The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.25 of 2012 (In the matter of an application under Section 401 of the Criminal Procedure Code, 1973) R. Tarini Charan Reddy ……. Petitioner -Versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. T.K. Mishra, Amicus Curiae For the Opp. Party : Mr. B.K. Ragada, Addl. Government Advocate CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 26.07.2024 : Date of Judgment:30.07.2024 S.S. Mishra, J. The present Criminal Revision filed under Section 401 of Cr.P.C. is directed against the judgment and order dated 27.12.2011 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Phulbani in Criminal Appeal No.05/20 of 2008-2010, whereby the judgment of conviction and the order of sentence dated 29.02.2008 passed by the learned S.D.J.M., Phulbani in G.R. Case No.343 of 2002/T.R. No.813 of 2003 has been confirmed. 2. In the present case, the prosecution alleged that one Khadia Naik, the informant, who was serving as a Sweeper in the Office of Commandant, Home Guard, Phulbani had given a complaint that in the month of June, 2002, he had applied for GPF advance of Rs.1,00,000/- (Rupees one lakh). The accused-petitioner and another Peon had also applied for GPF advance along with the informant. After due calculation, the accused disclosed the informant that he is entitled to a sum of Rs.75,000/- (Rupees seventy five thousand) as GPF advance. The accused and the other Peon received their GPF advance, but the informant did not receive. So he reported the matter to the Deputy Superintendent of Police, Home Guard. On enquiry, it was found that somebody had misappropriated the GPF advance amount meant for the informant and that his signatures in the GPF advance had also been forged. It revealed that the accused had received the said amount and deposited in his Pass Book. Page 2 of 9 3. When the accused got exposed, he assured to repay the said amount to the informant. Accordingly, on 13.09.2002, the accused paid a sum of Rs.50,000/- (Rupees fifty thousand) and on 14.09.2002, he paid the rest amount of Rs.25,000/- (Rupees twenty five thousand) to the informant in presence of the Deputy Superintendent of Police, Home Guard. The informant submitted a written report to the OIC, Town Police Station, Phulbani regarding the said transaction on 16.09.2002. Accordingly, Phulbani P.S. Case No.105 dt. 16.09.2002 was registered against the petitioner and the investigation was carried out. Eventually, the charge sheet was filed and the learned trial Court framed the charges against the petitioner for the offences punishable under Sections 406/467/468/477-A IPC and the petitioner was subjected to trial for the said charges. 4. As many as 12 witnesses were examined by the prosecution to establish the case and 20 documents were brought on record and exhibited. 5. P.Ws.1, 2 & 5 were the employees of the State Bank of India of Phulbani Branch whereas P.Ws. 3, 4, 8 & 9 were the employees of the Page 3 of 9 Home Guard Office, Phulbani. P.W.10, a police constable was the seizure witness, whereas the informant was examined by the prosecution as P.W.6. 6. The trial Court relying upon the oral evidence of P.W.6 and other relevant documents exhibited by the prosecution found the petitioner not guilty for the offences under Sections 467/468/477-A of IPC, however, found the petitioner guilty of the offence under Section 406 IPC alone. On that count, the petitioner was sentenced to undergo R.I. for six months. 7. Having dissatisfaction with the judgment of conviction and the order of sentence passed by the trial Court, the petitioner filed Criminal Appeal No.05/20 of 2008-2010 before the Court of the learned Addl. Sessions Judge, Fast Track Court No.1, Phulbani. The appellate Court concurred with the findings recorded by the trial Court and, inter alia, returned the following findings: “9. On critical analysis of the materials it appears from the evidence of finger print expert P.W7 that the signature appearing over the voucher in the name of Khadia Naik marked as Q1 does not tally with his admitted signatures. The accused appellant, while adducing evidence as D.W.2, has admitted that he was the in charge of Accounts, office of the Home Guard, Phulbani during the relevant period. On Page 4 of 9 25.7.2002 the amount was withdrawn from S.B.I., Phulbani after duly passed by the District Treasury and the same were disbursed to the respective persons. He also admitted that the cash book showing the disbursement of the amount on 25.7.2002 marked Ext.A and B in this case were prepared by him in his own hand, which contains the signature of drawing Officer S.N.Sethi, the then DSP. But P.W.8 Golak Bihari Pattnaik deposed in the court on oath that he was the DSP, Home Guard in the year 2002 from whom all the relevant documents of the office of Home Guard were seized by the investigating officer. At paragraph 7 he deposed specifically that he was the Drawing and Disbursing Officer of the Home Guard Office Phulbani during his tenure and stated that S.N. Sethi was not the drawing and disbursing officer. No document was available on record showing that S.N. Sethi was the DSP during the relevant period and that he signed over the cash book. As the accused appellant claims that S.N. Sethi was the disbursing officer and signed over the cash book he ought to have to prove such plea by examining the said person or by producing any probable materials through other official witnesses. No such attempt was taken by the accused to bring such material into record. So also no suggestion was given to P.W.8 that he was not the Drawing and Disbursing Officer of the office of the Home Guard during the relevant period. 