The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.99 of 1995 (From the judgment dated 27th March, 1995 passed by learned Special Judge, Bhubaneswar in T.R. No.21 of 1986) Kishore Chandra Panda …. Appellant -versus- Republic of India …. Respondent Advocate(s) appeared in this case:- For Appellant : Mr. P.K. Panda, Advocate For Respondent : Mr. Sarthak Nayak, Advocate for C.B.I. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 1st June, 2023 B.P. Routray, J. 1. Present appeal is directed against the impugned judgment of conviction and sentence dated 27th March, 1995 passed by learned Special Judge, Bhubaneswar in T.R.No.21 of 1986. CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 1 of 18 2. The accused-Appellant namely, Kishore Chandra Panda was employed as Branch Manager of Agriculture Banking Division (ABD) in State Bank of India, Purusottampur Branch during the year 1984. He was charged for commission of offence under Sections 5(2) read with Section 5(1)(c)(d) of the Prevention of Corruption Act, 1947 and Sections 409, 477-A of the Indian Penal Code and has been convicted for all such offences and sentenced to undergo rigorous imprisonment for one year along with payment of fine of Rs.15,000/- with default sentence of simple imprisonment for one year under Sections 5(2) of the P.C. Act. No separate sentence was directed for commission of offences under the I.P.C. 3. The prosecution case is that, the accused worked as Manager, ABD in the State Bank of India at Purusottampur Branch from 10th April, 1981 to 10th October, 1984. Being the Manager of the Branch, he is primarily responsible for grant of loans from the stage of recommendation, sanction and repayment till closing of loan accounts. During his incumbency as such, he sanctioned loans to different loanees and in the process of transactions he received a sum of Rs.14,918.50 paisa on 2nd July 1984, 9th July 1984, 10th July 1984 and CRA No.99 of 1995
Facts
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 2 of 18
Legal Reasoning
applied his mind and being satisfied about prima facie case against the Appellant, accorded sanction for prosecution. In his cross-examination CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 15 of 18 this P.W.19 has clarified the nature of documents produced before him and gone through by him. It is the submission of the Appellant that during such short span of time on the same day, it is humanly impossible to apply mind on all those documents. I would like to answer here that P.W.19 being the Chief General Manager and there being a prior internal enquiry conducted by the Bank on the same issue against the Appellant, it would not have been difficult on his part to catch hold of the issue within limited time getting through the account books, vouchers and other relevant papers. Therefore, all such submissions and doubts raised on behalf of the Appellant that it would not have been possible on the part of P.W.19 to apply mind before grant of sanction for prosecution are meritless. Accordingly, this Court concludes that this is not a case of non-application of mind rather it is satisfactorily proved that the order of sanction for prosecution has been granted with application of mind based on the evidence of P.W.19 & 32. Both the contentions put forth on behalf of the Appellant in this regard are rejected as such. CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 16 of 18 20. The Appellant has been sentenced to undergo imprisonment of minimum punishment as was there in the erstwhile 1947 Act and though no separate sentence has been inflicted for commission of offences under Section 409 & 477-A of the I.P.C., the same remains unchallenged. The appeal being found without merit as per the discussions made above, the quantum of sentence is not required to be interfered with. 21. In the result, the appeal is dismissed. The bail bonds are cancelled and the Appellant is directed to surrender before the trial court immediately, failing which learned trial court is directed to proceed as per law. (B.P.Routray) Judge C.R. Biswal/Secy. CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 17 of 18 C.R.B iswal CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 18 of 18
Arguments
11th July 1984 from different loanees namely, Smt.Jhari Behera (P.W.8), Sahadev Goud (P.W.5), Jharia Behera (P.W.4), A. Basu Dora (P.W.3), A Basudev Dora (P.W.26), Smt.A.Saraswati Ama, Mangulu Goud, Smt.E.Kundan Ama (P.W.7), K.S.Reddy, G.R.Rao Dora, Musa Goud, Gantei Goud (P.W.22), P.Pati Dora, Smt.Pata Behera, D.P.Dora (P.W.1), Hadu Das, Budhia Das (P.W.18), Madhu Das (P.W.12) and Kukta Das towards repayment of their loan amounts. But without accounting for the same in the relevant registers and documents maintained in the names of above loanees in the bank, the accused misappropriated the same, and in order to conceal such misappropriation he prepared false Agriculture Term Loan (ATL) debit vouchers and debited the subsidy amount, Transfer Credit Vouchers (TCV) for like amount collected from the loanees showing same dates and credited to the respective loan accounts, knowingly the fact that due subsidy amounts were already credited to those accounts. This was detected subsequently. Upon detection of the same, an internal inquiry was conducted by T.K. Das (P.W.27), the then Administrative Officer in the Regional Office at Bhubaneswar who submitted his report against the Appellant. The F.I.R. was lodged on 30th September, 1985 CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 3 of 18 and P.W.32, the then Inspector of C.B.I. conducted investigation and submitted the charge-sheet. 