CHAKRADHAR PRADHAN v. ARUN KUMAR PRADHAN — 1988 DIGILAW 64 (ORI)

D. P. MOHAPATRA, J. ( 1 ) HAVING been convicted by the Courts below of the charges under Sections 408 and 477-A, Indian Penal Code, and sentenced thereunder, the petitioner has moved this Court in revision challenging the order of conviction and sentence. ( 2 ) THE case was initiated on the complaint filed by the opposite parties, the Secretary, Service Co-operative Society Ltd. , Kadaligarh and the President of the said Society respectively, alleging inter alia that the petitioner as the secretary of the said Society had, during the period from 1-7-1975 and 30-6-1976, collected a sum of Rs. 5635. 95 from different members by issuing receipts to them, but had not taken the amount into the accounts of the society, [details whereof were furnished in Schedule 'a' to the complaint petition ; that the petitioner misappropriated a sum of Rs, 1162. 70 by showing amounts as collected from different members in the Loan Register on different dates for which he issued no receipts and did not take the amounts into the accounts of the Society, the details of which were contained in Schedule 'b' to the complaint petition ; that during the aforementioned period the petitioner had shown advancement of loans to members of the Society to the tune of rs. 2650/- though in fact he did not advance any such loan and the details of these amounts were furnished in Schedule 'c' to the petition. It was also alleged that the petitioner misappropriated the amount of Rs. 60. 40, the sate proceeds of the pesticides, on different dates and Rs. 420. 90 towards purchase of two bags of sugar which he had not accounted for in the accounts of the society. Thus the petitioner was alleged to have committed criminal breach of trust to the tune of Rs. 10,281. 69 and also stood charged under Section 477-A, I. P. C. for falsification of accounts. ( 3 ) THE plea of the petitioner was one of denial. He denied to have been in charge of either cash or accounts of the Society. According to him, it was the President of the Society (P. W. 23) who was in overall charge of the Society and he had misappropriated the amounts in question. ( 4 ) THE complainant examined 23 witnesses and exhibited a large number of documents to establish the charges against the petitioner. According to him, it was the President of the Society (P. W. 23) who was in overall charge of the Society and he had misappropriated the amounts in question. ( 4 ) THE complainant examined 23 witnesses and exhibited a large number of documents to establish the charges against the petitioner. No witness was wamined oa behalf of the petitioner. ( 5 ) THE trial Court on consideration of the oral and documentary evidence came to the conclusion that the petitioner had committed criminal breach of trust of the amounts as alleged by the complainant and he also committed falsification of accounts. Accordingly it found him guilty of both the charges, convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for three monts, on each count with the direction that the sentences are to run concurrently. On appeal, the learned Additional Sessions Judge of Sambalpur upheld the order of conviction of the petitioner under the two charges, but considering the young age ot the petitioner modified the sentence to R. I. for one year and a fine of Rs. 1000/-, in default, to undergo R. I. for three months on each count. The sentences were directed to run concurrently. ( 6 ) THE learned counsel for the petitioner challenged the findings of the lower appellate Court mainly on the ground that the Court having discarded many of the instances given in different Schedules to the complaint petition should not have upheld the order of conviction and sentence passed by the trial Court. He further urged that the sureties for the loans alleged to have been advanced by the petitioner to different persons as described in schedule 'c' to the complaint petition ought to have been examined by the opposite parties and in absence of their evidence the transaction ought not to have been accepted. The learned counsel also challenged> the order of sanction (Ext. 44) as invalid. ( 7 ) ON careful consideration, I find no force in any of the contentions advanced on behalf of the petitioner. The learned counsel also challenged> the order of sanction (Ext. 44) as invalid. ( 7 ) ON careful consideration, I find no force in any of the contentions advanced on behalf of the petitioner. Perusal of the order of the lower appellate court clearly shows that the learned Judge has discussed the materials on record threadbare and has scrutinised all the transactions described in Schedule 'a' in respect of which either the person concerned has not been examined to prove payment of loan or ou being examined he stated that the amount was paid to the President of the Society and as per his direction the petitioner issued the receipt. After discarding the said items the appellate Court held that the transactions proved by P. W. 5 Nirakar Padhan and evidenced by receipt (Ext. 31) ; P. W. 6 Trinath Padhan coupled with receipt (Ext. 32); P. W. 7 khamania Padhan coupled with Exts. 33, 34 and 35, were accepted. Of the transactions described in Schedule 'b' none was accepted by the appellate court. The Court accepted those transactions in Schedule 'c' proved by P. W. 15 Chaitan Padhan coupled with Ext. 16, P. W. 20 Chanchala Dei coupled with Ext. 17, P. W. 17 Kulamani Sahu coupled with Ext. 18 and P. W. 18 dambaru Sahu coupled with Ext. 19. The Court on consideration also accepted the case of the complainant regarding misappropriation of the sum of rs. 430/- towards the price of two bags of sugar shown to have been purchased as per entry in the cash book (Ext. 25) without any corresponding entry in the sugar Stock Register (Ext. 30) and misappropriation of Rs. 60. 