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2016 DIGILAW 1215 (ORI)

Kedar Charan Mahali v. State of Orissa

2016-12-08

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Kedar Charan Mahali faced trial for offences punishable under sections 409 and 477-A of the Indian Penal Code in the Court of learned Additional Chief Judicial Magistrate, Bhubaneswar in S.P.E. Case No.44 of 1987, on the accusations that in between September 1985 and July 1986, he being the Extra-Departmental Post Master in Bhairpur Branch Post Office was entrusted with Rs.4,800/-by the account holders on account of depositing in their respective S.B. Account No.1226090, T.D. Account 26 and T.D. Account of M. Pradhan but he committed criminal breach of trust and during the said period, he willfully and with intent to defraud destroyed the pay-in-slips and falsified the Branch Office daily account, S. B. journals and account book which belonged to the employer. The learned Trial Court vide impugned judgment and order dated 04.12.1993 found the petitioner guilty of the offences charged and sentenced him to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/-on each count and in default of payment of fine, to undergo rigorous imprisonment for one month more on each count. The substantive sentences were directed to run concurrently. The petitioner preferred an appeal in the Court of Session which was heard by the learned Second Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.52/2 of 1997/94 and vide impugned judgment and order dated 06.05.1998, the learned Appellate Court upheld the impugned judgment and order of the learned Trial Court and sentence passed thereunder and dismissed the criminal appeal, hence the revision. 2. The prosecution case, in short, is that the petitioner was working as Extra Departmental Branch Postmaster at Bhairpur Branch Post Office in the district of Cuttack during the year 1985 and 1986 and he committed criminal breach of trust of Rs.4,800/-which were deposited by different account holders by falsifying the postal account. It is the further prosecution case that on 16.09.1985 account holder Mata Pradhan deposited a cash of Rs.1,000/-with the petitioner to open a five years term deposit account. The petitioner filled up the original pay-in-slip voucher as well as the counterfoil pay-in-slip and issued counterfoil pay-in-slip to Mata Pradhan but the petitioner destroyed the original pay-in-slip voucher and the relevant form executed by the account holder for opening the account and did not account for the amount of Rs.1,000/-in the postal account of Bhairpur Branch and misappropriated the same. It is the further prosecution case that the account holder Banshidhar Mallick (P.W.2) deposited a sum of Rs.800/-on 23.04.1986 with the petitioner at Bhairpur Branch Post Office along with the pass book for crediting the said amount in his S.B. Account No.1226090. The petitioner after receipt of the amount made endorsement of the deposit in the passbook and issued the counterfoil pay-in-slip but the petitioner did not account for the said amount in the postal account and misappropriated the same. It is the further prosecution case that the account holder Sabari Bewa (P.W.1) deposited a sum of Rs.3,000/-on 25.07.1986 with the petitioner to open a five years term deposit account. The petitioner filled up the original pay-in-slip voucher in his own handwriting in English and signed by P.W.1 in oriya. The petitioner also attested the specimen signature of P.W.1 in oriya in two small sheets of white papers and account opening form was also filled up by the petitioner and signed by P.W.1. The petitioner did not account for the deposit in the postal account of Bhairpur Branch. The aforesaid documents of P.W.1 were available at Bhairpur Branch and the petitioner handed over those documents to Postal Inspector S. Das and submitted a written confessional statement of his guilt voluntarily to the Postal Inspector during inquiry regarding misappropriation of cash of Rs.3,000/-of P.W.1. 3. The First Information Report was lodged on 18.12.1986 by Haribandhu Das, (P.W.6) Inspector of Police, C.B.I./SPE, Bhubaneswar. P.W.6 took up investigation of the case. During course of investigation, the I.O. seized the documents, examined the witnesses and issued requisition to Inspector of Police, K.C. Mohapatra for seizure of certain documents and examination of certain witnesses. He received the supplementary case diary along with the seizure lists, documents and statements of the witnesses from Inspector K.C. Mohapatra. He prepared the seizure list, seized the documents from Vaskar Jena, the then Superintendent of Post Office on 04.06.1987 as per seizure list Ext.22. Inspector K.C. Mohapatra prepared seizure list as per Exts.25 to 30. The Investigating Officer seized documents from the possession of the petitioner under seizure list Ext.31. He prepared the seizure list, seized the documents from Vaskar Jena, the then Superintendent of Post Office on 04.06.1987 as per seizure list Ext.22. Inspector K.C. Mohapatra prepared seizure list as per Exts.25 to 30. The Investigating Officer seized documents from the possession of the petitioner under seizure list Ext.31. The I.O. took the specimen signatures, writings from the petitioner in presence of others in different forms and plain papers and sent the specimen and admitted handwritings and the signatures of the petitioner along with the questioned documents to the Government Examiner of questioned documents with a requisition for examination and opinion. He received the recorded opinion of the Government Examiner. On completion