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2017 DIGILAW 255 (ORI)

Benudhar Barik v. Republic of India

2017-03-08

S.K.SAHOO

body2017
JUDGMENT S. K. SAHOO, J. - The petitioner Benudhar Barik faced trial in the Court of Additional Chief Judicial Magistrate, Bhubaneswar in S.P.E. Case No.12 of 1992 for commission of offence under Section 409 of the Indian Penal Code on the accusation that on 07.04.1987 he being a public servant in the employment of Postal Department as Branch Post Master of Kothapatna Branch Post Office and in such capacity being entrusted with a sum of Rs.100/- by Kumari Khulana Senapati (P.W.2) and Rs.116/- by Basanti Muduli (P.W.1) for depositing the said amount in S.B. Account Nos.650071 and 650078 respectively, committed criminal breach of trust in respect of the aforesaid amount. The learned Trial Court found the petitioner guilty under Section 409 of the Indian Penal Code and sentenced him to undergo R.I. for a period of three months and to pay a fine of Rs.200/- (rupees two hundred only), in default, to undergo R.I. for fifteen days. The petitioner preferred an appeal in the Court of Session which was heard by the learned Sessions Judge, Khurda, Bhubaneswar in Criminal Appeal No.44 of 1998 and the learned Appellate Court vide impugned judgment and order dated 15.05.1999 has been pleased to dismiss the appeal and upheld the impugned judgment and the order of conviction and sentence passed by the learned Trial Court. 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 he was in charge of Branch Post Master of Kothapatna Branch Post Office during the year 1987 in absence of the Branch Post Master Sri A.C. Sahoo and was entrusted with the work of the transaction of SB/RD accounts relating to deposits and 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 the postal records. It is the further prosecution case that Kumari Khulana Senapati (P.W.2) was the account holder of SB A/c No.650071 of the said post office and she deposited sum of Rs.100/- on 07.04.1987 with the petitioner in the post office for depositing the said amount in her account and she handed over the pass book to the petitioner. It is the further prosecution case that Kumari Khulana Senapati (P.W.2) was the account holder of SB A/c No.650071 of the said post office and she deposited sum of Rs.100/- on 07.04.1987 with the petitioner in the post office for depositing the said amount in her account and she handed over the pass book to the petitioner. The petitioner after receiving the said amount made entry in her pass book, signed against entry, put the branch office date stamp and retuned the pass book to P.W.2 but the petitioner did not account for the said amount in the postal records and misappropriated the same. It is the further prosecution case that Kumari Basanti Muduli (P.W.1) was the account holder of SB A/c. no.650078 and she deposited sum of Rs.116/- on 07.04.1987 with the petitioner in the post office for depositing the said amount in her account and handed over the pass book to the petitioner. The petitioner after receiving the amount made entry in her pass book, signed against the entry, put the branch office date stamp and retuned the pass book to her but the petitioner did not account for the said amount in postal records and misappropriated the same and thus, the petitioner dishonestly misappropriated a total sum of Rs.216/- from the aforesaid two accounts by not accounting for the same in the postal records. On 28.02.1991 P.W.4 Brundaban Das who was the Inspector of C.B.I., Bhubaneswar, on receiving the information from reliable source, drew up the first information report as per the direction of the S.P.,C.B.I. and he took up the investigation. During course of 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 completion of investigation, he submitted charge sheet. 3. In order to establish its case, the prosecution examined four witnesses. P.W.1 Basanti Muduli is one of the account holders of Kothapatna Branch Post Office and she stated that on 07.04.1987 he handed over Rs.116/- to the petitioner along with her pass book bearing S.B. Account No. 650078 for making the deposit in her S.B. Account. P.W.2 Kumari Khulana Senapati was another account holder and she also stated that on 07.04.1987 she handed over a sum of Rs. P.W.2 Kumari Khulana Senapati was another account holder and she also stated that on 07.04.1987 she handed over a sum of Rs. 100/- to the petitioner for depositing in her account along with the pass book having account No. 650071 and the petitioner made necessary entry in her pass book with the seal of the post office. P.W.3 Suresh Chandra Mishra was the Extra Departmental Delivery Agent of Kothapatna Branch Post Office and he proved the entries in the pass books in the hands of the petitioner and also stated that the amount collected in the pass book have not been reflected in the daily account book. P.W.4 Brundaban Das was the Inspector of C.B.I, Bhubaneswar who is the Investigating Officer in the case. The prosecution exhibited eight documents. Ext.1 is the Pass book bearing Account No.650078, Ext.2 is the pass book of SB A/c No.650071, Ext.3 is the certified true copy of the ledger copy of SB A/c.No.650078, Ext.4 is the daily account register, Ext.5 is the true copy of S.B. Ledger, 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 material 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. 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. 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, the benefit of the Probation of the 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 four 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 two account holders on different dates and there is concurrent findings of fact by 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 four witnesses examined by the prosecution, it appears that P.W.1 Basanti Muduli has stated that she handed over cash of Rs.116/- on 07.04.87 to the petitioner for making deposit in her S.B. account bearing no. 650078 along with the pass book and the petitioner made entry in the pass book (Ext.1) and put postal seal. P.W.2 Khulana Senapati has stated that she handed over cash of Rs.100/- on 07.04.87 to the petitioner for making deposit in her S.B. account bearing no. 650071 along with the pass book and the petitioner made entry in the pass book (Ext.2) and put postal seal. Similarly P.W.3 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 books 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 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 during the year 1987 and he has stated that P.W.1 and P.W.2 had got accounts in the branch post office vide S.B. Account No.650078 and 650071 respectively. Though the petitioner had denied about making entries in the pass books but in view of the evidence of the account holders coupled with the evidence of P.W.3, I am of the view that the denial of the petitioner in the accused statement cannot nullify the effects 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 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 him to undergo R.I. for three months and to pay a fine of Rs.200/- (rupees two hundred), in default, to undergo R.I. for 15 days. The judgment and order of conviction was confirmed by the learned Appellate Court. 8. The learned Trial Court while convicting the petitioner under Section 409 of the Indian Penal Code has sentenced him to undergo R.I. for three months and to pay a fine of Rs.200/- (rupees two hundred), in default, to undergo R.I. for 15 days. The judgment and order of conviction was confirmed by the learned Appellate Court. In the case of State of Orissa -Vrs.- 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 -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 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 subserved 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 -Vrs.- 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 -Vrs.- 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 the petitioner was in custody during trial from 01.09.1996 to 18.09.1996 and after the judgment was pronounced on 29.08.1998, even though the learned Trial Court released the petitioner on bail but since bail bond could not be furnished, the petitioner was remanded to jail custody and thereafter on 01.09.98 the petitioner furnished the bail bonds and accordingly, he was directed to be released from custody. The incident has taken place in the year 1987, 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. Ordered accordingly.