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2017 DIGILAW 144 (ORI)

Duryodhan Mohanty v. Republic of India

2017-02-03

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner Duryodhan Mohanty faced trial in the Court of learned Additional Chief Judicial Magistrate, Bhubaneswar in S.P.E. Case No.10 of 1990 for offence punishable under section 409 of the Indian Penal Code on the accusation that during the year 1984, he being the Branch Office Post Master of Damodarpur Branch post office and a public servant in the Department of Posts, Government of India and in such capacity being entrusted with Rs.22,000/- (rupees twenty two thousand only) in respect of S.B. Account No.906595 and S.B. Account No.906616 of Jamini Kanta Nayak and Sumitra Subhalaxmi Nayak respectively, committed breach of trust in respect of the aforesaid amount. The learned Trial Court vide impugned judgment and order dated 11.04.1997 found the petitioner guilty under section 409 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two and half years and to pay a fine of Rs.5000/-(five thousand only), in default, to undergo R.I. for one month more. The petitioner preferred an appeal in the Court of Session which was heard by learned Addl. Sessions Judge, Bhubaneswar in Criminal Appeal No.14 of 1997. The learned Appellate Court vide impugned judgment and order dated 04.09.1999 upheld the impugned judgment and order passed by the learned Trial Court and dismissed the appeal, hence the revision. 2. The prosecution case, in short, is that the petitioner was working as Branch Post Master in Damadorpur Branch Post office during the year 1984. He was entrusted with the work of transaction of S.B. Accounts and to maintain the relevant postal records i.e., the Branch Office S.B. Journals, Branch Office Accounts Book and Branch Office Daily Account etc. The petitioner was also in charge of receipt of deposits under different pass books and to make entries therein on receipt of cash under pay-in-slip from different account holders. It is the further case of the prosecution is that the petitioner received an amount of Rs.11,100/- (rupees eleven thousand one hundred only) from one Jamini Kanta Nayak on 02.04.1984 against S.B. Account No.906616 standing in the name of his minor daughter Sumitra Subhalaxmi Nayak and another Rs.11,100/- (rupees eleven thousand one hundred only) against account no.906595 standing in the name of Jaminikanta Nayak along with pay-in-slips and pass books. The petitioner made entries in the pass books and returned both the pass books to Jamini Kanta Nayak along with the counterfoils of the pay-in-slips. The petitioner was bound to make correct entries with regard to the receipt of amount in the Branch Office Daily Account, Branch Office Account Books and Branch Office S.B. Journal etc. but he fraudulently obliterated the figure ‘11’ and the word ‘eleven thousands’ in both the office copies of the pay-in-slips relating to S.B. Account Nos.906595 and 906616 and accounted for only Rs.100/-against each of those two accounts and thereby misappropriated a sum of Rs.22000/- (rupees twenty two thousand only) from the aforesaid two accounts. 3. On 30.03.1990 on the basis of the First Information Report (Ext.19) submitted by Sri Krushna Chandra Mohapatra (P.W.6), Sub-Inspector of Police, CBI, SPE, Bhubaneswar, R.C. Case No.17 (S) of 1990 was registered against the petitioner under section 409 of the Indian Penal Code. On the direction of Superintendent of Police, CBI, Bhubaneswar, P.W.6 took up investigation of the case, seized documents from the postal authority, examined the witnesses, collected specimen writing and signatures of the petitioner and sent them to the Govt. examiner of questioned documents (hereafter for short “GEQD”), Calcutta for examination and opinion. He also received the opinion from the GEQD, Calcutta. The charge of investigation was taken over by Sri B. Das, Inspector of Police, CBI, SPE, Bhubaneswar who on 30.10.1990 on completion of investigation submitted charge sheet under section 409 of the Indian Penal Code against the petitioner on the ground that the petitioner dishonestly misappropriated an amount of Rs.22000/-(rupees twenty two thousand only) from the S.B. Accounts Nos.906595 and 906616. 4. The learned Trial Court framed charge under section 409 of the Indian Penal Code on 23.11.1993 against the petitioner and since the petitioner refuted the charge, pleaded not guilty and claimed to be tried, summons were issued to the witnesses. 5. During course of trial the prosecution examined six witnesses. P.W.1 T.S. Shambhogue was working as Deputy Divisional Manager, Vigilance Unit, Syndicate Bank, Hyderabad who stated about the taking of signatures and specimen handwritings of the petitioner in his presence by the Investigating Officer in some papers. P.W.2 Kailash Chandra Mohanty was the Inspector of Post Offices (Complt. 