The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.45 of 1994 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Abhaya Kumar Behera ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. H.K. Mund, Advocate For the Respondent : Mr. MS Rizvi, ASC, Vigilance CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 02.09.2025 : Date of Judgment: 28.10.2025 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374 of the Code of Criminal Procedure, is directed against the judgment and order dated 21.01.1994 passed by the learned Special Judge (Vigilance), Sambalpur, in T.R. Case No. 12 of 1990. By the impugned judgment, the learned Trial Court convicted the accused- appellant for the offences punishable under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and Section 409 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for one year on each count. The Trial Court directed that all the sentences shall run concurrently. 2. Heard Mr H.K. Mund, learned counsel appearing for the appellant and Mr. MS Rizvi, the learned Additional Standing Counsel appearing for the State. 3. The prosecution case, in brief, is as follows: There is a Central Nursery situated at Banjhi-dungri under the Afforestation Division, Bolangir, where several Government properties, including 31,007 high stumps of different species, were stored. At the relevant time, one Chakradhar Patel, serving as the Forest Guard, was in physical charge of the said nursery and the Government properties kept therein. Upon the transfer of Chakradhar Patel, the accused-appellant took over charge from him on 13.11.1984. A formal charge list was prepared at the time of handing over and taking over of charge, which clearly recorded that the accused had received 31,007 high stumps of various Page 2 of 22 species. This charge report was duly submitted to the office of the Divisional Forest Officer (D.F.O.), Afforestation Division, Bolangir. Subsequently, during actual physical verification, it was found that no such stumps were in existence at the Banjhidungri Nursery. The value of the missing stumps was assessed by the concerned Range Officer at Rs. 6,000/-. Upon further inquiry, a Vigilance Inspector detected the misappropriation and submitted his report, leading to the registration of a case. After completion of investigation, it was revealed that the accused had misappropriated Government property, namely the said high stumps, and thereby caused wrongful loss to the State. Consequently, a charge sheet was submitted against the accused for allegedly committing offences punishable under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947, and Section 409 of the Indian Penal Code. During the course of the proceedings, the accused took inconsistent defences. At one stage, he contended that his predecessor, Chakradhar Patel, had actually misappropriated the stumps and had Page 3 of 22 falsely implicated him. At another stage, he claimed that no such stumps were physically present at the time of taking over charge and that he had signed the charge list without proper verification. Based on the investigation report and evidence collected, the prosecution alleged that the accused, being a public servant, had dishonestly misappropriated Government property entrusted to him, thereby committing the offences for which he was put to trial. 4. A total of seven witnesses were examined on behalf of the prosecution. P.W.1 was the predecessor Forest Guard of the accused, P.W.2 a local resident, P.W.3 the Head Clerk of the Afforestation D.F.O.’s Office at Bolangir, P.W.4 another local resident, P.W.5 a Range Officer, P.W.6 the Investigating Officer, and P.W.7 the Sanctioning Authority. 5.
Legal Reasoning
The learned trial Court, by heavily relying upon the documentary evidence that the stumps were entrusted upon the accused-appellant while he took charge of the nursery and other witnesses gave the following findings: Page 4 of 22 loss to himself and a wrongful “4. Prosecution is required to prove whether the accused was entrusted with 31007 numbers of stumps whether he had dominion or control over that property and whether he had converted their price to his own use thereby causing a wrongful gain to Government of the Forest department. As many as 7 witnesses were examined for the prosecution. P.W.1 is the predecessor Forset Guard of accused, P.W.2 is a local man, P.W.3 is the Head Clerk of aforestation D.F.O'S office Bolangir, P.W.4 is a local man, P.W.5 is a Range Officer, P.W.6 is the 1.0. and P.W.7 is the Sanctioning authority. The factum of entrustment of 31007 numbers of stumps to the accused has been borne out by documentary evidence in record. That both P.W.1 and the accused while making over and taking over charge of the Government properties preserved at Banji dungri Central nursery had signed in token of P.W.1's giving charge of the properties including the stumps in question to the accused on 13.11.84. as per Ext. 1. It was prepared in four copies, one copy being retained in the office of D.F.O Afforestation Bolangir. In this charge list under item 29 31007 numbers of stumps were taken charge of by the accused as per an enumeration list. The defence attacked non-production of such enumeration list on the ground that had it been produced there would have been no existance of the number of stumps. This contention sounds absord because no such enumeration list was ever called for from the forest department by the accused. He had joined this Nursery on 12.11.84 as per his