04, the cost of pesticides as evident from the entries on 16-9-1975, 17-9-1975 and 20-9-1975 showing sale of end-ine in Ext. 27 without corresponding entries in the cash book on the relevant dates. As noticed earlier, the findings of the Court below regarding these transactions are based on thorough scrutiny of the relevant materials. I have also perused the statements of the witnesses relied upon by the Court below to satisfy myself about the observations made in the impugned judgment. I find no palpable error or illegality or misconception in assessment of the evidence by the Court below. Non-examination of the sureties regarding the fictitious loans described in schedule 'c' is of little consequences. I have also perused the statements of the witnesses relied upon by the Court below to satisfy myself about the observations made in the impugned judgment. I find no palpable error or illegality or misconception in assessment of the evidence by the Court below. Non-examination of the sureties regarding the fictitious loans described in schedule 'c' is of little consequences. The alleged loanees in their testimony have categorically denied to have taken the loans shown to have been advanced to them on the respective dates mentioned in the Register. Their statements have been accepted by the Courts giving cogent reasons. Therefore non-examination of the sureties in such circumstances does not adversely affect the complainant's case. The fact that many of the items in different schedules have been descarded by the lower appellate Court also does not, in my view, affect the complainant's case. Rather it shows that the voluminous materials were thoroughly and properly scrutinised by the appellate Court before arriving at the findings. Each transaction was sought to be established by separate witnesses as it should be in a case of this nature. Therefore some transactions having not been established cannot be taken to be indicative of the fact that the entire case of the complainant is false or unacceptable. ( 8 ) THE question that remains to be considered relates to want of valid sanction for the same. The learned counsel for the petitioner relying on the provisions under Section 116 of the Orissa Co-operative Societies Act, 1962 (for short 'the Act') and referring to the sanction order marked as Ext. 44 contended that it is not a valid sanction since the order does not indicate that the authority applied his mind before according sanction for prosecution of the petitioner. Perusal of Ext. 44 shows that the Assistant Registrar, Co-operative societies, Sambalpur Circle, accorded sanction to file criminal case against the petitioner on the application filed by the then Secretary of kadaligarh A. C. S. stating that the petitioner had committed an offence under section 115 (5) (a) of the Act for which a criminal case was proposed to be started against him. It is, therefore, apparent that the order of sanction was passed under Section 116 (2) of the Act which provides that no prosecution for an offence under the Act shall be instituted without the previous sanction of the Registrar. It is, therefore, apparent that the order of sanction was passed under Section 116 (2) of the Act which provides that no prosecution for an offence under the Act shall be instituted without the previous sanction of the Registrar. But in the present proceeding the petitioner has been prosecuted under Section 408 and Section 477-A of the Indian Penal Code and not under Section 115 of the Act. As such, no sanction was necessary under Section 116 (2) of the Act for instituting the case against the petitioner. Further, since the allegation against the petitioner was that he misappropriated the funds of the Society entrusted to him and, therefore, he had committed an offence under Section 408, I. P. C. no sanction was necessary for the case, since the act complained of was no part of the official duty of the petitioner. A Division Bench of this Court in the reported case of State v. Banchhanidhi Mehri [23 (1957) CLT 352], constructing Section 47. of the Bihar and Orissa Co-operative Societies Act which required a sanction for prosecution for an offence under the Act held that criminal misappropriation by an officer connected with the Co-operative Society was not one of the offences provided under the Act and as such no sanction tor prosecution of the Registrar under section 47 was necessary. This Court in the reported cose of M, V. Suryanarayana v. The State, [24 (1958) CLT 135], construing Section 56, sub-sections (1), (2) and (3) of the madras Co-operative Societies Act, 1932 and also Section 197, Criminal procedure Code, held that the expression 'offence under this Act' in subsections (1) and (2) of Section 56 obviously means an offence created by the act, as distinct from an offence under the Indian Penal Code ; the language of Section 56 (3) of the Act is not capable of wide interpretation and analogy of Section 197, Cr. P. C , cannot apply ; even if a wide construction be given on such analogy the sanction of the Registrar will not be required for prosecution for an offence under Section 408, I. P. C. which will not be deemed to be committed in purported discharge of duty. P. C , cannot apply ; even if a wide construction be given on such analogy the sanction of the Registrar will not be required for prosecution for an offence under Section 408, I. P. C. which will not be deemed to be committed in purported discharge of duty. This Court in the case of Sesadav Nanda v. State of Orissa, [1986 (1) OLR 368, where the case was started against a Sarpanch under Section 409,i. P. G. for misappropriation of sugar taken by him for distribution amongst the villagers, held that it does not amount to act in discharge of official duty and, therefore, sanction under Section 197, Cr P. C. was not necessary. In view of the principels laid down in the aforesaid decisions, there is no scope to hold that the present proceeding against the petitioner was vitiated for want of sanction. It was not contended on behalf of the petitioner that in the facts and circumstances of the case sanction under Section 197, Cr. P. C. was necessary for prosecuting the petitioner under Section 477-A, I. P. C. ( 9 ) THE learned counsel for the petitioner also raised the question of modification of the sentences imposed by the Court below. He urged that considering the young age of the petitioner when the offence was committed by him and the fact that more than 10 years have elapsed since then, a lenient sentence may be imposed in the case. On consideration, I am of the view that ends of justice will be met by imposing the sentence of R. I. for six months with a fine of Rs. 1000/ -. Accordingly, I modify the sentence imposed by the appellate Court to six months' R, I. with a tine of Rs. 1000/-, in default, to r. I. for three months on each count with the direction that the sentences shall run concurrently. ( 10 ) ON the ultimate analysis, all the contentions raised on behalf of the petitioner having failed, the revision petition is dismissed as devoid of merit subject to the modification in the sentence indicated above. Revision dismisses. .