The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.358 of 2010 (In the matter of application under Section 374(2) of the Criminal Procedure Code, 1973) Kanhu Charan Tudu ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Tukuna Kumar Mishra, Advocate For the Respondent : Mr. M.S. Rizvi, Addl. Standing Counsel (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 09.07.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374(2) of the Cr.P.C., is directed against the judgment dated 06.07.2010 passed by the learned Special Judge (Vigilance), Jeypore in G.R. Case No.34 of 1996(V)/T.R. No.84 of 2007, whereby the trial court has convicted the accused-appellant for the offences under Section 409 of the IPC and Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988. 2. The prosecution case, in short, is that, upon receiving credible information regarding the shortage of Government cash in the Range Office, Kenduleaf, Nabarangpur, the D.S.P. (Vigilance), Jeypore, along with Tahasildar, Nabarangpur, Inspectors of Vigilance of both Nabarangpur and Jeypore and other officers, visited the Range Office, Kenduleaf, Nabarangpur, for verification of the accounts on 27.06.1996 at about 4.00 P.M. Upon verification of accounts, cash books, vouchers and other registers maintained by the accused-appellant, Range Officer, Kenduleaf, Nabarangpur, a shortage of a cash amount of Rs.1,36,013.36/- was found. The accused justified this shortage as against the loans and advances forwarded to different seasonal staff and purchase of articles without obtaining vouchers or hand receipts. After the completion of a joint verification of the accounts in the presence of
Legal Reasoning
all the members of the team, the D.S.P. (Vigilance) lodged an FIR before the S.P. (Vigilance), Jeypore for the misappropriation of Government funds by the accused-appellant, the Range Officer of Kenduleaf Page 2 of 15 Nabarangpur. After the completion of investigation, a charge sheet was submitted against the accused and he was put to trial after obtaining the sanction to prosecute him. 3. The Prosecution, in order to substantiate the charges, examined as many as 7 witnesses and exhibited 25 documents, whereas the defence examined 2 witnesses, i.e., D.W.1 and D.W.2, and exhibited 1 document thereof. Out of the 7 witnesses presented by the prosecution, P.W.1 was the A.S.I. of the Vigilance Police who was a witness to the physical verification of the cash and other vouchers at the office of the accused; P.W.2 was the D.S.P., Vigilance who lodged the F.I.R. against the accused; P.W.3 was the Cashier-cum-in-charge Head Clerk at the office of the accused; P.W.4 was the Inspector of Vigilance who accompanied the D.S.P., Vigilance and the other staff to the Range Office, Kenduleaf, Nabarangpur; P.W.5 was the Tahasildar of Nabarangpur who was a witness during the joint verification of accounts; P.W.6 was the Inspector of Vigilance who had not taken part in the investigation substantially; and P.W.7 was the Principal Chief Conservator of Forest, who accorded the sanction to prosecute the accused-appellant. Page 3 of 15 4. The learned trial court, after analyzing the entire evidence on record, came to a conclusion that the accused-appellant did not commit any fraudulent act, thus he is only be held liable for temporary misappropriation under the Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 and under Section 409 of the I.P.C. for not properly accounting for the shortage of amount of Rs.1,36,013.36/- entrusted to him. The learned trial court, thus, sentenced the accused to undergo R.I. for one year and to pay a fine of Rs.2,000/- (Rupees two thousand), and in default, to undergo R.I. for three months on each count for the offences under Section 13(1)(c) read with Section 13(2) of the P.C. Act and Section 409 of the I.P.C., whereby the sentences were directed to run concurrently and the period of detention already undergone by the accused as U.T.P. was to be set off as per Section 428 of the Cr.P.C. 5. Being aggrieved by the judgment of conviction and order of sentence passed by the learned trial Court, the appellant has preferred the present Criminal Appeal. Page 4 of 15 6.
