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2016 DIGILAW 1216 (ORI)

Kedar Charan Mahali v. Republic of India

2016-12-08

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Kedar Charan Mahali faced trial in the Court of learned Additional Chief Judicial Magistrate, Bhubaneswar in S.P.E. Case No.40 of 1986 for commission of offences punishable under sections 409/477-A of the Indian Penal Code on the accusations that in the year 1984 being a public servant employed as Extra Departmental Branch Post Master in Bhairapur Branch Post Office, he was entrusted with Rs.2850/-by the account holders on account of depositing in their respective S.B. Account Nos.1225019, 1224836 and 1225826 but he committed criminal breach of trust and willfully and with intent to defraud, destroyed the pay-in-slips and falsified the Branch Office daily accounts, S.B. journal 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 both under sections 409 and 477-A of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of 3(three) months and to pay a fine of Rs. 500/-(rupees five hundred) on each count, 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 petitioners preferred an appeal before the Court of Session which was heard by the learned 2nd Addl. Sessions Judge, Bhubaneswar in Criminal Appeal No.32/1 of 1997/94 and the learned Appellate Court vide impugned judgment and order dated 16.01.1999 upheld the impugned judgment and order of learned Trial Court and dismissed the appeal, hence the revision. 2. The prosecution case, in short, is that the petitioner was working as Extra Departmental Branch Post Master at Bhairpur Branch Post Office in the district of Cuttack during the year 1984 and he committed criminal breach of trust to the tune of Rs. 2850/- which was deposited by different account holders on different dates by falsifying the postal accounts. It is the further prosecution case that the account holder Bankanidhi Das (P.W.2) deposited a sum of Rs. 400/-on 27.08.1984 with the petitioner for crediting the amount in his S.B. account bearing No. 1225019. 2850/- which was deposited by different account holders on different dates by falsifying the postal accounts. It is the further prosecution case that the account holder Bankanidhi Das (P.W.2) deposited a sum of Rs. 400/-on 27.08.1984 with the petitioner for crediting the amount in his S.B. account bearing No. 1225019. The petitioner after receipt of the said amount, entered the said deposit in the pass book of the depositor and issued the counterfoil of pay-in-slip after signing and putting the official stamp thereon but he failed to account the said amount in the postal account i.e. Branch Office daily account, S.B. journals, Branch Office account book and the petitioner also destroyed the voucher part of the pay-in-slip and misappropriated the same. It is the further prosecution case that another account holder namely Smt. Kamala Sahu (P.W.1) deposited a sum of Rs. 450/-on 07.01.1984 with the petitioner for crediting the amount into her S.B. Account No. 1224836. The petitioner after receipt of the said amount, entered the said deposit in the pass book of the depositor and issued the counterfoil of pay-in-slip after signing and putting the official stamp thereon but he failed to account the said amount in the postal account and misappropriated the same. It is the further prosecution case that another account holder Shri Sudarsan Samal (P.W.3) deposited Rs.2000/-on 26.09.1984 with the petitioner for opening S.B. account in his name. The petitioner after receiving the said amount, issued a counterfoil receipt for Rs.2000/-to P.W.3 on that day but the petitioner accounted for Rs.5/-only on 8.10.1984 at Bhairpur Branch and destroyed the voucher pay-in-slip dated 26.09.1984. Subsequently when P.W. 3 visited the Branch Post Office to receive his pass book, the petitioner made an entry showing the deposit of Rs. 1995/-on 16.10.1984 and delivered the pass book having S.B. Account No.1225826 to P.W.3. The petitioner failed to account for Rs.1995/-either on 26.09.1984 or on 16.10.1984 in the postal account and thereby misappropriated a sum of Rs.2000/-i.e. Rs.5/-26.09.1984 to 07.10.1984 and Rs. 1995/-from 26.09.1984. 