The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.640 OF 2023 (In the matter of an application under Section 397 read with Section 401 of the Criminal Procedure Code, 1973) Khageswar Panda ……. Petitioner -Versus- State of Odisha (Vig. Dept.) ……. Opposite Party For the Petitioner : Mr. Mohendra Kumar Mohapatro, Advocate For the Opp. Party : Mr. Sangram Das, Standing Counsel for Vigilance CORAM:
Legal Reasoning
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 10.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. In this Criminal Revision petition, the petitioner is assailing the order dated 22.09.2023 passed by the learned Special Judge (Vigilance), Bhawanipatna in G.R. (V) Case No.40 of 2011, whereby his application under Section 239 of Cr.P.C. seeking discharge from the case has been dismissed. 2. The prosecution inter alia alleged that during KMS 2008-09, the present petitioner being the M.I. in-charge of Junagarh and Kalampur DPC had procured Q.29,696.96 Kg. of paddy during Kharif and Q.15,901.32 Kg. of paddy during Rabi Season from DPC, Junagarh. He also procured Q.8695 Kg. of paddy from Kalampur. Similarly, Balram Sethi, M.I. in-charge of DPC, Karlamunda also procured Q.5860.45 Kg. of paddy. Total Q.60,153.73 Kg. of paddy was supplied on different dates by 3 M.Is. to Balaji Agro Product Plant for CMR. Ram Kumar Jain being the proprietor of Balaji Agro Product Plant, who received Q.60,153.73 of paddy, was to return Q.40,904.54 Kg of CMR to OSCSC Ltd., Kalahandi which is equivalent to 68% of the paddy received as per the standard fixed. As the custom miller had delivered only Q.31,193.73 Kg. out of Q.40,904.54 Kg. of CMR and was due to return Q.9710.82 Kg. CMR accordingly, for misappropriation of the same, the report was lodged. It is further stated that, the present petitioner being the M.I. in-charge of Junagarh and Kalampur DPC arbitrarily delivered Q.24,596.32 Kg. of Page 2 of 7 paddy to Balaji Agro Product Plant, Kesinga without the order of the Collector, Kalahandi or D.M. OCSC, Kalahandi misutilising his official position during KMS 2008-09. 3. After investigation, it was found that the present petitioner has committed the offence in connivance and by entering into conspiration with the other senior officers, causing loss to the ex-chequer. Therefore, charge-sheet was filed against the petitioner alleging the offences punishable under Sections 13(2) read with Section 13(1)(d) of the P.C. Act, Section 7 of the E.C. Act and Sections 406/409/420/120-B of I.P.C. The Court below had taken cognizance of the offences against the petitioner. 4. The petitioner moved a detailed and exhaustive application before the Court below under Section 239 Cr.P.C. seeking discharge on numerous grounds. He relied upon catena of judgments to substantiate his case. The petitioner has also relied upon the documents obtained through R.T.I. Act. The learned trial Court took into consideration the entire submission made by the petitioner and rejected the application vide impugned order dated 22.09.2023. The petitioner has challenged the said Page 3 of 7 order dated 22.09.2023 passed by the learned Special Judge (Vigilance), Bhawanipatna in G.R. (V) Case No.40 of 2011 in this petition. 5. Heard Mr. Mohendra Kumar Mohapatro, learned counsel for the petitioner and Mr. Sangram Das, learned Standing Counsel for the Vigilance Department. 6. Mr. Mohapatro, learned counsel for the petitioner has vehemently argued on various points. Two primary points stand out from those submissions. Firstly, he submitted that the petitioner was under suspension from service from 27.07.2009 to 06.07.2010 and joined his new post at Nabarangpur only on 07.07.2010. Therefore, he cannot be held liable for the alleged misappropriation of Govt. funds. Through R.T.I. Act, he got the information that closure date for the paddy procurement for the year 2008-09 was 29.07.2009 and delivery of mill rice commenced on 08.08.2009, however, he was suspended with effect from 27.07.2009. Therefore, he submitted that the criminal liability cannot be foisted upon him, because at the time of commission of alleged offence, he was not on duty. Secondly, he submitted that at the end of the Page 4 of 7 season reconciliation of account is generally done. However, in between the season, the case was registered on the basis of un-reconciled accounts. 7. The prosecution story indeed is that M/s. Balaji Agro Product Plant has failed to deliver the Custom Milling Rice (CMR). However, there is no allegation regarding non-procurement, for which he was responsible. Mr. Mohapatro, learned counsel for the petitioner further argued that one Siba Prasad Dara and Surya Narayan Panigrahi were the Enforcement Officers of KMS for the year 2008-09 to verify the stock of the paddy and ensure the delivery of Custom Milling Rice (CMR) by the Miller. It was their duty to look into the right quantity of CMR to be delivered. He submitted that in that view of the matter, in no stretch of imagination, the criminal liability could be fasten upon him. 8. Per contra, Mr. Das, learned Standing Counsel for the Vigilance controverted the submission of Mr. Mohapatro, learned counsel for the petitioner, on facts and submitted that enough material has come on record to make out a case against the petitioner. He further submitted that the settled principle of law at the stage of consideration of an application for discharge is that the Court must proceed on the assumption that the Page 5 of 7 material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether facts emerging from the material taken on its face value discloses the existence of ingredients necessary to constitute the offence. The documents sought to be relied upon by the petitioner at this stage should not be given credence. All these points raised by the petitioner could also be raised during trial. 9. I have perused the record and analyzed the submission made by both the parties. On the basis of the material collected by the prosecution forming part of the charge-sheet, it is eminently clear from the fact that complicity of the petitioner in the procurement and delivery of the CMR cannot be ruled out. There are many intriguing facts involved in this case. The prosecution meticulously investigated the matter and placed the documents to substantiate the charges. This is not a stage to appreciate the material not form part of the charge-sheet. This Court, at this stage, cannot separate the grain from the chaff by conducting a mini trial. Therefore, I find no infirmity in the impugned order dated 22.09.2023 passed by the learned Special Judge (Vigilance), Bhawanipatna in G.R. (V) Case No.40 of 2011 in rejecting the application of the petitioner Page 6 of 7 seeking discharge under Section 239 Cr.P.C. It is open to the petitioner to raise all the points before the trial court at the appropriate stage.
Decision
10. With the aforementioned liberty, the CRLREV is disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/ Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 01-Aug-2024 10:31:54 Page 7 of 7