Legal Reasoning
Heard Mr. T.K. Mishra, learned counsel for the appellant and Mr. M.S. Rizvi, learned Additional Standing Counsel for the Vigilance Department. 7. Mr. T.K. Mishra, learned counsel for the appellant submitted that the learned trial Court has completely ignored the defence version reflected in the statement of the accused-appellant recorded under Section 313 of Cr.P.C. and substantiated through the evidence of D.W.1 & D.W.2. The learned trial Court ought to have considered the plea of the defence put forth by the accused-appellant. He has relied upon a judgment of the Hon’ble Supreme Court reported in AIR 1977 SC 170 (Rabindra Kumar Dey vrs. State of Orissa) in that regard. Mr. Mishra further submitted that the Sanctioning Authority, who was examined as P.W.7 has stated in his evidence that sufficient materials were not placed before him while the prosecution sought for sanction to prosecute the accused-appellant. It is essential under law that all the materials collected by the Investigating Agency should have been placed before the Sanctioning Authority so as to arrive at a just satisfaction to accord sanction for prosecution of the accused persons. In the present case, it is Page 5 of 15 completely missing and evidence has come on record to suggest that all the materials were not placed before the Sanctioning Authority. 8. Mr. M.S. Rizvi, learned Additional Standing Counsel for the Vigilance Department on the contrary submitted that the judgment of the learned trial Court is well received and based on the credible evidence. The judgment is the outcome of the appreciation of the evidence in its true sense. He has highlighted Paragraph-16 of the judgment to put forth his argument which reads as under: “16. As seen from the evidence by P.ws.3 and 4 on 27.6.96 the accused was working as Range Officer, Nabarangpur, as per his service Book and P.C. file seized from P.w.3 vide Ext.20. From the evidence by P.ws. 1 to 6 it is seen that on 27.6.96 a joint verification was made with respect to physical verification of cash position of the office of the accused by the D.S.P., Vigilance, Inspectors of vigilance, in the presence of D.F.O., Kenduleaf, Tahasildar Nabarangpur, Senior clerk and the accused Range officer during which on production by the accused cash book and other vouchers, documents were verified and taking into account all, the details produced by the accused cash shortage of Rs.1,36,013.36 paisa was found. During joint verification it was noticed that the accused had not maintained the P.L. account register to which he was supposed to do, since the day of his joining. As per the P.L. account register of D.F.O. Extr. 17 the accused has received Rs.21,80,295/- in shape of cheques and cash in between 6.4.94 to 25.6.96 which was also supported by the exercise book officially maintained by the accused regarding the receipt of above cash from D.F.O., Ext.8. As per Ext. 1 and the evidence by P.ws. 1 to 6, the accused produced different vouchers through which Page 6 of 15 he had given advance of Rs.7,42,700/- to forest guard Bikrampur section, vide Ext. 12 some with dates of one date, many without dates and none with voucher numbers, Rs.2,61,050/- to forester, Majhiguda section, Ext 13 none with date and voucher numbers, Rs.3,82,400/- to forester, Kenduleaf, Nabarangpur, Ext. 14, none with date and voucher numbers, Rs.3,25,000/- to forester, Tentulikhunti. But there the accused had not given any certificate regarding disbursement of advance in any of the vouchers. Again he produced acquittance for Rs.26,044/- towards payment of remuneration to seasonal staffs for February and March, 1996, Ext. 11,he produced 32 nos. of bills/cash memos towards purchase of G.I. pipe, hand pump etc. amounting to Rs.29,506.64 paisa, Ext. 10, he also produced 4 nos. of vouchers regarding purchase of kenduleaf from Munsis in between 7.4.96 to 22.4.96 total amounting to Rs.33,789/-,Ext.9. Again from his iron chest Rs.1,38,805/- was physically verified in the shape of cash. The closing balance as per the A-Management cash book maintained for the Govt. money was Rs.16/-. Again accused produced 6 nos. of token out of the P.L. account cheques amounting to Rs.1,05,000/- of dated 25.6.96 which were received in shape of cheques from the D.F.O. on 1.6.96 and 2.6.96. The joint verification was in the presence of the accused, other officers and officials of forest department, Tahsildar and informant, LOs. which has been corroborated by the evidence of P.ws. 1 to 6 who have categorically stated that during joint verification Rs. 1,36,013,36 paisa was found to be shortage which was mis-utilised or misappropriated by joint verification, the accused explained that he had advanced money to different persons but vouchers were not obtained. Undisputedly during joint verification it was found that the accused had not maintained the P.L. account, since his joining to which he was to maintain daily. Under Rule 323 of the Orissa Forest Code a fund application in Schedule XVIII, Form no, 79 will be made by the disbursing officer on the last day of each month to the D.F.O. for the advance required in connection with the work to be executed during the month ....xxxxxxxxxxxxxxxx. Further under sub rule 3 of Rule 324... for each such advance paid, the Range officer shall obtain