From The Judgment And Order Dated ... vs Nalinikanta Behera
2021 Latest Caselaw 12185 Ori

                        IN THE HIGH COURT OF ORISSA, CUTTACK

                                      CRLLP No. 156 of 2017

        From the judgment and order dated 09.01.2017 passed by the
        learned Special Judge (Vigilance), Bolangir in C.T.R. No.127 of
        2007.
                              ----------------------------

State of Odisha (Vig.) ......... Appellant

-Versus-

               Nalinikanta Behera
               & others                               .........                              Respondents


                      For Appellant:                     -        Mr. Sangram Das
                                                                  Standing Counsel (Vig.)


                      For Respondents:                   -        Mr. Trilochan Nanda
                                                                  B.K. Panda
                                           ----------------------------

        P R E S E N T:

             THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing and Order: 26.11.2021

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S.K. SAHOO, J. Heard Mr. Sangram Das, learned Standing Counsel

for the Vigilance Department and Mr. Trilochan Nanda, learned

counsel for the respondents.

2. This leave petition under sub-sections (1) & (3) of

section 378 of Cr.P.C. has been filed by the State of Odisha // 2 //

(Vigilance) seeking for leave to prefer an appeal against the

impugned judgment and order dated 09.01.2017 passed by the

learned Special Judge (Vigilance), Bolangir in C.T.R. No.127 of

2007 in acquitting the respondents of the charges under section

13(2) read with section 13(1)(c)(d) of the Prevention of

Corruption Act (hereafter 'P.C. Act') and under sections

409/468/471/477-A/120-B/34 of the Indian Penal Code for

misappropriation of Rs.2,51,168.80/- (rupees two lakhs fifty one

thousand one hundred sixty eight and eighty paisa only).

3. The prosecution case, in short, is that on receipt of

reliable information about misappropriation of Government

money by the forest officials in the plantations in the Dhama

Forest Range of Sambalpur Forest Division, an enquiry was

undertaken by Trinath Patel (P.W.15), the then Inspector of

Vigilance, Rourkela Unit and during enquiry, it was ascertained

that on the direction of P.C.C.F., Orissa, Bhubaneswar, R.D.F.