5. During course of trial the prosecution examined six witnesses. P.W.1 T.S. Shambhogue was working as Deputy Divisional Manager, Vigilance Unit, Syndicate Bank, Hyderabad who stated about the taking of signatures and specimen handwritings of the petitioner in his presence by the Investigating Officer in some papers. P.W.2 Kailash Chandra Mohanty was the Inspector of Post Offices (Complt. and Public Grievance, Bhadrak Postal Division) who produced certain documents before the Investigating Officer, CBI, as per the direction of the Superintendent of Police which was seized. P.W.3 Shyam Sundar Sendha stated that he had given some cash to his son-in-law Jamini Kanta Nayak. P.W.4 Sridhar Jena stated about the procedure relating to postal deposits in the Branch Post Office. He proved the handwritings and signatures of the petitioner in different documents like pay-in-slips, pass books, Branch Office Journals etc. P.W.5 Amar Singh was the Asst. GEQD, in the GEQD Office, Calcutta and he examined the documents sent to the GEQD office by SP, CBI, Bhubaneswar in connection with the case and proved his report. P.W.6 Krushna Chandra Mohapatra is the Investigating Officer. The prosecution also exhibited nineteen documents. Exts.1 to 1/55 are the specimen writing and signatures of the petitioner, Ext.2 is the pass book of Sumitra Subhalaxmi Nayak, Ext.3 is the counterfoil of the pay-in-slip, Ext.4 is the pay-in-slip corresponding to Ext.3, Ext.5 is the pass book of S.B. Account no.966565, Ext.6 is the counterfoil of pay-in-slip, Ext.7 is the pay-in-slip, Ext.8 is the entry made by the petitioner, Ext.9 is the account book, Ext.10 is the ledger card, Ext.11 to 13 are the leave applications, Ext.14 is the forwarding letter to GEQD, Ext.15 of the opinion of the GEQD, Ext.16 is the reasons for opinion, Ext.17 series are the photographs, Ext.18 is the negatives and Ext.19 is the F.I.R. 6. The defence plea of the petitioner is that he had never received Rs.11,100/-in respect of each of the accounts nor misappropriated the same but only Rs.100/-was deposited in each of the accounts and the case has been foisted at the instance of Jamini Kanta Nayak. The defence exhibited four documents. Ext.A is the inquiry report of Superintendent of Post Offices, Bhadrak Division, Bhadrak, Ext.B is the letter no. BE-297 regarding selection of the petitioner as EDBPM at Damodarpur, Ext.C is the opinion of the GEQD and Ext.D is the statement of Jamini Kanta Nayak. 7. The defence exhibited four documents. Ext.A is the inquiry report of Superintendent of Post Offices, Bhadrak Division, Bhadrak, Ext.B is the letter no. BE-297 regarding selection of the petitioner as EDBPM at Damodarpur, Ext.C is the opinion of the GEQD and Ext.D is the statement of Jamini Kanta Nayak. 7. The learned Trial Court has been pleased to hold that granting of Ext.3 and Ext.6 (which are counterfoils of the pay-in-slips) to deceased Jamini Kanta Nayak on 02.04.1984 by the petitioner itself leads to the conclusion that on the same day, the deceased had entrusted the amounts to the petitioner. It was further held that in absence of the person who entrusted the money to the petitioner on 02.04.1984, who was the only competent witness to say if those four ‘11’ were made by the petitioner on the same day when the counterfoils under Exts.3 and 6 were handed over by the petitioner to him along with two pass books under Ext.2 and Ext.5 and in absence of any definite opinion of P.W.5 regarding such entries and in view of the two entries at the top of Ext.4 and 7, the pay-in-slips is not sufficient to accept the contention of the defence counsel that the four ‘11’ as noted in Ext.2/1 and Ext.5/1 are not in the hands of the petitioner but those were entered by Jamini Kanta Nayak subsequently. The learned Trial Court further held that from Ext.C, opinion of GEQD, it cannot be said that the four ‘11’ under Exts.2/1 and 5/1 are not in the hands of the petitioner. It was further held that the entries under Exts.8/1 and 9/1 are sufficient to show that Rs.11,000/- against each of the accounts had not been accounted for by the petitioner, which amounts to criminal misappropriation by the petitioner. The learned Trial Court finally held that the prosecution has been able to establish that the petitioner committed criminal breach of trust in respect of Rs.11000/-against each of the accounts i.e., 906595 and 906616. 8. The learned Appellate Court held that it is clear that it is the petitioner who had entered deposit of Rs.11,100/- in each of the pass books and figure ‘11’ and words 11,000/- have not been inserted subsequently in the counterfoils of the pay-in-slips. 