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2016 DIGILAW 1237 (ORI)

Pratap Keshari Patnaik v. State of Orissa

2016-12-15

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Pratap Keshari Patnaik faced trial in the Court of learned Judicial Magistrate First Class, Bhubaneswar in G.R. Case No.685 of 1985 (Trial No.161 of 1988) for offences punishable under sections 465, 468, 471 and 420 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 15.12.1992 found the petitioner guilty of the offences charged and sentenced him to undergo R.I. for one year under section 465 of the Indian Penal Code, R.I. for one year and to pay a fine of Rs.2000/-(rupees two thousand), in default of payment of fine, to undergo R.I. for two months under section 468 of the Indian Penal Code, R.I. for one year and to pay a fine of Rs.2000/-(rupees two thousand), in default of payment of fine, to undergo R.I. for two months under section 471 of the Indian Penal Code and R.I. for one year and to pay a fine of Rs.1000/-(one thousand), in default of payment of fine to undergo R.I. for one month under section 420 of the Indian Penal Code and the substantive sentences of imprisonment were directed to run concurrently. The petitioner preferred an appeal in the Court of Session which was heard by the learned 2nd Additional Sessions Judge, Bhubaneswar in Criminal Appeal No.25/3 of 1997/93 and the learned Appellate Court vide impugned judgment and order dated 06.04.1998 acquitted the petitioner of charges under sections 465 and 471 of the Indian Penal Code, however upheld the conviction and sentence awarded by the learned Trial Court under sections 468 and 420 of the Indian Penal Code. 2. The prosecution case as per the First Information Report submitted by Govinda Chandra Patra, Branch Manager, State Bank of India, Vani Vihar Branch, Bhubaneswar before the Inspector in charge, Saheednagar Police Station, Bhubaneswar on 08.04.1985 is that the cheque bearing no.0118887 dated 23.11.1994 of Rs.50,000/-(rupees fifty thousand) drawn on Indian Overseas Bank, Saheednagar Branch in favour of the Registrar, Utkal University, Bhubaneswar was deposited by the University at the Branch for credit into the Account No.II of the University. The cheque was presented to Indian Overseas Bank, Saheednagar for clearing through the Bhubaneswar Main Branch. The cheque was presented to Indian Overseas Bank, Saheednagar for clearing through the Bhubaneswar Main Branch. It is the further prosecution case as per the First Information Report that on receipt of the credit advice on 15.01.1985, the petitioner who was working as Clerk-cum-Typist of Vani Vihar Branch and was handling the transactions credited Rs.50,000/-(rupees fifty thousand) i.e., proceeds of the cheque in question in the four accounts instead of the Utkal University account and thereby misappropriated the amount fraudulently by preparing fake vouchers. As per the First Information Report, the concerned four accounts are: (i) Saving Bank Account No. C-864 in the name of Sri P.K. Patnaik and Smt. Pranati Patnaik of Rs.19,600/-(rupees nineteen thousand six hundred); (ii) Demand Loan Account No.21/85 of Smt. Ramsundari Puhan of Rs.19,000/- (rupees nineteen thousand); (iii) Current Account No.3/136 of Sri Saroj Kumar Mohany for an amount of Rs.6400/-(rupees six thousand four hundred); (iv) Current Account No.3/191 of Sri Susanta Kumar Paikray of Rs.5000/-(rupees five thousand). 3. On the basis of such First Information Report, the Inspector in charge, Saheednagar Police Station registered Saheednagar P.S. Case No.140 of 1985 under sections 420, 409 and 468 of the Indian Penal Code and directed P.W.8 Narayan Bisi, Sub-Inspector of Police, Saheednagar Police Station to take up investigation of the case. During course of investigation, the investigating officer examined the witnesses, visited the spot, seized the relevant documents in presence of the witnesses. He arrested the petitioner and forwarded him to Court on 11.04.1985. Subsequently P.W.6 K.S. Kawar, Sub-Inspector of Police, Saheednagar Police Station took up charge of investigation of the case. The specimen signatures and handwritings of the petitioner were taken and sent to S.F.S.L., Rasulgarh and on completion of investigation, charge sheet was submitted on 24.11.1987 against the petitioner under sections 468, 471 and 420 of the Indian Penal Code. 4. During course of trial, in order to prove its case, the prosecution examined eight witnesses. P.W.1 Govinda Chandra Patra was the Branch Manager of State Bank of India, Utkal University Branch, Vani Vihar, Bhubaneswar and he is the informant in the case and he detected that the cheque of Rs.50,000/-(rupees fifty thousand) issued by O.S.E.B., Bhubaneswar in favour of Registrar, Utkal University was deposited in the Branch but after it was cleared by the clearing house, it was not credited in the accounts of Utkal University but has been deposited in four accounts. He also detected that a sum of Rs.19,600/-(rupees nineteen thousand six hundred) has been credited in the S.B. account of the petitioner on 15.01.1985. He further stated about the details of the amounts credited to four different accounts. He specifically stated that the petitioner was handling the clearing of transfer