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2017 DIGILAW 911 (ORI)

Maheswar Seth v. Republic of India

2017-08-21

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The appellant Maheswar Seth faced trial in the Court of learned Special Judge (C.B.I.), Bhubaneswar in T.R. No. 04 of 2004 for offences punishable under section 409 of the Indian Penal Code read with section 13(1)(C) read with section 13(2) of the Prevention of Corruption Act, 1988 on the accusation that during the period of 2001-2002, he being a public servant and working as a store keeper, Regional Store, Mahanadi Coalfields Ltd., Lakhanpur area, Bandhabahal in the district of Jharsuguda and in such capacity being entrusted with the electrical items of MCL worth of Rs.6,15,165/-and having dominion over such property, committed criminal breach of trust in respect of such property and dishonestly misappropriated the same. The learned Trial Court found the appellant guilty under section 409 of the Indian Penal Code and also under section 13(2) of the Prevention of Corruption Act and sentenced him to undergo R.I. for two years and to pay a fine of Rs.20,000/- (rupees twenty thousand), in default, to undergo R.I. for two months on each count for such offences and the sentences were directed to run concurrently. 2. The prosecution case, as per the first information report (Ext.11) dated 23.05.2003 lodged by Sri P. Lal, the Superintendent of Police, CBI, SPE, Bhubaneswar is that he received reliable information that the appellant was functioning as a store keeper, Regional Store, Mahanadi Coalfields Ltd., Lakhanpur area, Bandhabahal in the district of Jharsuguda during the year 2001-02 and was in charge of electrical section of the store and he was receiving the goods from the suppliers after inspection by competent authority and use to make necessary entries in the Kardex of the said item and issuing the same on getting indents with the orders of Depot Officer after making necessary entries in the respective Kardex. During the stock verification of electrical section of the store in June 2002, shortage was found in the ground balance in respect of eleven numbers of items, cost of which is approximately Rs.6,15,165/-. The Depot Officer of Regional Store, Belpahar vide letter dated 11.06.2002 directed the appellant for stock verification of his section along with Chief store keeper of Lakhanpur area and to submit the list of missing items, if any. In response to the aforesaid direction, joint stock verification was conducted during which eleven items were found short of the actual balance. The Depot Officer of Regional Store, Belpahar vide letter dated 11.06.2002 directed the appellant for stock verification of his section along with Chief store keeper of Lakhanpur area and to submit the list of missing items, if any. In response to the aforesaid direction, joint stock verification was conducted during which eleven items were found short of the actual balance. The appellant being the store keeper was accountable for the same and he could not give any satisfactory explanation for the shortage. P.W.9 Bhabanikanta Patnaik who was working as Inspector, CBI was directed by the Superintendent of Police to take up investigation of the case. P.W.9 examined the witnesses and seized the relevant documents. He placed all the relevant documents before the sanctioning authority who accorded sanction for prosecution of the appellant and with a finding that the appellant is responsible for missing of ten numbers of electrical items and thereby causing wrongful loss to the MCL to the tune of Rs.6,12,250/- and committed criminal breach of trust, submitted charge sheet against the appellant. 3. The defence plea of the appellant is that he was on casual leave from 06.05.2002 to 14.05.2002 and one Upendra Prasad Nayak was in charge of the store during the relevant time in his absence and the said Upendra Prasad Nayak also faced the proceeding. Bijaya Pati was another store keeper and Bhagirathi Nayak was also in charge of the store. It is further pleaded that he has not misappropriated any electrical items. 4. In orders to prove its case, the prosecution examined nine witnesses. P.W.1 Prakash Kumar Anwar was the Deputy Chief Material Manager at Lakhanpur area, MCL during December 2001 to July 2002 and he stated that the appellant was the store keeper of Regional Stores, MCL, Lakhanpur during that period. He further stated about the procedure regarding receipt of any material in the store as well as its dispatch from the store. P.W.2 R.N. Ojha was in charge of the Regional Store, Lakhanpur area, Belpahar during the period 2001 to 2003 and he stated that the appellant was in charge of electrical items in the store and on 15.06.2002 shortage in respect of eleven items was reported and accordingly, verification was made by the Chief store keepers along with the appellant and they submitted their report which indicated such shortage. He called for an explanation from the appellant about such shortage but the appellant could not file any satisfactory explanation. P.W.3 Santosh Kumar Mohanty was the Chief store keeper, Regional/Central Store, MCL, Lakhanpur area and he stated that the appellant was in charge of issuing store materials