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2016 DIGILAW 498 (ORI)

STATE OF ORISSA v. PURNA CHANDRA SINGH

2016-07-11

J.P.DAS

body2016
JUDGMENT : J.P. DAS, J. 1. The appeal, filed on behalf of the Government, is directed against the order of acquittal dated 6th April 1996 passed by the learned Special (Vigilance), Bhubaneswar acquitting the accused-respondent from the charges under Section 5 (2) read with Section 5 (1) (c) of the Prevention of Corruption Act (P.C. Act in short) and Section 409 of the Indian Penal Code (IPC Act in short) and Section 409 of the Indian Penal Code (IPC in short) in T.R. No.5 of 1987 arising out of Cuttack Vigilance P.S. Case No.48 dated 15.12.1983. 2. The prosecution case in brief was that the accused-respondent was working as a Sales Assistant in the Sale Centre at Thakurmunda under the jurisdiction of the Tribal Development Co-operative Corporation (TDCC in short) of Udala Sub-division in the district of Mayurbhanj during the period of 1982-83, being entrusted with the responsibility of procuring different consumable articles including forest produces and to sell those at the Sale Centre. On 15.12.1983 one Niranjan Jena, Inspector of vigilance lodged a written report before the Superintendent of Police, Vigilance, C.D., Cuttack alleging that the respondent while working as the Sales Assistant during the relevant period sold different articles worth Rs. 15,091.97 paise, which amount he was supposed to deposit in the office of the concerned Branch Manager, but the accused deposited only Rs. 1,891,93 paise and did not deposit the balance amount of Rs. 13,200.04 paise. The informant alleged in the F.I.R. that he learnt from the concerned Branch Manager and the Accountant of the Office that the accused misappropriated the said amount of Rs. 13,200.04 paise and remained absent from the office and his services were terminated in the meantime. 3. Pursuant to the report, the case was registered and the informant Inspector of Vigilance was entrusted with the investigation of the case. In course of investigation witnesses were examined, some documents were seized and after completion of investigation, the charge sheet against the accused-respondent for the offences as aforesaid, was submitted by another officer since the first I.O. was transferred in the mean time. 4. The accused pleaded not guilty to the charges and faced the trial. It is interesting to note that although the allegation in the F.I.R. was that the accused collected sale proceeds of Rs. 15,091.97 paise and deposited only; Rs. 4. The accused pleaded not guilty to the charges and faced the trial. It is interesting to note that although the allegation in the F.I.R. was that the accused collected sale proceeds of Rs. 15,091.97 paise and deposited only; Rs. 1,891.93 paise under two receipts and misappropriated the balance amount of Rs. 13,200.04 paise, still the prosecution case as unfurled in course of trial was that the accused collected Rs. 15,000/- and deposited only Rs. 1,000/- thereby misappropriating the sum of Rs. 14,000/- and the receipt numbers were also different. The accused in his statement recorded under Section 313 of the Code of Criminal Procedure stated that on 03.08.1982 he deposited Rs. 14,000/- with the Accountant Arjun Ch. Mohanty and a receipt was written and the counterfoil was torn but it was not handed over to him by the Accountant who told him to come later and take the receipt. He further stated that he subsequently deposited Rs. 1,000/- since the Accountant asked him so that he would be given with the receipt of Rs. 15,000/-, but the Accountant did not give him the receipt for Rs.14,000/- and cancelled the same. This plea was also confronted to the witnesses in course of evidence. 5. Considering the evidence, both oral and documentary placed before the Court, the learned Special Judge (Vigilance) found and held the accused not guilty of the alleged charge with the observations that the accused was not a public servant so as to be liable under the provisions of the P.C. Act and further the prosecution was not successful in establishing the allegations of entrustment or misappropriate against the accused so as to hold him guilty of the offence under Section 409 IPC. 6. It has been submitted in the appeal that the learned trial court erred in law by holding the accused was not a public servant in view of the pronunciation of this Court in the case of Satrughan Rout v. Managing Director, T.D.C.C. of Orissa Ltd. and other, reported in vol.73 (1992) C.L.T. 588. It has been further submitted that the learned Trial Court also ignored the documents duly exhibited during trial showing that the accused received the alleged amount as sale proceeds and did not deposit the same thereby misappropriating the amount. It has been further submitted that the learned Trial Court also ignored the documents duly exhibited during trial showing that the accused received the alleged amount as sale proceeds and did not deposit the same thereby misappropriating the amount. It has been submitted that the evidence as led by the prosecution, has well established the charges against the accused respondent but the learned trail Court has failed to appreciate the same in proper perspective and has reached a wrong and unsustainable conclusion of acquittal in the case. 7. Heard the learned Counsels for the State like respondent and perused the evidence placed before the Court during trial. 