joining, report Ext.2. Incourse of investigation one Range Officer P.W.5 has visited the spot(Central Nursery Banji dungri and founds as against two truck loads of stumps there were only 30 to 40 stumps in existence. He evaluated the 31007 numbers of stumps at Rs.6000/- No matter he was unable to give the date of his spot visit. P.W.2 and 4 are dlear in their evidence that the accused took over charge of the Nursery of Government properties including stumps. It was not required for the department that the stumps would be counted in presence of these two Mustor roll labourers. P.W.2 had admitted that some times cooks used to take stumps for fuel and some times stumps were being damaged due to bad weather and Page 5 of 22 is enough the matter being eaten up by white ants. In such contingencies the duty of accused was to bring it to the notice of competent authority about such damage of stumps. His keeping silent over to establish his guilty consciousness. P.W.4 could not say if the accused had drawn attention of the Forest Ranger to the fact that the stumps were destroyed by white ants. Even if such report were lodged by him before the Forest Ranger, the Forest Ranger in term should have intimated this to the D.F.O. concerned for writing off the stumps. P.W 6 the 1.0. did not find any letter of accused intimating the damage of stumps to the D.F.O. Bolangir Afforestation division. P.W.7 has accorded sanction for prosecution of accused as the D.F.O. in according afforestation, Bolangir, his competency sanction cannot be called in question by the defence because the occurrence had taken place during incumbency of the accused as the Forest Guard under him-Long thereafter the accused was deputed to the O.F.D.C. Ltd. He has subjectively satisfied himself about truth of the allegations against the accused and as per his order Ext.8 the sanction was accorded for prosecution of accused. From the beginning of accused's joining service as the Forest Guard in charge of Central Nursery Banji dungri he did not report thing in writing about non receipt of the stumps from his predecessor, damage of the stumps due to bad weather and due to their being easten by white ants. Now he cannot take the stand contrary to the public records. The D.W.1 has tried to support the accused stanging that on 16.11.84 he physically verified the stumps and found the same to be worth Rs.25/-to Rs. 30/-. He kept silent without intimating this to his D.F.O. so that the matter would have been relaxed to some extent. The accused took over charge on 13.11.84. and it is not excepted that within a span of 2 to 3 days the stumps would reduced to this extent. 6. Relying upon the aforementioned findings, the learned trial court convicted the accused appellant under Section 5(1)(c) read with Section Page 6 of 22 5(2) of the Prevention of Corruption Act and Section 409 of the Indian Penal Code, and sentenced him to undergo R.I. of one year on each count and the sentences to run concurrently. Aggrieved by the same the present appeal is preferred.
Legal Reasoning
7. Mr. Mund, learned counsel, by taking me to the evidence of P.Ws.1, 2, 4 and 5 has pointed out that the conjoint reading of the testimony of these witnesses falsify the prosecution case in toto. Mr. Mund has highlighted the apparent contradiction in the statement of those witnesses. 8. Mr. Mund, by taking me to the charge framed against the appellant as argued that the charge framed against the appellant indicates that the commission of the offence has taken place during August, 1982 to October, 1982. 9. The learned trial Court has framed the charge against the appellant for the alleged offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 409 of the IPC, inter alia, recording that the appellant during the period from August, 1982 till October, 1982 has misappropriated the official stock of 31007 numbers Page 7 of 22 of stumps, which were officially entrusted to him thereby committed the offence under Section 5(2) of the P.C. Act read with Section 409 of the IPC. He submitted that the charge itself is defective because the entire case of the prosecution is that on 13.11.1984, the appellant has taken the charge as Forest Guard from P.W.1. Therefore, the offence could not have been committed prior to 1984. He has also pointed out that the properties involved in the case where the stumps i.e. a portion of the tree which remains on the ground after the tree is cut. Those were not much value as is evident from the fact that P.W.5 evaluated 31007 numbers of stumps cost at Rs.6,000/- which indicates that the value of one stump was less than 20 paise. The stumps were kept in the open and accessible to the sundry. The shortage or missing was detected six years after the stumps were stacked and it is in the evidence that they were also damaged by the white ants and at times, used as firewood. Therefore, the shortage does not ipso facto lead what that the same has occurred on account of the act that the appellant actuated with mens rea. Page 8 of 22 10. Mr. Mund, learned counsel has also cited the judgment of the Madras High Court In re: M.D. Kuppuswami and another1 and submitted that it is the settled principle of law that mere shortage in the stock cannot be treated as a criminal misappropriation. The Madras High Court in the aforesaid case held thus: “7. Nothing seems to have been done, and we have here only the bare fact of the disappearance of certain of goods, with not an iota of evidence about the handling of those goods by either of the revision petitioners or their disposal by either of them, or even to show that only one or the other of the revision petitioners could have misappropriated and removed the goods, and not the watchman or some intruder. Criminal liability has to be strictly proved, and I must repeat that it cannot be based upon a conjecture on probabilities, however reasonable that conjecture might be. Hence, I acquit both the revision petitioners upon the benefit of doubt which I have set forth above, and direct that their bail bonds be cancelled.” 