relating to electrical items. He further stated about the procedure of receipt and dispatch of the articles from the store and also about the joint verification of the store and the shortage found during such verification. P.W.4 Himansu Sekhar Parpanda was the partner in Mishra Badhai and associates and he audited the stores of MCL situated at Lakhanpur area in August 2002 and prepared his report Ext.7. He stated that he found shortage of eleven numbers of electrical items and the total value of the missing items was Rs.6,55,850/-. P.W.5 Laxmi Narayan Maheswari was the Chief General Manager, Lakhanpur area, MCL who accorded sanction for prosecution of the appellant as per his sanction order Ext.8. P.W.6 Janardan Kumar Gupta was the Chief store keeper, Regional Stores, Belpahar, MCL who stated that the appellant was the store keeper in Shed No.2, Regional Store, Belpahar and stated about the shortage of some items from the store and further stated that one item was found later on verification. P.W.7 Bhagirathi Prasad Das was the Security Officer of Mahanadi Coalfields, Lakhanpur area and he stated that he had submitted first information report before officer in charge, Banaharpalli Police Station regarding missing materials worth of Rs.6,00,000/- on the instruction of Chief General Manager. P.W.8 Kaushlendra Kumar Mishra was the Project Officer of Belpahar Open Cast Mine and he stated that the appellant was the store keeper of Regional Store, Belpahar. P.W.9 Bhabanikanta Patnaik was the Investigating Officer. The prosecution exhibited eighteen documents. P.W.8 Kaushlendra Kumar Mishra was the Project Officer of Belpahar Open Cast Mine and he stated that the appellant was the store keeper of Regional Store, Belpahar. P.W.9 Bhabanikanta Patnaik was the Investigating Officer. The prosecution exhibited eighteen documents. Ext.1 is the letter dated 11.06.2002 issued by P.W.2 to the appellant for joint verification of the stock, Ext.2 is the verification report, Ext.3 is the letter of P.W.2 to the appellant for submission of explanation, Ext.4 and 4/1 to 4/10 are the Kardex Cards prepared by the appellant, Ext.5 is the material management manual, Ext.6 is the seizure list, Ext.7 is the audit report, Ext.8 is the sanction order, Ext.9 is the letter to CBI by the Depot Officer, Ext.10 to 10/10 are the copies of store vouchers, Ext.11 is the F.I.R., Ext.12 is the copy of field book, Ext.13 is the attendance register, Ext.14 is the copy of the file, Ext.15 is the copy of daily receipt register, Ext.16 is the copy of inward register, Ext.17 is the general issue vouchers and Ext.18 is the copy of general issue register. The defence examined one witness namely Raghubir Singh (D.W.1) who was the area manager at MCL in Lakhanpur. The defence exhibited two documents. Ext.A is the order of Personal Department dated 19/20.03.2002 regarding posting of the appellant in the changed job i.e. light vehicles crane spares etc. Ext.B is the joining order of the appellant dated 17.06.2000 in place of H.N. Majhi. 5. The learned Trial Court on analysis of the evidence came to observe that the appellant has not seriously disputed that during the period 2001 to 2002, he was working as store keeper of Regional Store, MCL, Lakhanpur area and therefore, he was a public servant. It was further held that the evidence of P.Ws. 2, 3, 4 and 6 would go to show that the appellant was in charge of the store and he was in charge of Shed no.2, rack nos.5-B to 8-B and the documents marked as Ext.4 to 4/10 and Ext.10 to 10/10 establish that the appellant received the electrical goods and there is no material to disbelieve the entrustment of missing goods with the appellant. It was further held that the articles were entrusted to the appellant and ten numbers of articles were found missing and the appellant was given chance to explain but he had not offered explanation and all these facts taken into together establish beyond doubt that the appellant misappropriated ten materials which were in his custody. It was further held that P.W.5 accorded sanction after perusing the documents and it cannot be said that the Sanctioning Authority had not applied his mind. 6. Mr. Bijaya Kumar Ragada, learned counsel appearing for the appellant while not disputing the entrustment part contended that the store in question was not in exclusive charge of the appellant and other store keepers were also keeping different articles in the said store and they had access to the store even in the absence of the appellant and therefore, during the period of casual leave of the appellant from 06.05.2002 to 14.05.2002 while one Upendra Prasad Nayak was in charge of the appellant, possibility of removal of articles during such period cannot be ruled out. It is further contended that immediately after joining of the appellant after availing the casual leave, shortage was detected and accordingly reported by the appellant to the concerned authority and even the said Upendra Prasad Nayak faced a proceeding in that respect. It is further contended that the earlier F.I.R. which was submitted by P.W.7 on the instruction of Chief General Manager before the officer in charge of Banaharpali police station has been suppressed and a concocted story has been