Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 301 (ORI)

Prahallad Sethy v. State of Orissa

2014-05-02

DEBABRATA DASH

body2014
JUDGMENT : ” The Appellant has been convicted by the learned Special Judge (Vigilance), Berhampur-Ganjam in G. R. Case No. 57 of 1997 (T. R. No. 54 of 1999) for having committed offence under Section 13(2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988 and under Sections 465 and 477A of I.P.C. Accordingly, he has been sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 5000/- in default to undergo R.I for six months for offence under Section 13(2) read with Section 13(1) (d) of the P.C Act 1988; to undergo R.I. for a period of six months under Section 465, I.P.C., and R.I. for a period of one year and to pay fine of Rs. 2000/- in default to undergo R.I. for three months for offence under Sec. 477A of I.P.C. respectively with the stipulation that all the sentences are to run concurrently. Being aggrieved by the same, he has preferred this appeal challenging the said judgment of conviction and the order of sentence passed consequent thereto. 2. Prosecution case is that the appellant was working as Sub-Collector, Phulbani with effect from 30-9-1996 and he was then also the Administrator of the Notified Area Council of Phulbani from 30-9-1996 to 19-7-1997. It is stated that during this period when the appellant was the Administrator of Phulbani, NAC, he had leased out Badabandha tank to one Prafulla Kumar Choudhury for pisciculture for a sum of Rs. 35,000/- for a period of five year 1997-98 to 2001-02. This action of the appellant is said to be in violation of provision of Section 127 of the Odisha Municipal Act 1950 as it has been so leased out without due auction. It is also said that the appellant was having no authority under the Act to lease out any tank for more than three years and he had so leased out the tank for a lesser amount showing undue favour to Sri Choudhury resulting in pecuniary loss to the local body and to the advantage and for gain of that Sri. Choudhury. The appellant is also alleged to have removed the original notings and order-sheets in the file No. VII-2 /1997 and substituted those by xerox copies with fresh notings and orders, thereby forged the official records. Choudhury. The appellant is also alleged to have removed the original notings and order-sheets in the file No. VII-2 /1997 and substituted those by xerox copies with fresh notings and orders, thereby forged the official records. It is further stated that he had given permission to the persons belonging to Scheduled Tribe community for sale of their land to others in three cases without following due procedure by slaughtering the interest of these Scheduled Tribe persons amounting to criminal misconduct. 3. On 12-11-1997 Inspector of Police (Vigilance), Phulbani lodged a written report before the Superintendent of Police (Vigilance) Berhampur division with above allegations. So necessary case was registered and investigation was taken up. Finally on completion of the same charge-sheet was placed against the appellant for commission of alleged offences under Section 13(2) read with Section 13(1) (d) of the P.C. Act and Sections 465, 466 and 477 of I.P.C. Accordingly, charges were framed against the appellant for the above offences and the trial commenced. 4. During trial, from the side of the prosecution 12 witnesses have been examined, besides proving the documents as enlisted in the judgment. Out of those the important are the case record, Exts. 3/2, 3/3 and 3/4, the order of sanction Ext. 4 and another case record Ext. 2/2. From the side of defence neither any witness has been examined nor any document has been tendered for being admitted in evidence. 5. It may be stated here that the defence has taken the plea that though the above tank had been leased out in auction for a sum of Rs. 40,000/- for a period of three years from 1993-94 to 1995-96, the auction purchaser had not been able to pay the balance amount of Rs. 29,000/-. Although, Sri Prafulla Kumar Choudhury had applied for grant of lease for a period of five years, the appellant had leased out the same for a period of three years and he had given advance payment of Rs. 7,000/- but that amount has been subsequently taken back. So it is the defence case that no offence has at all been committed as projected by the prosecution. 7,000/- but that amount has been subsequently taken back. So it is the defence case that no offence has at all been committed as projected by the prosecution. With regard to permission for sale of land belonging to the Scheduled Tribe people, the appellant has taken the plea that he had granted permission as no Scheduled Tribe persons were available to purchase the land and those permissions have been granted rightly in accordance with the provision of law. 6. The trial court in the facts and circumstances of the case in all for determination which are as under :-” (1) Whether the appellant was working as Sub-Collector, Phulbani-cum-Administrator, Phulbani from 13-6-1996-97 was a public servant. The answer has been given in the affirmative and as it is seen the defence does not challenge this fact. (2) Whether the appellant being the Administrator, Phulbani NAC had leased out Badabandha tank located Hatapada in Phulbani NAC in