plantation was taken up at Matupali, Sahajbahal and

Bhagharmunda R.D.F. plantation sites in the Dhama Range

during the year 2000-01 to an the extent of 100 hectors at each

plantation site. It is the further prosecution case that the

planting and post planting operations were taken up by Forester

Seshadev Das (respondent no.2), Forest guard Udayanath Dash

// 3 //

(respondent no.3) and Iswar Bag (respondent no.4) under the

direct guidance of Range Officer Nalinikanta Behera (respondent

no.1) of Dhama Range and in order to ascertain the genuineness

of the R.D.F. plantation, physical verification was taken up with

the assistance of local Revenue Officials, Range Officers,

Vigilance Police and in presence of executants of Matupali,

Sahajbahal and Bhagharmunda R.D.F. plantation sites on

08.07.2002, 29.07.2002 and 30.07.2002 respectively and

memorandum was prepared at each plantation site and after the

physical verification was over, it was ascertained that the

respondent no.1 Nalinikanta Behera entered into criminal

conspiracy with other respondents and misappropriated a sum of

Rs.72,241/- from Matupali plantation site, Rs.68,055/- from

Sahajbahal R.D.F. plantation site and Rs.1,10,872/- from

Bhagharmunda plantation site by raising less number of

plantation than it was shown on records and in total, the

respondents have misappropriated a sum of Rs.2,51,168.80/-

(rupees two lakh fifty one thousand one hundred sixty eight and

eighty paisa only) by falsifying Government records and after

enquiry, P.W.15 Trinath Patel submitted written report (Ext.9) to

the Superintendent of Police (Vigilance), Sambalpur Division,

Sambalpur on 31.12.2004 and accordingly, Sambalpur Vigilance

// 4 //

P.S. Case No.59 dated 31.12.2004 was registered under section

13(2) read with section 13(1)(c)(d) of the P.C. Act and sections

468/471/477-A/409/120-B of the Indian Penal Code. Sri Abhiram

Kar, Inspector of Vigilance, Bolangir Unit was directed to take up

investigation of the case and during the course of investigation,

the Investigating Officer visited the spot, seized the relevant

documents, collected specimen finger print of the labourers

engaged in the plantation sites, sent the specimen finger prints

and disputed documents to the Finger Print Bureau, received the

opinion of the expert, obtained sanction order in respect of the

respondents and on completion of investigation, charge sheet

was submitted against the respondents.

4. During course of trial, the prosecution examined

twenty four witnesses.

P.W.1 Joseph Topno, P.W.2 Jeeuan Bhengra are the

labourers working in the plantation site, P.W.3 Sitaram Pradhan

is a witness to seizure, P.W.4 Gopal Chandra Parida is the then

Forestr attached to the Vigilance Wing, P.W.5 Amira Kumar Pati

is the then Forest Extension Officer, P.W.6 Nakula Bag, P.W.7

Kapila Bhoi, P.W.8 Rabindra Bhoi, P.W.11 Mahendra Naik and

Solam Purty are the independent witnesses, P.W.9 Prakash

Chandra Jena is then Sr. Clerk working in the establishment

// 5 //

section of the D.F.O., Sambalpur, P.W.19 is the then Revenue

Inspector, Ulunda, P.W.12 is the then Ranger attached to

Vivilance Department, Sambalpur, P.W. 13 Raghunath Mahakud

is the then Accountant in the office of the D.F.O. Sambalpur,

P.W.14 Binod Bihari Patel is the then Vigilance Inspector,

Sambalpur, P.W.15 Trinath Patel is the informant, P.W.16 Amar

Bikram Das is the Hand Writing Expert and P.W.18 Abhiram Kar

is the I.O.

The prosecution exhibited thirty one numbers of

documents. Exts.1, 8 are the seizure lists, Exts.2, 3 and 4 are

the memorandums, Exts.5, 11 are the forwarding report, Ext.6

are the shortage report, Ext.7 is the Letter with regard R.D.F.

plantation, Ext.9 is the F.I.R., Ext.10 is the opinion of P.W.16,

Ext.12/1 is the signature of P.W.18, Exts.13, 14, 15, 16 are the

Sanction orders, Ext.17 is the K.B.K.F. FP (Vol.I) file, Ext.18

K.B.K. file of Dhama Range 2001-02, Exts.19,20,21 are the

plantation journals, Exts.22 and 23 are the Bana Surakshya

Resolution, Ext.24 Bana Sankharna Samiti Register, Exts.25 and

26 are the Register of Sub-disburser ledger account Vol.2 and 3,

Exts.27, 28, 29 are the files containing muster roll and vouchers,

Ext.30 is the voter list of Dakhinpali and Ext.31 is the voter list

of Patrapali.

// 6 //

No witness was examined on behalf of the defence.

5. The learned trial Court after analyzing the evidence

on record has observed as follows:-

"6. The most material witness examined on behalf of the prosecution is P.W.5, who was working as Forest Extension Officer, Sambalpur Division during the relevant period. According to him, on 08.07.2002, he accompanied the other forest personnel, Revenue officials and Vigilance staff to Matupali R.D.F for joint verification and made joint verification of Baladiha reserve forest consisting of 100 hectors. There was gap plantation and was also cleaning of forest land.

