Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 278 (ORI)

Rasamani Pradhan v. State Of Orissa

2018-03-19

D.P.CHOUDHURY

body2018
ORDER D.P. Choudhury, J. - Heard Mr. B.K. Sharma, learned counsel for the petitioner and Miss. S. Mishra, learned Additional Standing Counsel. 2. Mr. Sharma, learned counsel for the petitioner submits that the petitioner was the ex-Secretary of the R.M.C., Boudh. There was audit of the R.M.C., Boudh and auditor found that there is misappropriation of Rs. 69,219.015 paise due to lack of proper supervision and maintenance of accounts. There was only observation that necessary action should be initiated against the petitioner for realization of the misappropriated amount. 3. Mr. Sharma, learned counsel for the petitioner further submits that as enquiry was held by the Department and the Enquiring Officer had categorically observed that the present petitioner is not responsible for loss to the R.M.C. and exonerated the petitioner from all charges, the Disciplinary Authority accepting the view of the Enquiring Officer exonerated the petitioner from all charges. On the other hand, the present petitioner has alleged before the Sub-Collector, Boudh on 18.04.2004 stating that after enquiry, he found that Shri Chitta Ranjan Pradhan, DLR being entrusted with the maintenance of the accounts, mobilized collection of the market fees and has not performed his duty by depositing the amount collected at the check gate towards market fees in the Bank. The Sub-Collector, Boudh had advised the present petitioner to lodge the F.I.R. against Shri Chitta Ranjan Pradhan and the deficit amount be recovered by the Secretary, R.M.C. Thereafter, the petitioner was relieved from the job and new Secretary joined. Surprisingly, the new Secretary-P.C. Sahu instead of lodging F.I.R. against Shri Chitta Ranjan Pradhan lodged the F.I.R. against the present petitioner basing on which investigation went ahead and finally charge sheet was submitted against him on no evidence. 4. Mr. Sharma, learned counsel for the petitioner submits that entire investigation is based on the audit report, basing on which the charge sheet was submitted against the present petitioner. According to him, the audit report cannot be conclusive to prove or basis for submission of charge sheet and take cognizance of the offence under Section 409 of IPC. He, therefore, submitted that the learned Magistrate without application of judicial mind has taken cognizance of the offence and issued process which are liable to be quashed. According to him, the audit report cannot be conclusive to prove or basis for submission of charge sheet and take cognizance of the offence under Section 409 of IPC. He, therefore, submitted that the learned Magistrate without application of judicial mind has taken cognizance of the offence and issued process which are liable to be quashed. He relied on the decision of this Court reported in 2012 (II) OLR-253; Hemanta Kumar Patra v. State of Orissa and another and decision of the Honble Apex Court in Jiwan Dass v. State of Haryana; AIR 1999 SC 1301 . 5. Miss. Mishra, learned Additional Standing Counsel submits that the audit report may not be a conclusive document to submit the charge sheet but it is one of the supporting document where the observation has been made for recovery of the misappropriated amount from the petitioner. According to her, the petitioner being the Secretary of the R.M.C., is solely responsible for misappropriation of the money and non-maintenance of record. Apart from this, the Department Proceeding even if exonerated the petitioner from the charges, but cannot be the basis to quash the order of taking cognizance as the Departmental Proceeding and criminal proceeding can run simultaneously. Even if the Departmental Proceeding is dropped, the criminal proceeding will run on its own merits or vice-versa. 6. Miss Mishra, learned Additional Standing Counsel further submits that in the instant case due to lack of supervision of the present petitioner as Secretary of the R.M.C., such misappropriation took place and he cannot be exonerated of any charges but at the same time she fairly conceded that the audit report of the auditor is the only material basing on which charge sheet has been submitted against the present petitioner. Learned Magistrate after application of judicial mind has taken cognizance of offence under Section 409 of IPC and issued process against the petitioner. 7. Considered the submissions of the learned counsel for the respective parties. On perusal of the F.I.R., it appears that basing on the special audit report, the police was requested to take up investigation. The auditors having being examined along with audit report are made the basis for proceeding in investigation. 7. Considered the submissions of the learned counsel for the respective parties. On perusal of the F.I.R., it appears that basing on the special audit report, the police was requested to take up investigation. The auditors having being examined along with audit report are made the basis for proceeding in investigation. After investigation, charge sheet has been submitted under Section 409 of IPC and the learned Magistrate has taken cognizance of the offence in following manner:- "7.2.06 C.S. No.169 dated 24.12.05 under section 408 IPC received from I.O. against accd. Rasamani Pradha with case diaries & other connected documents for my perusal. Perused the same. There are material evidence in the record and prima facie case well made out against the accd. Hence. Cog. is taken thereunder. Issue summons to the accd. for his appearance before this