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2017 DIGILAW 284 (ORI)

Bhagirithi Mishra v. State of Orissa

2017-03-16

S.K.SAHOO

body2017
JUDGMENT S.K. SAHOO, J. - The petitioner Bhagirathi Mishra along with one Kulamani Rath faced trial in the Court of learned Additional Chief Judicial Magistrate (Special), Cuttack in G.R. Case No.1650 of 1984 for offences punishable under Sections 408/477-A/120-B of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 27.09.1994 acquitted the co-accused Kulamani Rath of all the charges and also the petitioner of the charges under Sections 477-A/120-B of the Indian Penal Code. The petitioner was however found guilty under Section 408 of the Indian Penal Code and sentenced to undergo R.I. for a period of six months and to pay a fine of Rs.1,000/- (Rupees one thousand), in default, to undergo R.I. for a period of one month. The appeal preferred by the petitioner before the learned Sessions Judge, Cuttack in Criminal Appeal No.143 of 1994 was dismissed vide impugned judgment and order dated 12.04.1996, hence this revision. It is not disputed that the petitioner Bhagirathi Mishra is dead and his legal heirs have been substituted as petitioners Nos. 1.(A), 1.(B), 1.(C), 1 (D) and 1 (E) to continue the revision petition. 2. It is the prosecution case that the petitioner Bhagirathi Mishra was the Clerk and co-accused Kulamani Rath (acquitted) was the Headmaster of Orissa Police High School, Tulasipur, Cuttack during the year, 1981 to 1984.The informant Sasibhusan Swain ( P.W.27) who was the Headmaster in charge of that School from May, 1984 to December, 1986 found that Teachers Provident Fund (hereafter ‘T.P.F.’) subscription were not deposited in T.P.F. pass books though subscription amount relating to the teachers were withdrawn from the bank by the accused persons. An audit was conducted as per the direction of the Managing Committee and the auditor submitted his audit report to the Managing Committee and accordingly, the Managing Committee directed the informant to lodge the first information report regarding the defalcation of money by the accused persons. On the basis of the first information report lodged before the IIC, Bidanasi Police Station, Bidanasi P.S. Case No.362 of 1984 was registered on 07.07.1984 under sections 408/477-A of the Indian Penal Code. During the course of investigation, relevant witnesses were examined, documents were seized and after completion of investigation, charge sheet was submitted on 15.07.1986 under Sections 408/477-A/120-B of the Indian Penal Code. 3. The defence plea of the petitioner was one of denial. 4. During the course of investigation, relevant witnesses were examined, documents were seized and after completion of investigation, charge sheet was submitted on 15.07.1986 under Sections 408/477-A/120-B of the Indian Penal Code. 3. The defence plea of the petitioner was one of denial. 4. During course of trial, the prosecution examined thirty-three witnesses. P.W. 1 is the Head Clerk of the Office of Inspector of Schools, Cuttack who stated about the duties and responsibilities of the Clerk and Headmaster of Orissa Police High School, Cuttack. P.W. 2 to P.W. 13 are the teachers of Orissa Police High School, Cuttack who stated that in spite of deduction of T.P.F. subscriptions from their salary, the said amount were not deposited in the passbooks at the post office i.e. G.P.O., Cuttack. P.W. 14 to 16, 22 to 25, 29 and 30 are the seizure witnesses. P.W. 26 is a teacher of Tulsipur High School, Cuttack and P.W. 27 is the Headmaster in Charge of Police High School who is the informant in this case. P.W. 28 is the Secretary of the Orissa Police High School and P.Ws. 31,32 and 33 are the Investigating Officers. 5. The learned Trial Court after discussing the evidence on record has been pleased to observe that from the evidence of P.Ws. 2 to 13 and 27, it is clear that T.P.F. subscription amount of Rs.6821.73 was not credited into the postal savings pass books of the respective teachers of the School. It is the evidence of the witnesses that T.P.F. subscription amounting to Rs.6821,73 was withdrawn from the State Bank of India which was not deposited in the postal savings bank accounts of the respective teachers. The learned Trial Court has further observed that so far as the petitioner is concerned, the cheque vide Ext. 56/1 reveals that an amount of Rs.1691.68 P. was taken from the bank by the petitioner and a sum of Rs.27.93 was also withdrawn by the petitioner under the cheque vide Ext. 56/2. It is further held that from the evidence of P.W. 27 coupled with the cheques Ext. 56, 56/1, 56/3 and 56/4, it is clear that the cheques were sent to the bank after thorough the petitioner or peon Kamdev Routray or Surendra Nanda and thereafter the T.P.F. subscriptions though were drawn from the Bank were not deposited in the pass books of the respective teachers. 56, 56/1, 56/3 and 56/4, it is clear that the cheques were sent to the bank after thorough the petitioner or peon Kamdev Routray or Surendra Nanda and thereafter the T.P.F. subscriptions though were drawn from the Bank were not deposited in the pass books of the respective teachers. Learned Trial Court further held that the petitioner dishonestly misappropriated the T.P.F. subscription belonging to the teachers and accordingly found the petitioner guilty under Section 408 of the Indian Penal Code. The learned Trial Court further held that the prosecution has not led any evidence to show that the accused persons had falsified the accounts or they intended a criminal breach of trust in respect of the funds belonging to the Orissa Police High School. Accordingly, the learned Trial Court acquitted the petitioner of the charges under sections 477-A/120-B of the Indian Penal Code. The learned Appellate Court has been pleased to hold that one of the cheque i.e. Ext. 56/1 amounting to Rs.1691.68 was personally drawn by the petitioner. It was further held that there is no dispute that the total amount of Rs.6821.73 was drawn from the State Bank of India towards T.P.F. subscription which has not been deposited in the pass book. The learned Appellate