State of Orissa v. Prasanna Kumar Panda — 1997 DIGILAW 67 (ORI)

JUDGMENT P. K. PATRA, J. — The State has preferred this appeal under Sec. 378 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (for short ‘CrPC’) challenging the judgment dated 9.8.1996 passed by the Chief Judicial Magistrate, Kendrapara in G.R.Case No. 1219 of 1992 (Tr. No. 249 of 1994) acquitting the respondent of the charge under Sec. 409 of the Indian Penal Code (for short ‘IPC’). 2. The respondent (hereinafter referred to as ‘the accused’) was serving as the Revenue Cashier in the Electrical Division Office of the Orissa State Electricity Board at Kendarpara. On 17.12.1992 he received cash amounting to Rs. 67,219.35 from Junior Engineers of the Department and other persons and duly entered the same in the Books of Accounts maintained by him. He then kept the said amount in the iron-chest provided to him which was in the Cash Room of the office. The night-watchman of the office (P.W.1) who had slept in one of the rooms of the office along with a member of the audit party, woke up in the morning and found the back side grill gate broken and a passage being made for entry through the same. Then he went inside and found the lock of the Cash Room removed and the door was open and when the went inside the Cash Room he found that the iron-chest was also open. Immediately he rushed to the Revenue Divisional Ac¬countant (P.W.2) and reported the mater to him. P.W.2 informed the matter to the S.D.O. of the Electrical Division (P.W.6) and a Junior Engineer who were his neighbours and all of them went to the office and found the back side grill gate broken, lock of the Cash Room removed and the iron-chest inside the Cash Room was open. P.W.2 then went to the Executive Engineer to report about the occurrence, but the Executive Engineer was absent in his house. Thereafter all the employees of the office including the respondent were called to the office and asked to remain present there. P.W.2 intimated police over phone about the occurrence and when the I.I.C. of Kendrapara P.S. arrived in the office, P.W.2 submitted the FIR (Ext.1). The respondent had told P.W.2 that the cash of Rs. 67,219.35 kept in the iron-chest on 17.12.1992 was not there. P.W.2 intimated police over phone about the occurrence and when the I.I.C. of Kendrapara P.S. arrived in the office, P.W.2 submitted the FIR (Ext.1). The respondent had told P.W.2 that the cash of Rs. 67,219.35 kept in the iron-chest on 17.12.1992 was not there. The I.I.C. of the police station re¬turned back to the police station, registered P.S.Case No. 437 of 1992 under Secs. 457/380, IPC and directed an S.I. of the said P.S. (P.W.9) to take up investigation. During investigation, P.W.9 visited the office of the Executive Engineer, Electrical Division, examined witnesses, seized the cash-book (Ext.6), the daily collection register (Ext.7) and some other documents be¬sides an almirah, and iron-chest from the Cash Room, one Godrej lock and five keys (M.Os. I to V) under the seizure-lists (Exts. 2 to 4). He found no mark of violence on the door, lock or iron-chest and therefore requisitioned the services of a Scientific Officer as also a police tracking dog. After completion of inves¬tigation, P.W.9 found that there was no house-breaking by night and burglary in the said office, but the respondent had misappro¬priated the cash and hence he submitted chargesheet under Sec. 409, IPC against the respondent who stood his trial. The defence is one of denial. 3. In order to bring home the charge, prosecution examined nine witnesses in all. P.W.1 is the Watchman of the office, P.W.2 is the Revenue Divisional Accountant who lodged the FIR in this case, P.W.3 was the General Cashier of the office, P.W.4 was the Treasury Guard of the office and P.W.5 was the Assistant Engineer who was a witness to the seizure vide Exts. 2 to 4. P.W.6 was the S.D. O., Electrical who was also a witness to the seizure under Exts. 2 to 4, P.W.7 was the Assistant Director of Regional Foren¬sic Laboratory whose services had been requisitioned for examining the iron-chest and who submitted the report (Ext.5) after visit¬ing the spot on 16.2.1993. P.W.8 was the Divisional Accountant in the office when the respondent was serving as the Revenue Cashier there. P.W.9 is the investigating officer. 