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IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.279 of 1995 Arising out of the order dated 25.07.1994 passed by the learned S.D.J.M., Balangir in 2 (C) C.C. No.26 of 1991. -------------------- District Manager, Orissa State Civil Supplies Corporation Ltd. Bolangir …. Appellant/Petitioner Santosh Kumar Padhi …. Respondent/Opp.Party -versus- Advocates appeared in this case through Hybrid Mode : For Appellant/Petitioner :Mr.Samir Kumar Mishra, Sr. Advocate alongwith Mr.S.Sethy, Advocate For Respondent/Opp. Party:None CORAM: JUSTICE SAVITRI RATHO .…………………………………………………………………………………… Date of Judgment :03.05.2024 ……………………………………………………………………………………. SavitriRatho, J. This appeal has been filed challenging the judgment dated 25.07.1994 passed by the learned S.D.J.M., Balangir in 2 (c) C.C. No.26 of 1991/T.R. No.379 of 1991 acquitting the petitioner from the charge under Section 409 of the Indian Penal Code (in short ‘the IPC’). 2. CRLMC No.2150 of 1994 had been filed by the appellant CRA No. 279 of 1995 Page 1 of 13 with prayer to grant Special Leave to Appeal against the order of acquittal dated 25.07.1994 passed by the learned S.D.J.M., Balangir in 2 (c) CC No.26 of 1991. Leave was granted on 07.09.1995, this
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Criminal Appeal was filed thereafter. 3. The delay in filing the Appeal was condoned on 05.11.1996. This Criminal Appeal was admitted on the said same day, 05.11.1996. Copy of the appeal memo was served on learned counsel for the respondent on 07.12.1996. Thereafter, the appeal has been listed on 24.11.2023, 02.01.2024, 05.02.2024, 27.02.2024, 01.03.2024, 07.03.2024, 28.03.2024, 12.04.2024 and 25.04.2024 and none had appeared for the respondent or the appellant. 4. So, this Court deemed it proper to hear the learned counsel for the appellant and directed the Registry on 01.03.2024 and 28.03.2024 to inform the panel counsel of the OSCSC, about non-
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appearance of the counsel after which Mr. S.K.Mishra, learned Senior Counsel appeared in the case. PROSECUTION CASE 5. The prosecution allegation in brief is that the respondent had been appointed as Storage Agent by the Orissa State Civil Supplies Corporation Ltd. (in short ‘OSCSC’) through the District Manager, CRA No. 279 of 1995 Page 2 of 13 Balangir to deal with sugar under the Public Distribution System for Loisingha Block for the year 1985-86. The petitioner received 4.581 quintals of sugar during 1985-86 and issued 1483 quintals of sugar to the retailers. On 16.4.1986 as per the physical verification of stock made by the Asst. Civil Supplies Officer, Sadar, there was a shortage of 98 quintals of sugar. The said balance of 98quintals of sugar was not returned to the OSCSC by the accused. So, it was alleged that the accused misappropriated 98 quintals of sugar worth Rs.45,994/-. The respondent had executed an agreement with the OSCSC for receiving the stock and for distribution of the same to the retailers, however a civil suit vide Money Suit No.57 of 1989 was filed against him and his two sureties in the Court of Sub-Judge, Balangir for realization of Rs.33,778.98 paise after adjustment of security deposit of Rs.10,000/- and amount of Rs.2,000/- paid by the accused. 6. The accused alongwith two of his associates stood trial in the Court of the learned J.M.F.C., Balangir for the offence under Section 409 IPC. The plea of the accused was that it was a case of shortage in the stock as the sugar was damaged due to rain water and that he had not misappropriated the sugar. 7. In order to prove its case, the complainant examined seven witnesses. The defence has also examined two witnesses including the CRA No. 279 of 1995 Page 3 of 13 accused as D.W.2. P.W.1-Narayan Chandra Pati is the Supply Inspector of village Titilagarhas well as the delivery agent, P.W.2-Jagabandhu Singh was a Senior Accountant and he did not have personal knowledge of the occurrence. P.W.3 Sashibhusan Dash is the Assistant Civil Supplies Officer at Balangir, P.W.4-Naba Kishore Raju is the Assistant Manager (Accountant), P.W.5-Hemanta Kumar Sinha is the Deputy Manager, Civil Supply, C.S.O at Balangir, P.W.6- Sridhar Naik is the Civil Supplies Officer -cum- Divisional Manager, Balangir and P.W.7-J.Chandra Sekhar Dash is the Marketing Inspector of Orissa State Civil Supplies Corporation 8. The learned S.D.J.M., Balangir after discussing the evidence of witnesses found that as per Clause-3 (b) of the agreement, the shortage in this case was a civil liability and P.W.3 had deposed thatthe Corporation had realized the shortage through civil suit. D.W.1 who was appearing as an advocate for the accused in Money Suit No.57/89 before the learned Sub-Judge, Balangir deposed that the suit had ended in compromise before the State Lok Adalat, Balangir and at the time of the compromise, the accused had explained regarding the shortage of sugar and that the sugar was damaged due to rain water. Ext.15 was the certified copy of the decree in M.S. No.57/89 wherein CRA No. 279 of 1995 Page 4 of 13 the defendant/accused had been directed to pay the plaintiff (OSCSC) a decreetal dues of a sum of Rs.33,378.95 paise. Ext.9 was the personal surety bond executed by the respondent as a Storage Agent according to which he was liable to make good the shortage in terms of money only in case of any contravention of the terms and conditions of the agreement. Holding that the allegation was purely civil in nature and the accused was not criminally liable for the shortage of sugar and the prosecution has failed to prove the mensrea of the accused and failed to bring home the charge to the accused beyond all doubts,the learned trial Court held that the accused was not guilty under Section 409 of IPC and acquitted him under Section 248 (1) of Cr.P.C. 9. In the absence of the learned counsel for the respondent, as the appeal is pending since 1994, this Court thought it fit to dispose of the appeal after hearing the learned counsel for the appellant and carefully perusing the impugned judgment and the evidence adduced by the parties. SUBMISSION 10. Mr.Mishra, learned Senior Counsel has submitted that the learned trial Court has held that entrustment has been proved but there CRA No. 279 of 1995 Page 5 of 13 was no evidence to prove the case under Section 409 of the IPC and as the shortage in sugar was the subject matter of Money Suit which ended in compromise in the Lok Adalat, the parties were governed by an agreement. The learned trial Court has found the disputeto be civil in nature and acquitted the appellant for the offence under Section 409 of IPC. He fairly submits that the learned Court has given the benefit of doubt to the petitioner because the transaction was covered by an agreement and M.S. No. 57 of 1989 had ended in compromise and the money has been recovered. He has also pointed out that almost forty years have elapsed since the date of occurrence. 11. Section 409 of IPC provides as follows : “409. Criminal breach of trust by public servant, or by banker, merchant or agent.-Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Criminal breach of trust is defined under Section 405 IPC which provides as follows: CRA No. 279 of 1995 Page 6 of 13 “405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. WITNESSES 12. P.W.1-Narayan Chandra Pati, who was the Supply Inspector of Titilagarh from 1983 to 1990 has submitted in his evidence that the respondent was the Storage Agent during the year 1985-1986 of Laisingha Depot. On 17.02.1986 he gave delivery of 245 quintals of sugar to the accused. The accused received the sugar from him and in tokenof that he gave his acknowledgement in the acceptance note. Thereafter, this witness has not stated anything incriminating against the petitioner. In his cross-examination, he has stated that he cannot say anything about the terms and conditions of the agreement between the corporation and agent. He has also stated that he knew that a civil suit has been filed against the accused where he was summoned as a witness but he could not say the subject matter of dispute of the said civil suit. CRA No. 279 of 1995 Page 7 of 13 P.W.2-Jagabandhu Singh who was working as a Senior Accountant in Orissa State Civil Supply Corporation Ltd. at Balangir since May 1989 has stated that he had produced the five documents issued by the District Manager, Balangir on 14.12.1990 and Ext.7 is the appointment letter of the respondent as Storage Agent and Ext.8 is the Storage Agent Agreement for sugar with the accused for the year 1985-1986. He produced the stock register and issue register for the relevant period maintained by the accused. In the cross-examination he has denied the knowledge of date of receipt of notice. This witness in the cross-examination has stated that the accused was not a government employee but an employee of the Corporation. P.W.3 – Sashibhusan Dash was the Assistant Civil Supply Officer, Bolangir at that time and has stated that the respondent was working as Storage Agent for levy sugar for Loisingha Depot and on the written direction of District Manager, Civil Supply Corporation, Balangir, he conducted the physical verification of sugar of stock on 31.3.1986 and 18.4.1986 and found a total stock of 1581 quintals of sugar was received by him from District Manager, Civil Supplies, Balangir for the year 1985-1986 but on verification of stock it was found that there was shortage of 98 quintals in the stock of the accused and he conducted physical verification. In the cross- CRA No. 279 of 1995 Page 8 of 13 examination, he has stated that he did not know the District Manager when the accused was appointed as storage agent. He could not say who was the dealer when this case was instituted. He denied the suggestion that he was never directed by the Deputy Manager to verify the stock position and that he was deposing falsehood. P.W.4-Naba Kishore Raju in his evidence stated that since 1981-82 he was working under the Corporation at Bolangir. He was dealing the record of the Corporation and the Storage Agent under the Corporation for the entire District relating accounts of storage agent complied with receipt of stocks of various control commodities and delivery the same to the retailer by the storage agent. In the cross- examination he has stated