The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.100 of 1992 (In the matter of an application under Section 318 of the Criminal Procedure Code, 1973) Krushna Chandra Behera ……. Appellant -Versus- State of Odisha (Vigilance) ……. Respondent For the Appellant : Ms. Agnisikha Ray, Amicus Curiae For the Respondent : Mr. M.S. Rizvi, ASC (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.07.2025 :: Date of Judgment: 18.07.2025 S.S. Mishra, J. The sole appellant in the present case has assailed the judgment of conviction and order of sentence dated 22.02.1992 passed by the learned Special Judge, (Vigilance), Sambalpur in T.R. Case No.22 of 1984, whereby the appellant although was acquitted from the charges under Sections 468/477-A of I.P.C., however, the learned trial Court found the accused guilty of the offences under Sections 409/471 of I.P.C. and Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1988 (for short P.C. Act). The appellant was accordingly sentenced to undergo R.I. for six months and to pay a fine of Rs.1,000/- for the offence under Section 5(2) of the P.C. Act and, in default, to undergo R.I. for three months. The appellant was also sentenced to undergo R.I. for six months and to pay a fine of Rs.500/-, in default, to undergo R.I. for three months for the offence under Section 409 of I.P.C. In addition to that, the appellant was further sentenced to undergo R.I. for one month and to pay fine of Rs.100/-, in default, to undergo further R.I. for fifteen days for the offence under Section 471 of I.P.C. and all the substantive sentences were directed to run concurrently. 2. Aggrieved by the judgment of conviction and order of sentence
Legal Reasoning
passed by the learned trial Court, the present Appeal has been preferred by the appellant. The appeal is pending since 1992. Page 2 of 12 3. At the time of occurrence on the basis of which the F.I.R. was registered by the appellant, i.e., in the year 1992, was 63 years old. Therefore, at present the appellant is more than 90 years of age. Various directions were made by this Court to ascertain the wellbeing and
Legal Reasoning
whereabouts of the appellant. However, the learned counsel for the State by furnishing a report from the concerned authority has stated that the whereabouts of the appellant could not be ascertained. When the matter was heard, learned counsel for the appellant was also absent on various occasions. Confronted with such situation, when this Court asked the learned State Counsel to further ascertain the whereabouts and wellbeing of the appellant vide orders dated 24.06.2024, 09.07.2024, 15.07.2024 and subsequent date of hearings, it is stated that the whereabouts of the appellant could not be ascertained and the appeal is ready for hearing. Hence, the appeal may be heard. 4. This Court appointed Ms. Agnisikha Ray, learned counsel to assist the Court as Amicus Curiae. She has filed written note of submission as well as assisted the Court by arguing the matter at length. This Court Page 3 of 12 records appreciation for the effective assistance rendered by Ms. Agnisikha Ray, learned Amicus Curiae. 5. Heard Ms. Agnisikha Ray, learned Amicus Curiae for the appellant and Mr. M.S. Rizvi, learned Additional Standing Counsel for the Vigilance Department. 6. The prosecution case, in nutshell, is that the accused-appellant Krushna Chandra Behera was serving as V.L.W. (Village Level Worker) in Gudari block from the year 1969 to 1974. During that period, it was decided by the Government to encourage wheat cultivation in the block area, hence, there was a proposal to supply wheat and fertilizer freely to the cultivators. The appellant being the VLW had received 15 quintals of wheat and fertilizer for distribution amongst the cultivators. It is alleged that even though the appellant received the stock but he has not distributed the same to the cultivators and prepared false record showing as if he has distributed the wheat and fertilizer. It is also alleged that the cultivators have been denied to have received the wheat and fertilizer on enquiry. Therefore, the Vigilance Department carried out the investigation and filed the charge-sheet for the offences under Sections Page 4 of 12 5(2)/5(1)(c)(d) of the P.C. Act read with Section 409/468/471-A of I.P.C. against the appellant. On denial of charges by the appellant, he was put to trial after charges were framed. 7. The prosecution in order to bring home charges examined 41 witnesses and two witnesses were examined by the defence. 