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2018 DIGILAW 860 (ORI)

Pravakar Kabat @ Kuna v. State of Odisha

2018-12-21

J.P.DAS

body2018
JUDGMENT J.P.DAS, J. - The petitioner stood convicted under Section 409 of the I.P.C. and sentenced to undergo R.I. for three years and to pay a fine of Rs.5,000/-, in default, further R.I. for one year by the learned C.J.M., Mayurbhanj, Baripada in G.R. Case No.529 of 2004. The judgment of conviction and sentence stood confirmed by the learned Additional Sessions Judge, Baripada in Criminal Appeal No.59/51 of 2007. Hence the revision. 2. The prosecution case was that the petitioner was working as a V.L.W. under Kuliana Block being attached to Nadhana G.P. during the year 2004. On 12.04.2004 he received an amount of Rs.27,400/- from the cashier of Kuliana Block Office for disbursement amongst the beneficiaries of Nadhana G.P. on 15.04.2004 towards old age pension, widow pension, National Old Age Pension, disability old age pension etc. It is alleged that the petitioner did not disburse the said amount to the beneficiaries on 15.04.2004 and absconded. The B.D.O. of the said Block was informed about the incident by one “Ward Member of the G.P. about non-disbursement of the amount amongst the beneficiaries on 18.04.2004. The B.D.O. was on election duty till 17.04.2004 and after coming back to the Block Office he enquired into the matter and finding the allegations to be true, informed the Collector and after getting permission, lodged an F.I.R. before the Police on 22.04.2004 pursuant to which Chandua P.S. case was registered under Section 409 of the I.P.C. and investigation was taken up. 3. In course of investigation, the witnesses were examined, some documents were seized and on completion of investigation, charge-sheet under Section 409 of the I.P.C. was placed against the accused-petitioner on 13.07.2004. 4. During trial the accused petitioner took a plea in defence that on 12.04.2004 he received the amount of Rs.27,400/- from the Block for disbursement on 15.04.2004 but since his son met with an accident on that date and he had to take him to Cuttack for treatment, he returned back the amount to one Officer of the Block along with other documents and went to Cuttack with his son. It was his case that the entrustment of the amount remained admitted, but there was no criminal misappropriation since he had refunded the amount to the Block Office which was duly disbursed amongst the beneficiaries soon after the fixed date i.e. 15.04.2004. 5. It was his case that the entrustment of the amount remained admitted, but there was no criminal misappropriation since he had refunded the amount to the Block Office which was duly disbursed amongst the beneficiaries soon after the fixed date i.e. 15.04.2004. 5. In order to establish the charges, prosecution examined ten witnesses as against the petitioner examining himself as the sole witness in defence. 6. P.Ws. 1 to 4 were the officials of the G.P., P.W. 5 was the informant-B.D.O., P.Ws. 6 to 9 were the Officers of the concerned Block and P.W. 10 was the Investigating Officer. 7. The learned trial Court discussing the oral evidence along with the documents placed before the Court, reached the conclusion of guilt against the accused petitioner and passed the judgment of conviction and sentence. The learned Appellate Court also concurred with the findings of the learned trial court and held that the entrustment having remained admitted and misappropriation having been established the criminal mis-appropriation was proved and accordingly, confirmed the trial court judgment of conviction and sentence. 8. In this revision it was submitted by learned counsel appearing for the petitioner that the entrustment of the amount to the petitioner is not disputed but the plea taken by the accused that he had refunded the amount since he had to accompany his son for treatment was quite probable on the own materials placed on behalf of the prosecution, which have not been properly considered by the learned courts below and that they have wrongly rejected the defence plea seeking for materials for establishment of such plea beyond all reasonable doubts, which is contrary to the settled position of law. It was submitted that as per position of law, the defence plea should have a probability by preponderance and it need not be established beyond all reasonable doubts like the prosecution case. It was submitted further that it remained admitted in the evidence of the prosecution that the son of the petitioner suffered from an accident and the petitioner had to take him to Cuttack. It was also not the pension case that the petitioner absconded since he had come back to his duty soon thereafter. It was submitted further that it remained admitted in the evidence of the prosecution that the son of the petitioner suffered from an accident and the petitioner had to take him to Cuttack. It was also not the pension case that the petitioner absconded since he had come back to his duty soon thereafter. It was also submitted that the prosecution amount was disbursed amongst the beneficiaries within a period of seven days from the date i.e. 15.04.2004 and hence, the plea taken by the accused that he had refunded the amount should have been believed but has been wrongly discarded by the learned courts below. 9. On the concurrent findings of the learned courts below about the entrustment and criminal misappropriation, which are two basic ingredients to be established in order to make out an offence punishable under Section 409 of the I.P.C. and the entrustment to the accused-petitioner having remained admitted, it is only to be seen as to how far the plea taken by the accused petitioner had a probable value in support of his innocence. 