The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.104 of 1996 (In the matter of an application under sub-section(2) of Section 374 read with Section 382 of the Criminal Procedure Code, 1973) Kailash Chandra Muduli ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. D.P. Dhal, Senior Advocate For the Respondent : Mr. M.S. Rizvi, Addl. Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Dates of Hearing: 23.07.2024/18.09.2024:Date of Judgment: 23.12.2024 S.S. Mishra, J. The present Criminal Appeal is directed against the judgment and order dated 30.03.1996 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. No.32 of 1987, whereby the appellant has been convicted for the offence punishable under Section 5(1) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section-409 of the IPC and has been sentenced to undergo R.I. for three years on each count, the sentence are to run concurrently. 2.
Legal Reasoning
Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the appellant and Mr. M.S. Rizvi, learned Additional Standing Counsel for the respondent-State. 3. The prosecution case, in short, is that the Forest Department used to sale timber and fire wood etc. through the Orissa Forest Corporation Limited after its establishment instead of directly dealing with the same. It is alleged that the appellant and two others (since acquitted) being employees of Lathore Division under Orissa Forest Corporation Ltd. were in charge of the Chhatradandi S.W.C. Coupe. Some trees were marked and given to the coupe for their conversion to logs. After the trees were fell and converted to logs, those were stacked in the depot along with the fire woods. It is further stated that the appellant, who was the Sub-Divisional Manager of Lathore Division, made over the charge of his Office to his successor, P.W.4, but he and his colleagues could not Page 2 of 15 account for the timber to an extent of 95.210 cubic meters and some fire woods. 4. On the basis of the aforementioned allegation, the F.I.R. was registered against three persons including the present appellant before the Superintendent of Police, Vigilance, Sambalpur. 5. After the investigation, the charge sheet was filed and the appellant along with other two accused persons were subjected to trial for the alleged commission of offence punishable under Section 5(1) read with Section 5(2) of the Prevention of Corruption Act, 1947 read with Section-409 of the IPC. 6. The prosecution examined 11 witnesses in support of its case to prove that the accused persons were entrusted or had dominion over or were in charge of the entire stock of timber and fire wood at Lathore Depot of OFC Ltd. and fraudulently or dishonestly they converted the stock to their own use causing wrongful loss to the exchequer to the tune of Rs.1,29,000/-. 7. The prime witnesses examined by the prosecution were P.W.4, who was the successor of the present appellant, P.Ws. 1, 2 & 7 were the Page 3 of 15 witnesses to the seizure, whereas P.Ws. 6, 8 & 9 were the officials of the Forest Department. P.W.10 was the Sanctioning Authority, who accorded the sanction to prosecute the appellant. P.W.11 was the Investigating Officer of the case. The appellant was himself examined on his defence. 8. Learned trial Court, after analyzing the entire evidence on record, returned the following findings: “6. On the question of entrustment on the disputes stock of timber and fire wood P.W.3 being the Range Officer, Kantabanji during the year 1981 and 1982 has stated that he gave delivery of the trees marked by them standing within the Coupe i.e. Chhatrandadi S.W.C. Coupe-II to accused Kailash Chandra Muduli the then S.D.M., O.F.C. Ltd., Lathore Subdivision. Ext.3 was the Coupe Delivery Chalan in which accused Sri Muduli, had acknowledged to have received the marked trees for their selling and conversion to logs as per his signature Ext.3/2. Not only did he himself do the work but also he made application to the concerned D.F.O., Bolangir (Territorial) for appointment of accused Sri Chetty Satyanarayan as an agent to do the operation as per Ext.4 which was recommended by P.W.3 to the D.F.O. (Territorial), Bolangir. Here the prosecution could not further prove the action taken by the accused Chetty Satyanarayan in this connection nor even the accused Sri Muduli proved anything to show that accused Sri Satyanarayan took charge over the trees, fell those and converted those to timber. This witness had no business to entrust the Coupe in question to accused Chetty Satyanarayan. S.W.C.-II Chhatradandi Coupe had long since been demarcated by their Forest Department. The D.F.O., Bolangir in Ext.5 had issued a letter to the D.M., O.F.C. Ltd., Kantabanji that Chhatradandi S.W.C.