Orissa High Court
Pruthwiraj Lenka vs State Of Odisha (Vig.) on 3 January, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK
I.A. No. 836 of 2021
(Arising out of CRLA No.355 of 2019)
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Pruthwiraj Lenka ........ Appellant/Petitioner
-Vrs.-
State of Odisha (Vig.) ........ Respondent/Opp. Party
For Petitioner: - Mr. Asok Mohanty
(Senior Advocate)
For Opp. Party: - Mr. Sanjay Kumar Das
Standing Counsel
(Vigilance)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Order: 03.01.2022
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S.K. SAHOO, J. The appellant/petitioner Pruthwiraj Lenka has filed
this interim application under section 389 of Cr.P.C. for staying
the order of conviction passed against him by the learned Special
Judge (Vigilance), Phulbani in G.R. Case No. 74 of 2013 (v) (T.R.
No.74 of 2013) vide impugned judgment and order dated
16.05.2019 under section 477-A of the Indian Penal Code and
sentencing him to undergo rigorous imprisonment for one year
// 2 //
and to pay a fine of Rs.5,000/- (rupees five thousand), in
default, to undergo rigorous imprisonment for a further period of
three months.
2. The petitioner was the Technical Consultant of K.
Nuagaon Block, Office of the D.P.C., D.P.E.P., S.S.A. in the
district of Kandhmal. The co-accused Basant Kumar Mohanty was
the Headmaster of Asumadhi Primary School (hereafter 'the
school') for the period from 10.05.2002 to 28.02.2008 and co-
accused Kantheswar Pradhan was the SEC President of the
school for the period 31.08.2004 to 02.04.2011. The petitioner
along with co-accused Basanta Kumar Mohanty and Kantheswar
Pradhan were charged under section 13(1)(c) punishable under
section 13(2) of the Prevention of Corruption Act, 1988
(hereafter '1988 Act') and sections 409, 120-B, 201 of the Indian
Penal Code on the accusation that in between the year 2005 to
2007, they dishonestly or fraudulently misappropriated or
otherwise converted for their own use Rs.75,798/- (rupees
seventy five thousand seven hundred ninety eight) from the
school account sanctioned for construction of one additional
classroom in the school and they committed criminal breach of
trust in respect of the property/amount so entrusted. The
petitioner was charged separately under section 477-A of the
// 3 //
Indian Penal Code on the further accusation that during the
period from 2005 to 2007, he willfully with intention to defraud
entered false measurements in the Measurement Book No.144,
which was received by him on behalf of his employer D.P.C.,
S.S.S., Kandhamal and was under his possession.
The learned Trial Court acquitted the co-accused
Kantheswar Pradhan of all the charges and he was set at liberty.
The petitioner and co-accused Basanta Kumar Mohanty were
acquitted of the charges under sections 120-B and 201 of the
Indian Penal Code. The petitioner was acquitted of the charges
under section 409 of the Indian Penal Code and section 13(1)(c)
punishable under section 13(2) of the 1988 Act. The co-accused
Basanta Kumar Mohanty was found guilty under section 409 of
the Indian Penal Code and section 13(1)(c) punishable under
section 13(2) of the 1988 Act. The petitioner was found guilty
only under section 477-A of the Indian Penal Code.
3. The prosecution case, in short, is that pursuant to an
allegation of misappropriation of government money in
construction of one additional classroom of the school under K.