of investigation, P.W.6 submitted charge sheet on 29.09.1987 under sections 409 and 477-A of the Indian Penal Code. 4. During course of trial, the prosecution examined six witnesses. P.W.1 Sabari Bewa is one of the depositors who stated about the deposit of Rs.3,000/-with the petitioner. P.W.2 Banshidhar Mallick is another depositor who stated to have deposited Rs.800/-in his pass book and handed over the money to the petitioner. P.W.3 Sambhu Charan Das was the Sub-Divisional Inspector, Postal, Cuttack Central Sub-Division, Cuttack and he stated about the procedure for opening a Savings Bank Account in the Post office and also to make deposit in the Savings Bank account. He proved the different records of the Branch office where the petitioner was working and also stated about the confessional statement of the petitioner. P.W.4 Pitabas Mishra was the Assistant in the office of the Superintendent of Post Offices, South Division, Cuttack who proved the enquiry report of P.W.3 who enquired into some financial bungling in Bhairpur Post office. P.W.5 Padmanavha Das was the Clerk at Bahugram Post Office who proved the entries in different pass books in the hands of the petitioner. He further stated about the deposits made by the petitioner towards the misappropriation amount before the postal authorities. P.W.6 Haribandhu Dash is the Investigating Officer. The prosecution exhibited thirty five documents. P.W.5 Padmanavha Das was the Clerk at Bahugram Post Office who proved the entries in different pass books in the hands of the petitioner. He further stated about the deposits made by the petitioner towards the misappropriation amount before the postal authorities. P.W.6 Haribandhu Dash is the Investigating Officer. The prosecution exhibited thirty five documents. Ext.1 is the signature of P.W.1, Ext.2 is the signature of P.W.1, Ext.3 is the pay-in-slip, Ext.4 is the pass book, Ext.5 is the statement of P.W.2 during postal enquiry, Exts.6 and 7 are the Branch Office journals, Ext.8 is the Time Deposit journal, Ext.9, 9/1 & 9/2 are the Branch Office daily accounts, Exts.10 and 11 are the Branch account books, Ext.12 is the enquiry report, Ext.13 is the petition of complaint of Sabari Bewa, Ext.14 is the petition of complaint of Mata Pradhan, Ext.15 is the counter foil of pay-in-slip of Mata Pradhan, Exts.16 to 21 are the statements of the accused, Ext.22 is the carbon copy of seizure list, Exts.23 to 23/2 are the carbon copies of office folio, Ext.24 is the FIR, Exts.25 to 31 are the seizure lists, Ext.32 to 32/93 are the specimen signatures and writings of the petitioner in different forms and plain papers, Ext.33 is the requisition, Ext.34 is the forwarding letter and Ext.35 is the recorded opinion of Government Examiner. 5. The defence plea of the petitioner is one of denial. Neither any oral evidence nor any documentary evidence was adduced on behalf of the defence. 6. The learned Trial Court in the impugned judgment has been pleased to hold that cogent evidence has been established that the petitioner as a Post Master had received to Rs.4,800/-from three persons namely, Mata Pradhan, Sabari Bewa (P.W.1) and Banshidhar Mallik (P.W.2) and he had not sent the daily accounts reflecting the fact of receipt of the amounts from the aforesaid three persons to the Accounts Office. He has also omitted to record the fact of receipt of the amounts in the Branch Office Journals and accounts books. It was further held that the petitioner having received the money as an employee of the postal department from different depositors did not account for the same keeping in view the instructions of the postal department being inspired by dishonest intention of misappropriation. It was further held that the petitioner having received the money as an employee of the postal department from different depositors did not account for the same keeping in view the instructions of the postal department being inspired by dishonest intention of misappropriation. It was further held that the intentional omission to reflect the receipt of the amounts received from different depositors in the prescribed records and registers such as S.B. Journal, Branch Office account, Branch office daily account was actuated by oblique intention to withhold the fact of deposit from the knowledge of the employer to defraud his employer and misappropriate the same. The learned Appellate Court scanned the oral evidence as well as documentary evidence and has been pleased to hold that the petitioner on receipt of amounts from different persons had omitted in making entries the relevant registers of the Branch Post Office and such omissions can be clearly said to be intentional omission and accordingly upheld the impugned judgment and order of conviction passed by the learned Trial Court. 