Sibaram Sahoo vs State Of Odisha (Vig.)
2022 Latest Caselaw 4332 Ori

                        IN THE HIGH COURT OF ORISSA, CUTTACK

                                     CRLREV No.107 of 2022

        From the order dated 25.02.2022 passed by Special Judge
        (Vigilance), Balangir in C.T.R. Case No.03 of 2012.
                                 --------------------

               Sibaram Sahoo                         ........                                Petitioner

                                                   -Versus-

               State of Odisha (Vig.)               ........                                Opp. Party


                      For Petitioner:                   -      Mr. Himanshu Sekhar Mishra



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

        P R E S E N T:


                    THE HONOURABLE MR. JUSTICE S.K. SAHOO

--------------------------------------------------------------------------------------------------- Date of Hearing: 10.08.2022 Date of Order: 05.09.2022

---------------------------------------------------------------------------------------------------

S.K. SAHOO, J. The petitioner Sibaram Sahoo, who was the Octroi

Peon of Subarnapur Municipality, has filed this revision petition

challenging the impugned order dated 25.02.2022 passed by the

learned Special Judge (Vigilance), Balangir in C.T.R. Case No.03

of 2012 under Annexure-3 which arises out of Sambalpur // 2 //

Vigilance P.S. Case No.24 of 2011 in rejecting the discharge

petition filed by him under section 239 of Cr.P.C.

2. On 04.03.2011, on the first information report

submitted by one A. Kar, the Deputy Superintendent of Police,

Vigilance, Sambalpur Unit before the Superintendent of Police,

Vigilance, Sambalpur Division, Sambalpur, the case was

instituted.

It is stated in the F.I.R. that on receipt of reliable

information about misappropriation of Government money by the

petitioner, the informant took up an enquiry and during course of

enquiry, it was found that the petitioner and other three octroi

peons were entrusted with task of collection of revenue of

Subarnapur Municipality. As per order dated 11.03.2008 of the

Revenue Officer, the petitioner was directed to perform the work

of old age pension, widow pension, approval of building plans,

unauthorized construction, license fee etc and was issued with

money receipt books Nos.213 and 241 for collection of revenue

which were acknowledged by the petitioner. The petitioner

accordingly collected fees under different headings from different

consumers and issued money receipts to the tax payers. The

petitioner was supposed to deposit the collected revenue before

the cashier of the Municipality after collection along with the

// 3 //

money receipt book and Daily Collection Register (hereafter

'DCR'). He collected fees from different persons as per M.R. Book

No. 213, but deposited a part of it and similarly he collected fees

as per M.R. Book No. 241 and issued money receipts to the tax

payers but did not maintain DCR nor deposited the money

collected with the cashier and thus misappropriated a sum of

Rs.1,33,158/- (rupees one lakh thirty three thousand one

hundred fifty eight only).

On the basis of such first information report,

Sambalpur Vigilance P.S. Case No.24 of 2011 was registered on

04.03.2011 against the petitioner for commission of offences

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

Prevention of Corruption Act, 1988 (hereafter 'P.C. Act') and

section 409 of the Indian Penal Code and on completion of

investigation, charge sheet has been submitted against the

petitioner for all such offences under which the F.I.R. was

registered and cognizance of offences was taken.

3. As it appears, the petitioner earlier approached this

Court in Criminal Revision No.816 of 2014 challenging the order

dated 16.07.2014 of the learned trial Court in rejecting the

petition under section 239 of Cr.P.C. for discharge. This Court

vide order dated 13.12.2021 allowed the revision petition in part

// 4 //

and set aside the order dated 16.07.2014 of the learned trial

Court and directed the learned trial Court to pass a fresh order

on the discharge petition only to the extent of the grounds urged

in paragraph-3 of the discharge petition i.e. relating to absence

of the basic ingredients of the offence under section 409 of the

Indian Penal Code. It was made clear that the finding relating to

validity of the order of sanction was not interfered with.

4. The petition filed by the petitioner before the learned

trial Court to discharge him was accordingly heard afresh and

after hearing the learned counsel for both the parties, the

learned trial Court has been pleased to observe that there are

statements of the official witnesses which clearly speak about the

entrustment of tax collection work to the petitioner and posting

of the petitioner in Subarnapur Municipality. The petitioner

acknowledged two M.R. Books for collection of taxes and there

are details of collection made by the petitioner during his tenure

after his entrustment for collection work. The audit report of the

year 2008-09 indicated misappropriation of cash by the

petitioner and a request was made for recovery of the same.

