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2017 DIGILAW 247 (ORI)

Benudhar Barik v. Republic of India

2017-03-08

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The petitioner Benudhar Barik faced trial in the Court of learned Additional Chief Judicial Magistrate, Bhubaneswar in S.P.E. Case No.14 of 1992 for offence punishable under section 409 of the Indian Penal Code on the accusation that during the period from 31.01.1989 to 30.12.1989, he being a public servant in the employment of Postal Department as Kothapatna Branch Post Master and in such capacity being entrusted with a sum of Rs.1500/-(i.e. Rs.600+Rs.600+Rs.300) by Kartika Chandra Sahu (P.W.1), Trinath Mahakud, father of minor Kalia Mohakud and Mohamad Sahid, father of minor Sanjukta Banoo for depositing the said amount in the postal R.D. A/c. nos.2012085, 2012155 and 2012160 respectively, committed criminal breach of trust in respect of the said amount. The learned Trial Court found the petitioner guilty under section 409 of the Indian Penal Code and sentenced to undergo R.I. for a period of four months and to pay a fine of Rs.600/-(rupees six hundred only), in default, to undergo R.I. for fifteen days more. The petitioner preferred an appeal in the Court of Session which was heard by the learned 2nd Addl. Sessions Judge, Bhubaneswar in Criminal Appeal No. 4/46 of 1998 and the learned Appellate Court vide impugned judgment and order dated 28.05.1999 has been pleased to dismiss the appeal but reduced the substantive sentence to one month and set aside the fine amount. 2. It is the prosecution case that the petitioner was functioning as EDDA for the period from 14.05.1984 to 18.04.1990 and worked as in-charge of Branch Post Master in Kothapatna Branch Post Office during the year 1989 in absence of the Branch Post Master Sri A.C. Sahoo and was entrusted with the work of transaction of SB/RD Accounts relating to the deposits and to maintain the relevant postal records i.e. branch office SB/RD journals, branch office account book, branch office daily accounts and to make entries of every deposit transaction thereof in the relevant pass books, sign and put the branch office date stamps against each entry and account for the said deposit amount in postal records. It is the further prosecution case that Sri Kartik Chandra Sahu (P.W.1) was the account holder of RD A/c. No.2012085 and he deposited a sum of Rs.50/-on each date i.e. on 31.01.1989, 28.02.1989, 31.03.1989, 29.04.1989, 31.05.1989, 30.06.1989, 31.07.1989, 31.08.1989, 30.09.1989, 31.10.1989, 30.11.1989 and 31.12.1989 with the petitioner in the post office for depositing the said amount in his account and handed over the pass book to the petitioner. Similarly, one Kalia Mohakud (minor), son of Trinath Mohakud was the account holder of R.D. A/c. no.2012155 and his father Trinath Mohakud as operator guardian deposited of Rs.100/-on each date i.e. on 27.03.1989, 20.06.1989, 14.08.1989, 12.10.1989, 02.11.1989 and 11.11.1989 respectively with the petitioner in the Post Office for depositing the said amount in his account and handed over the pass book to the petitioner. Similarly, one Kumari Sanjuka Banoo (minor), daughter of Md. Sahid was the account holder of RD A/c. No. 2012160 and her father Md. Sahid as operator guardian deposited of Rs.100/-on each date i.e. on 30.10.1989, 30.11.1989 and 30.12.1989 respectively with the petitioner in the Post Office for depositing the said amount in the account and handed over the pass book to the petitioner. The petitioner after receiving the amount from the depositors made deposit entries in the respective pass books, signed and put the branch office date stamps against each entry and retuned the pass books to the account holders but the petitioner did not account for the said deposit amount in the postal records and misappropriated the same. It is the prosecution case that the petitioner dishonestly misappropriated total sum of Rs.1500/-from the three RD Accounts by not accounting for in the postal records. 3. P.W.3 Brundaban Dash who was the Inspector of Police, CBI/SPE, Bhubaneswar drew up the First Information Report on 28.02.1991 as per the direction of the S.P., C.B.I., Bhubaneswar and took up investigation of the case. During course of the investigation, he examined the witnesses, seized the documents namely R.D. Ledgers, S.B. Ledgers and S.B. Pass Books and R.D. Pass Books from the Sub Post Master, Phulnakhara and Dy. Supdt. Post Office, Cuttack City Division by preparing two seizure lists Ext.7 and Ext.8 and after conclusion of investigation, he submitted charge sheet. 4. In order to establish its case, the prosecution examined three witnesses. Supdt. Post Office, Cuttack City Division by preparing two seizure lists Ext.7 and Ext.8 and after conclusion of investigation, he submitted charge sheet. 