the accused. During Page 7 of 15 receipt from the payee and charge it in his cash book as usual. The receipt should be submitted to the D.F.O. with his monthly account. He should also maintain a disburser's ledger in form no. 44 and submit an abstract to the D.F.O. in the same way as the latter does to the Accountant General as per the sample entry shown therein. Again it is stated that the A- management cash book is meant for Govt. transaction i.e. salary, T.A., D.A. etc. for himself and staffs. P.L. cash book is to be maintained by him showing advance payment made to the sub disbursers. Thus, where advance money was paid to the sub disbursers, the Range officer shall obtain vouchers which is a must. After obtaining voucher, if the Range officer could not enter the same in the cashbook that maybe a negligence in duty but without obtaining vouchers if any money is paid or advanced to any sub disbursers or to that any other private person misappropriation. The Range officer should not divert the fund for other works. The P.L. cash book shall be maintained by him personally and all the entries in the cash book will be associated with voucher number and date and the Range officer shall endorse in all the entries in the voucher. illegal amounting is 9. Mr. Rizvi also relied upon the judgment of the Hon’ble Supreme Court reported in AIR 1960 SC 889 (Jayakirshnadas Manohardas Desari And Another Vrs. State of Bombay). He has drawn my attention to Paragraph-6 of the said judgment, which reads as under: “ xxx xxx ingredient of xxx The principal the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of Page 8 of 15 dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.” 10. On the basis of the aforesaid judgment cited, Mr. Rizvi, submitted that even though any direct evidence may not be available, however, once entrustment is proved on record, it is obligatory on the part of the accused to give account of the entrusted property. In the present case, entrustment is proved. The accused has miserably failed to the account for the same. Hence, the conviction has rightly recorded by the trail court by pressing into service Section 20 of the PC Act. 11. I have perused the judgment of the learned Court below and evaluated the evidence in the light of submissions made by the parties. In this case, the allegation against the accused-appellant is that when a joint verification was carried out on 27.06.1996, it was found that the accounts were not properly maintained and cash of Rs.1,36,013.36 paisa was found to be shortage and the closing balance as per the cash book was found to be only Rs.16/-. It was also found during the joint Page 9 of 15 verification that the accused-appellant has not properly maintained the account books and ledger. Therefore, the prosecution alleged that there is apparent misappropriation of the entrusted fund by the accused- appellant. The accused-appellant attempted to explain the allegation made by the joint verification team. He has contended that the DFO has advanced the amounts to be utilized on different heads. He has given advance for various official procurements and expenditures. The P.L. register which has been exhibited as Exts.A, A-1 and A-2 only reflect the additional funds given to the Range by the DFO for the management of the affairs. He has been in the process of maintaining the accounts. In between the joint verification has taken place. Since in the midst of the reconciliation of account, the joint verification was carried out, variation in the account book was obvious. 12. In order to substantiate his version, he had examined two defence witnesses. One of them was working as a Forester from 1992-1996. The said witness D.W.1 has deposed that after collecting money from the DFO, the Range Officers used to give advance to the offices in phased manner and at the end of the session, i.e., in the month of August, Page 10 of 15 financial accounts is generally submitted by the Foresters to the Range Officers. At times, the Forest Officers also get advances from the Range Officers through the Forest Guards. He has given specific instances stating that he has received the advances from the Range Officers during the period from April to June 1996. He was subjected to elaborate in cross-examination by the prosecution. However, nothing could be elucidated to the advantage of the prosecution. Equally the appellant had examined D.W.2. The said witness was summoned by the learned Court below for producing the PL Case Register from 28.04.1995 to 15.06.1997 showing the money advanced by the Range Officer/appellant and the expenditures incurred. He in the cross-examination has stated as under: “As per Ext.A/2 audit was made on 24.11.98. The accused was Range officer during May, 1996 and as per Ext.A-1, the P.L. account register he made endorsement for the end of may, 96 was Rs.16,345-82p. cash in hand at page 117. Again as per his endorsement by the end of June, 1996 the cash balance with him was Rs.1,10,190.00p. at page 145, and there he had endorsed that he will be held personally responsible for the safe custody of the same amount.” 