favour of Sri Prafulla Choudhury for sum of Rs. 35,000/- for a period of five years violating the provisions of the Municipal Act. The answer has been given in the affirmative on analysis of evidence on record. (3) Whether the appellant being the Sub-Collector of Phulbani had granted permission to transfer of land belonging to Scheduled Tribe persons to persons other than tribals, violating the provisions of Odisha Scheduled Area Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (Regulation 2 of 1956). The answer has been in the negative as no such evidence was found to accept the case of the prosecution on this score. (4) Whether the act of the appellant amounts to criminal misconduct falling under the net of the provision of 13(1) (d) of the P.C. Act. The answer on analysis of evidence on record has been given in favour of the prosecution. (5) Whether the appellant has forged and altered the official record to defraud the authorities. The answer has been given in the affirmative and in favour of the prosecution. (6) Whether there is a valid sanction for launching the prosecution against the accused. The answer has been given in the affirmative when also it appears that no such challenge or attack from the side of the defence is there to this order of sanction to be in any way bad in law. (6) Whether there is a valid sanction for launching the prosecution against the accused. The answer has been given in the affirmative when also it appears that no such challenge or attack from the side of the defence is there to this order of sanction to be in any way bad in law. With the above answers on the points for determination as stated above, the trial court has held that the prosecution has been able to bring home the charges under Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988 and under sections 465 and 477A of I.P.C. against the appellant. Accordingly, the appellant has been found guilty for those offences and having been convicted there- under has been sentenced as above stated which are impugned in this appeal. 7. Learned counsel for the appellant submits that the Trial Court erred in law by placing reliance on the evidence of P.W. 9 in arriving at the conclusion that tank in question was leased out in favour of Sri. P. K. Choudhury for a period of five years without auction for a sum of Rs. 35,000/-. According to him, the solitary testimony of the P.W.9 ought not to have formed the basis of said conclusion since it is unacceptable without deriving any support from the document in that regard. His further submission is that the allegations as regards substitution of original note sheets in the file by xerox copies, to have been made by this appellant has not been established. In this connection he has highlighted the non-examination of Abhimanu Nayak, the then dealing assistant and charge-sheet witness, in view of positive evidence of P.W.9 that the lease file was being maintained by that dealing assistant. It is his further submission that the charge under Section 465 of IPC fails on the ground that there is no evidence that Exts. 8/5 and 8/6 are the so called false documents, prepared dishonestly by the appellant for gain. He has drawn attention of this Court to the evidence of P.W. 9 who had earlier stated to have kept and preserved the xerox copies of the original note sheets which are said to have been destroyed and substituted by the appellant but has maintained silence later. He has drawn attention of this Court to the evidence of P.W. 9 who had earlier stated to have kept and preserved the xerox copies of the original note sheets which are said to have been destroyed and substituted by the appellant but has maintained silence later. Banking upon the same he scathingly attacks the case of the prosecution on that aspect for non-seizure and non-production of those xerox copies, as production of those according to him would have clinched the issue. He submits that the prosecution is blameworthy for the said reason and that gives a fatal blow to the prosecution so far as the charges are concerned. With regard to the charge under Section 477-A of IPC, his submission is that the same is unsustainable as there remains no evidence to establish the fact that the appellant changed or altered the note sheets in the lease file. With the above submission he contends that the prosecution has failed to prove any of the charges by leading clear, cogent and acceptable evidence beyond reasonable doubt and the finding of the trial court holding the appellant guilty of offence under Sections 465 and 477A of IPC and under Section 13 (2) read with Section 13(1)(d) of the P.C. Act is unsustainable and thus is liable to be set aside. 