STATE OF ORISSA v. PUMA CHANDRA DASS — 1989 DIGILAW 312 (ORI)

K. P. MOHAPATRA, J. ( 1 ) THESE appeals though arising out of five separate judgments passed by the learned Chief Judicial Magistrate, Sundargarh, acquitting the respondent of the charge punishable under Section 408 of Indian Penal Code, the facts being identical, were heard at a time and are being disposed of by this judgment. ( 2 ) THE following chart will show the amounts alleged to have been misappropriated by the respondent during the periods stated against each 1. G. A. 88 of 1981 - Rs. 340/- between 1-6-66 and 31-5-67. 2. G. A. 89 of 1981 - Rs. 2225/- between 1-6-67 and 3 1-5-68. 3. G. A. 87 of 1981 - Rs. 5080/- between 1-6-68 and 3 1-5-69. 4. G. A. 91 of 1981 - Rs. 5605/- between 1-6-69 and 3 1-5-70. 5. G. A. 92 of 1981 - Rs. 8645/- between 1-6-70 and 3 1-5-71. 6. G. A. 90 of 1981 - Rs. 8045/- between 1-6-71 and 3 1-5-72. Prosecution case in brief is that Government of India had formulated a scheme known as Pay Rate Savings Scheme for encouraging employees of industrial establishments for making savings from their pay. This scheme was called Cumulative Time Deposit (for short C. T. D.) and Recurring Deposit (for short R. D. ). The Orissa Cement limited, Rajgangpur (herein after referred to as O. C. L.) had four limestone quarries at Lanjiberna. Quarry Nos. 1 and 2 were managed by O. C. L. departmentally and quarry Nos. 3 and 4 were operated through Contractors. The C. T. D. and the R. D. schemes were introduced in all the four quarries. One O. V. Johan, a Time Keeper of Lanjibema working under O. C. L. was placed in charge thereof. On 30/4/1966 the respondent took charge of the scheme from O. V. Johan who went on long leave. The employees of the O. C. L. serving in quarry Nos. 1 and 2 and the contractors for quarry Nos. 3 and 4 used to submit two applications to respondent, one addressed to the Management and the other to the Post-Master, Rajgangpur Post Office for the purpose of opening accounts in their names. On receiving the applications the respondent took steps to issue directions to different Time Keepers to deduct the required amounts from the pay of the employees. 3 and 4 used to submit two applications to respondent, one addressed to the Management and the other to the Post-Master, Rajgangpur Post Office for the purpose of opening accounts in their names. On receiving the applications the respondent took steps to issue directions to different Time Keepers to deduct the required amounts from the pay of the employees. He used to receive the deducted amounts from them, as well as from the contractors, prepare a consolidated list and deposit the amounts in the Post Office in the names of individual employees from time to time. It was also his duty to open Postal Savings Pass Books in their names, retain the same and keep endorsements of deposits recorded from time to time. It is alleged that the respondent received the amounts deducted from the pay of the employees from month to month during the period from 1-6-66 to 31-5-72, did not deposit the same by opening pass books in time and misappropriated the amounts. On account of the misappropriation committed by the respondent the O. C. L. had to compensate the employees from whose pay deductions had been made. The misappropriatrion was detected in 1972 and F. I. R. was lodged at Rajgangpur Police Station. Investigation into the case resulted in chargesheets being submitted against the respondent for having committed offences punishable under Section 408 of the Indian Penal Code. ( 3 ) ON consideration of the oral and documentary evidence adduced by the appellant in all the cases, the learned Chief Judicial Magistrate held that the prosecution could not establish entrustment of the cash to the respondent and so the case could not be established against him. Accordingly he acquitted the respondent in all the cases. ( 4 ) IT was contended on behalf of the appellant that appreciation of evidence by the learned Chief Judicial Magistrate was improper. Although there was specific evidence of entrusment of cash to the respondent who was an employee under the O. C. L. and that without making deposit in the Post Office in the saving bank accounts of the employees, he misappropriated the same. This aspect of the evidence was not noticed by the learned trial Judge and so the impugned judgments are liable to be set aside. ( 5 ) IN Awadesh and anr. This aspect of the evidence was not noticed by the learned trial Judge and so the impugned judgments are liable to be set aside. ( 5 ) IN Awadesh and anr. v. State of Madhya Pradesh, explaining Section 378 of the Code of Criminal Procedure it was held that although the power of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight are considerations to matters e. g. (i) the views of the Trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption cerainly not weakened by the fact that he has, been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. In other words, if the main grounds on which the court below based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. If on appraisal of the evidence and on considering relevant attending circumstances it is found two views are possible, one as held by the Trial Court for acquitting the accused and the other for convicting the accused, in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal unless the conclusions of the Trial Court drawn on evidence on record are found to be unreasonable, perverse and unsustainable. In view of the above principle it is necessary to make a close scrutiny of the prosecution evidence in all the cases. At the outset it is necessary to observe that the respondent did not dispute that he was serving as an employee under the O. C. L. It was also not disputed that the C. T. D. and R. D. schemes were implemented by the O. C. L. in respect of its employees serving under the Lanjibema Stone Quarries, two of which were operated by itself and two were operated through Contractors. It also remained undisputed that some amounts were deducted from the salary bills of each employee every month for making deposit in savings bank accounts opened at Rajgangpur Post Office. But the main question for consideration is whether the respondent was entrusted with the duty of collecting the amounts deducted from the pay bills of the employees every month so as to make the deposits in the savings bank accounts of the post office, but instead of doing so, misappropriated the entire amount or a part of it during the period under charge. ( 6 ) THE witnesses examined in each case can be broadly divided into the following three categories: 1. A large number of persons serving as employees under the O. C. L. ; 2. Jagdish Prasad Agarwal serving a Assistant Legal Manager of the O. C. L. , and 3. The investigating officers. All the employees stated that a certain amount was deucted from their monthly pay bills. They filled up forms and made over them to the respondent. None of them stated that they paid cash to the respondent or themselves witnessed the payment of cash every month to him so as to make deposits in die post office. In Government Appeal No. 87 of 1981 (arising out of G. R. case No 254 (B) of 1972, T. R. No. 14 of 1978) P. W. 1 stated that Cashier Sharma used to disburse pay to the employees. Sometimes other persons were also coming from Rajgangpilf to disburse the same. P. W. 2 in the same case stated that the respondent used to take all the deductions and deposit the same in the post office in the C. T. D. accounts of the employees of the company. But he admitted in his cross examination that he did not make the aforesaid statement, before the investigation officer. This is an important omission with regard to entrustment of cash in favour of the respondent and so a vital omission amounting to contradiction. Therefore, it is difficult to accept the above statement. P. W. 3 of the same case was serving under a Contractor firm operating quarry Nos. 3 and 4 of the O. C. L. in Lanjibema. This is an important omission with regard to entrustment of cash in favour of the respondent and so a vital omission amounting to contradiction. Therefore, it is difficult to accept the above statement. P. W. 3 of the same case was serving under a Contractor firm operating quarry Nos. 3 and 4 of the O. C. L. in Lanjibema. He stated that from June, 1966 the respondent took over charge of the C. T. D. and R. D. schemes and, since then he was paying the deducted money to him till April, 1972 on receipts, Exts. 11 and 11 (76 ). In cross-examination he admitted that the receipts did not show that the respondent received the money from him. He did not see any order directing the respondent to receive money. Even if the evidence of these witnesses is accepted as true, yet it will at best prove that on 17 occasions on passing receipts respondent received money, but nothing appears to show that the amounts were not deposited in the post office and in fact misappropriated by the latter. The evidence of P. W. 25 of the same case is worth reading. He stated in a most evasive manner and did not make any reference to the respondent with regard to payment and entrustment. On the other band, he repeatedly referred to the authorised man as the entrusted officer, but did not mention the name of the aforesaid officer. In cross examination he stated that he could not say if after deduction of cash at Lanjibema the cashier of the accounts section used to give the amount to the authorised man. He corrected himself and said that the cashier of the Accounts section of Lanjibema used to give that amount to the authorised man. , He could not say if the aforesaid man of