The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.9 of 2007 (In the matter of an appeal under Section 27 of the Prevention of Corruption Act, 1988 read with Section 374 of the Criminal Procedure Code, 1973) Kambhupani @ Kambupani Mishra ……. Appellant -Versus- State of Orissa G.A. (Vigilance) Department ……. Respondent For the Appellant : Mr. S. Sourav and Mr. Suryakanta Dwibedi, Advocates For the Respondent : Mr. M.S. Rizvi, Addl. Standing Counsel (Vigilance) CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 11.07.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 27 of the Prevention of Corruption Act, 1988 read with Section 374 of the Cr.P.C., is directed against the judgment and order dated 23.12.2006 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No.62 of 1995, whereby the trial Court has convicted the accused-appellant for the offences punishable under Sections 409/468/471 of the I.P.C. and Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. The prosecution case, in brief, is that, during the financial year 1991-92, a sum of Rs.2,10,000/- was allotted by the Director of Horticulture, Orissa to the Horticulturist, Bolangir for purchase of 1,50,000 Dwarf Cavendish banana suckers from the farmers at a rate of Rs.1/- per sucker and for distribution of the same to the farmers at a subsidized rate of Rs.0.15/- per sucker. An amount of Rs.2,10,000/- included an amount of Rs.45,000/- for transportation and Rs.15,000/- for chemical pre-treatment of the banana suckers was allotted. The accused, a Gardener in the office of the Horticulturist, Bolangir, was entrusted with Rs.20,742.20/- for purchase of the banana suckers and for transportation of the same. The accused purchased 7,850 banana suckers and paid a sum of Rs.3,720/- to the farmers but wrongly showed a purchase of 15,280 banana suckers at the rate of Rs.1/- per sucker, thereby allegedly misappropriated an amount of Rs.11,560/- by Page 2 of 10 arranging false vouchers. Furthermore, it is alleged that the accused showed an expenditure of Rs.5,462/- against transportation but actually used only Rs.700/- for the same and on that count misappropriated the balance amount of Rs.4,762.20. Therefore, in toto, the accused allegedly misappropriated a total amount of Rs.16,322/- out of Rs.20,742.20 entrusted to him by producing false vouchers and money receipts, etc. Subsequently, these facts were ascertained by the Inspector of Vigilance, Bolangir Squad and a report was filed before the S.P. (Vigilance), Sambalpur. After thorough investigation, charge sheet was submitted against the accused and he was put to trial after obtaining the sanction for prosecution. 3. During the trial, the Prosecution, in order to substantiate its charges, examined total of 14 witnesses and marked 24 exhibits. P.Ws.1, 2 and 8 are the persons in whose names accused appellant had prepared vouchers. P.W.4 was a resident of village Ghasian, P.W.6 was the Accountant-Cum-Head Clerk of the office of Horticulturist of Bolangir, P.W. 7 was a witness to the seizure, P.W.9 was a Horticulturist at Bolangir, P.W.10 was the Government Examiner of Questioned Page 3 of 10 Documents, P.W. 11 was the Head Clerk of Fisheries Office, Bolangir, P.W. 12 was the Sanctioning Authority. P.Ws.13 and 14 were the I.Os. in this case. On the other hand, the defence presented a stance of complete denial and pleaded not guilty, and examined 2 witnesses in support of his defence. 4. The learned trial court had convicted the appellant primarily on the basis of the evidence of P.Ws.1, 2 & 8, who are some cultivators of Bolangir, who had denied receiving of any amount of money from the accused. The cultivators also disowned their signatures appearing in the purchased vouchers allegedly submitted by the petitioner. 5. The accused claimed to have purchased 5000 banana suckers from P.W.8 for Rs.5,000/- at the rate of Rs.1/- per banana sucker and obtained a voucher of the same amount from him. However, P.W.8, in his evidence, denied to have sold 5,000 banana suckers to the accused and denied the receipt of Rs.5,000/- from the accused. He further denied to have signed on any voucher or on revenue stamp. This was confirmed by the evidence of P.W.10, who was the Government Examiner of Questioned Documents. The accused submitted a voucher showing the Page 4 of 10 payment of Rs.411.20/- to one Kedu Ghiwala of village Gasien towards the loading and unloading of the banana suckers. However, the