that he was working under the OSCSC at Balangir since 1981. Prior to that he was the Supply Section, Bolangir prior to 1981.In cross-examination, he has stated that he was not working under the Corporation. He had not filed the documents by which he was attached to the Corporation. P.W.5-Hemanta Kumar Sinha in his evidence stated that in 1990, he was the Deputy Manager, Civil Supply, C.S.O at Balangir. As the accused has shown shortage of sugar, he filed a criminal case against him. On the direction of the Managing Director, he lodged the complaint. He has stated that the accused was a storage agent and it CRA No. 279 of 1995 Page 9 of 13 was his duty to receive stock from the D.M. In the cross-examination, he has stated that he cannot say who had filed the civil suit. He had mentioned in the petition about the filing of criminal case against the accused. He was at Balangir from last part of 1988 to 1990 December. P.W.6-Sridhar Naik in his evidence has stated that on 26.5.1993 he joined at Balangir as CSO and DM. He was taking follow up action in the case, filed by the Civil Supply Corporation. He had filed the certified copy of the decree of the Lok Adalat. P.W.7-J.Chandra Sekhar Dash in his evidence has stated that from July, 1977 to October, 1989 he was at Balangir as Inspector of Supply in-charge of lifting of Public Distribution System, Titilagarh. In the cross-examination he has stated that he cannot say from where the accused was working as a storage agent and he cannot say the total quantity of sugar lifted by him. D.W.1-Dillip Kumar Bisi in his evidence stated that he knew the accused. He was appearing for him in Money Suit No.57/89 in the Court of Sub-Judge, Balangir. In that suit, Orissa State Civil Supplies Corporation was the plaintiff. At the time of compromise, the accused explained regarding shortage of sugar that the sugar was damaged due to rainfall. He has stated that he had not filed any written statement on CRA No. 279 of 1995 Page 10 of 13 behalf of the accused. He did not file any petition before the Lok Adalat and it was not written in the compromise petition that there were any more case against the accused and that it was not a fact that it was not stated in the Lok Adalat that reflection regarding not to proceed with any other case. D.W.2-Santosh Kumar Padhee in his evidence stated thathe was the accused in the case. Prior to this criminal case, the complaint complainant had instituted M.S. No.57/89 in the Court of Sub-Judge, Balangir for realization of Rs.33,778.95 paise. The suit ended in compromise before the State Lok Adalat. D.W.1 was his advocate. There was shortage of sugar as it was damaged due to rain-fall. 98 quintals of sugar was damaged due to rain water. There was no difference between the price of free sugar and ley sugar. In the cross- examination he had intimated the supply office in writing about the cause of damage of sugar. It was not written in the compromise petition before the Lok Adalat that the sugar was damaged due to rain water. He did not know the name of the C.S.O. and not filed written statement in the suit. He was the storage agent under the supply department. He could not produce the entire sugar when the corporation wanted to sell it. He deposited the money towards cost of the damaged sugar and had not filed the money receipt. CRA No. 279 of 1995 Page 11 of 13 ANALYSIS AND DISCUSSION 13. It is not disputed that the respondent was the Storage Agent of the OSCSC and an agreement has been executed between him and a money suit had been filed for realization of the amount which was the price of the sugar which he claimed had been damaged and that the money suit had ended in a compromise and the money suit had been instituted before filing of the complaint case. 14. It is the settled principle of law that in an appeal against acquittal the appellate court has to be relatively slow in reversing the order of acquittal as the presumption of innocence in favour of an accused gets strengthened by his acquittal. 15. After perusal of the impugned judgment, the depositions of the witnesses and considering the submission of Mr.Mishra, learned Senior counsel for the appellant and as the price of the sugar has been recovered as a consequence of the Money Suit which had been filed before institution of the complaint case, I am of the view that the judgment of the learned trial Court does not suffer from any infirmity or perversity. The judgment has been passed after considering the evidence on record. In view of the nature of evidence adduced by the CRA No. 279 of 1995 Page 12 of 13 prosecution and the fact that more than 35 years have elapsed in the meanwhile and the money suit has ended in a compromise between the parties, I am not inclined to entertain this appeal and interfere with acquittal of the respondent. 16. The CRA is accordingly dismissed. 17. The Court records its appreciation for the fair manner in which the matter has been placed by Mr.S.K.Mishra, learned Senior Counsel for the appellant. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 3rd May,2024/Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 03-Jun-2024 17:07:21 CRA No. 279 of 1995 Page 13 of 13