Accordingly, it was held that from the facts emerged, prima facie

there is existence of all the ingredients of the offences under

section 409 of the Indian Penal Code as well as section 13(2)

// 5 //

read with section 13(1)(c)(d) of the P.C. Act to proceed against

the petitioner after framing charge in order to put him in trial

and the discharge petition was rejected.

5. Mr. H.S. Mishra, learned counsel appearing for the

petitioner emphatically contended that the petitioner earlier

approached this Court in Criminal Revision No.816 of 2014

challenging the letter of sanction as well as absence of

ingredients of the offence under section 409 of the Indian Penal

Code as well as under the P.C. Act and this Court vide order

dated 13.12.2021 remanded the matter to the learned trial Court

on the findings arrived at in paragraph-14 of the said order to

find out the existence or otherwise the essential ingredients of

the offence under section 409 of the Indian Penal Code and P.C.

Act and on remand, the learned trial Court has not only

completely failed in its legal duty to re-examine the availability

of the basic ingredients of the offences under section 409 of the

Indian Penal Code and under P.C. Act but also failed to give

reasons as required on the availability of the ingredients of the

offence under section 409 of the Indian Penal Code particularly

the materials regarding misappropriation of funds so also

offences under P.C. Act rather solely relying upon the audit

report, dismissed the discharge petition. It is further argued that

// 6 //

the impugned order is illegal, unjust and improper and has been

passed in a mechanical manner without application of mind and

therefore, the same should be set aside. In support of such

contention, Mr. Mishra placed reliance in the cases of Okila

Luha -Vrs.- State of Orissa reported in 1984 (1) Orissa

Law Reviews 585, Hemanta Kumar Patra -Vrs.- State of

Orissa and another reported in 2012 (II) Orissa Law

Reviews 253 and Managobinda Mohapatra -Vrs.- State of

Odisha reported in (2020) 79 Orissa Criminal Reports 787.

Mr. Sangram Das, learned Standing Counsel for the

Vigilance Department, on the other hand, supported the

impugned order passed by the learned trial Court and contended

that the observation of the learned trial Court that there are

ingredients of the offences under section 409 of the Indian Penal

Code as well as P.C. Act is based on consideration of statements

of the witnesses, seized M.R. Books, audit report and

acknowledgment of the petitioner collected by I.O. during

investigation which is quite justified and therefore, the revision

petition should be dismissed. He placed reliance in the cases of

State of Delhi -Vrs.- Gyan Devi reported in (2000) 8

Supreme Court Cases 239 and Amit Kapoor -Vrs.- Ramesh

Chandra reported in (2012) 9 Supreme Court Cases 460.

// 7 //

6. Section 239 of Cr.P.C. provides that if upon

considering the police report and the documents sent with it

under section 173 of Cr.P.C. and making such examination, if

any, of the accused and after giving prosecution and accused an

opportunity of being heard, the Magistrate considers the charge

against the accused to be groundless, he shall discharge the

accused and record his reasons for so doing.

At this stage, the Court is not expected to go deep

into the matter to examine the probative value of the police

report and the documents sent with it under section 173 of

Cr.P.C. The Court should not examine those documents to find

out whether a ground for convicting the accused has been made

out and whether the materials would warrant a conviction. On

the basis of the materials on record, if the Court thinks that the

accused might have committed the offence, it can frame the

charge. Even very strong suspicion founded on materials before

Magistrate is sufficient for framing of charge. It is not a stage of

detailed evaluation of the materials and for weighing the pros

and cons of all the implications of the materials.

In the case of Gyan Devi (supra), it is held as

follows:-

"7.........The legal position is well settled that at the stage of framing of charge, the trial Court is

// 8 //

not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge, the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C.

seeking for the quashing of charge framed against them, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court, a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial Court has framed a charge against an accused, the trial must proceed without unnecessary interference by a superior Court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases."

// 9 //

In the case of Amit Kapoor (supra), it is held as

follows:-

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is

// 10 //

that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C."

The object of discharge under section 239 of Cr.P.C.

is to save the accused from unnecessary and prolonged

harassment. When the allegations are baseless or without

foundation and no prima facie case are made out, it is just and

proper to discharge the accused to prevent abuse of process of

the Court. If there is no ground for presuming that accused has

committed an offence, the charges must be considered to be

groundless. The ground may be any valid ground including the

insufficiency of evidence to prove the charge. When the

materials at the time of consideration for framing the charge are

of such a nature that if unrebutted, it would make out no case

whatsoever, the accused should be discharged.