4. In order to establish its case, the prosecution examined three witnesses. P.W.1 Kartika Chandra Sahu is one of the account holders of Kothapatna Branch Post Office and he stated that he handed over Rs.50/-on each of the eight different dates to the petitioner for making deposit in his R.D. Account and accordingly the petitioner made all the eight entries in his pass book Ext.1. P.W.2 Suresh Kumar Mishra who was the Extra Departmental Delivery Agent of Kothapatna Branch Post Office identified the handwritings and signatures of the petitioner on different documents and also on verification of the delay account book maintained for the Branch Post Office stated that the entries which have been made in the pass book of P.W.1 and two other account holders have not been reflected in the RD journal maintained in the Kothapatna Branch Post Office. P.W.3 Brundaban Dash was the Inspector of CBI, Bhubaneswar who is the Investigating Officer in this case. The prosecution exhibited eight documents. Ext.1 is the Pass book, Ext.2 is the certified true copy of R.D. A/c No.20120085 of P.W.1, Ext.3 is the certified true copy of the ledger of R.D. A/c. No.2012155 of Kalia Mahakud, Ext.4 is the Certified true copy of the ledger of R.D. A/c No. 2012160 of S.Banoo, Ext.5 is the R.D. Journal of Kothapatna Branch Office, Ext.6 is the F.I.R. and Exts.7 and 8 are the seizure lists. 4. The defence plea of the petitioner was one of denial. 5. On perusal of the evidence of the witnesses examined by the prosecution, it appears that none of the witnesses have been cross examined by the defence and therefore, the evidence adduced by the prosecution witnesses has remained unchallenged. The learned Trial Court as well as the learned Appellate Court considering the materials available on records arrived at a finding that the factum of entrustment as well as misappropriation has been clearly established by the prosecution and the petitioner has not offered any explanation in his statement recorded under section 313 Cr.P.C. and he has also not adduced any defence evidence. 6. Mr. 6. Mr. Amarendra Prasad Ray, learned counsel appearing for the petitioner contended that the ingredients of the offence under section 409 of the Indian Penal Code has not been established beyond all reasonable doubt against the petitioner and the petitioner being a poor and ignorant of the legal procedure and intricacies of law could not take appropriate steps to defend himself in the Trial Court. It is further contended that though the petitioner filed an application to recall the prosecution witnesses but the same was rejected in a mechanical manner and he was not afforded with sufficient opportunity to defend his case properly. The learned counsel further submitted that taking into account the nature of accusation and absence of criminal antecedent against the petitioner, benefit of the Probation of Offenders Act may be extended in favour of the petitioner. Mr. Anup Kumar Bose, learned Asst. Solicitor General, Government of India for the State of Orissa on the other hand submitted that when the evidence of three prosecution witnesses have remained unchallenged and the oral evidence coupled with documentary evidence clearly establishes the factum of entrustment as well as misappropriation of money deposited with the petitioner by the three account holders on different dates and there is concurrent findings of fact of the Courts below, this Court in exercise of the revisional jurisdiction should not interfere with the same and there being no merit in the revision petition, the same should be dismissed. 7. Considering the submissions made by the learned counsels for the respective parties and on perusal of the evidence of the three witnesses examined by the prosecution, it appears that P.W.1 Kartika Chandra Sahu has categorically stated that he handed over the cash of Rs. 50/-on each occasion i.e. on 31.01.89, 28.02.89, 29.04.89, 31.05.89, 30.06.89, 31.07.89, 31.08.89, 30.09.89, 31.10.89 and 31.12.89 to the petitioner for making deposit in his R.D.account and he said that all the eight entries made in the pass book (Ext.1) was by the petitioner. 50/-on each occasion i.e. on 31.01.89, 28.02.89, 29.04.89, 31.05.89, 30.06.89, 31.07.89, 31.08.89, 30.09.89, 31.10.89 and 31.12.89 to the petitioner for making deposit in his R.D.account and he said that all the eight entries made in the pass book (Ext.1) was by the petitioner. Similarly P.W.2 who was working as Extra Departmental Delivery Agent in the Kothapatna Branch Post Office has not only identified the entries made by the petitioner in the pass book but also on verification of the daily account books maintained in the Branch Post Office stated that the amount reflected in the pass books have not been reflected in the daily account books and also in R.D. Journal maintained at the Kothapatna Branch Post Office. The petitioner in his 313 Cr.P.C. statement has admitted that he was working as Extra Departmental Delivery Agent at Kothapatna Branch Post Office in the year 1989 and he has