-II Coupe was given to the O.F.C. Ltd. for operation within 45 days from 11.12.81 and the Page 4 of 15 period of contract was from 11.12.81 to 28.2.83. Ext.3 is the Coupe delivery certificate given by P.W.3 to this accused who was shown 755 numbers of trees for felling and 228 trees marked for retention. This evidence has completely established the fact of entrustment of the trees with accused Sri Kailash Chandra Muduli over which he had dominion and control for operation. P.W.4 was the Successor of accused taking over physical charge of the stock of his office, depot etc., from him. The period covered in the handing over and taking over charge between them was from 5.10.83 to 7.10.83. The charge report prepared and signed by both the officers was marked as Ext.6 in which accused Sri Muduli has signed vide Ext.6/2. A detailed charge report is placed in record. Accused Sri Muduli did not make charge of timber measuring 77 and odd cubic metres and fire wood numbering 137 stacks of size 6’ x 6’ x 3’. This witness was definitely asked to answer whether he had taken physical charge of the stock or not. His specific answer to this question was that he verified the stock actually and physically at the time of taking over charge from this accused. The prosecution has not rested here but went a long for proving through P.W.6 a retired D.F.O. that he conducted physical verification of stock of timber of Chhatradandi S.W.C. Coupe with the assistance of P.W. and accused Chetty Satyanarayan, Assistant Supervisor of Lathore Subdivision O.F.C. Ltd. They prepared a physical stock verification report which was further testified by P.W.9 the Deputy General Manager, O.F.C. Ltd., Kantabanji that he submitted a report of this physical verification to the Divisional Manager, O.F.C. Ltd. Division, Kantabanji on 19.02.1984. As per this physical stock verification report Ext.8 there was a shortage of 137 stacks of fire wood and 95.8210 cubic metres of timber. This report was submitted in the prescribed proforma. The presence of accused K.C. Muduli was tried to be excluded during the physical verification of the stock by way of a suggestion to this witness which he has denied. As Sri K.C. Muduli examining himself as D.W.1 as 2 letters Exts. A & B showing destruction of timber by fire and flood water. Damage caused to timber was not to the extent that has been found shown the prosecution but around 7.543 cubic metres timber were destroyed this way. When he wanted to fix responsibility on accused Satyanarayan should have obtained a report from him about such damage caused to the timber. But instead he obtained a report from one Jyotish Page 5 of 15 Chandra Behera as per Ext.P/ However the damage was not so much as against the claim of production. The learned counsel for the accused Sri K.C. Muduli has relied on a circular issued by the O.F.C. Ltd., Bhubaneswar vide their letter No.2841 dated 10.4.60 that the accused as had no concern over any stock or Assistant Supervisor responsible for the stock. Circulars are issued for Departmental use. Those are not always strictly adhered to. The duties and responsibilities of field staff like accused Muduli has been indicated in this Circular but this is concerning forest works only. Forest works means operation like felling of trees, converting the felled trees to timbers, stacking of the timbers, fire wood, sale and transport of the timber and fire wood etc. If actually the accused Sri Muduli were not in charge of the stock of timber and fire wood, it would not have been necessary for him to make over charge of physical stock of the same to P.W.4. When he had done so, the natural inference would be that he was entrusted with the stock of timber and fire wood over which he had dominion and control at Chhatradandi S.W.C., Lathore Coupe-II, and Lathore depot under O.F.C. Ltd. Subdivision. The prosecution could not establish through evidence that the other 2 accused persons had anything to do in the matter of remaining in physical charge of stock of timber and fire wood and they played such and such role in respect of the said stock. I find absolutely no reason fixing any liability on them.” Being aggrieved and dissatisfied with the aforementioned findings which led to the conviction of the appellant for the offences, he was charged with, the present Appeal has been filed. 