8. As regards the question of the accused being a public servant or not, the learned Trial court has considered the cited decision of Satrughan Rout (supra) and has observed that in said decision it was held that the TDCC is 'state' for coming under the purview of writ jurisdiction of the High Court but nowhere it has been held that the employees thereof are public servants. On the other hand relying on a decision of the Hon'ble Apex Court reported in AIR 1981 SC 1395 (S.S. Dhanoa v. Municipal corporation, Delhi & others) and the decision of this Court reported in Vol. 70 (1990) CLT (Suryunarayan Tripathy v. Ch. Mkamalnath & others), the learned Trial Court has observed that the employees of a Co-operative society cannot be treated as Public Servants within the meaning of Clause Twelfth of section 21 of the Indian Penal Code. 9. However, without delving into the technical question as to whether the accused was a public servant or not, I think it appropriate to first consider as to whether the prosecution was able to establish the charge of misappropriation against the accused-respondent so as to be liable for the offences under the P.C. Act or the IPC. 10. Two basic ingredients those need to be established in a case of criminal breach of trust are entrustment and misappropriation. The learned Trial Court has made some discussions and has held that the neither the informant-cum-Investigating Officer disclosed the source from which he knew about the entrustment nor the receipt of the amount by the accused nor the prosecution could establish the same. The learned Trial Court has made some discussions and has held that the neither the informant-cum-Investigating Officer disclosed the source from which he knew about the entrustment nor the receipt of the amount by the accused nor the prosecution could establish the same. It has also been submitted in the Appeal Memo that the learned Trial Court failed to consider the documents proved on behalf of the prosecution that the accused was entrusted with the articles for sale. But the fact remains that in this case the entrustment remained admitted by the accused. The accused did not dispute that he was liable to deposit the amount of Rs. 15,000/- with the Accountant of the office, rather it was his specific plea of defence that he deposited Rs. 14,000/- with the Accountant Arjuna Charan Mohanty who also prepared a receipt but it was not handed over to him. The deposit of Rs. 1,000/- by the accused remained admitted by the prosecution and as per the settled position of law, once the entrustment is proved by the prosecution, the onus shifts on the accused to show that the entrustment was duly accounted for and that there was no misappropriation. Thus, the entrustment having remained admitted in this case, it is only to be seen as to how far the accused-respondent was successful in discharging the onus of accounting for. 11. It may be reiterated here that the original allegation of misappropriation of Rs. 13,200.04 paise as made in the F.I.R. has been given a go by in course of trial. A new case has been tried to be made out that the accused was liable to deposit a sum of Rs. 15,000/- out of which he deposited only Rs. 1,000/-. However, the prosecution examined four witnesses in support of its case as against two witnesses examined in defence. The P.W. 1 was an Auditor who stated that in course of audit conducted by him he found a misappropriation of Rs. 63,285.36 paise and out of the said amount a sum of Rs. 6,891.93 paise was recovered from the accused. He was absolutely silent about the allegation as regards the amounts either as mentioned in the F.I.R. or tried to be established in course of trial. Rather in his cross-examination he admitted that he had verified the receipt book showing deposit of Rs. 6,891.93 paise was recovered from the accused. He was absolutely silent about the allegation as regards the amounts either as mentioned in the F.I.R. or tried to be established in course of trial. Rather in his cross-examination he admitted that he had verified the receipt book showing deposit of Rs. 14,000/- by the accused but he did not consider it as it was cancelled. The P.W. 2 was the then Branch Manager and has stated that the accused did not deposit Rs. 14,000/- despite repeated approach and notice and kept the Sale Centre closed for which it was duly broke open and an inventory was made. As it appeared, this witness had no direct knowledge about the deposit of money by the accused with the accountant. Rather he was confronted with his earlier statement given before the Investigating Officer to have stated that the accused had deposited a sum of Rs. 14,000/- as sale proceeds on 3.8.1982 vide Receipt No.95229. This receipt has also been exhibited before the Court as Ext. A. Another peculiarity in respect of this witness, as has been discussed in detail in the impugned judgment, was that although he was the Branch Manager of the concerned Branch and has stated that he repeatedly approached the accused to deposit the balance amount of Rs. 14,000/- and that the accused kept the sale centre locked for which it was duly broke open, still he was absolutely silent as to why the matter was not reported to the Police for necessary action. The P.W. 3 was another Clerk of the TDCC who stated about taking different articles by the accused on different dates for the purpose of sale and he proved the invoices. This witness was also confronted with the Ext. A. He admitted that the Ext. A bears the signature of the Accountant Arjun Charan Mohanty and it was issued for which it was cut from the receipt book. He also admitted that once a receipt was issued, it cannot be cancelled and the word "cancelled" was written by the Accountant Shri Mohanty with his signature in a different ink. Not only that, this witnesses also stated that the accused had approached the Accountant and the Branch Manager for the said receipt but he was not given with. The P.W. 4 was the informant Investigating Officer. Not only that, this witnesses also stated that the accused had approached the Accountant and the Branch Manager for the said receipt but he was not given with. The P.W. 4 was the informant Investigating Officer. He has simply stated to have lodged the F.I.R. and to have examined some witnesses and to have seized certain documents. The two witnesses examined on behalf of the defence supported the defence plea. Theses aspects have been duly discussed in the impugned judgment by the leaned Trial Court to reach the conclusion that the prosecution failed to establish the allegation that the accused 'misappropriated the amount of Rs. 14, 000/- beyondr reasonable doubts. 