evidence of P.W.4, who was a resident of the village Gasien at that time, shows that there was no person named Kedu Ghiwala residing in that village at the relevant time. Thus, the learned trial Court after appreciation of the evidence borne on record, reached at the conclusion that the prosecution has proved its case beyond all reasonable doubt of the charges under Section 13(1)(c) read with Section 13(2) of the P.C. Act and Sections 409/468/471 of the I.P.C. against the appellant, but the prosecution has failed to prove the charges against the accused under Section 477-A of the I.P.C. 6. Thus, the learned trial Court sentenced the accused-appellant to undergo R.I. for a period of two years and to pay a fine of Rs.5,000/-, and in default, to undergo R.I. for a period of 6 months more on each counts without giving him the benefit under the Probation of Offenders Act, whereby the sentences were to run concurrently. Page 5 of 10 7. Aggrieved by the judgment of conviction and order of sentence passed by the learned trial Court, the appellant has preferred the present appeal. 8. Heard Mr. S. Sourav, learned counsel for the appellant and Mr. M.S. Rizvi, learned Additional Standing Counsel, Vigilance. 9. Learned counsel for the accused-appellant has strongly attacked the judgment of conviction and order of sentence passed by the learned trial Court. He contended that the learned trial Court except narrating the prosecution story has not appreciated the evidence brought on record. Learned counsel submits that the trial court had not properly appreciated the deposition made by P.W.9 who was working as the Drawing and Disbursing Officer of Bolangir Horticulture and was the then head of the office. The said witness had clearly mentioned in his evidence that “he as the Head of the Office, after being satisfied about the genuineness of the voucher submitted by the accused had passed the voucher for payment.” The learned counsel has referred to Paragraphs 6 & 7 of the deposition of P.W. 9 , which read as under :- Page 6 of 10 “6. I was the Drawing and Disbursing officer of Bolangir Horticulture Office. I do no know if there is rule to the effect that I could pay an advance of Rs. 5000/- to a person at a time for procurement of banana succers as the ancilliary expense. I do not know if only after recoupment of the said earlier advance in the shape of pald voucher, another advance of amount in maximum up to Rs.5000/- could be paid to the said person. 7. After procurement, the stock is entered in the stock Register and the said Stock thereafter is issued to the Field staff of the Department for supply to the Farm/Agriculturist. I as the Head of the Office, after being satisfied about the genuineness of the voucher submitted before me, with respect to the advance payment or the excess payment, I have passed the voucher for payment. I have absolutely no personal knowledge about this present case.” 10. Learned counsel for the appellant further submitted that the prosecution has failed to prove its case beyond all reasonable doubt, as the Investigating Officer has not seized the Stock Register despite the deposition of P.W.9 that the stock is entered in the stock register. Also the I.O. had not examined Shyamsundar Sethy, who was in charge of the central Stock and was in possession of the register of Horticulturist, Bolangir. For the better assistance of this Court, learned counsel for the appellant had invited my attention to one earlier Judgment passed by this Court in CRLA No.14 of 2007, Sachidananda Mishra Vrs. State of Odisha (Vigilance) dated 31.01.2022, as that will comprehensively Page 7 of 10 cover all the issues raised in the present Criminal Appeal, to which learned counsel for the Vigilance strongly opposed and contended that the testimony of P.Ws.1, 2 & 8 are itself sufficient to prove the case of the prosecution against the accused-appellant. 