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2017 DIGILAW 932 (ORI)

Pramod Kumar Kar v. State of Orissa

2017-08-24

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. The appellant Pramod Kumar Kar along with his wife Smt. Kananbala Kar and one Bijaya Kumar Swain faced trial in the Court of learned Adhoc Additional Sessions Judge, F.T.C., Court No. IV, Cuttack in S.T. Case No.539 of 2006. The appellant was charged under sections 406/294/506/307/34 of the Indian Penal Code whereas the co-accused persons Smt. Kananbala Kar and Bijaya Kumar Swain were charged under sections 294/506/307/34 of the Indian Penal Code. The learned Trial Court acquitted the co-accused persons of all the charges. The appellant was also acquitted of the charge under sections 294/506/307/34 of the Indian Penal Code, however, he was found guilty under section 406 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years. 2. The prosecution case, as per the first information report dated 13.12.2005 lodged by Binod Kishore Kar (P.W.2) is that after his retirement from service, the informant in order to purchase a plot at Salipur contacted the appellant on 19.09.2005 who was related to him and accordingly, the appellant agreed to sale a plot to the informant at Salipur which corresponds to Mouza-Lunahar, Khata No.805, Plot No.2101, Area-Ac. 0.153 decimal with a consideration amount of Rs.2,00,000/-(rupees two lakhs). An agreement was executed between the parties and a sum of Rs.1,34,000/-was paid by the informant to the appellant as advance in presence of the witnesses and it was further agreed upon between the parties that the balance amount of Rs.66,000/-will be paid at the time of registration of the sale deed. It is the further prosecution case as per the F.I.R. that on 15.10.2005 the appellant approached the informant and asked for the balance amount for registration of the sale deed on 17.10.2005. Though the informant paid such amount of Rs.66,000/-and the date was fixed to 17.10.2005 for registration of the sale deed but on that day the appellant did not come up for registration on some plea for which a legal notice was sent to the appellant on 26.11.2005 by registered post which was received by the appellant on 28.11.2005. Though the informant paid such amount of Rs.66,000/-and the date was fixed to 17.10.2005 for registration of the sale deed but on that day the appellant did not come up for registration on some plea for which a legal notice was sent to the appellant on 26.11.2005 by registered post which was received by the appellant on 28.11.2005. It is further stated in the F.I.R. that on 12.12.2005 at about 11.00 a.m. the informant along with two other gentlemen namely Bigneswar Sahoo (P.W.3) and Dibakar Mohapatra (P.W.6) came to the house of the appellant and requested him to execute the sale deed but the appellant and other co-accused persons being armed with weapons not only abused the informant in filthy language but came to attack him. The appellant attempted to deal a blow on the belly of the informant with a knife but due to intervention of P.W.3 and P.W.6, he was rescued. It is stated in the F.I.R. that the accused persons threatened the informant with dire consequences. On the basis of such first information report before the Inspector in charge of Salipur Police Station, Salipur P.S. Case No. 393 of 2005 was registered under sections 406/294/506/307/34 of the Indian Penal Code against the appellant and the other two co-accused persons and P.W.12 Pratap Chandra Behera who was the A.S.I. of Police attached to Salipur police station took up investigation of the case as per the direction of the Inspector in charge of Salipur Police Station. He examined the informant and recorded his statement, visited the spot and prepared the spot map marked as Ext.5, seized the original agreement, one original money receipt, xerox copy of the advocate notice on being produced by the informant under seizure list under Ext.3 and gave those documents in the zima of the informant under zimanama Ext.2. He arrested the appellant and his wife Smt. Kananbala Kar and forwarded them to Court and after completion of investigation, he submitted charge sheet on 10.03.2006 against the accused persons under sections 406/294/506/307/34 of the Indian Penal Code. 3. He arrested the appellant and his wife Smt. Kananbala Kar and forwarded them to Court and after completion of investigation, he submitted charge sheet on 10.03.2006 against the accused persons under sections 406/294/506/307/34 of the Indian Penal Code. 3. After submission of charge-sheet, the case was committed to the Court of Session after observing due committal procedure and the case was made over to the learned Trial Court for disposal in accordance with law where the learned trial Judge charged the appellant and co-accused persons on 29.03.2007 as aforesaid and since the appellant and the co-accused persons refuted the charges and pleaded not guilty and claimed to be tried, the Sessions trial procedure was resorted to prosecute them and establish their guilt. 