11. To support the said proposition of law, he has also relied upon the judgment of this Court in Rama Krushna Sahu and Manoranjan Purohit vs. State of Orissa2 wherein it was held that: “10. It transpires from the evidence of P.W.3, the successor of Appellant No. 1 that he took over charge from Appellant No. 1 and the taking over continued for three months and the charge list was finally prepared and signed on 1 1966 Cri.L.J. 1096 2 2008(1) Crimes 462 Page 9 of 22 21.11.1985 as per Ext. 2. By the time he took over charge on 21.11.1985 there was no stock of coal or bricks in the Co-Operative Society. During cross-examination it was elicited from him that various raw materials, like coal and bricks were necessary for the purpose of manufacturing tiles and it was recurring process. The tile factory was running and tiles were being manufactured during the period 5.8.1985 to 21.11.1985. He further stated that the Stock Mistry-Dolagovinda Barad, who was in charge of making tiles, was competent to say that quantity of brick and coal used during the relevant period. So Mr. Mund, learned Counsel for the Appellant No. 1 submitted that there was no evidence as to what exactly was the physical stock of bricks and coal on 5.8.1985, when Appellant No. 1 ceased to be the Managing Director of the Co-Operative Society and the quality of bricks and coal used for manufacturing of tiles during the period 5.8.1985 to 21.11.1985. Admittedly there is no evidence to show the stock of bricks and coal on 5.8.1985 when Appellant No.1 ceased to be the Managing Director of the Co-Operative Society. Dolagovinda Barad, the Stock Mistry was the competent person say about the quantity of bricks and coal used in manufacturing of tiles during the period 5.8.1985 to 21.11.1985, but his examination was withheld for the reasons best known to the prosecution. Learned trial Court in this respect held that it was the duty of the Appellants to examine Dolagovind Barad to prove that the balance stock of bricks and coal were in fact used for the manufacturing of tiles during the period 5.8.1985 to 21.11.1985 which was erroneous. Burden of proof of establishing all the ingredients of Section 409 of IPC such as entrustment, misappropriation, dishonest intention etc. lies on the prosecution. In the present case, it was for the prosecution to prove that the stock in question was misappropriated by the Appellant No. 1. It was not the duty of said Appellant to prove his innocency. When prosecution failed to prove that the Appellant No. 1 misappropriated the stock, the trial Court ought not have convicted him for the offence u/s 409 of IPC, particularly when it was his plea that the stock of bricks and coal was exhausted in manufacturing tiles Page 10 of 22 during the period 5.8.1985 to 21.11.1985, which could not be disproved.” In view of the foregoing submissions, Mr. Mund, learned counsel for the appellant, has emphatically contended that the prosecution has utterly failed to establish the essential ingredients of the offences under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 409 of the Indian Penal Code. The evidence on record, when read conjointly, not only suffers from material contradictions and inherent improbabilities but also discloses that the alleged act of misappropriation could not have occurred during the period mentioned in the charge. The prosecution’s case rests solely on presumptions and conjectures, without any cogent proof of entrustment, dishonest intention, or actual misappropriation. In such circumstances, the benefit of doubt must enure to the appellant, and the conviction recorded by the learned trial court deserves to be set aside in the interest of justice. 12. Per contra, Mr. Rizvi, learned Additional Standing Counsel appearing for the Vigilance Department also taken me to the evidence adduced by the prosecution and tried to justify the findings recorded by Page 11 of 22 the learned trial Court which lead to the conviction of the appellant. By taking me to the provisions contained in Section 464 of the Cr. P.C., he has contended that the findings of the Court of competent jurisdiction which culminated into the conviction and sentence of the appellant cannot be invalidated merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of the parties unless, in the opinion of the Court of appeal, the confirmation or revision a failure of justice has in fact been occasioned. Mr. Rizvi, learned counsel for the Vigilance Department further submitted that the appellant has failed to point out what prejudice has been caused to him because of the wrong mentioning of the date in the charge order. He has also read out the evidence of P.Ws.1 and 3 in extenso. By relying upon Ext.1 coupled with the testimony of P.W1, he has submitted that the entrustment made to the appellant has been established beyond all reasonable doubts. Since the entrustment has been proved through the evidence of P.Ws.1 and 3 and Ext.1, the offence under Section 409 of the IPC is clearly made out on Page 12 of 22 record. Accordingly, the conviction and sentence passed by the learned trial Court is sustainable under law. 13. I have carefully scrutinized the evidence brought on record by the prosecution and taken into consideration the rival contentions made by both the learned counsels for the respective parties. 