13. It reveals from the evidence of D.W.1, who was summoned by the learned Court below that the account books reflecting the figures, Page 11 of 15 which is not matching with the joint verification report. It appears from the evidence on record that the entire issue is regarding the reconciliation of the accounts book. In that context, the findings of the learned trial Court in Paragraph-20 assumes importance, which reads as under: “20. Admittedly, none of the parties have whispered regarding the result of the audit report or if any suitable departmental action was taken against the accused after this case but the facts remained that the accounts submitted by the accused was stated to have been reconciled or settled during January, 1997 by the D.F.O. without rejecting his vouchers if any submitted there. P.w.3 also admitted that the accounts were settled by the end of the year. So from this it can be stated that the accused adjusted the shortage amount after 6 to 7 months of joint verification without maintaining his P.L. accounts in due dates or without obtaining proper receipts or vouchers showing that the Govt. money was spent for official purposes. So from this it can well be deduced that the accused retained the Govt. money otherwise than official purposes for a temporary period and subsequently reconciled the shortage amount for which he is liable for temporary misappropriation. This view is fortified in the decision report in A.I.R. 1964 (Orissa) 152 wherein it is held that P.C. Act, 1947 Sec. 5(1)(c) post master delaying entries in relevant registers regarding money received for remittance by money order conviction under sec. proper- proper inference arising from his conduct is that he has committed misappropriation and it is for his to establish his innocence. Therein A.I.R. 1959 (SC) 1390 has been relied on.” Perusal of the aforementioned findings of the learned trial Court which germinates from the record undoubtedly makes it clear that when the reconciliation of the account was made in January, 1996 by the DFO Page 12 of 15 nothing was found shortage. It is worth-mentioning that the joint verification was carried out on 27.06.1996, which was mid of the session. It has come on record that reconciliation of account is always done at the end of the session which indeed is done in the month of January, 1997. From the reconciliation, it was found that no amount was shortage. 14. In the light of the aforementioned findings, the defence version is liable to be accepted. It appears from the record that the present appellant has received the advance from the DFO for the Range, he was in-charge. However, he had indiscreetly maintained the account books. In the mid of the session the joint verification was carried out. Apparently the shortage of amount was found in the books of accounts. However, in the final reconciliation, everything is taken care of. That is the reason P.W. 3 in his evidence has stated that in January 1997 while finally the books of account was verified, everything was found correct and the account had reconciled. However, the learned trial Court has convicted the appellant for the alleged offences under Section 13(2) read with Section 13(1)(c) of the P.C. Act, finding him “temporarily retaining Page 13 of 15 the entrusted amount without reasonable explanation”. The operative part of the judgment reads as under: “22. Under the aforesaid circumstances, when it is seen that the act by the accused was willful negligence giving rise to criminal liability or misconduct and breach of trust for temporarily retaining otherwise than official purpose and misappropriating the Govt. Money for a certain months without reasonable and probably explanation, the accused is found guilty of the offences under sec. 13(2) read with sec. 13(1)(c) of the Prevention of Corruption Act, 1988 and under sec. 409 of the I.P.C. and is convicted thereunder.” Temporary retention of the alleged entrusted amount by not accounting for in the mid-session cannot be presumed to be misappropriation, in the absence of any credible evidence regarding use of the said amount to the advantage of the accused. This may be a case of dereliction of duty on the part of appellant, but cannot be read “mens rea” into the conduct of the appellant to fasten criminal liability. 15. Regard being had to the foregoing discussion, this Court is of the opinion that this is a case where the appellant might be negligent in maintaining the account books and entries of vouchers in the relevant registers between April, 1996 to June, 1996 which is nothing, but a dereliction of duty on his part. However, no mens rea could be read into his conduct. This case is nothing but a mismatch of account books Page 14 of 15 detected in the mid session, however, at the end of the session once the account is reconciled, nothing was found amiss. That is the reason the learned trial Court has arrived at a finding that this is a case of “temporary misappropriation”. 16. In view of the above discussion, I am inclined to allow the Criminal Appeal and set aside the impugned judgment dated 06.07.2010, passed by the learned Special Judge (Vigilance), Jeypore in G.R. Case No.34 of 1996(V) corresponding to T.R. No.84 of 2007 and acquit the appellant from all the charges. The bail bond stands discharged.
Decision
17. The Criminal Appeal is accordingly disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th October, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Nov-2024 12:58:01 Page 15 of 15