8. Learned counsel for the Department of Vigilance resisting the above submission contends that the evidence of P.W.9 is clear and acceptable that the appellant granted lease of that tank owned by the NAC for a period of 5 years as against the note given to confine it for a period of 3 years and original order sheets have been removed and that period has been changed by replacing those order-sheets. She also submits that Ext.8, the lease file does not contain the original noting of P.W.9 and on the other hand some xerox copies are available in the file, which having not been explained by the appellant, the prosecution has been rightly held to have been successful in establishing the fact that the appellant as Administrator had granted lease in favour of Sri. P. K. Chaudhury for the period of 5 years, in violation of the provision of Section 127 of Odisha Municipal Act, which is per se illegal and for that reason the conviction for commission of alleged offence under Section 13(2) read with Section 13(1) (d) of P.C. Act has to be affirmed. It is also her contention that the evidence of P.W.9, the Tahasildar in charge of Executive Officer, N.A.C., Phulbani is that the original note-sheets wherein he had signed and which were there in the file had been removed and instead xerox copies are found to have been replaced, when hue and cry was raised and it is the appellant who altered the period from 5 to 3 years. According to her, this part of the evidence stand un-challenged and Ext.8 the relevant file does not contain the original noting of the Executive Officer, when the appellant has also not given any explanation as regards the xerox copies being available in the file. Therefore, it is her submission that the irresistible conclusion follows that the appellant altered the note sheets in the file fraudulently and with dishonest intention. In view of above she contends that the conviction for offence under Section 465/477-A of IPC as recorded by the Trial Court is not liable to be interfered with and consequently the sentence as imposed. 9. Admittedly, the appellant was functioning as the Administrator, Phulbani NAC from 30-9-1996 to 19-7-1997. The FIR was lodged on 12-1-1997 on the allegation that he had leased out Badabandha Tank situated at Hatapada, Phulbani to Sri. P. K. Choudhury for pisciculture for the period of 5 years from 1997-1982 (sic) and 2001-2002 for Rs. 35,000/- without conducting auction in violation of the provisions of Section 127 of Odisha Municipal Act, which only authorizes the leasing of a tank for a period not exceeding three years. It has also stated that the rate was lowered to favour the lessee causing pecuniary loss to the local body to the pecuniary advantage of the lessee. The allegation has also been made that original notings in the relevant file No. VII-2/97 have been replaced when matter came to light and that is with ulterior motive to escape. 10. It has also stated that the rate was lowered to favour the lessee causing pecuniary loss to the local body to the pecuniary advantage of the lessee. The allegation has also been made that original notings in the relevant file No. VII-2/97 have been replaced when matter came to light and that is with ulterior motive to escape. 10. It may be stated here that the lease file has been seized in the case on 25-4-1998 on production by Nakula Bhoi P.W. 10 and on 1-5-1995 xerox copies of the note-sheets have been seized on production by Abhimanyu Nayak which having been admitted in evidence, have been marked as Exts. 8/5 and 8/6. P.W. 10 has specifically stated about its production and seizure. The trial court has placed reliance upon the evidence of P.W. 9 to arrive at the conclusion that the tank was leased out by the appellant in favour of Mr. P. K. Choudhury for a period of five years without conducting any auction for a sum of Rs. 35,000/-. This P.W.9 has stated to have done the noting in the file for leasing out for a period of three years which is said to have been overruled by the appellant in enhancing the period to 5 years. Ext.8 the relevant file contains the xerox copy of the note sheets. Ext.8/1 is a query said to have been made by P.W.9. It nowhere shows that the appellant granted lease of 5 years as alleged. So when P.W.9 positively speaks that appellant had granted lease of tank for five years and as that was known to him, it is surprising to note as to how in Ext. 8/1, he would not indicate that and would not make a query as to where that particular order remained. Instead, Ext.8/1 simply is to that effect that some notes were there and those are not found for which Abhimanyu was asked to explain. Ext.8/2 as admitted by P.W.9 to have been written by concerned dealing assistant, Abhimanyu Nayak in response to Ext.8/1. Instead, Ext.8/1 simply is to that effect that some notes were there and those are not found for which Abhimanyu was asked to explain. Ext.8/2 as admitted by P.W.9 to have been written by concerned dealing assistant, Abhimanyu Nayak in response to Ext.8/1. It nowhere shows or gives any hint that the appellant himself indulged in changing the original note-sheets nor any inference can be drawn to that effect, that Abhimanyu Nayak the dealing assistant prepared notes as per the verbal instruction of the appellant and, he changed the note-sheets, particularly when he does not deny his signature for the purpose as to have not been made by him in the other notes. When in Ext. 8/2 Abhimanyu is said to have noted about change of notes as per direction of the appellant and in obedience to the same, the same itself cannot be the substitute of proof in view of non-examination of Abhimanyu Nayak who was enlisted as a witness in charge-sheet. Moreover, in Ext.8/2, it has not been stated that earlier appellant had granted lease for five years which was changed. In such state of affair and in the facts and circumstances of the case, non-examination of Abhimanyu Nayak