The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.416 of 2014 (In the matter of an application under Sections 401 read with Section 397 of the Criminal Procedure Code, 1973) Sambhu @ Satya Kumar Meher ……. Petitioner -versus- State of Orissa ……. Opposite Party For the Petitioner : Mr. S.K. Dalai, Advocate For the Opp. Party : Mr. S.K. Mishra, Addl. Standing Counsel CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 19.07.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The petitioner having been convicted for the offence under Section 406 of I.P.C. by the learned S.D.J.M., Birmaharajpur in G.R. Case No.137 of 1999/T.R. No.97 of 2000 was sentenced to undergo R.I. for two years vide judgment and order dated 23.12.2006. Being aggrieved by the said judgment and order, the petitioner preferred an appeal before the learned Sessions Judge, Sonepur in Criminal Appeal No.2 of 2007. After hearing learned counsel for the parties, the appellate Court confirmed the judgment and order. Being aggrieved with the said judgment and order, the petitioner has preferred the present revision petition before this Court. 2. The prosecution case is that the accused/petitioner was working as President of Sriram Chandra Weavers Co-operative Society Ltd., Dashrajpur. During 1997-98, the accused/petitioner was bringing yarn from State Weavers Cooperative Society Ltd. and in three occasions, he received yarn worth Rs.1,69,855/-. But he did not deposit the same in the Society. During audit, this matter came to light and thereafter, the Secretary of the Society lodged F.I.R. against the accused/petitioner. On the basis of such allegation, F.I.R. was registered and after completion of investigation, charge sheet was submitted against the petitioner under Section 406 of the IPC. Charge was framed and the petitioner was put to trial. 3. In order to prove its case, the prosecution had examined eight witnesses and exhibited seventeen documents. The defence has examined two witnesses, i.e., D.W.1 & D.W.2. P.Ws.1,2 & 3 were the Page 2 of 8 members of the Society, P.W.3 was also the in-charge of distributing yarn to different members by receiving the same from the President, P.W.4 was the Auditor of Co-operative Society, P.W.5 was the informant, who was working as Secretary of the Society and lodged the F.I.R, P.W.6 was the Chartered Accountant, who audited the affairs of the Society and submitted his report, P.W.7 was the Junior Clerk of the State Handloom, who stated regarding receipt of the yarn by the accused/petitioner from the State Handloom and P.W.8 was the I.O. D.W.1 was the Board Member in the Weavers Society and D.W.2 was the accused himself, who denied the allegation against him. 4. P.Ws.1 to 5 stated in their evidence that the Society passed resolution authorizing the President to receive yarn, cash and clothes from the apex Society, Bhubaneswar and on many occasions, the President received the yarn from the State Cooperative Society, Bhubaneswar. P.W.5 stated that the petitioner received the yarn. During audit, it came to light that the petitioner did not deposit the same. P.W.7 stated that the petitioner brought cotton, yarn, cash, etc. from the State Handloom, Bhubaneswar and referring to various documents, it was Page 3 of 8 found that the petitioner had taken yarn worth of Rs.1,69,000/- from the State Handloom. He further stated that during investigation, the police took resolution copy, receipt, etc. from the Society and the petitioner had received yarn. He admitted that he did not prepare the bills, but he was the custodian of those bills. He further stated that he was not present when the yarn was taken by the petitioner. He further admitted that on two bills, signatures of either M.D. or G.M. of the apex Society was not there. Since the petitioner did not deposit the yarn, the Society conducted a meeting on 25.07.1999, but the petitioner did not attend the meeting. P.W.2 corroborated the evidence of P.W.1. 5. The learned trial Court took into consideration the entire evidence on record and mitigated the facts of the present case to arrive at a conclusion that the petitioner was liable for the offence punishable under Section 406 of the IPC. The leaned trial Court opined that the petitioner received the yarn and did not deposit the same in the Cooperative Society and evidence of witnesses specifically show that the petitioner was issued notice for depositing the yarn which he received from the State Handloom, but he did not attend any meeting nor deposited the Page 4 of 8 yarn. Such conduct of the petitioner showed that he was entrusted with the yarn and with dishonest intention he did not deposit the same. Accordingly, the learned trial Court found the petitioner guilty of offence under Section 406 of the IPC and sentenced him to undergo R.I. for a period of two years. 6. The judgment of conviction and order of sentence dated 23.12.2006 passed by the learned S.D.J.M., Birmaharajpur against the petitioner was called in question by filing Criminal Appeal in the Court of learned Sessions Judge, Sonepur being Criminal Appeal No.02 of 2007. The appellate Court meticulously examined the evidence and evaluated the judgment of the Court below and returned the following findings: “6. Keeping in mind the submissions advanced on behalf of the appellant and there being no written objection filed by the respondent nor any active participation in the argument, the impugned judgment is perused by this forum minutely. Also, the LCR which was called for has been perused by this court, to appreciate the evidence of the prosecution. While perusing the impugned judgment with that of the allegations brought against the present appellant, this court finds that the evidence of the prosecution witnesses and the documents relied upon by the leaned court below, in ascertaining entrustment has been well proved and has also been accepted by the learned court below. Since the ‘entrustment’ is the main factor in a case U/s.406 or U/s 409 Page 5 of 8 IPC and which has been undoubtedly established by the prosecution, the arrival to the conclusion by the learned court below, holding that the appellant was entrusted and misappropriated the amount so entrusted in terms of ‘yarn’ is sufficient enough to hold that the offence against the present appellant is made out and the conviction rendered by the leaned court below is found to be correct. Here, this court is tempted to observe that a charge sheet U/s.409 IPC was filed by the Investigating Officer. But, cognizance has been taken U/s. 406 IPC. There is no specific order, why cognizance U/s 406 IPC was taken In spite of that, this court observes that the ingredients of the offence is quite similar, except the status of the person, ignoring the cognizance taken without any specific order U/s.406 IPC, by the learned court below, has not occasioned any prejudice to the appellant.” 7. Heard Mr. S.K. Dalai, learned counsel for the petitioner and Mr. S.K. Mishra, learned Addl. Standing Counsel appearing for the State. 8. I have gone through the evidence on record. After thorough analysis of the judgments of the Courts below, I find no reason to disagree with the findings recorded in regard to the conviction recorded against the petitioner for the offence punishable under Section 406 of the IPC. Accordingly, I confirm the judgment of conviction. 9. However, since the instant case pertains to the year 1999, much has changed by now, I am of the considered view that sentencing the petitioner and sending him to custody shall serve no purpose, rather it Page 6 of 8 would be harsh. The present case is squarely covered by the judgment of this Court passed in the case of Pathani Parida and another vs. Abhaya Kumar Jagadev Mohapatra reported in 2012 (Supp.-II) OLR - 469. 10. In my considered view, the trial Court ought to have extended the benefit of the Probation of Offenders Act to the petitioner on the facts of the present case. However, prayer of the petitioner-accused was turned down in that regard. 11. In view of the aforementioned, the conviction of the petitioner for offence punishable under Section 406 of I.P.C. is upheld, but instead of sentencing the petitioner to suffer the incarceration, this Court directs that the petitioner be released under Section 4 of the Probation of Offenders Act, 1958 for a period of one year on his executing a bond of Rs.5,000/- (Rupees five thousand) with one surety of the like amount to appear and receive the sentence when called upon during such period. During the probation period the petitioner shall keep peace and maintain good behavior and he shall also remain under the supervision of the concerned Probation Officer during the aforesaid period. Page 7 of 8
Decision
12. The CRLREV is partly allowed and accordingly 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 17:51:07 Page 8 of 8