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2003 DIGILAW 326 (ORI)

Dasarathi Sahoo v. State of Orissa

2003-04-25

L.MOHAPATRA

body2003
JUDGMENT L. MOHAPATRA, J. — This Criminal Revision is directed against the order dated 24.9.2002 passed by the learned C.J.M., Cuttack in Vigilance G.R. Case No. 62/1998 framing charge for commission of offence U/s. 409/34 of the Indian Penal Code. 2. The case of the prosecution is that the petitioner was working as Deputy Manager (Accounts), Sukarangi Mines at Kaliapa¬ni and the co-accused Rajkishore Swain was working as a Senior Accountant in the said Mine which is a Unit of Orissa Mining Corporation Limited. During incumbency of the co-accused-Rajkishore Swain, he had received a cheque dated 30th of October, 1996 for an amount of Rs.2,00,000/- from the Regional Office, Orissa Mining Corporation for encasement and for drawal from Andhra Bank. The cheque was issued in the name of the Deputy Manager (Accounts). The petitioner endorsed the same in favour of the co-accused-Rajkishore Swain in course of regular official business and the said amount having been drawn by Shri Swain on 4.12.1996, neither it was entered in the cash book nor accounted in the register maintained by him. On 19.11.1997, a committee verified the books of accounts for the year 1996-97 upto July, 1997 and it was found that the aforesaid amount encashed, was not reflected in the cash book and there was a cash shortage of Rs.2 lakhs. During enquiry the co-accused-Rajkishore Swain admitted his guilt and gave in writing that the said cheque was encashed by him and had not been taken into the cash book nor into the cash, resulting in cash shortage of Rs.2 lakhs. He also confessed to have done so without informing the present petitioner. 3. The case of the petitioner is that in view of what has been alleged by the prosecution and the statement of co-accused-Rajkishore Swain that he had encashed the amount and did not enter into the cash book and promise to pay back the amount and he had done so without informing the present petitioner, no criminal liability can be attributed so far as the present peti¬tioner is concerned. It was contended by Shri Jena, learned counsel appearing for the petitioner, that the conduct of the petitioner may at best amount to negligence in duty for which a departmental proceeding had been initiated against him and he had been punished in the said departmental proceeding. It was contended by Shri Jena, learned counsel appearing for the petitioner, that the conduct of the petitioner may at best amount to negligence in duty for which a departmental proceeding had been initiated against him and he had been punished in the said departmental proceeding. According to Shri Jena since no criminal liability can be attributed so far as the conduct of the petitioner is concerned, no charge could have been framed for commission of offence U/S. 409/34 of the Penal Code and accordingly prays for setting aside the impugned order. 4. Shri D.K. Mohapatra, learned counsel for the Vigilance Department referring to the case diary submitted that the role played by the petitioner in the entire process of misappropria¬tion cannot be said to be above suspicion. The statement of different witnesses create a suspicion with regard to involvement of the petitioner in the commission of the offence and according¬ly Shri Mohapatra submitted that the petitioner should be put to trial. 5. Since I have already mentioned about the prosecution case, there is no need to repeat the same. On perusal of the case diary, it appears that one Devi Prasad Mohanty, Manager of the Mines was examined during investigation. In his statement, he has stated that accused-Rajkishore Swain had entered in Sl. No.147 to have received the cheque dated 30.10.1996, on 31.10.96 for amount of Rs. 2 lakhs and signed in the signature column. The date of drawal of cheque remains blank whereas the same had been encashed. The petitioner has also put his initial as a token of receipt of the cheque amount of other cheques but not the cheque in ques¬tion. He has further stated that the petitioner has written on the reverse of the cheque attesting the signature of Sri Swain to encash the said cheque. He has also stated that while going through the credit voucher Nos. 808 and 809 dated 13.3.1997 and 31.3.97 respectively, he found the petitioner to have signed the credit vouchers. Shri Bipin Behari Pattnaik, who was working as Deputy Manager (Accounts) has stated in his examination that he had received three cheques for different amounts including the cheque in question and had handed over the same to the petition¬er. 808 and 809 dated 13.3.1997 and 31.3.97 respectively, he found the petitioner to have signed the credit vouchers. Shri Bipin Behari Pattnaik, who was working as Deputy Manager (Accounts) has stated in his examination that he had received three cheques for different amounts including the cheque in question and had handed over the same to the petition¬er. In view of the above statements indicating involvement of the petitioner in the process of drawal of the amount in respect of the cheque in question, it is difficult to rule out the possibil¬ity of involvement of the petitioner in commission of the of¬fence. At the time of framing of charge, the Court is only re¬quired to look into availability of prima facie materials on the basis of which a presumption can be raised to the effect that the accused might have committed the offence. On perusal of the case diary, such presumption cannot be ruled out. There is no dispute about the proposition of law that for the self same allegation, criminal case and a departmental proceeding can be initiated simultaneously. Merely because a departmental proceeding had been initiated against the petitioner where he has been found guilty and punished cannot be a ground for dropping a criminal proceed¬ing on the self-same allegations. In view of the discussions made above, I do not find any reason to interfere with the impugned order at this stage and accordingly, the criminal revision is dismissed. Revision dismissed.