Court on 23.3.06 who is on police bail." 8. It is reported in Jiwan Dass v. State of Haryana (supra) where Their Lordships observed in the following manner:- "Mr. Ajay Siwach, the learned counsel appearing for the State of Haryana, however, very strenuously argued that Jiwan Dass being a senior officer and having been deputed with the bank draft for the purpose of taking delivery of the oil and the letter of authority being in favour of Jiwan Dass, it must be held that the entrustment of diesel had been made to Jiwan Dass or at least he had the dominion over the same. Mere fact that Jiwan Dass had taken the bank draft and that an authorisation had been given in his favour by his superior officers to take delivery of the diesel, cannot be the basis for coming to a conclusion that in-fact the diesel had been entrusted to said accused-Jiwan Dass or he had dominion over the same. When in point of fact it is established beyond reasonable doubt that delivery had been taken by accused Mittar Pal Yadav and in token of the same he had signed the relevant papers and register, Jiwan Dass being a senior officer may be responsible for dereliction of his duty in not taking delivery of the diesel himself. But on that score, it cannot be said that in-fact the prosecution has been able to establish that diesel had been entrusted to Jiwan Dass and there has been shortage of the said diesel to the tune of 4300 litres. But on that score, it cannot be said that in-fact the prosecution has been able to establish that diesel had been entrusted to Jiwan Dass and there has been shortage of the said diesel to the tune of 4300 litres. In our considered opinion the gravamen of the charge being misappropriation of 4300 litres of diesel oil which was found to be in shortage while measuring the diesel that had been brought and the said diesel having been delivered to Mittar Pal Yadav, who had signed the relevant documents in token thereof, the entrustment to or dominion over the diesel by Jiwan Dass has not been established and as such the prosecution has not been able to establish the charge under Section 409, IPC beyond reasonable doubt as against accused Jiwan Dass in respect of the shortage of diesel to the tune of 4300 litres. It is no doubt true that Jiwan Dass appears to have given in writing on 2-3-1982 that he would be completing the quantity of 10,000 litres of oil but that writing neither can be held to be a confession or admission of the guilt on the part of the accused Jiwan Dass, nor that can form the basis of convicting the accused Jiwan Dass for an offence under Section 409, IPC. In a prosecution for offence of criminal breach of trust if there is absence of legal and independent evidence with regard to the entrustment, then it would be improper either to put a question with regard to the entrustment to the accused and if put and an answer is obtained, partially admitting entrustment, the same does not establish the case of entrustment. In the aforesaid premises and in view of our conclusion that the prosecution has failed to establish entrustment of diesel to accused-Jiwan Dass, the conviction of Jiwan Dass under Section 409, IPC cannot be sustained and we, accordingly set aside the conviction and sentence against the accused Jiwan Dass and acquit him of the charge levelled against and Criminal Appeal No. 990 of 1995 is accordingly allowed and his bail bonds stand discharged." 9. With due regard to the said decision, it is made clear that in absence of entrustment of the property there cannot be conviction under Section 409 of IPC even if petitioner is in supervising capacity. With due regard to the said decision, it is made clear that in absence of entrustment of the property there cannot be conviction under Section 409 of IPC even if petitioner is in supervising capacity. Moreover, this Court in the decision reported in Hemanta Kumar Patra v. State of Orissa and another (supra) clearly observed that no conviction can lie on such audit report as the same cannot be considered to be of conclusive character. Hence, in the instant case, the audit report or the examination of auditor cannot be taken as conclusive proof to place charge sheet against the present petitioner. Moreover, the audit report is also not clear enough to proceed against the present petitioner for misappropriation of amount, because there is clear observation that due to lack of supervision, maintenance of accounts, the misappropriation took place. When on question of realization under departmental proceeding, the present petitioner admittedly has been exonerated from the charges as available from the enquiry report exhibited vide annexure-4 submitted in 2006. 10. In the background of the case, it is relevant to note that the present petitioner has filed enquiry report against the Chita Ranjan Pradhan before the Sub-Collector, who was the Chairman of the Committee and the Chairman has written to lodge the F.I.R. against Shri Chita Ranjan Pradhan, but surprisingly, the F.I.R. has been lodged against the present petitioner, as it appears. 11. In terms of the above discussion, it appears that the learned Magistrate without application of judicial mind to the material on record and law laid down has taken cognizance of the offence under Section 409 of IPC and issued process against the petitioner. Hence, the order of taking cognizance of offence and issuance of process being abuse of process of Court, same are quashed under Section 482 Cr.P.C., 1973 The CRLMC is disposed of accordingly. The interim order passed earlier stands vacated. Urgent certified copy of this order be granted on proper application.