8. Ms. Ray, learned Amicus Curiae for the appellant submitted that in the present case there is delay of seven years in lodging the F.I.R. which has gone unexplained. The learned trial Court has conveniently brushed aside that aspect of the matter. She further submitted that P.W.35 was the Investigating Officer, who was not examined in the present case which is fatal to the prosecution case. Ms. Ray, further contended that P.W.41, the finger print expert, whose evidence was heavily relied upon by the prosecution is shadowed contradicts, therefore, that cannot be relied upon at all because in the cross- examination he has stated that the disputed LTI and the specimen LTI were not taken in his presence and he has acted only on the information of the I.O. He has doubted as to whether the information supplied to him by the I.O. is correct or not. In view of his categorical statement, the Page 5 of 12 hand writing expert report vis-à-vis the evidence of P.W.41 created a shadow of doubt. 9. Ms. Ray, learned Amicus Curiae further emphasized that the villagers have been examined by the prosecution. All of them in unison have stated that they have received the wheat and fertilizers, however, not given their signature either in the register or any other paper. She has taken me to the evidence of P.W.7 to P.W.9 and P.W.11 to P.W.34 to substantiate that point. Ms. Ray, also submitted that many of the villagers have stated that since the alleged supply of wheat and fertilizers had taken place 15 to 16 years back, they do not remember the same. 10. To counter the submission made by Ms. Ray, learned Amicus Curiae, Mr. Rizvi, learned Additional Standing Counsel for the Vigilance Department has also taken me to various documents and the evidence of the official witnesses. No doubt, the evidence of the official witnesses is unimpeachable but their evidence needs to be weighed vis- à-vis the evidence of the independent witnesses. Mr. Rizvi, has taken me to the evidence of P.W.37, who was the Store Keeper-cum-Accounts Page 6 of 12 Clerk in Gudari Block. The said witness in his testimony has stated as under:- “I was posted as Store Keeper-cum-Accounts Clerk in Gudari Block under high yield programme of the Agriculture Deptt. from 1969 to 1973. I had received wheat and fertilizer stocks under T.D.A. (Tribal Development Agency) scheme and I entered the same in the stock register vide page No.100 in Block Stock Book, Vol-I. This is the stock book marked ext.9. Ext.9/1 is the relevant entry showing receipt of the stock. Ext.9/2 is the relevant entry showing release of 1500 kgs. of wheat seeds to V.L.W. of M.X. Rai G.P. This is the signature of Sri K.C. Behera, the V.L.W marked ext.9/3.” To create a doubt to the evidence of P.W.37 as stated above, the defence has extensively cross-examined him, however, the said witness sustained the same and stick to his version as mentioned above. Mr. Rizvi, learned Additional Standing Counsel for the Vigilance Department submitted that the evidence of P.W.37 is enough to prove the factum of entrustment. He has also taken me to different other evidences to support the case of the prosecution regarding the entrustment. In the light of the aforementioned evidence on record, the learned trial Court appears to have appreciated the entire evidence. In so Page 7 of 12 far as the offence under Section 409 of I.P.C. and offence under the P.C. Act is concerned, the learned trial Court has discussed the matter in a very detailed manner, which is reflecting from paragraph-4 to paragraph- 10 of the judgment. The learned trial Court has relied upon the testimony of P.Ws.1, 2, 4, 5, 7, 9, 11, 34 and 37. By analyzing the entire evidence in detail, the learned trial Court recorded the following conclusion:- “10. The evidence is very clear that accused received stock of wheat and fertilizer worth Rs.5982.52 paise from the Block and it was his duty to distribute the same to the 40 beneficiaries. The beneficiaries have clearly denied that they received stock of wheat or fertilizer from the accused. The responsibility of the accused was to distribute the stock and for this work the Field man cannot be held responsible. The evidence shows that the stock was not distributed by the accused. So the obvious inference is that the accused misappropriated the stock for himself. When some government property was entrusted to the accused for the purpose distribution of the same to the public and the accused stock misappropriated it, there can be no doubt that his intention was dishonest and that he misconducted himself and abused his position as a public servant. The prosecution has successfully established the charges under