Lanjibema was then depositing the amounts in the post office. He again said that the authorised man at Lanjibema was then depositing the amounts in the post office. He had seen the cashier handing over the cash to the respondent at Rajgangpur. He did not see the respondent depositing the amount in the post office. When occasionally he happened to be present in the accounts section he saw the payments. He again said that since 1968 till the respondent was discharged from service he saw him receiving money from the Assistant Accountant by cheques. He did not see the respondent depositing the amount in the post office. When occasionally he happened to be present in the accounts section he saw the payments. He again said that since 1968 till the respondent was discharged from service he saw him receiving money from the Assistant Accountant by cheques. He again corrected himself and said that he saw the handing over of the cheques 5 to 10 times. Apart from his evidence being prevaricating, he did not specifically say that the respondent did not make the deposits, but misappropriated the amounts paid to him. The above is the state of evidence in all the cases. From the evidence on record it can at best be believed that the respondent was entrusted with the work of receiving the cash deducted from the salary of the employees, collected the application forms from them and made the deposits in the post office in their individual accounts. But the essential ingredients of Section 404 of dishonest misappropriation without making any deposit has not been established. In view of the evidence on record the learned trial judge in G. R. Case No. 254 (B) of 1972, Order of which has been impugned in G. A. No. 87 of 1981, held: Exactly in the instant case certain amounts had been given to the accused for deposit and the evidence is that deposits were being made by the accused. It might so happen that the amounts realized from the different employees had not been given for deposit and naturally they would come and complain that their money had not been deposited. It is a case where the actual disbursing officers and the persons depositing the amount are not the same persons nor the accused was being given the amount relating to individual persons but a lump sum amount was being given to him. It is very likely that the disbursing officers, who were deducting the amounts had not paid the total realised to the accused with a list who were the persons from whom the amounts had been deducted. At the stage of investigation also this has not been done and therefore it cannot be said that the accused had misappropriaterd the amounts. Another circumstance is that the witnesses say that the shortage found in their deposits have already been deposited by the Company in different months. At the stage of investigation also this has not been done and therefore it cannot be said that the accused had misappropriaterd the amounts. Another circumstance is that the witnesses say that the shortage found in their deposits have already been deposited by the Company in different months. Although they say that the Company gave the amounts and deposited, there is no documents in support of the evidence that the Company out of their own funds have deposited the amounts in compensation. Not a single scrap of paper in that respect has been filed, the evidence of the witnesses, some of whom are illiterate cannot be accepted that the company from their own funds have deposited the same and not out of the funds realised by the Disbursing officer, who were making the deductions. In the instant case, it has not been established that the money had not been deposited, but it is the positive case that some amount has been deposited, but in view of the fact that there is no evidence as to what was the total deductions and as to which of the employees deductions this amount related and if the amount given to the accused in different months was the exhaustive amount, it cannot be said that he has not deposited the same. Similar findings have been reached in the other cases also. ( 7 ) ON a careful reassessment of the prosecution evidence it cannot definitely be held that whatever cash was paid to the respondent for depositing in the post office were all not deposited and he committed criminal misappropriation in respect of a substantial portion of it. There is Scope to conclude that whatever cash was paid to him was in fact deposited, but as the entire deducted cash was not paid to him, he could not make the deposit. When from the evidence two views as above are possible, it would not be in accordance with law to set aside the order of acquittal. For the reasons stated above, I do not find adequate legal grounds for interference with the judgments of acquittal passed by the learned Chief Judicial Magistrate and so dismiss the appeals. .