of Rs.50,000/-(rupees fifty thousand) at the time of occurrence. He also proved the credit vouchers Exts. 4 to 4/3 in respect of the four accounts which according to him were in the hands of the petitioner. P.W.2 Umasankar Behera was the Head Clerk of State Bank of India, Utkal University Branch, Vani Vihar, Bhubaneswar and he proved the cheque in question vide Ext.5 which was presented in their Branch. He also stated that the transfer scroll dated 15.01.1985 of the Branch was in the handwritings of the petitioner so also the relevant entries under Ext.11, transfer scroll register by which the petitioner credited Rs.50,000/-(rupees fifty thousand) to four different accounts. P.W.3 Utkal Kumar Panigrahi was the Clerk of State Bank of India, Vani Vihar Branch, Bhubaneswar who not only proved the cheque in question vide Ext.5, clearing register Ext.6 but also the transfer scroll register Ext.11. He also stated that the amount of Rs.50,000/-(rupees fifty thousand) has been credited to different accounts on 15.01.1985 under Exts.4 to 4/3. P.W.4 Dhiren Kumar Patnaik was the accountant in the State Bank of India, Vani Vihar, Bhubaneswar and he also proved the cheque Ext.5 and further stated on 15.01.1985, the amount reflected in Ext.5 was credited to four different accounts instead of being credited to the account of the Registrar, Utkal University, Vani Vihar by the vouchers Exts.4 to 4/3 which were in the handwritings of the petitioner. He also stated that the concerned entries made in the transfer scroll register i.e. Ext.11 were in the handwriting of the petitioner. P.W.5 Saroj Kumar Mohanty was one of the account holder of the State Bank of India, Vani Vihar Branch and he has stated that he has not deposited any amount of Rs. 6400/-on 15.01.1985 towards liquidation of overdraft amount nor signed any pay-in-slip on that day. P.W.6 K.S. Kawar and P.W.8 Narayan Bisi are the Investigating Officers. P.W.5 Saroj Kumar Mohanty was one of the account holder of the State Bank of India, Vani Vihar Branch and he has stated that he has not deposited any amount of Rs. 6400/-on 15.01.1985 towards liquidation of overdraft amount nor signed any pay-in-slip on that day. P.W.6 K.S. Kawar and P.W.8 Narayan Bisi are the Investigating Officers. P.W.7 Gopal Chandra Mohanty was the accountant of Utkal University at the relevant point of time who stated that the cheque Ext.5 was in favour of Registrar, Utkal University for Rs.50,000/-(rupees fifty thousand) which was given to him for deposit in the Bank for collection and for crediting the same in the general fund account of the Utkal University. The prosecution exhibited seventeen documents. Ext.1 is the F.I.R., Exts.2 and 3 are the seizure lists, Exts.4 to 4/3 are the credit vouchers in respect of different accounts, Ext.5 is the challan, Ext.6 is the relevant particulars of the clearing register, Exts.7 to 10 are the ledgers, Ext.11 is the transfer scroll register, Exts.12 to 12/5 are the withdrawal slips, Ext.13 is the written prayer of P.W.6 to the S.D.J.M., Ext.14 is the handwriting expert opinion and Exts. 15, 16 and 17 are the seizure lists. 5. The defence plea of the petitioner is one of denial. The defence has not adduced any oral or documentary evidence. 6. The learned Trial Court in the impugned judgment has been pleased to hold that the witnesses P.Ws. 1, 3 and 6 are consistent in their evidence that an amount of Rs.50,000/-(rupees fifty thousand) was deposited in four different accounts by four vouchers marked as Exts.4 to 4/3 on 15.01.1985. It is further held that on verification of the documents and the evidence of P.Ws. 1, 2, 3 and 4 shows that the petitioner credited the amount dishonestly and swindled the money instead of crediting the same to the account of the Registrar, Utkal University to whom the cheque was concerned. It is further held that on verification of the documents and the evidence of P.Ws. 1, 2, 3 and 4 shows that the petitioner credited the amount dishonestly and swindled the money instead of crediting the same to the account of the Registrar, Utkal University to whom the cheque was concerned. It was further held by the learned Trial Court that the proper verification of the exhibited documents along with the opinion of the expert Ext.14 and the consistent nature of evidence go to show that the petitioner prepared forged documents, those are vouchers and transfer scroll and other documents for the purpose of a cheating the Bank and used the vouchers as genuine which he had reason to believe that those are forged and thereby dishonestly induced the Bank to deliver the amount of Rs.50,000/-(rupees fifty thousand) to him. The learned Appellate Court held that from the evidence of the P.Ws.1 and 4, it can be conclusively said that the petitioner knowing very well that amount under cheque (Ext.5) was in favour of Registrar, Utkal University, in order to misappropriate the entire amount, forged the pay-in-slips under Exts.4 to 4/3 and got the entire amount transferred in his own account as well as in the account of three others. The learned Appellate Court further held that the evidence of P.Ws. 2 & 4 is sufficient to conclude that the petitioner besides forging the pay-in-slips under Exts.4 to 4/3 made false entries under Sl. No.32 to 35 under Ext.11. Learned Appellate Court further held that prosecution has been able to establish that the petitioner in order to misappropriate the entire amount of Rs. 50,000/-(rupees fifty thousand) under Ext.5 in the name of Registrar, Utkal University forged the documents under Exts.4 to 4/3 and thereby succeeded in transferring the total amount of Rs.50,000/-(rupees fifty thousand) in his own name and in the name of three others and also utilized some amount out of the amount which was transferred to his account. 