presented in the F.I.R. (Ext.11). It is further contended that since the prosecution has not come up with clean hands, in absence of any clinching material that the appellant misappropriated ten numbers of electrical items from the store, even if for the sake of argument, entrustment part is not disputed, the conviction of the appellant under section 409 of the Indian Penal Code and section 13(2) of the Prevention of Corruption Act cannot be sustained in the eye of law. Mr. Anup Kumar Bose, learned Asst. Mr. Anup Kumar Bose, learned Asst. Solicitor General appearing for the Republic of India on the other hand contended that since the entrustment part has been proved and the missing of the electrical items has also been proved and the appellant though was given an opportunity to submit his explanation for such shortage, has failed to do so, the conviction of the appellant by the learned Trial Court is quite justified. 7. Since it is not seriously disputed that the appellant was functioning as store keeper, Regional Store, MCL, Lakhanpur area, Bandhabahal in the district of Jharsuguda at the relevant point of time during the period 2001-02 which has been duly proved by the prosecution through the evidence of P.Ws. 1, 2, 3, 5 to 8 and that the electrical items which were found missing were also received by the appellant as per the documentary evidence like Kardex cards under Ext.4 and 4/1 to 4/10 and store vouchers under Ext.10 to 10/10 prepared by the appellant, I am of the view that the learned Trial Court is quite justified in arriving at a finding that there is no material to disbelieve the entrustment of missing goods with the appellant. There is no perversity in such finding. Law is well settled that in order to constitute the essential ingredients of the offence under section 409 of the Indian Penal Code, it must be proved that the accused was a public servant and he was entrusted with property in such capacity and that he has committed criminal breach of trust in respect of such property. In the present case, when the accused being a public servant and his entrustment with the missing properties are proved by way of oral and documentary evidence, the only material is to be seen as to whether the prosecution has successfully established that the appellant has committed criminal breach of trust in respect of such properties or not. To constitute the offence of criminal breach of trust, there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. To constitute the offence of criminal breach of trust, there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. Section 13(1)(C) of the Prevention of Corruption Act also states about the accused dishonestly or fraudulently misappropriating or otherwise converting for his own use any property entrusted to him or under his control as a public servant or allowing any other person to do so, can be said to have committed the offence of criminal misconduct which is punishable under section 13(2) of the said Act. It is the settled principle of law that prosecution need not prove the actual mode of misappropriation. However, the prosecution has to prove the entrustment of goods for a specific purpose and the failure of the accused to account for the same which he is bound to do. The burden of proof of misappropriation of property by the accused is on the prosecution. 8. The plea of the appellant that he was on leave for a particular period and somebody else was in charge of the store during his absence is borne out of record. The Investigating Officer has stated that from 06.05.2002 to 14.05.2002, the appellant was on leave. P.W.6 who was the Chief Store Keeper has stated that the appellant was on leave for some period and in his absence, Upendra Nayak was in charge of his routine duties. P.W.6 has stated that till the availing of leave by the appellant, there was no allegation of shortage of any stores and after his joining, the appellant reported him that there was shortage of stores. The conduct of the appellant in reporting his higher authority about the shortage in the stores after his joining shows his bonafide. P.W.7 who was the Security Officer has stated that as there was missing of materials from the stores worth of Rs.6 lakhs, he had submitted F.I.R. before the officer in charge of Banaharpalli police station on the instruction of Chief General Manager. He further stated that the police officer had visited the stores in the case in which he had submitted the F.I.R. and he along with the other staff of the stores and security department were examined. He further stated that the police officer had visited the stores in the case in which he had submitted the F.I.R. and he along with the other staff of the stores and security department were examined. Neither the prosecution has proved such earlier F.I.R. and nor brought on record about the result of such investigation. Therefore, the learned counsel for the appellant was justified in his submission that the prosecution has not come up with clean hands. P.W.2 has stated that the other store keepers were also keeping their materials in the same shed and Upendra Prasad Nayak and Bijay Kumar Pati were the store keepers along with the appellant and they were keeping their materials in the