Nuagaon Block in the district of Kandhamal, a vigilance enquiry
was taken up by Santosh Kumar Samantara (P.W.8), Inspector
of Vigilance, Berhampur Division. During enquiry, it was found
// 4 //
that in the year 2004-05, for construction of one additional
classroom of the school, a sum of Rs.1,50,000/- was approved
by D.P.C., D.P.E.P., Kandhamal. By that time, the co-accused
Basanta Kumar Mohanty was the Headmaster of the school as
well as Secretary of the School Education Committee and co-
accused Kantheswar Pradhan was the President of the School
Education Committee. Both of them entered into an agreement
with D.P.C., D.P.E.P., Kandhamal to execute the construction
work and accordingly, work order letter no.470(A) dated
05.03.2005 (Ext.2/3) was issued in their favour. A joint Savings
Bank Account vide A/c. No.8032 was opened in the name of the
school at UCO Bank, Raikia Branch, in which account an amount
of Rs.1,30,000/- was credited towards execution of the aforesaid
work. It was further found that both the co-accused President
and Secretary withdrew Rs.1,30,000/- in between 15.04.2005 to
12.02.2007 from the D.P.E.P. fund and started construction of
the work. They constructed the building up to roof level and then
stopped the work since 2007. Thereafter, the co-accused
Basanta Kumar Mohanty retired from his service on 29.02.2008
and the construction work remained as such. In spite of repeated
reminders of the D.P.C., D.P.E.P., Kandhamal, the work did not
proceed further. As per the direction of the D.P.C., the petitioner
// 5 //
measured the work done and valued it at Rs.59,642/-. However,
on the requisition of Enquiring Officer, when the building was
technically inspected on 26.11.2010, the technical inspection
team calculated the cost of the work done to be Rs.54,202/- and
as such it was held that the petitioner found to have made some
false entries in the measurement book (Ext.3) by showing
inflated measurements. As the technical inspection team
calculated the value of the work done at Rs.54,202/- against the
sanctioned and received amount by the accused persons to the
tune of Rs.1,30,000/-, the Enquiring Officer (P.W.8) lodged an
F.I.R. (Ext.15) on 28.11.2011 with the Superintendent of Police,
Vigilance, Berhampur alleging misappropriation of Rs.75,798/-
by the co-accused Basanta Kumar Mohanty in connivance with
the petitioner, who intentionally entered excess measurements
in the measurement book by showing excess work done value of
Rs.5,440/-.
After the F.I.R. was lodged, investigation was taken
up by P.W.8 as per the direction of the Superintendent of Police,
Vigilance, Berhampur, who in course of his investigation,
examined the witnesses, seized the case records for the work,
measurement book, cheque issue registers of the D.P.C., S.S.A.,
Kandhamal, Resolution Register, paid vouchers of S.B. account
// 6 //
vide no.8032 of UCO Bank, Raikia. He found in course of his
investigation that the accused persons have not submitted the
account register, register of procurement and utilization of
materials, visitors' book to the successor of the co-accused
Basanta Kumar Mohanty at D.P.C. Office in order to cause
disappearance of evidence. It was also found during course of
investigation that neither the co-accused Basanta Kumar
Mohanty nor co-accused Kantheswar Pradhan produced any
documents in support of purchase of any material, utilization
register, cash book as per the terms and conditions of the
agreement and all the accused persons in connivance with each
other misappropriated a sum of Rs.75,798/- sanctioned for
construction of one additional classroom of the school.
4. The learned trial Court in the impugned judgment
has been pleased to hold that the prosecution has failed to bring
home the charges under sections 409/120-B of the Indian Penal
Code and section 13(1)(c) punishable under section 13(2) of the
1988 Act against the petitioner as there is no evidence on record
to show that the petitioner was in charge of the project or in any
manner had dominion over the government money sanctioned
for construction of the building. It was further held that there is
nothing on record to prove that the accused persons caused
// 7 //
disappearance of evidence to screen them from the punishment
and that the I.O. has neither examined the successor of the co-
accused Basanta Kumar Mohanty nor it is in his evidence that
despite he searched for the registers and records, it was not
made available at the school. It was further held that in the year
2010, when the enquiry was conducted, the co-accused Basanta
Kumar Mohanty had already retired from his service and hence,
there was no scope on his part to cause disappearance of the
records. Learned trial Court further observed that merely
because the letter (Ext.16) goes to show that the co-accused
Basanta Kumar Mohanty had not submitted the records to
D.P.C., it cannot be said that the accused persons had caused
disappearance of the evidence to screen themselves from
punishment and accordingly, it was held that the prosecution has
failed to substantiate the charge under section 201 of the Indian
Penal Code against all the accused persons.