7. Learned counsel for the petitioner Mr. Sangram Kumar Das challenging the impugned judgment and order of conviction of the learned Courts below contended that though P.W.1 and P.W.4 have stated that Exts.4 to 4/3 have been prepared by the petitioner in his own handwriting but the prosecution has not produced any documents showing that at the relevant time, the petitioner was assigned with such work. Sangram Kumar Das challenging the impugned judgment and order of conviction of the learned Courts below contended that though P.W.1 and P.W.4 have stated that Exts.4 to 4/3 have been prepared by the petitioner in his own handwriting but the prosecution has not produced any documents showing that at the relevant time, the petitioner was assigned with such work. It is further contended that neither the officiating register indicating the nature of work assigned to different staff has been produced nor the duty chart has been verified by the Investigating Officer to ascertain the duty assigned to the petitioner and therefore, it cannot be said that the petitioner was assigned the duty of preparation of Ext.4 to 4/3. It is further contended that the handwriting expert has not been examined and there is ambiguity in the expert’s opinion under Ext.14 and therefore, it is not acceptable. While concluding his argument, Mr. Das urged that in the meantime more than thirty one years have already passed since the date of occurrence and therefore, in the event this Court upholds the impugned judgments and orders of conviction, the sentence should be reduced to period already undergone. Learned counsel for the State, Mr. Deepak Kumar Pani on the other hand contended that both the Courts have assessed the oral as well as documentary evidence in the proper perspective and found that the petitioner has committed the offences and there is no illegality or impropriety in the impugned judgments and orders of conviction and therefore, in exercise of revisional jurisdiction, it is not proper to interfere with the same. 8. Considering the submissions made by the learned counsels for the respective parties and on perusal of the evidence of the witnesses as well as the exhibited documents, there is no dispute that the cheque in question i.e. Ext.5 was of the Indian Overseas Bank issued by the Pay and Accounts Officer, Orissa State Electricity Board, Bhubaneswar in the name of Registrar, Utkal University, Vani Vihar of Rs. 50,000/-(rupees fifty thousand). It further appears that the said cheque was issued by the OSEB, Bhubaneswar towards the hire charges of the University Computers as per the evidence of P.W.7 who was the Financial Officer of Utkal University. 50,000/-(rupees fifty thousand). It further appears that the said cheque was issued by the OSEB, Bhubaneswar towards the hire charges of the University Computers as per the evidence of P.W.7 who was the Financial Officer of Utkal University. There are also ample materials available on record to indicate that the cheque was presented in the State Bank of India, Utkal University Branch, Vani Vihar for collection and for crediting the same to University general fund account. There are also materials on record that the cheque in question was sent to the clearing house for collection but subsequently the amount was not credited into the accounts of the University but has been deposited in four different accounts i.e. savings Bank account No. C/864 for Rs.19,600/-(rupees nineteen thousand six hundred) in the name of the petitioner and his wife and one demand loan account in the name of Smt. Ramsundari Puhan, mother in-law of the petitioner for Rs.19,000/-(rupees nineteen thousand), Rs. 6,400/-(rupees six thousand four hundred) in the current account of Saroj Kumar Mohanty and of Rs. 5,000/-(rupees five thousand) in the current account of Susanta Kumar Paikaray, brother in-laws of the petitioner. The materials available on record further indicates that the petitioner was dealing with the clearing transaction of Rs.50,000/-(rupees fifty thousand) at the relevant point of time. It has also been proved by documentary evidence as well as oral evidence that the Transfer Scroll under Ext.11 has been prepared by the petitioner in his own handwriting and the relevant entries have been proved by the competent witnesses. The withdrawal slips on different dates have also been proved to be in the handwritings of the petitioner and those have been marked as Ext.12 to 12/5. Therefore, the findings of the learned Courts below that on verification of the documents and the evidence of P.Ws. 1, 2, 3 and 4, it indicates that the amount of Rs.50,000/-(rupees fifty thousand) which was meant for Utkal University has been transferred to four different accounts by way of