They counted the number of living plants, dead plants and impression marks and then a memorandum (Ext.2) was prepared. He further deposed that on 29.07.2002, they also made joint verification of Sahajbahal R.D.F. consisting of 100 hectors and counted the living plants, dead plants and impression marks and then memorandum (Ext.3) was prepared. On 30.07.2002 there was joint verification of Bagharmunda R.D.F. consisting of 100 hectors and counted the living plants, dead plants and impression marks and then memorandum (Ext.4) was prepared. In cross-examination of P.W.5 deposed that there was Bana Surakshya Committee and the said committee used to

// 7 //

approve the expenditure of the plantation. And there was plantation in the year 2000 in respect of three sites those were verified by them and they made joint verification after more than two years of plantation. P.W.5 further deposed that the mark of impression vanished after two rainy seasons to some extent. The plants of the plantations died due to drought, eating by white ants and grazing of cattle. There was no fencing in all three sites and was accessibility inside the plantation area. P.W.3 was the Forester attached to Vigilance Office, Sambalpur Division.

According to him, on 08.07.2002, he accompanied the Vigilance Inspector, accused persons, Revenue Staffs and local Forest staff to Matupali R.D.F. plantation and the forest personnel counted the living trees, dead trees and impression area as pointed out by the accused persons and after the counting Vigilance Inspector prepared memorandum (Ext.2). He also deposed about joint verification of other two sites and preparation of memorandums (Exts.3 & 4). Similarly, P.W.10 and 14 also deposed about joint verification of plantation sites and preparation of memorandums.

7. P.W.15 is the informant. According to him, basing on the joint verification report and memorandums, he lodged F.I.R. (Ext.9). In his

// 8 //

cross-examination, he has admitted that the plantation was of the year 2000-01 and he has not personally verified the plantation sites nor he physically verified nor visited the area. P.W.3 deposed about seizure of eleven numbers of registers list by the Vigilance Police vide Ext.1.

P.W.12 deposed that after verifying the memorandum, plantation journals, vouchers and other relevant records, he prepared the shortage report (Ext.6). P.W.13 deposed about production of expenditure statement with regard to R.D.F. plantation (Ext.7). The rest of the witnesses are labourers engaged in plantation.

8. On a careful scrutiny of the evidence on record, it is found that the joint verification was made after two years of plantation and the plants of the plantations are damaged due to drought, by white ants and grazing of cattle and the impression marks are vanished due to rain. Not a single witness who was working in the plantation sites deposed that he has not received the payment. There is also no evidence that the accused persons have entered some fictitious labourers showing them to have worked in the plantation sites in the muster rolls. There is also no evidence to show that the accused persons entered into criminal conspiracy in course of execution of plantation work by manipulating and forging official record

// 9 //

and misappropriated Government money.

Prosecution has failed to prove any of the alleged offences against the accused persons."

6. Mr. Sangram Das, learned Standing Counsel for the

Vigilance Department contended that in paragraph-6 of the

impugned judgment, it is mentioned that P.W.5 further deposed

that the mark of impression vanished after two rainy seasons to

some extent and the plants of the plantations died due to

drought, eating by white ants and grazing of cattle and there

was no fencing in all the three sites which was accessible to all.

Learned counsel submitted that in paragraph-8 of the impugned

judgment, relying on the evidence of P.W.5 that the joint

verification was made after two years of plantation and the

plants of the plantations were damaged due to drought, white

ants and grazing of cattle and the impression marks were

vanished due to rain, the respondents were acquitted of all the

charges. It is argued that the impugned judgment and order of

acquittal is not sustainable in the eye of law and the same

should be set aside. He further argued that there are materials

on record to show that the respondents being entrusted with

government fund for raising plantations at different sites have

misappropriated huge amount of money by raising less

// 10 //

plantations and therefore, leave be granted to prefer appeal

against the order of acquittal.

Mr. Trilochan Nanda, learned counsel for the

respondents on the other hand submitted that there was no

material regarding the total number of plants received for

plantation from the Nursery and there was long gap between

plantation and physical verification and since there was no

protection fence around the plantation area, the cattle grazed in

the plantation area. He further submitted that in paragraph-8 of

the impugned judgment, the learned trial Court correctly relied

on the evidence of P.W.5 that the joint verification was made

after two years of plantation and the plants of the plantations

were damaged due to drought, white ants and grazing of cattle

and the impression marks were vanished due to rain, the

respondents were acquitted of all the charges.

