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2006 DIGILAW 794 (ORI)

Rabinarayan Lenka v. Republic of India

2006-11-17

L.MOHAPATRA

body2006
JUDGMENT L. MOHAPATRA, J. : This application under Section 482 Cr.P.C. is directed against the order dated 3.3.2006 passed by the Special Judge, CBI, Bhubaneswar in T.R. No.12 of 2003 framing charge for commission of offences under Sections 120-B/409/467/477-A of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 2. The background of the case is that there was misappro¬priation of Rs.4,91,155/- during the financial year 2001-02 in Dhenkanal Head Post Office at Dhenkanal. One Prasanna Kumar Tripathy at the relevant point of time was working as Counter Assistant and the petitioner was working as Deputy Post Master. Out of the total amount alleged to be misappropriated Rs.2,01,155/- was from 101 R.D. Deposits during the said finan¬cial year. The mater was investigated into by the C.B.I. and on completion of investigation charge-sheet was submitted against the petitioner and Prasanna Kumar Tripathy. The case of the petitioner is that P. K. Tripathy was working as Counter Assis¬tant and he was directly involved in receiving deposits and dis¬charge of the matured value to the investors. The petitioner was working as Deputy Post Master and he was only supervising dis¬charge of money to the investors apart from other supervisory works. One Nityananda Lenka was working as Post Master and he was supervising the entire money transaction including receipts and discharge of money from the depositors and investors. According to the petitioner being in no way connected with receipts and dis¬charge of money the trial Court committed an error by framing charge against him along with P. K. Tripathy. Shri Pradhan, learned counsel appearing for the petitioner referred to certain paragraphs of the charge-sheet and submitted that even if the statements made in the charge-sheet are accepted to be corrected, no iota of material can be found involving the petitioner in the transactions. In one of the paragraphs of the charge-sheet it is stated that the investigation reveals that P.K. Tripathy while functioning as SBC-II Counter Assistant misappropriated a sum of Rs.2,01,155/- from 101 R.D. deposits during the year 2001-02. Said P. K. Tripathy practically received pass books, deposit money and pay-in-slip from the depositors on different dates at the counter. He also made necessary entries of deposits in the pass books, authenticated the entry with date, stamp impression of Dhenkanal Head Post Office apart from his own initial. Said P. K. Tripathy practically received pass books, deposit money and pay-in-slip from the depositors on different dates at the counter. He also made necessary entries of deposits in the pass books, authenticated the entry with date, stamp impression of Dhenkanal Head Post Office apart from his own initial. Sri Tripathy also returned the pass book to the deposi¬tors at the counter but did not return the pay-in-slip to the depositors. He also did not reflect transactions in his hand to hand receipt book and also did not prepare the R.D. lot for the day and there was no mention of deposits in any of the postal record and therefore Sri Tripathy misappropriated the amount without knowledge of the Deputy Post Master and other staff. In another paragraph of the charge-sheet it is stated that Sri Tripathy while discharging K.V.Ps did not follow the procedure as envisaged in the Post Office savings Bank Manual Vol.II and at the time of second discharge he did not produce the K.V.Ps before the Deputy Post master for obtaining pay order for the second time and making endorsement on the applications on the K.V.Ps. for the second time by the Deputy Post Master. Instead, he pre¬pared second discharge list/journal on his own accord and debited the second discharge value of 21 KVPs to the tune of Rs.2,90,000/- from Government by abusing his official position. Referring to the aforesaid two statement made in the charge-sheet Sri Pradhan submitted that the manner in which the transactions take place, the petitioner has nothing to do any such transaction and therefore on both the counts of misappropriation Sri P. K. Tripathy has been found to be involved by the C.B.I. during inves¬tigation and no role has been played by the petitioner. Shri S. K. Padhi, learned Senior Counsel appearing for the CBI, on the other hand, submitted that so far as misappropriation from R. D. account holders is concerned, the trial Court has already deleted the name of the petitioner form the charge-sheet. But so far as misappropriation of Rs.2,90,000/- by way of dis¬charge of 21 KVPS twice are concerned, the trial Court framed charge against the petitioner having found his involvement in the transaction. 3. But so far as misappropriation of Rs.2,90,000/- by way of dis¬charge of 21 KVPS twice are concerned, the trial Court framed charge against the petitioner having found his involvement in the transaction. 3. In view of the submissions of the learned counsel appearing for the parties, this case is now confined to the role played by the petitioner with regard to the alleged misappropria¬tion of Rs.2,90,000/- by way of discharge of 21 KVPs twice. In this connection, Sri Pradhan, learned counsel appearing for the petitioner submitted that after maturity of KVPs payment is made to the depositors and accordingly it is stated to be discharged. But the allegation by the CBI is that for the second time some KVPs have been used to obtain money from the Government Exchequer but depositors were not paid and the said amount was misappro¬priated. According to Sri Pradhan, P. K. Tripathy as SBC-II Counter Assistant used to receive matured KVPs from the deposi¬tors and take the signature of depositors on backside of the KVPs and send it to the Deputy Post Master for verification as to whether the KVPs are matured or not and whether the signature of the depositors tally with the signature which they had given in their first application at the time of investment or not. After verifying the aforesaid two aspects the Deputy Post Master has to give pay order directing payment and such payment has to be made by the Counter Assistant to the depositors. After payment is made to the depositors, it is to be mentioned in the discharge journal in the respective KVPs as well as NSC