10. The specific plea of the accused-petitioner is that immediately he refunded the amount since he accompanied his son and the said amount was duly disbursed amongst the beneficiaries within a week which remained admitted by the Sarpanch of the concerned Block, who has categorically stated in Paragraph-2 of his cross-examination that within one week the old age pension for the month of April was disbursed by Block Extension Officer. In this regard, it was the prosecution case that the informant, the B.D.O. has stated that he arranged the funds from other Heads and disbursed the same to the beneficiaries in order to avoid any disturbance. In this regard, the learned counsel for the petitioner submits that on the face of the specific defence plea that since the petitioner had refunded the amount, it was incumbent upon the prosecution to establish that the amount so refunded was not disbursed and the disbursement was made from out of some other source, but no Cash Book or relevant documents were seized by the Police in course of investigation to establish such fact. The Investigating Officer, P.W. 10, being asked in this regard, stated in his cross-examination that he could not say as to whether the accused handed over the money along with the relevant documents to the Block Extension Officer on 15.04.2004 since he had to proceed to Cuttack with his son for treatment. This goes to show that there was no investigation as to the source of money admittedly disbursed amongst the beneficiaries. 11. In this regard, it was the further case of the prosecution that the accused subsequently sought for the permission of the B.D.O. and refunded the amount on two instalments under due receipts. In this regard, it was submitted by learned counsel for the petitioner that such a story was subsequently developed in order to create a criminal liability against the petitioner, since such refund under receipt was not brought to the notice of the I.O. but was only placed before the Court during trial as because such developments were after submission of the charge-sheet. The final charge-sheet was submitted on 13.07.2004 and as per the evidence of P.W. 5 the informant, the accused petitioner refunded the amount of Rs.13,000/- on 15.10.2004 and Rs.14,200 on 27.12.2004. It was strenuously contended by the learned counsel for the petitioner that such money receipts and applications made by the petitioner were subsequently created only to support the prosecution case and to wash out the defence plea. It was also submitted that the learned trial court in Sub-paragraph of the paragraph-6 of the judgment mentioned about such refund by the accused so also application made by the accused and observed that Police had seized all connected documents during the investigation, which was not at all a fact. Thus, it was submitted that such recovery or refund was much subsequent to the submission of the final charge-sheet and the disbursement to the beneficiaries within the relevant month having remained admitted, there was no material seized by the Investigating Agency to establish that the amount so disbursed was diverted from other source and not from the amount refunded by the accused -petitioner. Hence, the plea taken by accused-petitioner in this regard, could not have been lightly brushed aside as has been erroneously done by both the learned courts below. 12. Hence, the plea taken by accused-petitioner in this regard, could not have been lightly brushed aside as has been erroneously done by both the learned courts below. 12. Considering the submissions of both sides and going through the materials on record, I find a substantial force in the contentions made on behalf of the petitioner that the defence plea advanced on behalf of the petitioner had a probable value. In the case at hand, the accused-petitioner took a plea that he had refunded the amount which was disbursed to the beneficiaries whereas it was the prosecution case that the said amount was diverted from some other source. 13. It was submitted on behalf of the State that the petitioner did not place any material before the trial court in support of his defence plea that he had to accompany his son who met with an accident or he had refunded the amount to any particular person or Officer of the Block. It was also submitted that the relevant documents relating to the disbursement were brought from the house of the accused from his wife and hence, his plea that he had returned the documents along with the cash could not have been believed. In this regard, it was submitted on behalf of the petitioner that there is no acceptable material excepting the bald statement of P.W. 7, rather as per the evidence of P.W. 8 those documents were seized from the Block Office by the Police in his presence. 14. Lastly, it was submitted on behalf of the petitioner that the petitioner had to leave the station for the exigency of his son meeting with an accident and he had no intention or motive to misappropriate the amount which is another basic requirement in order to establish a criminal charge. In Harbhajan Singh v. State of Punjab, AIR 1966 SC 97 , it was observed: “Where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds “in proving a preponderance of probability.” Similarily in V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 it was observed: “It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability.” Likewise, in Munshi Ram v. Delhi Administration, AIR 1968 SC 702 , it was observed : “It is well settled that even if an accused does not plea self-defence, it is open to the Court to consider such a plea if the same arises from the material on record...... The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.” 15. Considering all the submissions and the material facts available on record, I am of the view that the plea taken by the petitioner in defence, has a probable value creating a doubt regarding the prosecution case, the benefit of which, must go to the accused-petitioner. Accordingly, the judgments of conviction and sentence passed by both the learned courts below are set aside and the accused-petitioner being acquitted from the offence under Section 409 of the I.P.C., is set at liberty. The bail bond furnished by the accused-petitioner shall stand discharged. Ordered accordingly.