10. Besides that same on perusal of the documents it appears that the initial signatures of DDO appearing over the disputed voucher are completely different from the initials given over the cash books marked as Ext.A and B in this case. It was admitted by the accused appellant that all the relevant documents were under his care and custody. In such premises he has to explain about such variation of signatures of DDO appearing over the impugned voucher and the cash book which is not done in this case. The prosecution has proved the entrustment of the amount under custody and care of the accused appellant. He ought to have placed probable evidence that the amount was disbursed to the right person which was not done. It is already found by the handwriting expert that the informant Khadia has not signed over the impugned voucher showing disbursement of the amount. The accused has not furnished any material indicating that to whom the amount was disbursed by him. In absence of the same it can be said comfortably and without any hesitation that the amount was misappropriated by the accused appellant and utilized the same for his own use. It also reveals from record from the evidence of informant and P.W.8, the then DDO that the accused appellant returned the amount of Rs.75,000/- to the informant after the issue raised by the informant.” Page 5 of 9 8. The appellate Court accordingly dismissed the appeal vide impugned judgment dated 27.12.2011. 9. Since the petitioner was unsuccessful in his appeal before the appellate Court, he has assailed the judgment of the appellate Court dated 27.12.2011 by filing the present Revision Petition. 10. Heard Mr. T.K. Mishra, learned Amicus Curiae appearing for the petitioner and Mr. B.K. Ragada, learned Addl. Government Advocate appearing for the State. 11. I have perused the entire evidence brought on record and also analyzed the appreciation of evidence at the trial Court level as well as at the appellate Court level. 12. In the instant case, P.W.6 is the informant. He inter alia, alleged that he had applied for GPF advance of Rs.1,00,000/- (Rupees one lakh). But the Department has sanctioned only Rs.75,000/- (Rupees seventy five thousand) which was not disbursed to him. Rather, the said amount was kept in the Bank Account of the petitioner-accused, who was the in- charge of the Accounts Section. He had retained the said amount and used the same for his own advantage. Subsequently, when the matter was Page 6 of 9 reported to the Police, the petitioner-accused on 13.09.2002, in presence of the Deputy Superintendent of Police, Home Guard, paid Rs.50,000/- (Rupees fifty thousand) and on 14.09.2002, he had paid back the rest amount of Rs.25,000/- (Rupees twenty five thousand) in presence of the Deputy Superintendent of Police, Home Guard. 13. Therefore, Mr. T.K. Mishra, learned Amicus Curiae appearing for the petitioner contends that his client has already paid Rs.75,000/- (Rupees seventy five thousand) which was withheld by him and allegedly used for his own advantage. In that view of the matter, there was no loss to the informant or for that matter anyone whatsoever. 14. The accused examined himself as D.W.2 and admitted that he was in-charge of the Account Section of the Home Guard Office, Phulbani and received Rs.75,000/- (Rupees seventy five thousand) GPF advance of the informant and the same was duly disbursed to the informant on the same day. 15. I find that the learned Courts below have very carefully dealt with the evidence adduced by the prosecution on record and by appropriate appreciation of the said evidence recorded the conviction under Section Page 7 of 9 406 IPC against the petitioner. Therefore, I find no reason to interfere in this matter. 16. However, coming to the contention of the learned Amicus Curiae regarding the quantum of sentence, I am of the view that the petitioner deserves a leniency in this matter. 17. Taking into account the aforementioned peculiar facts of the present case, I am of the considered view that the sentence awarded to the petitioner is liable to be modified. 18. Mr. Mishra, learned Amicus Curiae appearing for the petitioner, submits that the petitioner was taken into custody on 19.09.2002 and he was released on bail on 01.10.2002. Therefore, he has undergone about 11 days in custody. 19. Regard being had to the age of the petitioner, who was 58 years old at the time of filing of the present petition in the year 2012 and the fact that the incident had taken place way back in the year 2002 and the misappropriated amount has already been returned back to the informant, the petitioner deserves a lenient view in so far as the sentence is concerned. Page 8 of 9 20. Accordingly, the substantive sentence of six months R.I. is reduced to that of the sentence the petitioner has already undergone. However, the petitioner is liable to pay a fine of Rs.5,000/- (Rupees five thousand) in default, to further undergo a period of 15 days R.I. 21. With the aforementioned observation, the CRLREV is disposed of. 22. This Court acknowledges the effective assistance rendered by Mr. T.K. Mishra, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,000/- (Rupees seven thousand) to be paid by the State as a token of appreciation. …………………. (S.S. Mishra) Judge The High Court of Orissa, Cuttack The 30th July, 2024/Subhasis Mohanty, Personal Assistant Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 29-Aug-2024 18:41:26 Page 9 of 9