9. Mr. D.P. Dhal, learned Senior Counsel appearing for the appellant has vehemently argued that the prosecution has miserably failed to prove the entrustment of the timbers to the appellant. Therefore, the appellant could not have been convicted for the offence under Section 409 of the Page 6 of 15 IPC. He has also questioned the sanction accorded by the Authority under Ext.9 to prosecute the appellant on the ground that the Sanctioning Authority, i.e., P.W.10 had deposed that there was no material placed before him. Therefore, the sanction in the instant case granted to the prosecution to proceed against the appellant is a culmination of pure non-application of mind. 10. Mr. Dhal, learned Senior Counsel further argued that the seizure witnesses examined by the prosecution contradicted their version creating a serious doubt regarding the seizure. Learned trial Court has recorded the conviction against the appellant by drawing inference of entrustment of stocks of timber and fire wood. Therefore, the conviction is not sustainable. 11. On perusal of the evidence of P.W.3, it would be seen that, he has candidly admitted in his cross-examination at para-2 that, Chhatradandi Coupe was a very big coupe. After falling of the trees, usually the logs are stacked in the coupe and there are instances of theft of logs from the coupes and more importantly, he has stated that, the accused Satyanarayan was the agent of this coupe and the agent of the coupes Page 7 of 15 supervises its works. The version of P.W.3 clearly reveals that, though the appellant was the SDM of the OFC Ltd., yet the accused Satyanarayan was the person, who was in charge of the coupe. 12. P.W.4 has been examined to depose that, he took charge of the SDM, OFC Ltd., Lathore from the appellant. He has deposed that he took charge of 124.4190 cubic meters of timbers from Chhatradandi S.W.C. Coupe-2 and he did not take charge of any fire wood as the stock was nil. He has further deposed that as per the conversion Register, a stock of 201.7010 cubic meters of timbers would have been left after deducting the transport materials from felled materials. The shortage of timber, therefore, was 77 and odd cubic meters and stock of fire wood would have been 137 stacks. In his cross-examination, he has stated in 4th line of para-2 that, the accused Satyanarayan was the Assistant Supervisor of that Coupe and the accused Satyanarayan Behera and other accused were mates of that Coupe. He has further stated that, the duty of the Corporation is to cut the trees marked and send the timbers for selling. In those cases, where the Corporation cannot cut the trees marked, the Corporation forfeits the rights. He has further stated that the Page 8 of 15 Corporation pays the royalty to the State Government to get the Coupes. However, in his cross-examination, he has stated that, the seized Register was maintained by the accused Satyanarayan and he has also referred to the circular governing the duties and responsibilities of the employees of the Forest Corporation Limited wherein under the duties of the Assistant Supervisor and Munsi as per the Circular of the OFC Ltd. are described as under: (i) Conduct of felling, logging, stacking and loading of timbers. (ii) Construct extraction paths/sheds etc. (iii) Maintain field Registers. (iv) Issue Coupe permits and Challan etc. (v) Remain responsible for stock. (vi) Check up/record Muster Rolls and measurement of works/ Recruit labour. The said Circular reveals that the Assistant Supervisor, namely, Satyanarayan was, in fact, in charge of everything. Attention of this witness was drawn to the fact that, the ACF had taken the physical stock Page 9 of 15 of the marked trees in the Coupe and found that, 20 numbers of marked trees were still standing although were shown to have been fallen and converted to timbers and firewood. Attention of this witness was also drawn in para-3 of his deposition to the effect that, the appellant had also written the letter No.187, dated 26.04.1983 about loss of 2.9057 cubic meters of timbers which was burnt by the fire accident. 13. P.W.9 was the Deputy General Manager, OFC Ltd. at Kantabanji Depot. On receipt of the letter from the Divisional Manager, OFC Ltd., Kantabanji for conducting the physical verification of stock of timbers and firewood in Coupe No.2, he verified the same and found that, shortage of firewood to an extent of 137 stacks and timbers to an extent of 95.8210 cubic meters. It is pertinent to mention here that, on a comparison of the version of P.W.4 & P.W.9, it would be seen that, there is a difference between the shortage of timbers as well as the firewood as verified by both the officials. 