7. The right of appeal against acquittal vested in the

State Government should be used sparingly and with

circumspection and it is to be made only in case of public

importance or where there has been a miscarriage of justice of a

very grave nature.

Law is well settled as held in case of Babu -Vrs.-

State of Uttar Pradesh reported in A.I.R. 1983 Supreme

// 11 //

Court 308 that in appeal against acquittal, if two views are

possible, the appellate Court should not interfere with the

conclusions arrived at by the trial Court unless the conclusions

are not possible. If the finding reached by the trial Judge cannot

be said to be unreasonable, the appellate Court should not

disturb it even if it were possible to reach a different conclusion

on the basis of the material on the record because the trial Judge

has the advantage of seeing and hearing the witnesses and the

initial presumption of innocence in favour of the accused is not

weakened by his acquittal. The appellate Court, therefore, should

be slow in disturbing the finding of fact of the trial Court and if

two views are reasonably possible on the evidence on the record,

it is not expected to interfere simply because it feels that it

would have taken a different view if the case had been tried by

it.

In case of Ghurey Lal -Vrs.- State of Uttar

Pradesh reported in (2008) 10 Supreme Court Cases 450,

it is held as follows:-

"75....The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable."

// 12 //

In case of Bannareddy -Vrs.- State of Karnataka

reported in (2018) 5 Supreme Court Cases 790, it is held as

follows:-

"10....It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself."

Thus, an order of acquittal should not be disturbed in

appeal under section 378 of Cr.P.C. unless it is perverse or

unreasonable. There must exist very strong and compelling

reasons in order to interfere with the same. Findings of fact

recorded by a Court can be held to be perverse if the same have

been arrived at by ignoring or excluding relevant materials on

record or by taking into consideration irrelevant/inadmissible

material or if they are against the weight of evidence or if they

suffer from the vice of irrationality.

8. Perused the evidence of the witnesses. The F.I.R.

clearly reveals that RDF plantation was taken up at Matupali,

Sahajbahal and Bhagharmunda RDF plantation sites Dhama

Range during the year 2000-2001 and the physical verification

was made at the plantation sites on 08.07.2002, 29.07.2002 and

// 13 //

30.08.2002. P.W.5, who was the Forest Extension Officer,

Sambalpur Division Office, Sambalpur has specifically stated in

his cross-examination that a Vana Surakshya Samiti (hereafter

'V.S.S.") used to protect the R.D.F. plantation and V.S.S. used to

approve the expenditure. He further stated that plantation of the

years 2000 in respect of three sites were verified by them on

08.07.2002, 29.07.2002 and 30.07.2002 and they made joint

verification after more than two years of plantation. He further

stated that he could not say the total number of plants brought

from nursery for the purpose of plantation. He further stated

that a plant dies due to drought, eating by white ants and cattle

grazing and there was no fencing in respect of all three sites

which were accessible to all.

P.W. 4, the Forestor attached to Vigilance Office,

Sambalpur who was a party to the counting of plants made on

08.07.2002 has stated that the plantation in the R.D.F. area is

done through V.S.S. and the plantation was of the year 2000-

2001.

Thus, the evidence on record indicates that there was

no material regarding the total number of plants received for

plantation from the nursery. There was long gap between time of

plantation and physical verification. There was no protection

// 14 //

fence around the plantation area. There was possibility of plants

being destroyed on account of cattle graving, attack by white

ants and also drought.

9. In view of the evidence available on record and after

going through the evidence of the witnesses and examining the

documents exhibited carefully and minutely, I find no illegality or

perversity in the impugned judgment. In my humble view, the

learned trial Court has come to a just conclusion and acquitted

the respondents of all the charges.

Therefore, I am not inclined to grant leave to the

State of Odisha (Vigilance) to prefer any appeal against the

impugned judgment and order of acquittal.

Accordingly, the CRLLP petition stands dismissed.

................................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 26th November, 2021/Pravakar