Namdang Tea Estate done by M s. B M Chatrath Co Chartered Account for th period 2003 04 to. d Confession Letter written by Sri Ashutosh Talukdar addressing. the Acting Manager Namdang Tea Estate alongwith list of. witnesses code and amount date wise, ii On 25 08 2009 the Investigating Officer seized one draft copy.
written by the Respondent No 3 addressed to Gopal Automobile. Makum Road Tinsukia, Crl Pet No 17 of 2010, iii On 10 08 2009 the Investigating Officer seized the following. a One C P U Computer Processing Unit where account records. were stored at Namdang Tea Estate w e f 2004 05 to 2006 07. b One CD Compact Disk containing cash books of Namdang Tea. Estate w e f 2004 05 to 2006 07 and 2008, viii The officials of the informant company apprised the. investigating officer of the manner of maintenance of printed cash book. wherein the Managers had put their signatures and the fact that the. seizure of the printed cash book was necessary because the same were. wider piece of evidence for without comparing the printed cash book. signed by the Managers with the cash book maintained in the computer. it was not possible to prove the offence which according to the informant. the accused had committed This apart during the course of investigation. Shri Tejesh Kumar Bhattacharjee one of the auditors who had conducted. the audit as well as the Managers who had signed the cash book were not. examined as witnesses and their attendance were never sought for by the. investigating officer at any stage during the course of investigation The. charge sheet also reveals points out the petitioner that the said persons. have not been mentioned as prosecution witnesses though their evidence. would be very material for the purpose of proving the commission of. offence by the accused, 4 The petitioner company submits that the accused was not. interrogated by the investigating authority and was shown as absconder in. the charge sheet In this regard it is also brought to the notice of this Court. Crl Pet No 17 of 2010, by the petitioner that the accused had filed as many as four applications. for pre arrest bail under Section 438 Cr P C in the High Court but all the. said applications were rejected and in the last Bail Application No. 2955 2009 the Court had while rejecting the bail application directed the. accused to surrender before the Sub Divisional Judicial Magistrate. Margherita within a period of 14 days The accused did not however. surrender contrary to the directions so issued The informant through its. Manager filed an application in the Court of the learned Sub Divisional. Judicial Magistrate Margherita bringing to the notice of the learned Court. below the directions which had been passed in Bail Application No. 2955 2009 However the learned Sub Divisional Judicial Magistrate. Margherita disposed of the said petition filed by the Manager of the. informant company by observing in the order dated 20 08 2009 that as. the accused person had neither surrendered nor has he been produced. before the Court the Court could do nothing in respect of appearance of. the accused, 5 It is alleged by the informant company that the accused and the.
investigating officer knew each other They knew that in view of the order. passed by this Court in Bail Application No 2955 2009 the accused would. not be granted bail and yet in perfunctory and haphazard manner the. investigating authority submitted charge sheet against the accused on 13. 09 2009 showing him as absconder The said charge sheet was taken note of. by the learned Magistrate on 23 10 2009 and the cognizance of offences. under Sections 408 420 IPC was taken and having taken note of the fact. that the accused was an absconder the learned Sub Divisional Judicial. IN THE GAUHATI HIGH COURT THE HIGH COURT OF ASSAM NAGALAND MEGHALAYA Namdang Tea Estate alongwith list of witnesses code and amount date wise

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