14. Similar is the version of P.W.11, the Investigating Officer. On a scan of his evidence, it would be seen that he has not properly investigated into the case as required and was also not in a position to Page 10 of 15 say whether any enquiry was conducted by any Forest Officials prior to his investigation. But he has, however, found that although some trees were fallen and converted into timbers, those trees were actually standing in the field. Kailash Chandra Muduli-the appellant examined himself as D.W.1, in his examination-in-chief, he has categorically stated that, there were 19 forest Coupes under his control. Besides the management of those Coupes, he was in charge of collecting sal seeds within the sub- division. There were Supervisors and Mates in all the Coupes. The Assistant Supervisors posted in those Coupes were physically in charge of the timbers. According to the Circular issued by the Orissa Forest Corporation Limited, the accused Satyanarayan (since acquitted) was the Assistant Supervisor in charge of Chhatradandi S.W.C. Coupe. He was responsible for falling, conversion of the logs into timber and the firewood and also the maintenance. He has also categorically stated that, the accused Satyanarayan has committed mistake by showing twice the conversion in respect of 15 marked trees for 24.76 cubic meters. The Page 11 of 15 same finds place at pages 73945 and 73936. The doubling was found for tree No.163. Similarly, trees Nos. 459, 600, 524, 412, 483, 646, 410, 374, 525, 569 & 588 have been doubly entered in the Log Measurement Book of the Coupe. Bereft of the same, the accused Satyanarayan has also shown certain trees to have fallen and converted into the firewood although those trees were actually standing at the site. This witness has also categorically stated that, he has reported to his authorities about the decoy of the wood during rain and damage caused during the fire. The reports have also been marked as Exts.A & B. This witness was not cross-examined by the prosecution to the specific statement made by him, therefore, the evidence has remained unrebutted. 15. I have gone through the entire evidence on record and analysed the documents which form part of the record. It is eminently clear from the evidence of the prosecution that, it is indeed the Assistant Supervisor of the Corporation, the co-accused Satyanarayan, who was in charge of the entire forest materials and he was solely responsible for maintaining the records as per the standard procedure. The present appellant, being the SDM, was in overall charge of the Coupe. It was physically not Page 12 of 15 possible for the SDM to supervise the vast spread of the forest and the materials parked thereunder. He had no option rather to depend upon the supporting staff in maintaining the records. The supporting staff who have been prosecuted, are let off by giving the benefit of doubts. On the same breathe, if the evidence qua the present appellant is analysed, it would be abundantly clear that, the prosecution lacked in proving the case against the petitioner beyond all reasonable doubts. 16. Mr. Rizvi, learned Additional Standing Counsel for the respondent-State has strongly relied upon the presumption provision under the P.C. Act and submitted that the petitioner is found guilty of the offence as alleged against him because his conduct led to the loss of Rs.1,29,000/- to the exchequer in the year 1996. Therefore, the provision of presumption under Section 4(3) of the P.C. Act, 1947, operates against him. The presumption attached under Section 20 of the P.C. Act, 2018 earlier 4(3) of the P.C. Act is a rebuttable presumption. Although, the onus is absolutely on the prosecution to prove the case beyond all reasonable doubts. The explanation offered by the appellant to dispel the presumption needs to be tested on the touchstone of preponderance of Page 13 of 15 probability. The appellant has examined himself as the defence witness to offer the explanation, which has not been considered by the learned trial Court. Surprisingly, the statement of the co-accused persons were also not recorded under Section 313 of the Cr. P.C. despite the fact that, enough material has come against them from the testimony of P.Ws.3, 4, 9 & 11. Therefore, I am of the considered view that the learned trial Court has miserably failed to appreciate the evidence in the right prospective and caused derailment of the proceedings. 17. From the above analysis of the evidences, this Court is of the view that the prosecution has failed to prove its case beyond all reasonable doubts, rather it left many aspects to speculation. Hence, the appellant is entitled to acquittal. 18. Accordingly, the appellant is acquitted from the charges of the offence punishable under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section-409 of the IPC and the order dated 30.03.1996 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. No.32 of 1987 is set aside. The bail bond stands discharged. Page 14 of 15
Decision
19. The Criminal Appeal is accordingly allowed and disposed of. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 23rd December, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 10-Jan-2025 19:34:10 Page 15 of 15