stated that P.W.1 had got an account in the Branch Post Office vide R.D. Account No. 2012160. Though the petitioner had denied about making entries in the pass books but in view of the evidence of the account holder coupled with the evidence of P.W.2, I am of the view that the denial of the petitioner in the accused statement cannot nullify the effect of the evidence that has been brought on record against the petitioner. None of the prosecution witnesses was cross examined by the defence and after examination of the witnesses, on the date of recording accused statement, though a petition under section 311 of Cr.P.C. was filed by the defence for recalling all the witnesses for cross examination but the defence counsel was not present to press the application and the learned Trial Court on perusal of the petition found no justification for recalling the witnesses and accordingly rejected the petition. The rejection order was not challenged in the higher Court. Therefore, the contention raised by the learned counsel for the petitioner that the petitioner was not afforded with sufficient opportunity to defend his case properly cannot be accepted. Considering the ocular evidence as well as the documentary evidence, I am of the view that the prosecution has clearly established the factum of entrustment as well as the misappropriation by the petitioner while discharging his duty as Branch Post Master at Kothapatna Branch Post Office. 8. Considering the ocular evidence as well as the documentary evidence, I am of the view that the prosecution has clearly established the factum of entrustment as well as the misappropriation by the petitioner while discharging his duty as Branch Post Master at Kothapatna Branch Post Office. 8. The learned Trial Court while convicting the petitioner under section 409 of the Indian Penal Code has sentenced to him to undergo R.I. for four months and to pay a fine of Rs.600/-(rupees six hundred), in default, to undergo R.I. for 15 days more. The judgment and order of conviction under section 409 of the Indian Penal Code was confirmed but the substantive sentence was reduced to one month and the fine amount was set aside. In the case of State of Orissa Vs. Nakula Sahu and others reported in AIR 1979 SC 663 , which was 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 Vs. In the case of State of Himachala Pradesh Vs. 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 was 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. In the case of State of Orissa Vs. Mukteswar Panda reported in 1986 (Vol.I) Orissa Law Reviews 137 wherein while convicting the respondent under section 409 of the Indian Penal Code, it was held that since the misappropriation was committed ten years back, the imposition of substantive sentence till the rising of the Court and imposition of fine Rs.5,000/-on the respondent would be sufficient and in default to pay the fine, the respondent was directed to suffer rigorous imprisonment for six months. In the case of Shyam Sunder Gupta and another Vs. State of Uttar Pradesh and another reported in 1985 Criminal Law Journal 1674 wherein after convicting the appellant under section 420 of the Indian Penal Code, it was observed that on humanitarian ground, the learned Additional Sessions Judge has mentioned in his judgment that the sentence of imprisonment has been limited till the rising of the Court and therefore, there is nothing wrong or illegal about it and the accused persons were directed to pay substantial amount of fine of Rs.1000/-each, in default, to undergo rigorous imprisonment for three months which was held to be perfectly justified. Learned counsel for the petitioner contended that it appears from the record of the learned Trial Court that after the judgment was pronounced on 29.08.1998, even though the learned Trial Court released the petitioner on bail but since the bail bond could not be furnished, the petitioner was remanded to jail custody and thereafter on 01.09.1998 the petitioner furnished the bail bonds and accordingly, he was directed to be released from custody. The incident has taken place in the year 1989, and the F.I.R. was registered on 28.02.1991 and in the meantime twenty six years have passed since the date of registration of the F.I.R. and there is absence of any criminal antecedent against the petitioner. Taking into account the passage of time and the fact that the petitioner has suffered a lot of mental and financial strain during the prolonged proceeding in different Courts and 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 reduce the sentence imposed on the petitioner to period already undergone. In the result, while upholding the impugned judgment and order of conviction of the petitioner under section 409 of the Indian Penal Code, I reduce the sentence to the period already undergone. With the aforesaid modification in the sentence, the Criminal Revision petition stands dismissed.