Sec. 409 I.P.C. and U/s. 5(1)(c) and 5(1)(d) of the P.C. Act which are punishable U/s. 5(2) of the said Act.” instead of distributing therefore the Page 8 of 12 While dealing with the offence under Section 468 of I.P.C., the learned trial Court has recorded the reasoning of acquittal in paragraph- 14 of the judgment, which reads thus:- “14. Those persons whose disputed signatures were examined by the Expert were not examined as witnesses in this case nor is there any evidence from any of these persons that their signatures was forged. There is no specific evidence of any kind of show that the accused himself forged the signatures of the cultivators on the stock registers. When no such specific evidence is available against the accused he cannot be held liable U/s. 468 I.P.C.” 11. The findings recorded by the learned trial Court which are largely reflecting in the paragraphs already reproduced above makes it clear that if the evidences are taken conjunctively and in unison, the findings recorded by the learned trial Court cannot be faulted with. 12. I have also taken into consideration the strenuous argument of Ms. Ray, learned Amicus Curiae for the appellant. She is correct to point out that the learned trial Court has not dealt with the delay of seven years in registration of the F.I.R. However, perusal of the evidence of the witnesses reveals that at no point in time, this issue was ever put to any of the witnesses. This was not even argued before the learned trial Court. Page 9 of 12 Besides that this being a case of allegation of non-distribution of wheat and fertilizer leading to registration of a case under criminal breach of trust and forgery etc., which came to light subsequently. Delay in registration of F.I.R. is obvious and, therefore, not fatal to the prosecution. On that basis, the appellant cannot derive any benefit. If the entire conspectus of the matter is taken into consideration and the evidence is evaluated, the findings recorded by the learned trial Court cannot be found fault with. Therefore, this Court confirms the conviction recorded by the learned trial Court for the offences as mentioned above. 13. Coming to the question of sentence, it is contended by Ms. Ray, learned Amicus Curiae that the appellant is more than 90 years of age. The offence is relating to year 1969-74. The F.I.R. was registered in the year 1984. The appellant has suffered the ordeal of trial for about eight years. Thereafter, the appeal is pending since 1992. Hence, at the belated stage, sending the appellant to serve out the sentence would be harsh. It is also pointed out that the appellant was arrested on 27.06.1986 pursuant to the NBW issued by the learned Court below and he was released on Page 10 of 12 bail 08.07.1986. Hence, the appellant has already undergone about 12 days. 14. Regard being had to the fact that the appellant is more than 90 years of age, I am inclined to accept the submission made by Ms. Ray, learned Amicus Curiae and modify the sentence. However, the offence under Section 5(2) of the Prevention of Corruption Act, 1988 being prescribed a minimum sentence of one year. At the same time, the proviso to the said provision empowers the sentencing Court to reduce the sentence below one year subject to giving special reasons. For convenience of ready reference, the provision reads as under:- “5. Criminal misconduct in discharge of official duty- (1) A public servant is said to commit the offence of criminal misconduct:- (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (2) Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year.” Page 11 of 12 15. In view of the same, while confirming the conviction of the appellant for the offence as mentioned above, the sentence awarded by the learned trial Court is modified to that of the sentence the appellant has already undergone. The sentence is being reduced to that of the sentence the appellant has already undergone because of the special reasons that the appellant at present is more than 90 years of age and the alleged offence had taken place somewhere in the year 1969-1974. Besides that the prosecution case has been prolonging since last more than forty-one years. 16. With this observation, the CRA is partly allowed. 17. This Court acknowledges the effective and meaningful assistance rendered by Ms. Agnisikha Ray, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,500/- (Rupees seven thousand five hundred) as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 18th of July 2025/ Swarna Page 12 of 12 Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2025 17:09:18