The learned trial Court, however, held that the
petitioner was employed as a Technical Consultant under K.
Nuagaon Block and he was issued with M.B. No.144 marked as
Ext.3 which was of the D.P.C., S.S.A., Kandhamal and he being
employed to enter measurement in the measurement book on
behalf of the D.P.C., S.S.A., Kandhamal under whom he was
// 8 //
employed, made false entries of inflated measurement by
showing excess work done value of Rs.5,440/- willfully with an
intent to defraud the government. It was further held that the
prosecution has proved all the essential ingredients of the
offence under section 477-A of the Indian Penal Code against the
petitioner and accordingly, the learned trial Court found him
guilty of such charge. Since the petitioner was found to have
been resigned from his service when the charge sheet was
submitted, it was held that no sanction order was required to
launch prosecution against him.
5. Mr. Asok Mohanty, learned Senior Advocate
appearing for the petitioner strenuously contended that the
finding of the learned trial Court in paragraph-16 of the
impugned judgment that the petitioner made false entries in the
measurement book with an intent to defraud the government is
not sustainable when the petitioner was found not guilty under
section 120-B of the Indian Penal Code so also under section 13
(2) read with section 13(1)(c) of the 1988 Act after arriving at a
conclusion that there was no connivance of the petitioner with
the co-accused persons. The alleged act of deceit to obtain an
advantage which might relate to some future occurrence or in
other words, might be prospective nature is not at all possible.
// 9 //
He further contended that the mandate demands to establish
beyond all reasonable doubt that false entries were made with
intent to defraud, but in absence of any connivance, the
petitioner should not have been convicted for making mere
wrong entries in the measurement book and as such the intent
to defraud government is not made out. It is further argued that
the petitioner should have been acquitted by the application of
doctrine of preponderance of probabilities as convincing and
cogent materials are lacking to indicate that the wrong entries in
the measurement book were made with intent to falsify the
accounts for defrauding. He further argued that the learned trial
Court has failed to appreciate the peculiar facts and
circumstances of the case in proper perspective that by the time
the petitioner came to the picture, the entire sanctioned amount
had already been withdrawn for the purpose of incurring
expenditure since long and the co-accused had retired from
service much earlier and the measurement book was issued
thereafter and therefore, at that stage, there was no scope for
connivance or misappropriation or to have an intent to defraud
by way of making wrong entries. He further contended that the
learned trial Court also took a view that had the petitioner
agreed to misappropriate the unutilized amount of Rs.75,798/-
// 10 //
with the accused headmaster, he could have inflated the
measurement to the tune of such amount. It was further
contended that in absence of any acceptable reasoning/findings
as to why the petitioner is found guilty under section 477-A of
the Indian Penal Code after being acquitted of the charges under
sections 409/120-B/201 of the Indian Penal Code so also under
section 13(2) read with section 13(1)(c) of the 1988 Act, the
impugned judgment and order of conviction against the
petitioner is perverse and suffers from non-application of mind
and cannot be sustained in the eye of law. Mr. Mohanty argued
that since on the face of the impugned judgment, the petitioner
has a very good case for acquittal and the appeal being of the
year 2019 is not likely to be taken up for hearing in the near
future, unless the order of conviction is stayed, the petitioner
would suffer irreparable loss and injury. Reliance was placed on
the cases of Harihar Mishra -Vrs.- Republic of India
reported in 2010 (Supp.-I) Orissa Law Reviews 87, Dr.
Shailendra Kumar Tamotia -Vrs.- Republic of India
reported in 2009 (Supp.-II) Orissa Law Reviews 226 and
Bedadyuti Samantaray -Vrs.- State reported in 2013(I)
Orissa Law Reviews 1081.