same shed and all those three store keepers had access to the said store. He has further stated that the keys of the store remain with J. Gupta (P.W.6) who remained in over all charge of the stores. He has further stated that the store keepers including the appellant were sitting in the office premises and the store was at a distance of about 50 meters from that place and whenever any indent is received for a particular material, the store keeper in charge of that material will collect the key from the Chief Store Keeper and along with the Chief Store Keeper, he will come to the store for disbursement of the indent materials. He has further stated that in Shed no.2, there are three store keepers including the appellant and after entering Shed no.2, a store keeper can have access to the materials kept by other store keepers in that shed. Therefore, in view of the evidence of P.W.2, it is clear that three store keepers were using Shed no.2 and keeping their materials there and each one had access to the materials kept by the other store keepers. The keys of the store were with P.W.6 and according to P.W.6, he, the Depot Officer and the Senior Store keeper can only have the access to the keys. The keys are to be collected from P.W.6 after receipt of the indent and P.W.6 will himself come to the store for disbursement of the indent material. Obviously if an indent comes in respect of an item with which the appellant had no charge, he is not required to go inside the store. The keys are to be collected from P.W.6 after receipt of the indent and P.W.6 will himself come to the store for disbursement of the indent material. Obviously if an indent comes in respect of an item with which the appellant had no charge, he is not required to go inside the store. All these go to indicate that neither the appellant was in exclusive charge of all the articles stored in Shed no.2 nor the keys of the Shed were with him at any point of time. When the other store keepers had access to such shed and one Upendra Prasad Nayak was in charge of the goods entrusted to the appellant during the period of leave of the appellant, the commission of theft/removal/pilferage of the missing items during that period cannot be ruled out. The said Upendra Prasad Nayak has also not been examined by the prosecution. If the accused is taking a plea that in his absence, somebody else was in charge of the property and immediately after his joining, the missing of the property was detected and accordingly reported, it is the duty of the prosecution to prove that the period in which the other person was in charge of the property, there was no possibility of pilferage. Similarly if the accused is not in the exclusive control of the place where the properties were stored and others have access to such place, the possibility of others committing any pilferage of the properties are also to be ruled out. In case of Janeshwar Das Aggarwal Vs. State of U.P. reported in AIR 1981 SC 1646 , in a case of conviction under section 409 of the Indian Penal Code, it is held that when the godowns were open and accessible to all and sundry, the possibility of goods having been pilfered or stolen away by others cannot be excluded. It was further held that merely because the appellant has not given any explanation for the shortage, he cannot be presumed to have misappropriated the articles kept in the godown. 9. It was further held that merely because the appellant has not given any explanation for the shortage, he cannot be presumed to have misappropriated the articles kept in the godown. 9. In view of the foregoing discussions, it cannot be said that the prosecution has successfully established that the appellant has committed misappropriation of the entrusted articles which is one of the essential ingredients for an offence under section 409 of the Indian Penal Code and also under section 13(1)(C) read with section 13(2) of the Prevention of Corruption Act. The learned Trial Court has not at all discussed about any such aspect regarding access of others to the store in question and also to the entrusted articles of the appellant and that Upendra Prasad Nayak remaining in charge of the appellant in his absence while on casual leave and the conduct of the appellant in reporting about the missing of articles immediately after his joining to the superior authority and also about the lodging of earlier F.I.R. and investigation in connection with missing of the articles from the store. The reasoning assigned by the learned Trial court in convicting the appellants seems to be based on conjecture and suspicion which have no place in the matter of legal proof of guilt of an accused in a criminal trial and therefore, in view of the evidence available on record, I am not in a position to accept that the prosecution has established its case against the appellant beyond all reasonable doubt. In the result, the Criminal Appeal is allowed and the impugned judgment and order of conviction of the appellant under section 409 of the Indian Penal Code and also under section 13(2) of the Prevention of Corruption Act and sentence passed thereunder is set aside and the appellant is acquitted of the charges. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.