4. The Appellant denied charges and pleaded innocence. He put- forth his defence case that T.K. Das and his successor (P.W.15) belong to the rival Employees Union and they manufactured certain documents and influenced rustic villagers against him to foist the false case. He further explained in his statements under Section 313, Cr.P.C. that due to heavy work pressure during the disputed dates he did not check the Day Books and the same were checked by other officials. He also denied to have made any entry in the passbook of the loanees. 5. The prosecution examined thirty two witnesses and marked 111 documents. Four witnesses were examined by the Appellant in support of his defence and two exhibits were marked at his behest. 6. Learned trial court formulated six points for determination. To sum up, the pivotal question falls for determination is that, whether the Appellant received Rs.14,918.50 paisa from different loanees on 2nd, 9th, 10th and 11th days of July 1984 and misappropriated the same being CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 4 of 18 the Manager of the Branch by making false entries in the passbooks, loan ledgers, debit vouchers etc. with intention to falsify the accounts ? 7. Some of the prosecution witnesses turned hostile. Accordingly, learned trial judge upon analysis of the evidences has concluded that the prosecution has proved receipt of Rs.12,383/- by the Appellant from different loanees towards repayment of loan amount which he failed to account for. The prosecution has established that the Appellant being the Manager of the Branch falsified the account documents like ledger book, credit and debit vouchers etc. for ATL to reveal credit of subsidy amount twice. When the subsidies were already credited in the respective loan accounts of the loanees, the question of crediting subsidy for the second time did not arise, but the Appellant did so with a view to conceal the fact of misappropriation. 8. The offence of criminal breach of trust by a public servant under Section 409 of the I.P.C. and the offence of criminal misconduct under Section 5(1)(c) of the P.C. Act, 1947 are almost identical and to constitute both offences, entrustment of property is most important. The required ingredients, for both the offences, are that, the accused CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 5 of 18 must be a public servant or a banker, merchant or agent; secondly, he must have been entrusted with property in such capacity; and thirdly, he has committed breach of trust in respect of such property. To satisfy breach of trust criminally, it must be proved that the person entrusted with property has dishonestly misappropriated or converted that property for his own use. Prosecution is duty bound to satisfy all the ingredients against the accused beyond all reasonable doubts. 9. The employment of Appellant as a public servant, i.e. Manager of A.B.D., Purusottampur Branch during the relevant period is not disputed. The same has also been established from the evidences of different witnesses including P.W.13, 15, 19, 24 & 27. As per the allegations, the Appellant received the amounts from the loanees and did not deposit the same in the Bank, but misappropriated. In order to conceal the misappropriation, he made false entries as well as manipulated the records to show credit of subsidy amount twice. 10. The Appellant denies this and as per his defence, P.W.27 and his successor Branch Manager have prepared false documents in connivance with prosecution agency to foist a false case against him. In CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 6 of 18 other words, as per Appellant, he did not receive any amount from the loanees and therefore the question of depositing the amount in the Bank does not arise. This means, the Appellant does not dispute non- deposit of the amounts in the Bank which he had not received/collected from the loanees. Nonetheless, it is the duty of the prosecution to satisfactorily prove receipt of the amounts by the Appellant from different loanees so also non-deposit of the same in the Bank. It is immaterial for the purpose how the Appellant utilized misappropriated amounts. 