2 to 4, P.W.7 was the Assistant Director of Regional Foren¬sic Laboratory whose services had been requisitioned for examining the iron-chest and who submitted the report (Ext.5) after visit¬ing the spot on 16.2.1993. P.W.8 was the Divisional Accountant in the office when the respondent was serving as the Revenue Cashier there. P.W.9 is the investigating officer. The defence has examined one witness, i.e. D.W.1 in support of his case who was the Senior Manager, Finance of the O.S.E.B. who conducted a preliminary enquiry regarding the occurrence under the direction of the Financial Advisor-cum-Chief Accounts Officer, O.S.E.B. and submitted the report (Ext.13) concluding that departmental action should be taken against the respondent, the Revenue Cashier for gross misconduct and deliberate negli¬gence in properly safeguarding the Board’s money kept under his custody, as also against the Watchman Shri Nabaghana Sahu (P.W.1) for the same. He also recorded the statement of the accused (Ext.14) during the enquiry which reveals that the accused denied to have been negligent in safeguarding the property of the Board. 4. Mr. S. C. Misra, learned Addl. Standing Counsel for the State and the accused, in person, were heard at length. Learned Addl. Standing Counsel contended that the learned Chief Judicial Magistrate has failed to properly appreciate the evi¬dence on record and has come to an erroneous conclusion that prosecution failed to establish the charge under Sec. 409, IPC against the accused. The accused supported the impugned judgment to be legally sustainable, not warranting any interfer¬ence. 5. The report of the Scientific Officer (Ext.5) reveals the following: “ xx xx The questioned metalex chest was installed on a concrete base near the west wall side of the Cash Section On the front of the chest, there was provision for a built-in lock and a handle to operate the locking levers. The front door and internal locker door of the chest were in open condition when the spot was in¬spected by police immediately after recording the FIR. (i) The front door of the chest was opened by using two keys marked No. 1 (Metalex 1972) and No.2 (Metalex 1972); whereas the internal locker operates by using the key (Metalex 3973). (ii) Key No.1 was with the Cashier and Key No. 2 was with the Accountant of the office. These keys were submitted to him for examination. (i) The front door of the chest was opened by using two keys marked No. 1 (Metalex 1972) and No.2 (Metalex 1972); whereas the internal locker operates by using the key (Metalex 3973). (ii) Key No.1 was with the Cashier and Key No. 2 was with the Accountant of the office. These keys were submitted to him for examination. (iii) There was no mark of violence noticed on the body of the front door, the key-hole, lever-handle and side junctions of the front door with the main body of the chest. Similarly, mark of violence was also not noticed on the door and key-hole of the internal locker. (iv) He opened the built-in locks of the chest fixed behind the front door and the internal locker. The lever machanism of such locks coming in contact with the keys (originals) was examined under a microscope. The regular continuous fraction marks of the original keys were found present on the contact zone of the levers of the locks. There was no indication for use of a duplicate key in order to open both the locks of the chest. (v) The locking mechanism of the chest was found intact. In his opinion — (i) The built-in locks fitted behind the front door and in the internal locker of the chest were opened by using the origi¬nal keys. (ii) In absence of the Godrej Navtal lock No. 890877 it was not possible to opine if the said lock had been opened by using the original key or a duplicate key. There was no indication for use of external force to open the said lock.” 6. There is no dispute regarding the procedure of locking the Cash Room and the iron-chest as revealed from the report (Ext.5). P.Ws. 1, 2, 3, 4, 5 and 6 as also the investigating officer (P.W.9) have stated that there was no mark of violence on any part of the door of the Cash Room or on the iron-chest in which cash had been kept. P.W.2 has stated that the iron-safe in which cash had been kept by the accused had three locks and he was keeping the keys with respect to one lock; whereas the ac¬cused was keeping the keys to the other locks; one of which was said to be the inner lock. P.W.2 has stated that the iron-safe in which cash had been kept by the accused had three locks and he was keeping the keys with respect to one lock; whereas the ac¬cused was keeping the keys to the other locks; one of which was said to be the inner lock. According to P.W.2, the accused, who was the Revenue Cashier and another Cashier, called the General Cashier, used to sit in the Cash Room in which they were keeping cash separately collected by them in two iron-chests. 