11. Learned counsel for the appellant has relied upon the following passage of the case of Sachidananda (supra): “P.W.19, the Inspector of Vigilance has stated in his cross- examination that the fact of purchase of banana suckers under the voucher Ext.11 had been noted in the stock register of the Horticulturist, Bolangir, but he had not seized the stock register. He further stated that Shyam Sundar Sethi was the incharge of the Central Stock Register of the Horticulturist, Bolangir, but he had not examined him in the case. He further stated in the cross- examination that as per the procedure, the gardeners were to send the banana suckers to the cultivators and obtain their signature in their stock register and also mention the receipt of money from them in the stock register. The gardeners had deposited the actual sale price of the suckers in the office of the Horticulturist, Bolangir as per the quantity of suckers shown to have been sold by them to the suckers and they had deposited the sale price of the suckers said to have been received by them as per Central Stock Register in the office of the Horticulturist, Bolangir and that he had not seized the stock registers of the gardeners. When the documentary evidence as well as oral evidence indicates that banana suckers purchased under Ext.11 were received in good condition and to that effect entry has been made at page 4 of the stock book (banana suckers), 1991-92 and the said stock book register of banana suckers has been marked as Ext.B as per the order dated 11.11.2021 passed in I.A. No. 1118 of 2021, which was an application filed by the appellant under section 391 of Cr.P.C. to mark the same as additional evidence and when the stock register (Ext.B) clearly indicates about receipt of 3,990 banana suckers on from Kishore Meher, Village/ P.O.- 26.02.1992 purchased Page 8 of 10 Jarsingh, P.S.-Tusra, District-Bolangir vide S.V. No.2, therefore, it is difficult to doubt that Ext.11 is not a genuine one particularly when P.W.10 has stated that as Head of the office, after being satisfied about the genuineness of the voucher submitted before him with respect to the advance payment or the excess payment, he had passed the voucher for payment. No explanation has been given as to why the person who was in charge of the central stock and register of the Horticulturist, namely, Shyam Sundar Sethi was not examined by the I.O. and as to why the stock register was not seized by the I.O. It presupposes that since proving of the stock register and examination of Shyam Sundar Sethi would have strengthened the defence plea, the same was not done deliberately, which reflects that the Investigating Officers were not fair while investigating the case. The documents further revealed that not only 3990 banana suckers were received in the Central Stock but those were also issued to the gardeners for selling the same to the cultivators at a subsidized rate of Rs.0.15 paise per sucker. The gardeners also received the banana suckers from the Central Stock and sold the same to the cultivators and deposited the sale proceeds in the Central Stock and to that effect the stock registers of the gardeners were very much relevant, which were also not seized by the Investigating Officer. The contention of the learned counsel for the appellant that the I.O has not intentionally seized the stock registers inasmuch as had he seized the same, it would have demolished the case of the prosecution in its entirety and as such, adverse inference under section 114(g) of the Evidence Act is to be drawn against the prosecution, has got substantial force.” 12. In the aforementioned judgment, this Court while extending the benefit of doubt acquitted the accused appellant. The present case is strikingly similar to the Sachidananda (supra) case. Hence, deserves merit to be allowed. 13. After meticulous evaluation of the evidence on record and analysing submissions of the learned counsels, this Court is of the view Page 9 of 10 that this appeal deserves to be allowed. As this has been clear from the record that prosecution has failed to prove the case beyond reasonable doubt. Generally, in the case of any financial misconduct, documentary evidence holds more value than oral testimony. Therefore, non-seizer of the stock register by the I.O. and non-examination of the officer who was in charge of the Central Stock and also the register of the office of the Horticulturist, Bolangir, completely shows that the investigation was botched up. Therefore, the benefit of doubt must be given to the accused- appellant. 14. Hence, the order of conviction dated 23.12.2006 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No.62 of 1995 is set aside. The appellant is set free from all the charges. The bail bond stands discharged.
Decision
15. Accordingly this Criminal Appeal is disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th of October, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2024 11:54:55 Page 10 of 10