4. The defence plea of the appellant is one of denial and it is pleaded that on 12.12.2005 at about 11.00 a.m. the informant (P.W.2) and one Akshya Sahu came to the house of the appellant and threatened his wife to withdraw a complaint case pending in the Court of learned J.M.F.C., Salipur or to face dire consequence. When the wife of the appellant asked them to refund the cash of Rs.1,00,000/-which the son of the informant had taken from the appellant for purchase of a tipper and who died due to brain malaria, the informant pleaded ignorance and then quarreled with her and thereafter, the informant has foisted the case. 5. In order to prove its case, the prosecution examined twelve witnesses. P.W. 1 Ramachandra Kar stated about payment of advance of Rs.1,35,000/-(rupees one lakh thirty five thousand) by the informant to the appellant for transfer of a piece of land and further stated that even after receipt of the advance, the appellant did not transfer the land in favour of the informant. This witness has been declared hostile by the prosecution. P.W.2 Binod Kishore Kar is the informant in the case and he has stated about giving Rs.2,00,000/-(rupees two lakhs) to the appellant on two different dates and further stated about the attempt by the appellant to assault him by means of a knife. He further stated about the seizure of the original agreement, xerox copy of the advocate notice and postal acknowledgment by the Investigating Officer and taking the same on zimanama under Ext.2. He further stated about the seizure of the original agreement, xerox copy of the advocate notice and postal acknowledgment by the Investigating Officer and taking the same on zimanama under Ext.2. P.W.3 Bighneswar Sahoo stated to have accompanied the informant to the house of the appellant where the appellant attempted to assault the informant. P.W.4 Akhaya Kumar Sahu stated about the exchange of hot words between the informant and the accused persons and he was declared hostile by the prosecution. P.W.5 Saroj Kumar Kar stated about the execution of an agreement between the parties relating to transfer of the land and he is a witness to the seizure of original agreement and other documents under seizure list Ext.3. P.W.6 Dibakar Mohapatra also did not support the prosecution case for which he was declared hostile by the prosecution. P.W.7 Jagdish Kar stated about the seizure of documents under seizure list Ext.3. P.W.8 Himansu Sekhar Nayak is an advocate who stated about the issuance of legal notice on behalf of the informant to the appellant on 25.11.2005. P.W.9 Rabindra Kumar Panda is also an advocate who stated to have drafted the agreement on the instruction of the parties which has been proved as Ext.4. P.W.10 Prakash Kumar Satapathy also stated about the execution of the agreement between the parties as per Ext.4. P.W.11 Subash Chandra Senapati stated about the execution of an agreement in the chamber of P.W.9. P.W.12 Pratap Chandra Behera was the A.S.I. of Police of Salipur police station who is the Investigating Officer. The defence examined one witness who is none else than the wife of the appellant namely Smt. Kananbala Kar. The prosecution exhibited five documents. Ext.1 is the F.I.R., Ext.2 is the zimanama, Ext.3 is the seizure list, Ext.4 is the agreement and Ext.5 is the spot map. The defence exhibited two documents. Ext. A is the blank sheet paper containing signature of P.W.9 and Ext. B is the certified copy of the order sheet in I.C.C. Case No. 31 of 2006 of the Court of the learned J.M.F.C., Salipur. 6. The learned Trial Court after assessing the evidence on record has been pleased to observe that there is no inordinate delay in lodging the first informant report and the prosecution has miserably failed to establish the charges under sections 294/506/307/34 of the Indian Penal Code against all the accused persons. 6. The learned Trial Court after assessing the evidence on record has been pleased to observe that there is no inordinate delay in lodging the first informant report and the prosecution has miserably failed to establish the charges under sections 294/506/307/34 of the Indian Penal Code against all the accused persons. The learned Trial Court however observed that in view of the evidence of the informant as well as P.Ws. 3, 6 and 9 and execution of agreement (Ext. 4), it is clearly established that the money which was entrusted to the appellant has been misappropriated by him for his personal use and accordingly, found the appellant guilty under section 406 of the Indian Penal Code. 7. Mr. Birendra Kumar Nayak, learned counsel appearing for the appellant while challenging the impugned judgment and order of conviction contended that the original agreement has not been proved during trial even though it is the prosecution case that the same was given in the zima of the informant. He further contended that there is no evidence relating to payment of an amount of Rs.66,000/-by the informant to the appellant on 15.10.2005 and the dispute between the parties is basically civil in nature and the basic ingredients of the offence under section 406 of the Indian Penal Code are not attracted. He further contended that when the substantial part of the evidence of the witnesses relating to the commission of offences under sections 294/506/307/34 of the Indian Penal Code has been disbelieved by the learned Trial Court, the self same set of evidence should not have been acted upon to convict the appellant under section 406 of the Indian Penal Code. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel appearing for the State on the other hand supported the impugned judgment and submitted that the evidence of the informant is clear, cogent and trustworthy and the recitation of the agreement (Ext.4) makes it very clear regarding acceptance of sum of Rs.1,34,000/-on 19.09.2005 by the appellant from the informant and since the appellant has failed to register the land in spite of receipt of the consideration amount, the ingredients of the offence under section 406 of the Indian Penal Code are clearly attracted. Mr. Smuti Ranjan Mohapatra, learned counsel appearing for the informant also supported the impugned judgment. 