11. As seen from record, P.Ws.1 to 10, 26 & 31 are the loanees, who stated to have paid different amounts, Viz. Rs.1625/-, Rs.1000/-, Rs.908/-, Rs.1850/-, Rs.500/-, Rs.2150/-, Rs.500/-, Rs.900/-, Rs.300/-, Rs.1700/- & Rs.800/- on different occasions to the Appellant and the Appellant has received those amounts towards repayment of loan amounts by entering the same in their Bank Passbooks under different exhibits Viz. Exts.1 to 3, 6 to 11, 13 to 16, 25, 27, 28, 54 & 70 along with entries under Exts.1/1, 2/1, 2/2, 3/1, 6/1, 6/3, 8/1, 9/1, 10/1, 25/1, 28/1. Out of the aforesaid amounts, the sum of Rs.2150/-, Rs.900/-, Rs.500/- & Rs.300/- were received from the respective loanees or their CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 7 of 18 representatives on 9th July, 10th July & 11th July, 1984, and rest of the amounts were received on 2nd July, 1984. This has been clearly stated by the respective loanees in their depositions and the entries in that respect in the corresponding Passbooks have been proved to be in the handwriting of the Appellant by the expert document examiner, P.W.20. P.W.15 is the successor of the Appellant, who took over complete charge from the Appellant on 10th October 1984. This P.W.15 has categorically stated in his evidence regarding the entries made in the Passbook of different loanees in the handwriting of the Appellant. P.W.13, who was working as Branch Manager of State Bank of India, Purusottampur Branch for a long time including the period of incumbency of the Appellant as the Branch Manager of A.B.D. Branch has also certified that the entries in the Passbooks are in the handwriting of the Appellant. P.W.28, an independent witness, has also stated regarding receipt of some amounts from some of the loanees collected at the field by the Appellant on 10th July 1984. Besides, a departmental enquiry was conducted by P.W.27 immediately after detection of the misappropriation which led to lodging of the FIR. This witness in course of his enquiry examined CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 8 of 18 number of witnesses and recorded their statements with signatures. The statements of the loanees made before P.W.27 in course of internal inquiry, who were examined as prosecution witnesses, have also been adduced in evidence from the side of the prosecution. Again this P.W.27 has supported the case of prosecution what he observed in course of his inquiry. So there are overwhelming materials in support of prosecution case against the Appellant to conclude that the Appellant received a total sum of Rs.12,383/- from different loanees towards repayment of their loan amounts by making necessary entries in their Passbooks. Accordingly, it is established beyond reasonable doubt that the Appellant has received Rs.12,383/- or in other words, the entrustment of the amount has been proved beyond reasonable doubt. 12. P.W.29 is the Cashier worked in the same Branch under the Appellant on those relevant dates. He has stated in his evidence that the amounts received by the Appellant on 2nd July, 9th July, 10th July & 11th July, 1984 as per the entries made in the corresponding Passbooks of respective loanees have not been deposited in the Bank account. In this regard, it needs to be mentioned here that P.W.29 being the Cashier of the Branch is competent to speak about deposit of specific amount in CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 9 of 18 the Bank account. He has stated to the effect that even any Officer of the Branch receives any amount due to the Bank, said amount is to be deposited with the Cashier through credit voucher. He has categorically stated that he has not received the sum of Rs.1625/-, Rs.1850/-, Rs.908/-, Rs.1000/-, Rs.150/- & Rs.500/- on 2nd July, 1984, and Rs.2150/-, Rs.900/-, Rs.500/-, Rs.300/- on 9th July to 11th July, 1984. He has further stated that the aforesaid amounts have neither been received by him nor was there any entry made regarding deposit of the same in the Cashier’s Receipt Scroll on those dates in respect of such amounts. The complete Cashier’s Receipt Scrolls have been marked as Ext.48, 48/5 & 48/6 in respect of aforesaid dates. In his cross- examination, though some discrepancies have been brought in respect of the Cashier’s Receipt Scrolls, but the same are found immaterial for the purpose and would not help the Appellant in any manner. Moreover it is the defence case that the Appellant did not receive the amounts from the loanees. P.W.15, the successor of the Appellant, has described how the Appellant manipulated the credit and debit ATL vouchers to falsely justify the deposit of the amounts through subsidy. A cumulative perusal of evidences of P.W.15 & 29 and the corresponding CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 10 of 18 exhibits stated above establishes the fact that the afore-stated amounts have not been deposited on those relevant dates. Accordingly, it is established by the prosecution beyond all reasonable doubts that the entrusted amount has not been deposited to the Bank account by the Appellant. This shows that the Appellant has misappropriated the same. So it is established beyond reasonable doubt that the Appellant has misappropriated the property entrusted to him being a public servant. 13. Law is well settled that once misappropriation is established, prosecution need not prove the manner how the misappropriation has been utilized. 14. So the offence of criminal misconduct as well as criminal breach of trust has been proved against the Appellant beyond all reasonable doubts. 