3. The case was registered under section 409 of the Indian Penal Code on the First Information Report submitted by Shri Haribandhu Das (P.W.7), Inspector of Police, C.B.I./S.P.E., Bhubaneswar on 18.12.1986 indicating the allegation of criminal misappropriation by the petitioner to the tune of Rs. 7,645/-in respect of S.B./T.D. account of six account holders. P.W.7 took up investigation of the case. The case was registered under section 409 of the Indian Penal Code on the First Information Report submitted by Shri Haribandhu Das (P.W.7), Inspector of Police, C.B.I./S.P.E., Bhubaneswar on 18.12.1986 indicating the allegation of criminal misappropriation by the petitioner to the tune of Rs. 7,645/-in respect of S.B./T.D. account of six account holders. P.W.7 took up investigation of the case. During investigation, the I.O. seized documents, examined the witnesses, issued requisition to the Inspector of Police Shri K.C. Mohapatra for seizure of certain documents and examination of witnesses. He received the supplementary case diary along with seizure lists, documents and statements of witnesses from the Inspector K.C. Mohapatra. He seized the documents from Bhaskar Chandra Jena, the then Superintendent of Post Office on 04.06.1987 under seizure list Ext.27. On 20.07.1981, Inspector of Police K.C. Mohapatra seized the documents under seizure lists Exts. 30 to 36. The I.O. seized the receipts regarding the repayment of the misappropriated amount by the petitioner after detection of misappropriation by the postal department under seizure list Ext.37 from the possession of the petitioner. The Investigating Officer took specimen signatures and handwritings of the petitioner on plain papers, the daily account forms, the S.B. accounts pass books and other forms. He sent the specimen hand writings and admitted handwritings, initials and signatures of the petitioner along with questioned documents to the Government examiner of questioned documents with requisition for examination and opinion. He received the recorded opinion of the Government Examiner of the questioned documents. On completion of investigation, on 29.09.1987 the Investigating Officer submitted charge sheet under sections 409 and 477-A of the Indian Penal Code. 4. During course of trial, in order to prove its case, the prosecution examined seven witnesses. P.W.1 Kamala Sahu, P.W.2 Bankanidhi Sahu and P.W.3 Sudarsan Samal are the depositors, out of which P.W.1 did not support the prosecution case for which she was declared hostile by the prosecution. P.W.2 and P.W.3 have stated that they deposited a sum of Rs.400/-and Rs. 2,000/-with the petitioner respectively. P.W.4 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 different records of the Branch office where the petitioner was working and also stated about the confessional statement of the petitioner. He proved different records of the Branch office where the petitioner was working and also stated about the confessional statement of the petitioner. 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 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. 4 who enquired into some financial bungling in Bhairpur Post office. P.W.7 Haribandhu Das is the Investigating Officer. The prosecution exhibited as many as forty documents. Ext.1 is the pass book, Ext.2 is the statement of the Kamala Sahu, Ext.3 is the pass book of Bankanidhi Das, Ext.4 is the statement of P.W.2, Ext. 5 is the pass book, Ext.6 is the statement of P.W.3, Ext.7 is the journal, Ext.8 is the journal for saving banks, Ext.9 is the journal, Exts. 10 to 12 are the Branch office account books, Exts.13 to 15 are the daily accounts of the Branch Office, Exts. 16 to 21 are the Confessions in writing, Exts.22 to 25 are the daily accounts maintained in the hands of the petitioner, Ext.26 is the attested copy of the enquiry report, Ext.27 is the carbon copy of the seizure list, Exts.28 to 28/2 are the acknowledgement of receipts granted to the accused, Ext.29 is the F.I.R., Exts. 30 to 36 are the seizure lists, Exts.37 to 37/93 are the daily accounts forms S.B. account pass books and other forms, Ext.38 is the requisition, Ext.39 is the forwarding letter to the Govt. Examiner of the questioned documents and Ext.40 is the opinion of the 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. Examiner of the questioned documents and Ext.40 is the opinion of the 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 after considering the oral as well as documentary evidence available on record has been pleased to hold that the petitioner concealed the fact of deposits received from the account holders from his official superiors being inspired by dishonest intention to convert the same to his own use which is clearly contrary to the direction of his departmental authorities and therefore, the petitioner failed to discharge the onus on him to account for the amounts entrusted to him. It was further held by the learned Trial Court 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 accounts, Branch Office daily accounts was actuated by oblique intention to withhold the fact of deposit from the knowledge of the employer to defraud his employer and misappropriated the same. The learned Appellate Court also analysing the oral as well as documentary evidence, has been pleased to observe that from Exts. 7, 8, 10, 13, 14 & 15, it is concluded that the petitioner did not make entry in respect of three accounts on the other hand the petitioner with dishonest intention converted to those amounts for his own use. 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. 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.