7. Mr. Santosh Kumar Mund, learned Senior Counsel while not challenging the impugned judgment and order of conviction of the Courts below contended that the petitioner who was working as Extra Departmental Post Master in Bhairpur Branch Post Office has already deposited the alleged misappropriation amount which is clear from the evidence of the P.W.5 and he was also removed from the post of Extra Departmental Branch Post Master and at present he is aged about 70 years and suffering from various ailments and in the meantime, more than thirty two years have already passed and therefore, the substantive sentence which was imposed by the learned Trial Court and confirmed by the learned Appellate Court should be set aside and in lieu of that fine may be imposed on the petitioner. He further contended that at this age after so many years and at such health condition, it would not be proper to send the petitioner to suffer the rigorous imprisonment for a period of 3(three) months which was awarded by the learned Trial Court. He further contended that at this age after so many years and at such health condition, it would not be proper to send the petitioner to suffer the rigorous imprisonment for a period of 3(three) months which was awarded by the learned Trial Court. Learned counsel for the petitioner filed an affidavit of the petitioner today in Court indicating therein that he has already deposited different amounts on different dates and that he was removed from the post of Extra Departmental Branch Post Master and lost his job and that he has no source of income for last ten years and on account of ill health, for last two to three years, he is not in a position to move on his own. Learned counsel for the petitioner relied upon the decision of the Hon’ble Supreme Court in the case of State of Orissa-Vrs.-Nakula Sahu and others reported in AIR 1979 SC 663 , which was also a case under section 409 of the Indian Penal Code where the accused persons were sentenced to undergo R.I. for two years and to pay a fine of Rs.2,000/-(rupees two thousand) by the learned Trial Court which was confirmed in appeal by the Sessions Court and this Court set aside the judgments and orders passed by the learned Trial Court as well as the learned Sessions Court and acquitted the accused persons, against which judgment the State of Orissa filed a special leave petition and accordingly, the Hon’ble Supreme Court while setting aside the judgment and order of this Court, convicted the accused persons under section 409 of the Indian Penal Code but held that the accused-respondents are likely to lose their jobs and must have gone through a lot of mental and financial strain during the prolonged proceedings before the Courts lasting for over fourteen years and therefore, while remitting the substantive sentence of imprisonment, imposed a sentence of fine of Rs.10,000/-on each one of the respondents with default sentence. In the case of State of Himachala Pradesh -Vrs.-Karanvir reported in (2006) 34 Orissa Criminal Reports (SC) 544 where the respondent was convicted under section 409 of the Indian Penal Code and sentenced to undergo S.I. for a period of six months and to pay a fine of Rs.1,000/-by the Chief Judicial Magistrate, Sirmaur District at Nahan and whose appeal has been dismissed by the Sessions Judge but the High Court set aside the order of conviction, the Hon’ble Supreme Court while restoring the order of conviction of the respondent passed by the Trial Court observed that since the respondent is aged about 60 years and the offence was committed 15 years back and that the respondent had deposited the entire amount before the First Information Report was lodged, further observed that the interest of Justice would be sub-served if any substantial punishment is not awarded and accordingly, fine of Rs.4,000/-was imposed on the respondent which was apart from the amount of fine of Rs. 1,000/-which was imposed by the learned Trial Judge and in default of payment of the said fine, the respondent was directed to undergo simple imprisonment for three months. 8. Mr. Anup Kumar Bose, learned Assistant Solicitor General appearing for the Republic of India raised no serious objection to the contentions raised by learned counsel for the petitioner. 9. The petitioner who was directed to remain present today in Court appeared in person and submitted that due to long pendency of the criminal case for about thirty years, he has been physically, mentally and financially ruined and he is now depending on the usufructs of the cultivation. The Inspector in-charge of Jagatpur police station who accompanied the petitioner today in Court stated that the petitioner has got no criminal antecedent. 10. The Inspector in-charge of Jagatpur police station who accompanied the petitioner today in Court stated that the petitioner has got no criminal antecedent. 10. Considering the submissions made by the respective parties and the fact that more than thirty years have passed in the meantime since the date of registration of the case and that the petitioner has deposited the misappropriated amount as per the evidence of P.W.5 much prior to the lodging of the F.I.R. and he is now a septuagenarian and has not only lost the job after detection of the offence but also suffering from different ailments and the fact that he has got no criminal antecedent and suffered a lot of mental and financial strain during the prolonged proceeding in different Courts, keeping in mind the paramount concept of rule of law and conscience of the collective and balancing it with the principle of proportionately, I am inclined to accept the submission made by the learned counsel for the petitioner and set aside the substantive sentence of R.I. for three months which was imposed by the learned Trial Court. The petitioner is directed pay a fine of Rs.5,000/- (rupees five thousand) in total within a period of four weeks from today which shall be deposited before the learned Trial Court and in default of payment of fine, the petitioner shall undergo simple imprisonment for a period of one month. In the result, while upholding the judgment and order of conviction of the petitioner under sections 409 & 477-A of the Indian Penal Code, I sentence the petitioner to pay a fine of Rs. 5,000/-(rupees five thousand only) with the default sentence as already stated. With the aforesaid modification in the sentence, the criminal revision petition stands dismissed.