Bana Bihari Das vs State Of Odisha (Vigilance)
2023 Latest Caselaw 9932 Ori

               IN THE HIGH COURT OF ORISSA, CUTTACK

                             CRLA No.594 of 2010

      An appeal under section 374 Cr.P.C. from the judgment and
      order dated 19.11.2010 passed by the Special Judge (Vigilance),
      Balasore in T.R. Case No.261 of 2007.
                          ----------------------------

            Bana Bihari Das                   .........                Appellant


                                             -Versus-


            State of Odisha (Vigilance)       .........                Respondent


                For Appellant:           -        Ms. Tejasmita Mohapatra
                                                  Advocate

                For Respondent:          -        Mr. M.S. Rizvi
                                                  Addl. Standing Counsel
                                                  (Vigilance)

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

      P R E S E N T:

               THE HONOURABLE MR. JUSTICE S.K. SAHOO

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

Date of Hearing and Judgment: 24.08.2023

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

S.K. SAHOO, J. The appellant Bana Bihari Das faced trial in the Court

of learned Special Judge (Vigilance), Balasore in T.R. Case

No.261 of 2007 for offences punishable under section 13(2) read

with section 13(1)(c) of the Prevention of Corruption Act, 1988

(hereinafter „1988 Act‟) on the accusation that being a public // 2 //

servant functioning as Junior Engineer, Jaleswar Irrigation Sub-

Division attached to Section-I from 18.10.1987 to 22.07.1992

received M.S. rods of different sizes weighing Q.4.03 kgs. from

the contractor K.C. Ray and on inventory, on 17.02.1995 a

shortage of M.S. rods came to Q.3.73 kgs. worth of Rs.5,000/-

(rupees five thousand) which have been dishonestly or

fraudulently misappropriated and otherwise converted to his own

use entrusted upon him or under his control as a public servant.

The appellant was further charged under section 409 of the

Indian Penal Code (hereinafter „the I.P.C.‟) on the accusation

that he being a public servant and entrusted with M.S. rods of

different sizes weighing Q.4.03 kgs. during the aforesaid period

committed criminal breach of trust in respect of the said

property worth of Rs.5,000/- (rupees five thousand) i.e. iron

rods of different sizes.

The learned trial Court vide impugned judgment and

order dated 19.11.2010 has been pleased to hold the appellant

guilty of both the charges and sentenced him to undergo R.I. for

two years on each count for the offences under section 13(2)

read with section 13(1)(c) of the 1988 Act and section 409 of

the I.P.C. and he was further directed to pay a fine of Rs.5,000/-

(rupees five thousand), in default, to undergo further S.I. for a

// 3 //

term of four months and both the substantive sentences of

imprisonment were directed to run concurrently.

The Prosecution Case:

The prosecution case, as per the F.I.R. lodged by

Kartik Chandra Biswal (P.W.9) before the Superintendent of

Police, Vigilance, Balasore, is that he received information about

misappropriation of Q.4.03 kgs. of iron rods worth of Rs.5,000/-

(rupees five thousand) by the appellant and accordingly,

conducted an enquiry which revealed that the appellant while

posted as Junior Engineer, Jaleswar Irrigation Section-I received

the steel and iron rods from one B.C. Dey, contractor on

02.12.1989 and those rods were (i) 10 mm dia steel Q.0.58

kgs., (ii) 8 mm dia M.S. rod Q.0.25 kgs., (iii) 16 mm dia M.S.

rod Q.0.94 kgs. and (iv) 22 mm dia M.S. rod Q.2.26 kgs. and

the total comes to Q.4.03 kgs. It is further case of the

prosecution, as per the F.I.R. that the aforesaid quantity of rods

were received by the appellant on 02.12.1989 and till

23.07.1992, he had not issued the same for any construction

work from the date of receipt. On 23.07.1992, the appellant

handed over the complete charge of Jaleswar Irrigation Section-I

to Shri Anil Kumar Panda (P.W.2), J.E. and however, the steel

and M.S. iron rod were not handed over to P.W.2 and therefore,

// 4 //

the appellant being a public servant committed criminal

misconduct and dishonestly misappropriated Q.4.03 kgs. of M.S.

iron rods worth of about Rs.5,000/- (rupees five thousand)

abusing his official position.

P.W.10 Apurba Kumar Ash, who was the O.I.C. of

Vigilance Police Station, Balasore, as per the direction of the

Superintendent of Police, Vigilance, Balasore registered the case

and handed over the charge of investigation to Shri Kartik

Chandra Biswal (P.W.9) for investigation.

P.W.9 after taking over the charge of investigation,

examined the witnesses, seized certain documents, prepared the

seizure list (Ext.17) and visited the spot on 30.09.1994 and

handed over the charge of investigation to Shri Apurba Kumar

Ash (P.W.10).