8. The learned Appellate Court held that it is clear that it is the petitioner who had entered deposit of Rs.11,100/- in each of the pass books and figure ‘11’ and words 11,000/- have not been inserted subsequently in the counterfoils of the pay-in-slips. Obliteration of words in two pay-in-slips is intended to conceal original words as reflected in Ext.15 is another circumstance to go in favour of the prosecution. It is further held by the learned Appellate Court that entrustment of the deposited amount with the petitioner by the depositors is well in evidence and there appears to be no contradiction in Ext.15 and Ext.C. 9. The learned counsel for the petitioner Mr. Devashis Panda while challenging the impugned judgment and order of conviction contended that the depositor Jamini Kanta Nayak has not been examined during trial on account of his death and his signatures and handwritings in the relevant documents have not been proved by any of his family members and therefore, the evidence of P.W.4 who never worked with the petitioner in one seat and was never a supervisor at Damodarpur Branch Post Office nor even knew the depositor Jamini Kanta Nayak should not have been accepted in proving the signatures and handwritings of the petitioner in different documents. The learned counsel for the petitioner further contended that complicated questions have been put to the petitioner vide question No.7 and question No.10 in the accused statement for which the petitioner has been seriously prejudiced. The Learned counsel placed the statement of the depositor Jamini Kanta Nayak which was recorded in the departmental proceeding which has been marked as Ext.D and placed reliance in the cases of Kailash Kumar Sanwatia Vs. State of Bihar and another reported in AIR 2003 SC 3714 , Dadarao Vs. State of Maharashtra reported in (1974) 3 SCC 630 , Tanviben Pankaj Kumar Divetia Vs. State of Gujarat reported in (1997) 7 SCC 156 and Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan reported in (2013) 5 SCC 722 . Mr. Anup Kumar Bose, learned Assistant Solicitor General on the other hand supported the impugned judgments and contended that there is no illegality or infirmity in the impugned judgments and therefore, it would not be proper to interfere with the same invoking the revisional jurisdiction. State of Rajasthan reported in (2013) 5 SCC 722 . Mr. Anup Kumar Bose, learned Assistant Solicitor General on the other hand supported the impugned judgments and contended that there is no illegality or infirmity in the impugned judgments and therefore, it would not be proper to interfere with the same invoking the revisional jurisdiction. He further contended that the petitioner was the custodian of the relevant documents and he had made the relevant entries and therefore, the factum of entrustment and misappropriation of the amount is clearly established. 10. In case of Kailash Kumar Sanwatia Vs. State of Bihar and another reported in AIR 2003 SC 3714 , it is held as follows:- “7. Section 409 IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent. In order to bring in application of said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are:- (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty bond to account for; and (2) the accused has committed criminal breach of trust. 8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are:- (1) Entrusting any person with property, or with any dominion over property. (2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or willfully suffering any other person so as to do in violation – (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. 9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.” In the case of Dadarao Vs. State of Maharashtra reported in (1974) 3 SCC 630 , it is held that absence of evidence on a material and important aspect renders it unsafe to hold that the charge of breach of trust is brought home to the appellant. There is no direct evidence of entrustment to the appellant. On going through the record, there is no indirect evidence of entrustment. All that the prosecution did was to produce the books of account of the head office and of the branch office. There is a debit entry in the books of the branch office showing that a sum of Rs.7,000/-was given to the appellant on November 10, 1965 for being taken to the head office but the mere entry, unsupported by any oral evidence cannot prove entrustment. It is further held that section 34 of the Evidence Act says that entries in books of account, regularly kept in the course of business are relevant but such statements shall not alone be sufficient evidence to charge any person with liability. The prosecution did not examine anyone even to show that the books of account were regularly kept in the course of business nor indeed was any attempt made to lead evidence apart from the production of the books of account to prove the entrustment of the amount to the appellant. In the vague state of the record, it is impossible to dismiss the explanation of the appellant as unreasonable. There is no