15. So far as the offence of falsification of accounts under Section 477-A is concerned, the credit and debit ATL vouchers speak ample of the same. The evidences of different witnesses including P.W.13, 15, 27, 29, 31 and perusal of those debit and credit vouchers under Ext. 46, CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 11 of 18 46/1, 46/2, 46/3, 43/1, 43/2, 44, 45, 45/1, 45/2, 45/3, 45/4, 45/5, 45/6, 45/7, 45/8, 45/9, 45/10, 45/11, the Ledger Sheets under Ext.4/2, 6/2, 7/2, 8/2, 10/2, 12/2, 28/2, 25/2, 3/2, 14/3, 15/3, 27/2, 17/3, 22/3, 21/2, 19, 23/1, 24/2, 26/2, the Subsidy Receipt Account Register under Ext.29 series, the Day Book under Ext.30, the Subsidy Claim Bills under Ext.31 series etc justify manipulation and falsification of the entries made by the Appellant in the account sheet. In addition to the above, the evidences of P.W.15, 27, 29 & 20 prove that the entries are in the handwriting of the Appellant. So the ingredients of the offence of falsification of accounts Viz. intentional falsification of the books, accounts, records etc belong to the Bank to defraud are clearly attracted and established beyond all reasonable doubts against the Appellant in the capacity of Manager, A.B.D.. 16. It has been submitted on behalf of the Appellant that the order of sanction of prosecution granted by P.W.19 is invalid one on the ground that P.W.19, the Chief General Manager of the Bank, is not the competent authority to remove the Appellant from service under the State Bank of India Act, 1955 read with Clause 55 of State Bank of India General Regulation, 1955 and the relevant rules under State Bank CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 12 of 18 of India (Supervising Staff) Service Rules. It is therefore prayed that in absence of any valid sanction order, the prosecution against the Appellant is vitiated and legally untenable. At the same time it is further submitted that the order of sanction under Ext.58 has been granted by P.W.19 without application of mind and as such the sanction order being a product of non-application of mind and issued mechanically is invalid to render entire prosecution as illegal and legally untenable. 17. It needs to be mentioned here that the Appellant cannot take both the pleas simultaneously. On one hand while he is challenging the competency of the authority (P.W.19) to grant sanction, on the other hand he is saying that said authority granted sanction without application of mind. If the Appellant contends that P.W.19 did not apply his mind while granting sanction and Ext.58 is a product of non- application of mind, then he should not question his competency to grant sanction. Nonetheless, this Court deals with both the grounds in following paragraphs. CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 13 of 18 18. As per Section 6 of the P.C. Act, 1947, the authority competent to remove the public servant, other than the case of the Central Government or the State Government, from his office at the time when the offence was committed, is competent to grant sanction. In the instant case the Appellant during the relevant time was serving as Manager of Agricultural Banking Division in State Bank of India at Purusottampur Branch under Bhubaneswar Circle Office. P.W.19 is the Chief General Manager of Bhubaneswar Circle, State Bank of India. The Appellant has admitted during his examination under Section 313, Cr.P.C. (Question No.108) that P.W.19 is the competent authority to remove him from service. As per Rule 50 of the State Bank of India (Supervising Staff) Service Rules read with Circular No.ADM/041909 dated 22nd October, 1982 of State Bank of India issued by Dy. Managing Director (Personnel & Services), the Chief General Manager is the disciplinary authority, who can impose the penalty of removal from service in respect of officers in the cadre of Junior Management Grade Scale-I, Middle Management Grade Scale-II & III, Senior Management Grade Scale-IV & IVA serving within the circle. But it is contended on behalf of the Appellant that the local board is the CRA No.99 of 1995 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 02-Jun-2023 12:40:45 Page 14 of 18 competent authority to remove the Appellant from service and not the Chief General Manager. This submission is without any force in view of the provisions contained in the State Bank Act read with the Service Rules discussed above. 19. Coming to next contention of the Appellant that P.W.19 did not apply his mind before issuance of sanction order, the same is also found without merit. The sanction order under Ext.58 is dated 29th September, 1986. As per the statements of P.W.32, the Investigating Officer, made in course of his cross-examination at para-21 to 23, he placed the extracts of statements of witnesses and the documents before P.W.19 on 29th September, 1986 at 2:00 P.M. and received the sanction order before closure of the office on the same day and he recorded the statement of P.W.19 at about 2:30 P.M. on the same day. As per the evidence of P.W.19, the Sanctioning Authority, the documents along with extracts of statements of witnesses etc and investigation report were produced before him for consideration in the matter of sanction for prosecution. He went through all the papers,