numbers. With reference to the same the Counter Assistant is also required to prepare a hand to hand receipt book. The role of the Deputy Post Master in this regard is only to sign record after being satisfied that payment has been made and such payment has been properly reflected in the records. Case of the prosecution is that at the first instance between 2.5.2002 to 5.10.2002 when the depositors made their claims, the investment certificates were received by the Counter Assistant P. K. Tripathy and the signatures of the depositors were obtained on the backside of the certificates. Though cer¬tificates were placed before the petitioner and after verifica¬tion payment orders were made and actual payment was made by the Counter Assistant Sri P. K. Tripathy. Though cer¬tificates were placed before the petitioner and after verifica¬tion payment orders were made and actual payment was made by the Counter Assistant Sri P. K. Tripathy. Further case of the prose¬cution is that KVPs against which payment were made to the depos¬itors were again utilized by P. K. Tripathy and the amount ob¬tained from the Post Office account were misappropriated. Sri Pradhan, learned counsel appearing for the petitioner submitted that there is no material on record to show that P. K. Tripathy had placed those KVPs against which payment had been made again before the petitioner for verification or that any payment order was made for the second time by the petitioner. In absence of any such material, the petitioner could not have been charged for the alleged offences. Shri Padhi, learned counsel appearing for the CBI produced the case diary for perusal of the Court. From the statement of Nityananda Satpathy examined during investigation. It appears that Sri Satpathy joined postal department on 17.1.1967 as Postal Assistant and during the relevant time he was the Post Master of Dhenkanal Head Post Office. He has stated that on going through the misappropriated entries made in 101 RD pass books of Dhenkanal Head Post Office he confirmed the hand writings and initials and writings of P. K. Tripathy available in the pass books, being the Postmaster of Dhenkanal Head Post Office. He has also stated that on going through the 21 misappropriated KVPs, discharge lists of KVPs of Dhenkanal Head Office in which double encashment of a single KVP has been made he identified and con¬firmed that the misappropriated lists have been written by P. K. Tripathy and signed by the petitioner. One Antaryami Pujari, who was examined during investigation has stated that he was working in Dhenkanal division as SPO from December, 1997 to May, 2002. He has stated that on going through the 21 defrauded KVPs, discharge journals/lists, hand to hand receipt book of P. K. Tripathy he was satisfied that the KVPs have been discharged twice. On perus¬al of the discharge journals/lists, he could identify the writ¬ings of P. K. Tripathy and signature of the petitioner and also stated that utilizing the 21 KVPs for the second time a sum of Rs.2,90,000/- has been misappropriated. On perus¬al of the discharge journals/lists, he could identify the writ¬ings of P. K. Tripathy and signature of the petitioner and also stated that utilizing the 21 KVPs for the second time a sum of Rs.2,90,000/- has been misappropriated. This witness has also stated that on going through all the postal documents/records of Dhenkanal Head Post Office, he could identify and confirm the hand writings, initials and signatures of both Sri P. K. Tripathy and the petitioner. In view of such nature of evidence available on record and that too made by two Senior Officers who were working in the said post office, it is difficult to accept the contention of Sri Pradhan that the petitioner is not involved at all in the entire transaction. 4. Learned counsel appearing for the petitioner relied on a decision of the Apex Court in the case of L. Chandraiah v. State of A.P. and another, reported in 2004 (22) OCR 95 and submitted that even if the petitioner is found to be negligent in verifying documents, offence under Section 409 of the Penal Code will not be attracted. In the aforesaid reported case the peti¬tioner therein had been convicted for commission of offence under Sections 409/467/471 of the Penal Code read with Section 5(1)(c)(d) and Section 5(2) of the Prevention of Corruption Act. The law is well settled that at the time of framing of charge the Court is only required to see whether there is prima facie evi¬dence to frame charge or not. At that stage the Court is not required to analysis the evidence to find out as to whether on the existing material available from the case diary, the case will ultimately end in conviction or acquittal. The aforesaid decision of the Apex Court is distinguishable in view of the fact that the Court considered the appeal after conviction and not at the stage of framing of charge. Reliance was also placed on a decision of the Apex Court in the case of Rosan Lal Raina v. State of Jammu & Kashmir, reported in AIR 1983 SC 631 and another decision of this Court in the case of Bansidhar Swain v. State, reported in 1993 Cri.L.J. 830. Reliance was also placed on a decision of the Apex Court in the case of Rosan Lal Raina v. State of Jammu & Kashmir, reported in AIR 1983 SC 631 and another decision of this Court in the case of Bansidhar Swain v. State, reported in 1993 Cri.L.J. 830. Law laid down in the said two cases is that in absence of allegation regarding entrustment of funds, question of misappropriation will not arise and the offence under Section 409 of the Penal Code is not made out. For the sake of repetition it is again reiterated that this Court in this application under Section 482 Cr.P.C. is called upon to examine the legality of the order framing charge against the petitioner. At the stage of framing of charge as stated earlier the Court is only required to see existence of a prima facie case. Therefore, the question raised by the learned counsel for the petitioner can only be gone into after evidence is adduced before the Court and not at the stage of framing of charge. I am, therefore, of the view that the petitioner may have a good case to agitate but this is not the stage where the same can be looked into and decided. 5. Accordingly, I do not find any merit in the application and the same is dismissed. Application dismissed.