evidence of entrustment, no evidence in regard to the mode and manner of keeping the accounts and not even a suggestion that the cash on hand was at any time tallied or checked. In the vague state of the record, it is impossible to dismiss the explanation of the appellant as unreasonable. There is no evidence of entrustment, no evidence in regard to the mode and manner of keeping the accounts and not even a suggestion that the cash on hand was at any time tallied or checked. The Hon’ble Court has been pleased to hold that there was no credible evidence in support of the charge leveled against the accused and accordingly, set aside the order of conviction of the appellant under section 408 of the Indian Penal Code. In the case in hand, though it is the prosecution case that on 02.04.1984 the petitioner received an amount of Rs.11,100/- (rupees eleven thousand one hundred only) from Jamini Kanta Nayak to deposit it in S.B. Account No. 906616 standing in the name of his minor daughter Sumitra Subhalaxmi Nayak and another sum of Rs.11,100/- (rupees eleven thousand one hundred only) for being deposited in S.B. Account No.906595 standing in his name but there is no direct evidence to that effect. Jamini Kanta Nayak could not be examined during trial on account of his death. None of his family members who were acquainted with his handwritings and signatures have also been examined. The other account holder Miss. Sumitra Subhalaxmi Nayak has also not been examined. In the pass book Miss. Sumitra Subhalaxmi Nayak, her date of birth has been mentioned as 11th August 1983. P.W.3 who is the father-in-law of the petitioner stated that in the month of Baisakh 1985, his daughter married Jamini Kanta Nayak. If that be so, then obviously the S.B. Account No. 906616 which stands in the name of Miss. Sumitra Subhalaxmi Nayak showing the date of birth of the account holder as 11.08.1983 cannot be said to be that of the daughter of Jamini Kanta Nayak. The only witness who has proved the handwritings and signatures of the petitioner in the pass books, counter foils of the pay-in-slips, pay-in-slips as well as Branch Office Journal and Account Books is none else than P.W.4 Sridhar Jena. P.W.4 has categorically stated that he did not know the depositor Jamini Kanta Nayak and he had never worked with the petitioner in one seat and he was not the supervisor at Damodarpur Branch Post Office. He further stated that Exts. P.W.4 has categorically stated that he did not know the depositor Jamini Kanta Nayak and he had never worked with the petitioner in one seat and he was not the supervisor at Damodarpur Branch Post Office. He further stated that Exts. 2, 3, 5 and 6 had never come to him in official course of business for which he did not see them earlier and he has no personal or direct knowledge in respect of the allegation in the case. He has further stated that there were three postal people in Damodarpur Branch Post Office but none of them has been examined to identify the signatures and handwritings of the petitioner in the concerned documents. Therefore, when the competent witnesses who could have identified the handwritings and signatures of the petitioner have not been examined by the prosecution during trial and P.W.4 is not a competent witness to identify such handwritings and signatures in view of the statements made in his cross-examination, I am of the view that on the basis of the evidence of P.W.4, the factum of entrustment of money to the tune of Rs.11,100/-with the petitioner against each of the accounts i.e. 906595 and 906616 cannot be accepted. Coming to the handwriting expert’s opinion, law is well settled that 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 OCR (SC) 592, S.P.S. Rathore Vs. C.B.I.). In the present case when there is absence of direct evidence and the circumstantial evidence adduced by the prosecution relating to entrustment of Rs.11,100/- with the petitioner against each of the accounts and the evidence of P.W.4 is not clinching, it is difficult to arrive at a conclusion that the petitioner was entrusted with Rs.11,100/-on 02.04.1984 against S.B. Account Nos. 906595 and 906616. 906595 and 906616. The Superintendent of Post Office, Bhadrak Division, Bhadrak submitted his inquiry report in connection with F.Misc 4-6/86 dated at Bhadrak-756100, the 28.10.1986 to the Post Master General, Orissa Circle, Bhubaneswar wherein it is mentioned as follows:-“From the above finding, it is clear that on both the pass books on 02.04.1984, there was deposit of Rs.100/-each and Sri J.K. Nayak with sole intention to blackmail and to trouble the Branch Post Master made manipulation in the pass books and counter foil pay-in-slips………. Though the pass books have been obtained from Sri J.K. Nayak, there is no reason to entertain the claims of Rs.22,000/-. The claims are therefore proposed to be rejected. The enquiry report has been marked as Ext.A on 01.03.1997 as the learned Public Prosecutor, C.B.I. filed it along with other documents and submitted that he has no objection if those documents as marked as exhibits. 