// 11 //
6. Mr. Sanjay Kumar Das, learned Standing Counsel for
the Vigilance Department on the other hand vehemently opposed
the prayer for stay of order of conviction and also filed his
objection to such petition. It is contended that the learned trial
Court after going though the evidence on record has rightly
found the petitioner guilty and since stay of conviction should be
exercised only in exceptional circumstances and in rare cases
where failure to stay conviction would lead to injustice and
irreversible consequences, nothing having been pointed out by
the learned counsel for the petitioner in that respect, no
favourable order should be passed in favour of the petitioner. It
is further contended that delay in disposal of the appeal and the
submission that there are good arguable points by itself are not
sufficient to grant stay of order of conviction. It is further
contended that the petitioner, who was the Ex-technical
Consultant in the office of the D.P.C., D.P.E.P., S.S.A.,
Kandhamal and was working as the Asst. Executive Engineer
under N.H. Division, Berhampur, Ganjam was dismissed from
service as per the office order dated 15.10.2019 of Govt. of
Odisha, Works Department after he was found guilty by the
learned trial Court. The copy of the dismissal order has been
annexed as Annexure-A to the objection affidavit filed by the
// 12 //
respondent/opposite party. The learned counsel further
contended that laxity in corruption cases would encourage
corruption and therefore, the misc. case should be dismissed. He
placed reliance in the case of K.C. Sareen -Vrs.- C.B.I.,
Chandigarh reported in (2001) 21 Orissa Criminal Reports
(SC) 325 and State of Maharashtra through C.B.I. -Vrs.-
Balakrishna Dattatrya Kumbhar reported in (2012) 12
Supreme Court Cases 384.
7. First, let me deal with the cases which were placed
by the learned counsel for the respective parties on the ambit
and scope of section 389(1) of Cr.P.C. relating to stay of order of
conviction by the appellate Court.
In the case of K.C. Sareen (supra), it is held that
though the power to suspend an order of conviction, apart from
the order of sentence, is not alien to section 389(1) of the Code,
its exercise should be limited to very exceptional cases. Merely
because the convicted person files an appeal in challenge of the
conviction, the Court should not suspend the operation of the
order of conviction. The Court has a duty to look at all aspects
including the ramifications of keeping such conviction in
abeyance.
// 13 //
In the case of Balakrishna Dattatrya Kumbhar
(supra), it is held as follows:-
"15. Thus, in view of the aforesaid discussion, a
clear picture emerges to the effect that the
Appellate Court in an exceptional case, may put
the conviction in abeyance along with the
sentence, but such power must be exercised
with great circumspection and caution, for the
purpose of which, the applicant must satisfy the
Court as regards the evil that is likely to befall
him, if the said conviction is not suspended. The
Court has to consider all the facts as are
pleaded by the applicant, in a judicious manner
and examine whether the facts and
circumstances involved in the case are such,
that they warrant such a course of action by it.
The Court additionally, must record in writing,
its reasons for granting such relief. Relief of
staying the order of conviction cannot be
granted only on the ground that an employee
may lose his job, if the same is not done."
In the case of Harihar Mishra (supra), it is held as
follows:-
"10. From the discussion as aforesaid, five broad
principles emerge, which, in my considered
view, is a guide so far as exercise of discretion
under section 389(1) Cr.P.C. in relation to stay/
suspension of conviction is concerned. They may
// 14 //
be called the 'Panchasheel' for exercise of
discretion under section 389(1) Cr.P.C. for
suspension of an order of conviction. They are-
(i) The appellant, who seeks interference of
the appellate court under section 389(1) Cr.P.C.
so far as the order of conviction is concerned,
must come with clean hands, and with due
frankness and fairness specifically draw
attention of the appellate Court to the specific
consequences he is going to suffer, if discretion
by the Court is not exercised in his favour.
(ii) Such discretion by the appellate Court may
be exercised in favour of the appellant only in
rare and exceptional cases depending upon the
special facts of the case and not as a matter of
course.
(iii) Such discretion may be exercised only
where failure to stay the conviction would lead
to injustice and irreversible consequences. The
Court has to examine carefully on the basis of
materials supplied and materials available on
record as to whether the consequences sought
to visit the appellant at present or on a future
date is/are real.
(iv) While exercising the discretion, the
appellate court has a duty to look at all the
aspects including ramification of keeping the
conviction in abeyance, and it is under further
// 15 //
obligation to support its order for reasons to be
recorded by it in writing.