14. P.W.1 and P.W.3 the witnesses before whom the alleged entrustment was made are the relevant witnesses for the purpose of the prosecution case. P.W.1 in his testimony in the examination-in-chief has stated as under: “In 1984 I was Forest Guard at Banji Dungri Nursery. I was incharge of that nursery, sridhar Joshi and Khali Thapa were working gas watchers in that nursery. The plants, stumbs, materials and the papers of the nursery were all in my charge. I was transferred from that nursery and accused Abhaya Kumar Behera relieved me. I made over charge of the nursery and all the materials papers, of the nursery to the accused. A charge list was prepared by me showing the items which I made over to the accused. After taking over charge of everything myself and the accused, both signed on that charge list. Ext.1 is that charge list, Ext. 1/1 is my signature on it. The accused signed in my presence in the charge list. Ext. 1/2 is his signature on the charge list. All the items were counted, before the charge was made over. Myself and the accused jointly counted the stumps among the other items. There Page 13 of 22 were 31007 number of stumbs and accused took charge of these stumbs with the other items.” In the cross-examination, he has also admitted that the Stock Register in the Nursery was prepared and he stated that the Stock Register of the Nursery would show the stock position of the stumps and he made over the charge of the stock register to the accused. 15. Huge number of stumps have been counted and were handed over to the appellant. That would have been obviously done in presence of the other staff. Therefore, the evidence has come on record to suggest that P.Ws.2 and 4 were the watchmen posted in the Nursery and handing over the charge to the appellant by P.W.1 has taken place in their presence. 16. P.W.2, however, did not support the prosecution, rather stated that the stumps which were there in the Nursery were never counted in his presence. 17. Similarly, P.W.4 in his testimony has stated that although the stumps were counted, but the stumps remained outside. Therefore, at the Page 14 of 22 time the accused took charge of the stumps those were destroyed due to the white ants and were completely damaged. 18. To draw the corroboration with the evidence of P.W.1, the prosecution examined P.W.3. He has deposed that he was posted as a Head Clerk in the Office of the D.F.O. during the period from May, 1983 to January, 1992. He knows the accused, who was posted as Forest Guard in Banjidunguri Nursery. The accused took over the charge from P.W.1 on 13.11.1984. The charge report was prepared in that context, which was received by the D.F.O., Office on 17.11.1984. 19. P.W.5, the Range Officer deposed that on 02.01.1988, he along with the Inspector of Vigilance went and calculated the stumps. The accused has taken the charge of number of stumps as 31007. On calculating the value of the stumps, he gave his report that the cost of the said stumps was Rs.6,000/-. Ext.3 is the report. He further stated in the cross-examination that the Range Officer although had made entrustment in the charge list, but there was no stock register maintained in the Office of the D.F.O., Bolangir. Page 15 of 22 20. It is evident from the record that P.W.1 made over the charge to the appellant on 13.11.1984 and the stumps 31007 in number were counted to be handed over to him. He has proved Ext.1, which was the charge list. However, in the cross-examination, he has stated that the stock register would show the stock position of the stumps. It has come on record that there was stock register as stated by P.W.1. However, the stock register was never produced in the Court. P.W.2 has directly contradicted the evidence of P.W.1 stating that the stumps were never counted in his presence. 21. P.W.4 another watchman in the Nursery has deposed that he was although present at the time of handing over the charge by P.W.1 to the appellant, however, in the cross-examination in para-3, he has very categorically stated that when a Forest Guard P.W.1 made over the charge of stumps to the appellant, at that time, those were not counted. P.Ws.2 and 4, the other staff in the Nursery were the natural witnesses in whose presence, the handing over of the charge had taken place. Therefore, the evidence of the stump not having been counted at the time Page 16 of 22 of handing over the charge by P.W.1 rules out the prosecution case as to the entrustment of 31007 stumps to the appellant. 22. In the face of these evidence whether at the time of handing over the charge by P.W.1 to the accused, the stumps were counted or not, is a fact which is coming under the cloud of doubt, particularly in the absence of the stock register and counting being done after a lapse of many years. 23. It is also illuminating on record that the contemporaneous document like the stock register has not been produced in the Court by the prosecution. P.W.1 has claimed that the stock register was being maintained in the Nursery and the same would show the stock position of the stumps. In absence of such documents, the existence of 31007 number of stumps in the Nursery when the appellant has taken over the charge from P.W.1 is also doubtful. 