11. The question no. 7 and question no. 10 and the answers given by the petitioners to such questions are extracted herein below as follows:- “Q.7. It further transpires from his evidence that on 02.04.1984 she deposited Rs.11,100/-in her S.B. Account and you made entry and put your signature in her Pass Book vide Ext.2/1 and Ext.3 is the counter foil of the deposit and Ext.3/1 is your signature and Ext.4 is the pay-in-slip corresponding to Ext.3 and Ext.4/1 is your signature. What have you got to say? Ans:- She had deposited only Rs.100/-and not Rs.11,100/- Q.10. It further transpires from his evidence that on 02.04.1984 there was deposit of Rs.11,100/-in the said account and you made entry of the said deposit and put your signature vide Ext.5/1 and Ext.6 is the counterfoil and Ext.7 is the corresponding pay-in-slip and Ext.6/1 and Ext.7/1 are your signatures in the counter foil and pay-in-slip. What have you got to say? Ans:- No, it is false, only Rs.100/-was deposited.” Law is well settled that examination of the accused under section 313 of Cr.P.C. is not a mere formality. It has got practical utility for the criminal Courts in affording opportunity to the accused to explain the incriminating circumstances. The questions should be framed in an easily understandable manner and they should not be lengthy and complicated. Several distinct matters of evidence should not be rolled up in a single question. It has got practical utility for the criminal Courts in affording opportunity to the accused to explain the incriminating circumstances. The questions should be framed in an easily understandable manner and they should not be lengthy and complicated. Several distinct matters of evidence should not be rolled up in a single question. Long and involved questions embracing a number of matters are not to be put to the accused. The Court must frame the questions in a manner that the accused could be able to understand easily and to answer the same. Looking at the questions nos. 7 and 10, it appears that so many things have been put in it and such type of questions will naturally prejudice the case of the accused inasmuch as if the questions are not properly put then the accused would not get any chance of explaining the same properly. Therefore, I am of the view that putting the questions in the manner as has been done in this case in respect of questions nos. 7 and 10 which are on very material aspects of the case, it has caused serious prejudice to the petitioner. The Hon’ble Supreme Court in the case of Tanviben Pankaj Kumar Divetia Vs. State of Gujarat reported in (1997) 7 SCC 156 held that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused. In case of Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan reported in (2013) 5 SCC 722 , it is held that the statement under section 313 Cr.P.C. cannot be made a basis for conviction of the accused and it is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence laid by the prosecution, though it cannot be a substitute for the evidence of the prosecution and adverse inference can be made against the accused only and only if the incriminating material stands fully established and the accused is not able to furnish any explanation for the same. Of course, the accused has a right to remain silent as he cannot be forced to become a witness against himself. 12. Of course, the accused has a right to remain silent as he cannot be forced to become a witness against himself. 12. Law is well settled that when the findings of facts recorded by the Courts below are not supportable on the evidence on record, the revisional Court would be justified for conducting an independent reassessment of evidence and to supplant a conclusion of his own. If there is any manifest illegality, perversity and miscarriage of justice, the High Court in exercise of its revisional jurisdiction can certainly interfere with the concurrent findings of facts. In view of the above discussions, when the material evidence have been overlooked by both the Courts below which according to my opinion has resulted in causing serious miscarriage of justice and prejudice to the appreciation of evidence, I am of the humble view that the impugned judgments and orders of conviction are not sustainable in the eye of law. Accordingly, the revision petition is allowed. The impugned judgment and order of conviction of the petitioner under section 409 of the Indian Penal Code and the sentence passed there under is hereby set aside. The petitioner is on bail by virtue of the order of this Court. He is discharged from the liability of his bail bond. The personal bond and surety bond stand cancelled.