12. As evident from the statements of the prosecution witnesses itself, the defence plea that the accused had duly deposited the amount of Rs. 14,000/- with the Accountant but was not granted with the receipt even though it was writ ten and signed was quite reasonably established Of course the prosecution case in this regard was that the said receipt was cancelled. But as has been rightly observed by the learned Trial Court, the prosecution has come up with absolutely no explanation as to why and under what circumstances the receipt was cancelled. The best person to throw light on the said aspects would have been the concerned accountant Arjun Charan Mohanty, but unfortunately for the prosecution, the said witness had died before he could be examined. Obviously the benefit goes to the accused. The position of law is well settled that the defence plea need not be proved beyond all reasonable doubts but should have a reasonable probability. As discussed, in the instant case the defence plea remained admitted by the prosecution that the accused had deposited the money and a receipt was duly prepared, but the prosecution had no explanation as to why the said receipt was cancelled subsequently. This is being added with the fact that the accused was tried for different allegations from what have been made in the F.I.R. so also in the charge framed by the learned Trial Court. 13. It was submitted by the learned Counsel appearing for the appellant State that the plea of the accused that he deposited a sum of Rs. 14,000/- on 03.08.1982 cannot be believed for the reason that he had deposited an amount of Rs. 1000/- on 23.07.1982 under the receipt No. 95212 (Ext. 13. It was submitted by the learned Counsel appearing for the appellant State that the plea of the accused that he deposited a sum of Rs. 14,000/- on 03.08.1982 cannot be believed for the reason that he had deposited an amount of Rs. 1000/- on 23.07.1982 under the receipt No. 95212 (Ext. 15/1) and again Rs.891.93 on 6.08.1982 under receipt No.95237 (Ext. 15/2). Thus, having deposited the amount of Rs.1,891.93 paise out of the sale proceeds of Rs. 15,000/-, there was no necessity for him to deposit the amount of Rs. 14,000/- as claimed, Hence it was submitted that a presumption can be drawn that the accused had taken a false plea. Relying upon some decisions of the Hon'ble Apex Court and this Court, it was contended that in an appeal against acquittal, the High Court as the Court of first appeal is obliged to go into greater detail of the evidence to see whether any miscarriage has been resulted from the order of acquittal. The position of law, as submitted, is well settled. But at the same time, it has been also the observation of the Hon'ble Apex", Court that such an exercise should be carried out with great circumspection and utmost care before ordering the reversal of an acquittal, since the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused, should be adopted'. As discussed herein before there is no strong material pointing to the guilt of the accused, which has not been considered by the Learned Trial Court. The only argument that was advanced on behalf of the State was that the defence plea was not believable. But in this case the "defence plea remained admitted by the prosecution witnesses. The accused admittedly deposited Rs. 1,000/- on 23.07.1982. Thereafter he was liable to deposit Rs. 14, 000/- and as per his plea he deposited the same on 03.08.1982 and the receipt was prepared but he was not given with the same. But in this case the "defence plea remained admitted by the prosecution witnesses. The accused admittedly deposited Rs. 1,000/- on 23.07.1982. Thereafter he was liable to deposit Rs. 14, 000/- and as per his plea he deposited the same on 03.08.1982 and the receipt was prepared but he was not given with the same. The prosecution case that he again deposited Rs.891.93 paise on 6.8.1982 has no bearing with the same, since there was no material in the prosecution evidence to show that the said amount of Rs.891.93 paise related to the transaction of Rs. 15.000/-. The receipt dated 03.08.1982 showing deposit of Rs. 14,000/- remained admitted by the prosecution but absolutely unexplained as to why it was cancelled. It is the general presumption that a receipt is prepared only after receiving the payment and as stated by the P.W. 3, a receipt once prepared cannot be cancelled. At the cost of repetition it may be mentioned that there is no scope for presumption for establishing the prosecution case in a criminal trial excepting the specific cases where it has been statutorily provided, and the defence plea need not be proved beyond all reasonable doubts like the case of the prosecution. 14. In view of the circumstances, as discussed, I find absolutely no reason to interfere with the conclusion of acquittal as has been rightly reached by the learned Trial Court with the finding that the allegation of misappropriation has not been established against the accused, by the prosecution. That being so in the factual side there remains no necessity of finding out as to whether the 'accused was a public servant or not at the relevant time. 15. In the result, therefore, the appeal as preferred, stands dismissed being devoid of merit.