7. P.W.3 is the said General Cashier who used to sit in the Cash Room with the accused. He has stated that the wooden door of the Cash Room was being locked by a Navtal lock with two keys out of which he had one key and the accused had the other key and that on 17.12.1992 he worked in the office till 4.30 p.m., locked up the Cash Room and went to the Board’s office at Bhubaneswar being directed by the Divisional Accountant. Both P.Ws.2 and 3 have stated that the accused was in possession of both the keys meant for the inner chamber of the iron-chest and that the two keys meant for the outer lock of the iron-chest were being kept by the Cashier and the other key was being kept by P.W.2 and both those keys were required for the purpose of opening the outer lock of the iron-chest and in absence of one key the lock could not be opened. 8. The Watchman (P.W.1) has stated that on 17.12.1992 he went to the office to attend his duties at about 5 p.m. when he found the accused working in his room, i.e. the Cash Room, and that after some time the accused closed the Cash Room and went away when the General Cashier (P.W.3) was not there. But he was hastened to add that he did not mark if the accused put the lock of the Cash Room or not. Had the accused not locked the Cash Room, it was the duty of P.W.1 to point out the same to the accused and ask him to lock the door before his departure from the office since two iron-chests containing cash had been inside the Cash Room, but he has not done so. Hence this part of the statement of P.W.1 is found to be incredible. Hence this part of the statement of P.W.1 is found to be incredible. Besides, some suspicious circumstance is found from the statement of P.W.1 who has stated that at 3 a.m. one Bhabagrahi Babu of the Subdivision¬al Office called a member of the audit party who had slept inside a room with P.W.1 and that both of them woke up and P.W.1 opened the entrance gate when that person left the office and again P.W.1 locked the entrance gate. He has not whispered a word regarding any sound of breaking or bending the back side grill gate at any moment during the night and has stated that only after he went to the back side of the office for urination he could notice the bending of the gril gate and a passage being made so as to enable a person to enter through the same. It is also surprising to notice that P.W.4, the Treasury Guard of the office, whose duty was to guard the office, particularly the general Cash Sec. and to carry cash to bank for the purpose of deposit as also the assist the General Cashier in his work, has not whispered a single word regarding any person breaking or bending the grill gate during the night. Rather he has stated that in the morning of 18.12.1992 P.W.1 reported the occurrence to him and he went to the office when P.Ws.2, 6 and others were there. The Navtal lock which has been seized under Ext. 2 was found intact without any mark of violence, but surprisingly P.W.1 has stated that he did not find the lock when he found the door of the Cash Room open. The prosecution case regarding breaking or bending of the back side grill gate, opening of the door of the Cash Room, opening of the iron-chest and missing of cash kept inside the iron-chest is shrouded in mystery. 9. The prosecution case regarding breaking or bending of the back side grill gate, opening of the door of the Cash Room, opening of the iron-chest and missing of cash kept inside the iron-chest is shrouded in mystery. 9. Besides the above circumstances, the investigation is found to be perfunctory, inasmuch as no attempt was directed towards searching the houses of the accused and P.W.2 to recover the cash alleged to have been removed from the iron-chest of the Cash Room or to recover the duplicate key of the second key of the outer lock kept by P.W.2 since it was evident that without collaboration of the accused and P.W.2 the outer lock of the iron-chest could not be opened, as also to see if the same could have been opened by the accused by preparing a duplicate key of the second key with P.W.2, which possibility has not been ruled out by the Scientific Officer, as per his report Ext. 5. 10. The evidence on record excepting the dog tracking report (Ext. 8) does not point to the involvement of the accused in bending the grill gate, opening the lock of the door of the Cash Room and removing cash from the iron-chest during the night. The dog tracking report (Ext.8) is not a substantive piece of evi¬dence and cannot be acted upon without corroboration. 