Orissa High Court
Bihit Kumar Ganta vs State Of Odisha on 16 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 845 of 2004
Bihit Kumar Ganta .... Petitioner
Mr. P.C. Chhinchani, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. Ishwar Mohanty
Additional Standing Counsel
CORAM:
THE CHIEF JUSTICE
ORDER
Order No. 16.09.2022
07. 1. Questioning the Judgment of the Adhoc Additional Sessions Judge,
(FTC) Gunupur, dismissing the Criminal Appeal No.119 of 2002, filed
by the Petitioner, which in turn confirmed the judgment and order dated
10th January 1996, passed by the learned Civil Judge (Sr. Divn.)-cum-
J.M.F.C., Gunupur in G.R. Case No.157 of 1994 (T.R. No.76 of 1995),
convicting the present Petitioner for the offence punishable under
Section 409 of IPC and sentencing him to undergo Rigorous
Imprisonment (RI) for two years and to pay a fine of Rs.1,500/- and in
default to undergo RI for six months, the present revision petition has
been filed.
2. It requires to be noted here at the outset that by an order dated 15th
December 2004, the Petitioner was directed to be enlarged on bail and
the realization of the fine amount was stayed.
3. The case of the prosecution was that on receipt of a complaint, the
Postal Inspector, Gunupur held an enquiry at the Branch Post Office,
Puttasing on 20th December, 1993. During the enquiry, he found there
had been misappropriation of Government money in various Savings
accounts, Recurring Deposit accounts and Money orders, received in
the said Post Office. The Postal Inspector then informed the Senior
Superintendent of Post Offices (SSPO), Koraput-Jeypore, who also
enquired into the matter. The SSPO, after obtaining clearance from the
Post Master General, Berhampur Region, directed the Postal Inspector,
Gunupur to lodge an FIR at the Puttasing Police Station.
4. During enquiry, the Police seized 48 R.D. Pass books, S.B. Pass
books, R.D. and S.B. Journals, money order receipts, appointment
orders and leave application of the present Petitioner/accused. The
statement in writing given by the Petitioner before the SSPO, was also
seized. It was found that the Petitioner, who was the Post Master of the
Puttasing Branch office at the relevant time, had misappropriated a sum
of Rs. 13,908. After completion of investigation, a charge sheet was
submitted against the present Petitioner.
5. The defence of the Petitioner was that he had accounted for all the
R.D. and S.B. Deposits and entered them in the respective Journals; he
had also sent money order amounts to the addressees, but, a false case
had been foisted against him by manufacturing the S.B. and R.D.
Journals, suppressing the originals and obtaining a confessional
statement from him under threat and coercion.
6. The amount stated to have been misappropriated was Rs.13,908/-. It
appears that at one stage when the bail petition of the Petitioner was
rejected by the Subordinate Court, he filed CRLMC No.2393 of 1994 in
this Court. While disposing of the said petition, this Court noted that the
Petitioner had deposited, subsequent to the commencement of the case
against him, Rs.15000/- and on that basis, directed him to be enlarged
on bail.
7. As many as sixteen witnesses were examined on behalf of the
prosecution and three on behalf of the defence. The trial Court, on an
analysis of the evidence, concluded that the Petitioner, who had been
entrusted with the deposited amounts, had himself maintained the
relevant Pass books and journals. Ext-54 was the hand written statement
of the Petitioner/accused, admitting to having misappropriated the
aforementioned sum.
8. The trial Court disbelieved the plea that this was obtained from him
under coercion. The trial Court concluded that the entrustment or
dominion over the amount by the Petitioner had been clearly
established. Further, it was held that even if the Petitioner had deposited
the misappropriated sum subsequently, it would still amount to
temporary misappropriation which came within the purview of Section
409 of IPC. On that basis, the trial Court proceed to hold him guilty of
the aforementioned offence and sentenced him in the manner indicated
hereinbefore.
9. The Appellate Court again discussed the entire evidence and came to
the same conclusion thereby holding both the conviction and sentence
awarded by the trail Court.
10. This Court has again been taken through the evidence by learned
counsel appearing for the Petitioner and the Court is unable to find any
error having been committed either by the trial Court or the Appellate
Court in finding the Petitioner guilty of the offence under Section 409
of IPC. The evidence was quite clear and pointed unerringly to the guilt
of the present Petitioner.
11. It was then argued on the strength of the decisions of the Supreme
Court of India in Jaydev Shrichand Danani v. State of Gujarat AIR
1992 SC 2152 and N.K. Illiyas v. State of Kerala 2012 AIR SCW 2496,
that the sentence should be confined to the period of more than one
month already undergone by the Petitioner.
12. This Court has perused both the decisions. In Jaydev Shrichand
Danani v. State of Gujarat (supra), the Supreme Court was hearing the
appeal in the year 1992, whereas the offence had taken place in the year
1969, which was more than 23 years earlier. Nevertheless, the offence
was one under Section 409 of IPC. As far as N.K. Illiyas v. State of
Kerala (supra) is concerned, the temporary misappropriation was only
of a sum of Rs.1,839/- pertaining to the telephone dues for a period of
less than one month in the year 1992.
13. As far as the present case is concerned, the offence is of the year
1993, which is about 30 years ago and the amount involved is of
Rs.13,908/-. The age of the present Petitioner appears to be 54 years at
present. The Petitioner is stated to have undergone more than a month's
imprisonment. He has already deposited back a sum of Rs.13,908/-.
14. Keeping in view all of the above factors, the Court confines the
sentence to the period undergone by the Petitioner but increases the fine
amount to Rs.15,000/- (which is an addition to the amount already
deposited by the Petitioner) while affirming the default sentence of RI
of six months. If the fine amount is not paid on or before 1st November,
2022 then the default sentence will get immediately activated, requiring
the Petitioner to surrender forthwith. If he does pay the fine amount
then the bail bond furnished by the Petitioner will stand discharged.
15. The revision petition is disposed of in the above terms.
(Dr. S. Muralidhar)
Chief Justice
S. Behera