24. To fortify the fact that the stock register was indeed available, but not produced in the Court, the evidence of P.W.6, the I.O. also assumes importance, who has stated in his testimony that he did not verify the stock register, as it was not available. Strangely, P.W.6 has also admitted Page 17 of 22 that he has not tried to ascertain as to what happened to the stock register. 25. Therefore, in regard to the entrustment except the evidence of P.W.1, no other evidence is lending full corroboration to complete the chain, rather the fact of handing over of charge by P.W.1 to the appellant and related documents created thereon comes under the cloud of doubt. 26. In so far as the charge of misappropriation is concerned, Mr. Mund, learned counsel submitted that the prosecution came to the Court with a case that the appellant failed to account the stumps when it was found that the stumps were missing. He pointed out from the charge sheet which stated as under: “During verification the accused failed to show the high stumps and also failed to account for the stumps. It is in Column-2 has charged misappropriated the cost of the high stumps by disposing them otherwise, instead of handing over them to the Department for disposal.” the accused noted that 27. At the trial, the prosecution has not led any evidence in order to establish the above allegation. The F.I.R. was lodged on 30.06.1988. Therefore, it is obvious that the verification must be prior to 30.06.1988. None of the witnesses have stated anything about any such verification Page 18 of 22 or about the accused failing to account for the stumps prior to the lodging of the F.I.R. The prosecution proceeded to prove its original versions and led the evidence to establish its case of misappropriation dehors the reality. 28. P.W.5, the Range Officer attached to the Vigilance Department has deposed that on 02.01.1988, he received a letter from the Inspector of Vigilance for calculation of the valuation of stumps and he calculated the value of 31007 stumps which the accused had taken over from P.W.1 to be at Rs.6,000/-.The report has been exhibited as Ext.3. Neither in his testimony nor in the exhibit, there is any whisper of any missing stumps. Rather, he has proved in his subsequent report dated 11.04.1990 in which he has stated that during his visit, with the Inspector of Vigilance to the Nursery there were only 30 to 40 stumps which were fit for firewood. It is not coming forth from the evidence of P.W.5 as to when he has inspected the Nursery. 29. Mr. Mund, learned counsel for the appellant has also pointed out that the value of the stumps as mentioned in the F.I.R. was Rs.8,000/-. Since P.W.5 has valued the stumps as Rs.6,000/-, it is obvious that Page 19 of 22 P.W.5 must have visited the Nursery, subsequent to the F.IR. and not prior to the F.I.R. 30. Surprisingly, the evidence collected by the prosecution which is incriminating in nature against the appellant has not been put to the accused appellant while recording his statement under Section 313 of the Cr. P.C. Particularly no specific question was put to the accused appellant regarding missing of the stumps or the alleged failure to count for the same. Even Ext.4 i.e. report dated 11.04.1990 submitted by P.W.5 has not been put to the appellant. 31. It is no more res integra that the incriminating material which has not been put to the accused while recording his statement under Section 313 of the Cr. P.C. shall not be used against the accused. This position of law is discussed and settled in the judgment of this Court in Balaram Bag Vs. State of Odisha (Vig.)3. 32. Perusal of the order on charge also reveals that the allegation of commission of the offence has been mentioned as August, 1982 to 3 (2020) 129 CutLt 225 Page 20 of 22 October, 1982. In the sanction order Ext.8, the charge of commission of the offence is stated to be 1984. In the evidence adduced by the prosecution, there is nothing to show that any misappropriation was committed either in 1982 or 1984. It is also apparent from the evidence that there is no clear date coming to the fore on which day the shortage is detected or on which day the appellant had failed to count for the stumps. This being the nature of the evidence adduced by the prosecution and varied date found mentioned on record, the accused appellant is obviously prejudiced to put forth his defence. Therefore, the argument of Ms. Rizvi, learned counsel for the Vigilance Department regarding the provision under Section 464 of the Cr. P.C. may not come to his aid. 33. On the basis of the foregoing discussion, evidence adduced by the prosecution does not inspire confidence to sustain the conviction recorded against the appellant particularly because the evidence is shaky and riddle with material contradiction. 34. In that view of the matter, I am inclined to interfere in the appeal and set aside the conviction and sentence passed by the learned Special Page 21 of 22 Judge (Vigilance), Sambalpur in T.R. Case No.12 of 1990. Accordingly, the accused-appellant is acquitted of all the charges. Bail bonds, if any, furnished stands discharged.
Decision
35. Accordingly, the Criminal Appeal is allowed and disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 28th of October, 2025/ Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 28-Oct-2025 19:06:46 Page 22 of 22