(v) In case of public servants convicted of
corruption charges, the discretion should not be
exercised.
In the case of Dr. Shailendra Kumar Tamotia
(supra), it is held that the appellate Court is duly empowered
under section 389(1) of Cr.P.C. to grant stay of conviction but
only in an 'exceptional case' where 'the ramification and the
consequences' are such which may justify the exercise of such
authority. Such power is not to be casually exercised and it is
necessary for the Court to look into the 'special facts' of the case
if any, and not to grant by way of a routine order.
In the case of Bedadyuti Samantaray (supra), it is
held that the power to stay conviction in terms of section 389 of
Cr.P.C. should be exercised only in exceptional circumstances
where failure to stay the conviction would lead to injustice and
irreversible consequences.
8. In view of the ratio laid down in the aforesaid
decisions and keeping in view the submissions raised by the
learned counsel for the respective parties, it is to be seen
whether it is a very exceptional case for grant of stay of order of
conviction? What the evil that is likely to befall on the petitioner,
// 16 //
if the order of conviction is not stayed? Whether failure to stay
the order of conviction would lead to injustice and irreversible
consequences?
Law is well settled that possible delay in disposal of
the appeal and/or presence of arguable points in the appeal by
itself may not be sufficient in staying the order of conviction of
the trial Court without assigning any special reasons. An order
granting stay of conviction is not the Rule but is an exception to
be resorted to in rare cases depending upon the facts of a case.
Where the execution of the sentence is stayed, the conviction
continues to operate. But where the conviction itself is stayed,
the effect is that the conviction will not be operative from the
date of stay. As order of stay, of course, does not render the
conviction non-existent, but only non-operative.
The fact remains that on the basis of impugned
judgment and order of conviction, the petitioner has already
been dismissed from service since more than two years back.
The petitioner has been convicted under section 477-A of the
Indian Penal Code which deals with falsification of accounts. The
ingredients of the offence are as follows:-
// 17 //
(i) The person coming within its purview must be
a clerk, officer, or servant or acting in the capacity of
a clerk, officer, or servant
(ii) He must willfully and with intent to defraud-
(a) destroy, alter, mutilate, or falsify any book,
paper, writing, valuable security, or account which
belongs to, or is in possession of, his employer; or
has been received by him for or on behalf of his
employer; or
(b) make or abet the making of any false entry in, or
omit or alter or abet the omission or alteration of any
material particular from or in, any such book, paper,
writing, valuable security, or account.
'Willfully' means that the act is done deliberately and
intentionally, not by accident or inadvertency, so that the mind
of the person who does the act goes with it. The term 'with
intent to defraud' means either an intention to deceive and by
means of deceit to obtain an advantage or an intention that
injury should befall some person or persons. Advantage which is
intended must relate to some future occurrence or, in other
words, must be of a prospective nature. Making false entries in
the measurement book in order to conceal fraudulent or bogus
// 18 //
acts, falls within the purview of section 477-A of I.P.C. If an
accused makes fictitious entries in the measurement book
though in fact he had not measured up the work with intent that
the contractor's bill might be passed without actual
measurement, his act amounts to a 'fraudulent falsification of
account'. It is necessary to show not merely false entries in the
books of accounts, but that such false entries were made with
intent to defraud. Even if the intention with which the false
entries were made was to conceal a fraudulent or dishonest act
previously committed, the intention will be to defraud. Making a
false document with a view to enable the persons who
committed misappropriation to retain the wrongful gain which
they had secured also amounts to the commission of a fraud and
the act brings the case under this section.
The learned trial Court while considering the role
played by the petitioner in paragraph 16 of the impugned
judgment has been pleased to hold that M.B. No.144 marked as
Ext.3 was issued to the petitioner by the Financial Consultant,
SSA, Kandhamal to enter the measurement of the work done.