11. The probability of the accused to have opened the iron-chest by means of the first key of the outer lock kept by him and the duplicate of the second key kept by P.W.2 can be ruled out for the following reasons. Though P.W.2 has stated that the accused used to take the second key of the outer lock from him during the first hour of the office and to return the same to him at the closure of the office after completion of cash transaction during the day, the same statement is incredible, inasmuch as it was his duty to verify the cash transaction entered in the Cash Book of the daily collection register and to make physical verification of cash at the closure of the day’s work. P.W.2 has also admitted the nature of duties assigned to him and his responsibility to verify all the records relating to cash transaction of the day by the ac¬cused. P.W.2 has also admitted the nature of duties assigned to him and his responsibility to verify all the records relating to cash transaction of the day by the ac¬cused. He has categorically stated that on 17.12.1992 the accuse¬d took the key of the iron-chest from him as usual and re¬turned the same to him at 5.55 p.m. and has denied to have checked whether the accused had really locked the iron-chest or not. He was referred to a previous incident in which the accused allegedly misappropriated Rs. 16,000.00 when he used to keep both the keys of the outer lock of the iron-chest and subse¬quently depositing the said sum of Rs. 16,000.00 admitting tempo¬rary defalcation by him and that after that incident there was an order of the Executive Engineer that one of the keys of the outer lock of the iron-chest should be kept by the Divisional Account¬ant. Pursuant to such order, the accused handed over the second key to him (P.W.2) for which he (P.W.2) granted a receipt to the respondent. According to him, the second key of the outer lock of the iron-chest had been embossed with the figure ‘2’ and that key which was in his possession had been taken by police during investigation of the case. The seizure-list (Ext.2) reveals that only five keys had been seized on production by the accused, which were-the original key No.1 and its duplicate, the original and duplicate keys of the inner chamber of the iron-chest, and one key of a Godrej save lever lock. It does not reveal that key No.2 of the iron-chest had been seized. The seizure-list (Ext.3) reveals that Cash Book and the daily collection register as also other papers had been seized. The seizure-list (Ext.4) reveals that iron-chest had been seized. The investigating officer has failed to seize the key No.2 of the outer lock of the iron-chest from P.W.2 or its duplicate from the accused without which it was not possible to open the iron-chest without violence. As stated earlier, there was no mark of violence on the door of the Cash Room or on the iron-chest, as per the statements of the prosecution witnesses including the investigating officer and the Scientific Officer and there was also no recovery of the cash allegedly removed from the iron-chest either from the accused or P.W.2. As stated earlier, there was no mark of violence on the door of the Cash Room or on the iron-chest, as per the statements of the prosecution witnesses including the investigating officer and the Scientific Officer and there was also no recovery of the cash allegedly removed from the iron-chest either from the accused or P.W.2. The preliminary enquiry report submitted by D.W.1 reveals that there was house-breaking by night or burglary in the office and that the accused as well as P.W.1 were guilty of negligence of duty. 12. For all the reasons stated above, the culpability of the accused is not beyond reasonable doubt and mere suspicion cannot take the place of proof to hold the accused guilty of the charge levelled against him. The inevitable conclusion will be that the prosecution has miserably failed to establish beyond all reasonable doubts by leading cogent, convincing, credible an unimpeachable evidence that the accused, and the accused alone, was guilty of misappropriation of Government money. Accordingly, the finding of the trial Court acquitting the respondent of the charge is found to be unassailable and cannot be interfered with. The impugned judgment is legally sustained and is bound to be affirmed and the Government Appeal is liable to be dismissed being devoid of any merit. 13. In the result, Government Appeal No. 18 of 1997 is dismissed and the impugned judgment dated 9.8.1996 of the Chief Judicial Magistrate, Kendrapara in G.R. Case No. 1219 of 1992 (Tr. No. 249 of 1994) is affirmed. Govt. appeal dismissed.