8. Admittedly, the original agreement has not been proved by the prosecution in the case. Mr. Smuti Ranjan Mohapatra, learned counsel appearing for the informant also supported the impugned judgment. 8. Admittedly, the original agreement has not been proved by the prosecution in the case. Ext.4 which has been proved in this case is not the original agreement inasmuch as neither the signature of the appellant nor the signature of the informant finds place on it. When it is the prosecution case that the original agreement dated 19.09.2005 was seized and it was released in favour of P.W.2 during the course of investigation as per zimanama (Ext.2), there was no earthly reason for P.W.2 not to produce the same during trial. Secondary evidence relating to the existence, condition or contents of a document can be given in the cases as enumerated under clauses (a) to (g) of section 65 of the Evidence Act. When none of the clauses is applicable in the case, in absence of the original agreement, Ext.4 has got no evidentiary value. Even though P.W.2 has stated about payment of Rs.1,34,000/-and Rs.66,000/-on two different dates to the appellant and the I.O. stated about the seizure of one original money receipt and releasing the same in favour of the informant but the informant has not stated about any such receipt and such receipt has also not been proved by the prosecution. In the case of National Small Industries Corporation Ltd. -Vrs.-M/s. Samudra Corporation reported in 2005 Criminal Law Journal 3432, it is held that in a case where there is a breach of an agreement executed between the parties, merely because there is a breach and several amounts which are due and payable by one party to the other are not paid, it cannot be said that the offence punishable under section 420 or that the offence of criminal breach of trust is committed by the accused. It is further held that it is no doubt true that in a given case of a breach of contract, a prosecution could be lunched under the provisions of section 406 or section 420 and at the same time simultaneously a civil suit could also be filed. However, this is not always true and in order to establish that the breach of contract had resulted into an offence punishable under sections 406 or 420 of the Indian Penal Code, there should be sufficient material on record on the basis of which such inference can be drawn. However, this is not always true and in order to establish that the breach of contract had resulted into an offence punishable under sections 406 or 420 of the Indian Penal Code, there should be sufficient material on record on the basis of which such inference can be drawn. Section 406 of the Indian Penal Code prescribes punishment for criminal breach of trust as defined under section 405 of the Indian Penal Code. In order to prove a charge under section 406 of the Indian Penal Code, the prosecution is required to prove that (i) the accused was entrusted with property or with dominion over it (ii) that he (a) misappropriated it, or (b) converted it to his own use, or (c) used it, or (d) disposed of it. The basic ingredients of section 405 of the Indian Penal Code is that there must be an entrustment; there must be misappropriation or conversion to one’s own use or use in violation of any legal direction or of any legal contract and that the misappropriation or conversion or disposal must be with dishonest intention. Every breach of trust in the absence of mens rea, cannot legally justify a criminal prosecution. The prosecution in the present case was required to prove that there was a legal contract between the parties and by virtue of such contract, the appellant who had dominion over the property, used that property in violation of the terms of legal contract. Existence of dishonest intention is one of the essential ingredients of offence of misappropriation punishable under section 406 of the Indian Penal Code. It is the prosecution case that at the first instance the informant (P.W.2) paid a sum of Rs.1,34,000/-(one lakh thirty four thousand) on 19.09.2005 and in that respect an agreement was executed between the parties. When the original agreement, the money receipt relating to the acceptance of Rs.1,34,000/-by the appellant from the informant and the lawyer’s notice have not been proved and the prosecution has also not adduced any clinching evidence regarding payment of Rs.66,000/-on 15.10.2005 by the informant to the appellant, therefore, it is difficult to accept the prosecution case that there was any legal contract between the parties and that the appellant who was in dominion over the property acted against such legal contract and thereby committed criminal breach of trust. 9. 9. When the prosecution case has been substantially disbelieved and the co-accused persons have been acquitted of all the charges and the appellant has also been acquitted of the charges under sections 294/506/307/34 of the Indian Penal Code and it appears that a dispute of basically civil in nature has been given a colour of a criminal proceeding and the evidence relating to the criminal breach of trust by the appellant is not clinching, I am of the view that the impugned judgment and order of conviction of the appellant under section 406 of the Indian Penal Code is not sustainable in the eye of law. In the result, the Criminal Appeal is allowed and the impugned judgment and order of conviction of the appellant under section 406 of the Indian Penal Code and sentence passed thereunder is set aside and the appellant is acquitted of the charge. 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.