vouchers under Exts.4 to 4/3 which are in the hands of the petitioner and also the account holders are either the petitioner or his relatives, appears to be quite justified and it does not call for any interference. Even though no documentary proof like entrustment of duty has been proved by the prosecution but in view of the consistent oral evidence and documentary evidence, I am constrained to hold that the petitioner had dealt with the clearing transaction of Rs.50,000/-(rupees fifty thousand) at the relevant point of time. Mere non-production of the officiating register would not be sufficient to discard the prosecution case regarding role played by the petitioner which is otherwise proved by oral evidence and not shaken in the cross examination. The handwriting experts’ opinion has been marked as Ext.14 which indicates that the person who wrote enclosed standard writings which have been stamped and marked as S-1 to S-21 also wrote the red enclosed disputed writings marked as X-1. This document has been marked without objection. Merely because handwriting expert has not been examined, the document cannot be discarded as such particularly when the competent bank officials have proved the handwritings and signatures of the petitioner in the relevant documents. The opinion of the handwriting expert is relevant in view of section 45 of the Evidence Act but it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writings. Since it is only opinion evidence, before acting on such evidence, the Court has a duty to see whether such evidence is corroborated either by clear, direct evidence or by circumstantial evidence. Uncorroborated evidence of a handwriting expert is an extremely weak type of evidence. (Ref:-(2016) 65 OCrR(SC) 592, S.P.S. Rathore Vs. C.B.I.). When the opinion of handwriting expert was marked on admission which was proved by the I.O. (P.W.6) and the defence never insisted for examination of the expert, in my humble view, the Courts below have not committed any illegality in relying upon such evidence. When the defence disputes the findings of the report, it is the duty of the prosecution to examine the expert in order to give an opportunity to the accused to cross-examine the expert. Moreover, it is not only the report of the handwriting expert Ext.14 but also the other evidence which connects the petitioner with offence. When the defence disputes the findings of the report, it is the duty of the prosecution to examine the expert in order to give an opportunity to the accused to cross-examine the expert. Moreover, it is not only the report of the handwriting expert Ext.14 but also the other evidence which connects the petitioner with offence. There are sufficient materials available on record that the petitioner instead of crediting the amount of Rs.50,000/-(Rupees fifty thousand) in the account of Registrar, Utkal University to whom the cheque was concerned, prepared forged documents like vouchers and transfer scrolls and other documents for the purpose of cheating the bank and thereby he dishonestly transferred the said amount to his own concerned four accounts. The learned Appellate Court has committed error of record in holding that no charge under section 471 of the Indian Penal Code has been framed and therefore set aside the order of conviction under Section 471 of the Indian Penal Code. Such charge has been framed by the Trial Court. Be that as it may, since there is no challenge to such acquittal, on assessment of the evidence on record and on perusal of the impugned judgment, I find no infirmity and illegality in the order of conviction of the petitioner under sections 468 and 420 of the Indian Penal Code. It appears that after arrest, the petitioner was produced in Court on 11.04.1985 and he was remanded to jail custody and thereafter he was released on bail by the virtue of the order passed by the learned Sessions Judge. It appears that after arrest, the petitioner was produced in Court on 11.04.1985 and he was remanded to jail custody and thereafter he was released on bail by the virtue of the order passed by the learned Sessions Judge. There is no dispute that in the meantime more than thirty one years have already passed since the date of lodging of the F.I.R. and in view of the passage of time and the mental agony suffered by the petitioner due to protracted trial and the settled position of law that Article 21 of the Constitution of India would bring within its sweep, not only expeditious trial but disposal of appeals and revisions, at this juncture, in the ends of justice it would not be proper to send the petitioner to custody again to serve the remaining sentence and therefore, while affirming the impugned judgment and order of conviction under sections 468 and 420 of the Indian Penal Code, the substantive sentence of imprisonment is reduced to the period already undergone by the petitioner and the fine amount is enhanced to Rs.20,000/-(rupees twenty thousand) in total, which shall be deposited by the petitioner before the learned Trial Court within a period of thirty days from today failing which the petitioner shall undergo simple imprisonment for one month. With the aforesaid modification in the sentence, the criminal revision petition stands dismissed.