cannot be lightly brushed aside and the prosecution is to be squarely blamed for the same as his evidence would have unfurled the truth and helped in arriving at it. The bald statement of P.W.9 on this score cannot be held to be sufficient to hold that the appellant had granted the lease for five years which was changed to three years by substituting the note sheets in relevant file, Ext. 8. Thus on this score in my considered view, the evidence on record is not sufficient to establish beyond reasonable doubt that change of note sheets as placed are the handiwork of the appellant. Moreover, P.W.9 had stated in his statement before the investigating officer that he had prepared the copy of the original note sheets which were alleged to have been destroyed and replaced by the appellant whereas he has remained silent during trial and the fact remains that the investigating officer has neither seized those photo copies nor produced and those have not been proved during trial. The same thus reasonably lead to entertain doubt on the truthfulness of the case of the prosecution. The same thus reasonably lead to entertain doubt on the truthfulness of the case of the prosecution. From all these, it can be said that the prosecution has not been able to establish that the appellant is the person who had substituted the note sheets in the file Ext.8, and although he had granted the lease for five years had changed it to three years due to hue and cry. Furthermore, admittedly no lease agreement was ever made with Sri. P. K. Choudhury for 5 years and it was decided that the tank would be put to auction as evident from later noting in file which remained deferred from time to time for some reason or other. So the fact stands that the tank was actually never given on lease to Sri P. K. Choudhury at any point of time for the period as stated nor any document was executed evidencing the same and no such pecuniary loss to the local body has thus been caused nor Shri Choudhury derived any such benefit. 11. In order to secure conviction for offence punishable under Section 468 of IPC, one must be found to have done forgery within the meaning of Section 463 of IPC which again implies that there has to be the making of a false document in terms of Section 464 of IPC. Section 463 of IPC as it stood before amendment in the year 2000 runs to the effect that whoever makes any false document of part of the document, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery. Section 464 of IPC provides the meaning of expression making a false document. Section 464 of IPC provides the meaning of expression making a false document. A person makes a false document if he -” (i) dishonestly or fraudulently makes, signs, seals or executes a document, or part of a document, or makes, signs, seals or executes a document, or part of a document, or makes any mark denoting the execution of a document; and (ii) does as above with intention of causing it to be believed that such document or part of document was made, signed, sealed or executed, (a) by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or (b) at a time at which he knows that it was not made, signed, sealed or executed. 12. A conjoint reading of Sections 463 and 464 of the IPC goes to show that two essential elements of forgery contemplated under Section 463 of IPC are (i) the making of a false documents or part of it and (ii) such making is with such intention as is specified in the section. These aspects are required to be established. So in the present case the prosecution was first of all under the obligation to prove that the appellant has made a false document or a part of such document and in the absence of that he cannot be held guilty under the section. As per the discussion of evidence in the foregoing para all possibilities of reasonable doubt in favour of appellant are not excluded. In the present case, the prosecution case is that the original note sheets etc. were substituted. The evidence on record as discussed do not establish beyond reasonable doubt that original note sheets as per the case of prosecution were there which were subsequently replaced by way of substitution by this appellant, dishonestly or fraudulently. Mere suspicion cannot take the place of proof. Next coming to the conviction for offence under Section 477-A of IPC, the first ingredient in order to attract the offence is that the appellant must be proved to have destroyed, altered, mutilated or falsified any book, paper, writing, valuable security and account. In the instant case in view of the discussion made above, the charge under Section 477(A) of IPC also fails. 13. In the instant case in view of the discussion made above, the charge under Section 477(A) of IPC also fails. 13. For the above discussion and reasons, the prosecution is found to have failed to bring home the charges for commission of any of the offences for which appellant has been convicted. Therefore, the judgment of conviction recorded against appellant for offence under Section 13(2) read with Section 13(1) (d) of P.C. Act, Sections 465 and 477A of IPC and also the order of sentence are held unsustainable in law. 14. In the wake of aforesaid, the judgment and order impugned in this appeal are set aside. Consequently, the criminal appeal is allowed. Appeal allowed.