// 11 //

7. The contention of the learned counsel for the

petitioner that solely relying upon the audit report, the discharge

petition was dismissed by the learned trial Court appears to be

not correct. In the case of Hemanta Kumar Patra (supra), this

Court after perusing the case diary observed that the entire case

is based on the finding of the audit report. In the case of Okila

Luha (supra), this Court held that no order of conviction can be

based merely on the basis of an audit report of an inconclusive

character as the audit notes some objections therein and until

the objections are brought to the notices of the persons

concerned and liability is fixed by the authorities after proper

inquiry, no legal culpability can be fixed.

In the case in hand, when the matter was remanded

for fresh consideration, the learned trial Court perused the case

records and found as follows:-

"7........it is seen that there are statements of the official witnesses including Jayakrishna Panda, Auditor of Local Fund Audit, Balangir, Accountant Dukhiram Naik, Cashier Gajendra Sahu, Sarjan Gajaria, Auditor of Local Fund Audit, Balangir, which clearly speaks about the entrustment of tax collection work to the petitioner. Posting of the present accused petitioner in Subarnapur Municipality also proves his service thereunder from his letter of joining

// 12 //

on 11.03.2008. Further, the petitioner has acknowledged two M.R. books vide No.213 and 241 for the work of collection of different taxes and received the same in original stock register in his own handwritings. Further, there is details of collection made by the present petitioner during his tenure after his entrustment for collection work. The audit report of the year 2008-09 clearly reflects in para 10.11 regarding misappropriation of cash by the present petitioner and in para 10.12 there is request for recovery of the same and so also recovery has also been made from the present petitioner.

xx xx xx xx xx

10..........on considerations of the statements of the witnesses, seized M.R. books, audit report and acknowledgment of the accused collected by the I.O. during investigation clearly show a prima facie case against the present petitioner under section 409 of I.P.C. On careful evaluation of the materials available on record and the facts emerged therefrom prima facie discloses existence of all the ingredients of the offence under section 409 IPC as well as section 13(2) read with 13(1)(c)(d) of the P.C. Act to proceed against the present petitioner after framing charge in order to put him in trial........"

In the case of Managobinda Mohapatra (supra), it

is held as follows:-

// 13 //

"10.......'Criminal breach of trust' has been defined under section 405 of the Indian Penal Code. To constitute the offence of criminal breach of trust, the ingredients are (i) entrustment of a person with property, or with any dominion over the property; (ii) the person so entrusted has (a) dishonestly misappropriated or converted the property to his own use, or (b) dishonestly used or disposed of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do.

Any breach of trust is not an offence; the dishonest intention is an essential factor. Wrongful gain or loss actually resulted is the consequence but not always a decisive factor........."

8. In view of the foregoing discussions, it is apparent

that it is not only the notings made in the audit report, but also

there are statements of witnesses, documentary evidence to

show that the petitioner was entrusted with tax collection work

of Subarnapur Municipality for a certain period and he was issued

with two M.R. books for such purpose. The handwritings of the

petitioner in the relevant documents indicate about the tax

// 14 //

collection by him. There are materials to show that he has not

maintained daily collection register (DCR) properly during the

relevant period and has not deposited the entire money collected

towards revenue in the Municipality account. The cashier has

stated about the actual deposit made by the petitioner. In view

of the oral as well as documentary evidence on record, it is for

the petitioner to adduce cogent evidence during trial as to what

he did with the balance amount which were not deposited with

the cashier and that he has not misappropriated the same. There

is strong suspicion against the petitioner based on clinching

material which makes out the ingredients of the offences under

which charge sheet has been filed. Therefore, the learned trial

Court rightly rejected the discharge petition.

Thus on a careful consideration, the impugned order

appears to be in accordance with law and the judicial discretion

has not been exercised by the learned trial Court arbitrarily or

perversely. Accordingly, the criminal revision being devoid of

merits stands dismissed.

Before parting, I would like to place it on record by

way of abundant caution that whatever has been stated

hereinabove in this order has been so said only for the purpose

// 15 //

of disposing of the prayer for discharge made by 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 by the

trial Court at the appropriate stage of the trial.

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

S.K. Sahoo, J.

Orissa High Court, Cuttack The 5th September 2022/PKSahoo