The petitioner measured the work done for Rs.59,642/-. The
entries made by the petitioner and his signature in the
measurement book were proved by P.W.1. On the other hand,
// 19 //
P.W.6, Asst. Engineer at K. Nuagaon Block who along with others
technically inspected the additional class room building work and
prepared the technical inspection report (Ext.13) and the map
with findings (Ext.13/1) stated in his evidence that the final
measurement of the work done came to Rs.54,202/-. Thus, the
work done value as measured by the petitioner as per Ext.3 did
not tally with the work done value as assessed by P.W.6 in
Ext.13. The learned trial Court analyzed the evidence of P.W.6
carefully and found that the plinth bent thickness has been given
as 6" instead of 4" in M.B. No.144 Page No.05, R.R. stone
masonry third footing height has been given as 2' instead of 1'
6" actual in M.B. No.144, page No.04 and Leveling Course with
C.C.124 has not been done, but given in item no.07 of M.B.
No.144, page no.07 by the petitioner. The learned trial Court
accepted the evidence of P.W.6 coupled with the map with
findings recorded in Ext.13/1 and held that the petitioner has
made false entries in the M.B. Since the work done value
ascertained by the petitioner is for Rs.59,642/- against the
actual work done value of Rs.54,202/- as opined by the
Technical Inspection Team and mentioned in Ext.13, the learned
trial Court found that the petitioner had shown excess work done
value of Rs.5440/-. If the work doe value entered by the
// 20 //
petitioner in M.B. was accepted, there would be loss of Rs.5440/-
to the Govt./State Exchequer. The learned trial Court held that
the wrong committed by the petitioner cannot be said to be
unintentional and result of miscalculation, rather appears to be
willful and intentional. Therefore, it was held that with an intent
to defraud the Govt., the petitioner made false entries in the
M.B. which was received by him on behalf of DPC/SSA,
Kandhamal, under whom he was employed as Technical
Consultant.
The learned trial Court in paragraph no.22 of the
impugned judgment further held that the petitioner was working
as Technical Consultant under K. Nuagaon Block. This factum is
also proved by his bio-data (Ext.5) proved through P.W.3. Ext.5
goes to show that he was posted as Technical Consultant of K.
Nuagaon Block from the period from 17.01.2006 to 30.11.2011.
It was also held that the petitioner was issued with the M.B.
No.144 marked vide Ext.3, which is of the DCP/SSA, Kandhamal
in which he made false entries of inflated measurement and
excess work done value willfully with an intent to defraud the
government. The Court held that all the essential ingredients of
section 477-A of Indian Penal Code are proved by the
prosecution against the petitioner.
// 21 //
After carefully analyzing the finding of the learned
trial Court, the submission made by the learned counsel for the
respective parties and the evidence on record, at this stage, it
cannot be said that it is a case of no evidence against the
petitioner. Whether the evidence available on record would be
sufficient to uphold the conviction of the petitioner under section
477-A of the Indian Penal Code or on the basis of points raised
by the learned counsel for the petitioner particularly in view of
his acquittal of other charges, the conviction under section 477-A
of the Indian Penal Code would not be sustainable, is to be
adjudicated at the final stage when the appeal would be heard
on merit. In my humble view, giving finding thereon at this stage
is likely to cause prejudice to either of the parties. For the limited
purpose of ascertaining whether stay of order of conviction be
granted or not, I find that the case is not a very exceptional one
for keeping the conviction in abeyance. The consequential order
of dismissal of the petitioner from his service having already
been passed by the competent authority, the correctness of such
order cannot be adjudicated in this petition. The possibility of
reinstatement of the petitioner in service in case of staying the
order of conviction is not a criteria to grant such interim relief.
// 22 //
Therefore, I am of the humble view that in the facts
and circumstances of the case, the relief sought for by the
petitioner for staying the order of conviction cannot be granted.
Accordingly, the interim application being devoid of
merits, stands dismissed.
By way of abundant caution, I would like to place it
on record that whatever has been stated hereinabove in this
order has been so said only for the purpose of disposing of the
prayer for staying the order of conviction of the petitioner.
Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for
decision in the case which shall naturally have to be done at the
final stage of the hearing of the criminal appeal on merit.
Urgent certified copy be granted on proper
application.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 3rd January 2022/PKSahoo/Pravakar/RKMishra