Court further held that in view of the evidence that the appellant being the Clerk and in charge of the cash had certain domain over the amount Rs.6821.73 which was drawn from the bank towards T.P.F. to be deposited in the post office to the credit of the postal savings bank account of various teachers and the headmaster. The learned Appellate Court accordingly agreed with the finding of the learned Trial Court in convicting the petitioner under Section 408 of the Indian Penal Code. 6. Learned Counsel for the petitioner, Mr. Nibas Chandra Misra challenging the impugned order of conviction contended that the learned Courts below have committed error on records in arriving at the conclusion that the money collected by the petitioner from the bank was not deposited in different pass books of the teachers. In fact the pass books of the teachers which have been exhibited in case, would show that after a sum of Rs.1691. 68 paisa was withdrawn by the petitioner on 31.05.1982 as per cheque Ext. 56/1, in June 1982, the T.P.F. subscription have been deposited in the respective pass books. In fact the pass books of the teachers which have been exhibited in case, would show that after a sum of Rs.1691. 68 paisa was withdrawn by the petitioner on 31.05.1982 as per cheque Ext. 56/1, in June 1982, the T.P.F. subscription have been deposited in the respective pass books. Learned Counsel for the petitioner further submitted that the witnesses have stated that the petitioner as well as co-accused Kulamani Rath, the Headmaster were responsible for non-deposit of the amount of T.P.F. subscription in the respective pass books and since the Headmaster has already been acquitted, the impugned judgment and order of conviction against the petitioner is not sustainable in the eye of law and should be set aside. Mr. Deepak Kumar, learned Addl. Standing Counsel on the other hand contended that the ocular evidence as well as the documentary evidence clearly reveal that there has been entrustment of sum of Rs.1691.68 paise to the petitioner which was collected from the bank towards T.P.F. subscription and since the teachers have stated that such amount has not been deposited in their respective pass books, therefore, the learned Courts below have rightly convicted the petitioner under Section 408 of the Indian Penal Code. He further contended that the case of the petitioner stands in completely different footing than the co-accused Headmaster Kulamani Rath and there has been no illegality or infirmity either in the assessment of evidence or in the order of conviction of the petitioner, the concurrent findings of fact should not be disturbed. 7. Considering the submissions made by the learned Counsel for the respective parties and on perusal of the impugned judgments of the Courts below and the evidence on record, it appears that the conviction of the petitioner under Section 408 of the Indian Penal Code is based mainly on the evidence of the teachers as well as documentary evidence that the petitioner has misappropriated a sum of Rs.1691.68 paise. The relevant cheque has been marked as Ext. 56/1 On perusal of Ext. 56/1, it appears that though it is dated 05.04.1982 but it was presented for encashment on 31.05.1982 and the petitioner in token of receipt of such amount of Rs.1691.68 paise has put his signature as well as date on the back of the cheque. Similarly another cheque of date 05.04.1982 which has been marked as Ext. 56/1, it appears that though it is dated 05.04.1982 but it was presented for encashment on 31.05.1982 and the petitioner in token of receipt of such amount of Rs.1691.68 paise has put his signature as well as date on the back of the cheque. Similarly another cheque of date 05.04.1982 which has been marked as Ext. 56/2 of Rs.27.93 was also encashed on 31.05.1982 by the petitioner and he has put his signature as well as date on bank of the cheque. On scrutiny of the pass books of different teachers which have been exhibited in the case, it appears that there has been deposit of T.P.F. subscription in all the pass books not only in the month of May 1982 but also in the month of June 1982. Obviously June 1982 is relevant so far as the petitioner is concerned as he was entrusted with a sum of Rs.1691.60 paise and Rs.27.93 on 31.05.1982. The savings bank ledger entries which have been exhibited in this case as Ext.31/1 to 31/16 relates to different teachers which also indicate that there has been deposit of T.P.F. subscription in the month of June 1982 which tallies with passbook entries. Therefore, the ocular evidence led by the prosecution that after withdrawal of the T.P.F. subscription, the same has not been deposited in the respective pass books appear to be factually incorrect. In fact, it has been deposited in different pass books. Therefore, it cannot be said that the petitioner has misappropriated the T.P.F. subscription of the teachers. It appears that the learned Trial Court as well as Appellate Court have proceeded pedantically without making an in depth analysis of facts and circumstances and evidence led in the trial in its proper perspective and have blindly accepted the ocular evidence without scrutinizing the documentary evidence on its proper prospective which has resulted in miscarriage of justice in the case. Since, I am of the view that the amount which was entrusted to the petitioner has not been misappropriated by him rather it has been deposited in the different pass books of the teachers, the order of conviction of the petitioner under Section 408 of the Indian Penal Code is not sustainable in the eye of law. Since, I am of the view that the amount which was entrusted to the petitioner has not been misappropriated by him rather it has been deposited in the different pass books of the teachers, the order of conviction of the petitioner under Section 408 of the Indian Penal Code is not sustainable in the eye of law. Accordingly, the Criminal Revision is allowed and the impugned judgment and order of conviction of the petitioner under Section 408 of the Indian Penal Code is hereby set aside and the petitioner is acquitted of such charge. Revision allowed.