After taking over the charge of investigation again,

P.W.10 submitted requisition to the Executive Engineer,

Irrigation Division, Balasore and the S.D.O., Irrigation Sub-

Division, Jaleswar about the charge papers between the

appellant and P.W.2 and on 02.01.1995, he seized certain

documents, namely, copy of charge papers in between the two

and letter no.16 of Executive Engineer, Irrigation Division,

Balasore and prepared the seizure list vide Ext.16. The charge

// 5 //

papers bear the signatures in original of both the appellant as

well as P.W.2 and it was found that on 23.07.1992, the appellant

handed over the charge to P.W.2 and from the letter of the

Executive Engineer, Irrigation Division, Balasore, the valuation of

different iron rods were furnished and the same is marked as

Ext.11. Ext.10 is the register in which the appellant had

mentioned the amount of rods which he had received from the

department and page nos.32 and 33 in the said register marked

as Ext.10/1 which revealed that the appellant handed over the

charge of excess rods to himself on 23.07.1992. The

Investigating Officer examined the witnesses, conducted

inventory of the office room of P.W.2. During inventory, iron

rods of different sizes were found inside the store room and

accordingly, the inventory report was prepared mentioning the

quantity, value and sizes of the iron rods and the said inventory

report is marked as Ext.5. The iron rods found inside the store

room were seized and a seizure list was prepared marked as

Ext.6 and the Investigating Officer left the rods in the zima of

Kashinath Mishra (P.W.1), Assistant Engineer of Jaleswar

Irrigation Sub-Division on due execution of a zimanama by him.

The original letter of the S.D.O., Irrigation Sub-Division,

Jaleswar and the original explanation of the appellant pursuant

// 6 //

to such letter were also seized as per the seizure list marked as

Ext.8 and some other letters were also seized from the Office of

the S.D.O., Irrigation Sub-Division, Jaleswar on 22.04.1995 and

the I.O. prepared the seizure list marked as Ext.18. He also

seized four letters from the Office of the Executive Engineer,

Balasore Irrigation Division and prepared the seizure list marked

as Ext.21. Brundaban Chandra Dey, the contractor who executed

the construction work of Guasanala Irrigation Creek at village

Kharidchhak was also examined. The I.O., as per the direction of

the Superintendent of Police, Vigilance, met the Chief Engineer,

Irrigation to obtain sanction for prosecution against the appellant

and he discussed the facts of the case, produced all the relevant

papers and documents of the case for his perusal and on

19.01.1996, he received the sanction order through the

Superintendent of Police, Vigilance, Balasore, which is marked as

Ext.22. The appellant was arrested and he was released on bail.

On completion of investigation, P.W.10 submitted charge sheet

against the appellant for commission of offences under section

13(2) read with section 13(1)(c)(d) of the 1988 Act and section

409 of the I.P.C. on the accusation that the appellant while

posted as the J.E. had misappropriated a sum of Rs.4,525/-

// 7 //

(rupees four thousand five hundred twenty five) towards the

cost of the iron rods.

The appellant while not disputing that he received

the surplus M.S. rods of Q.4.03 kgs. of different sizes from

contractor Brundaban Chandra Dey, in his accused statement to

question no.3 stated that he had handed over the charge of the

iron rods to P.W.2. It is his specific stand in the defence plea

that he has not misappropriated any rods and he has been

falsely implicated in the case.

Witnesses & Exhibits:

In order to prove its case, the prosecution examined

ten witnesses.

P.W.1 Kashinath Mishra was the S.D.O., Irrigation at

Jaleswar and he is a witness to the seizure and after seizure of

M.S. rods from the office of P.W.2, the seized rods were given in

his zima vide zimanama Ext.7.

P.W.2 Anil Kumar Panda was the Junior Engineer,

Jaleswar Section-I. He stated that he took charge of his post

from the appellant on 23.07.1992 and at the time of handing

over charge, the appellant did not hand over charge of some

articles which have been categorically mentioned in the charge

report.

// 8 //

P.W.3 Naba Kumar Pani was the Junior Clerk in the

Office of the Executive Engineer, Irrigation Division, Balasore

and he is a witness to the seizure of charge papers of handing

over and taking over charge between the appellant and P.W.2 so

also one letter issued by Executive Engineer.

P.W.4 Naba Kumar Mohanty was the Wage Earner

Khalasi in Irrigation Sub-Division Office, Jaleswar and he is a

witness to the seizure of charge paper of the appellant and site

account exercise book and some other documents as per seizure

list Ext.17.

P.W.5 Harekrushna Mohanty was the B.D.O. at

Jaleswar and he stated that on the basis of requisition in

connection with an inventory by the Vigilance Department, he

had gone to the Irrigation Office, Jaleswar and in his presence,

inventory was conducted in the office of P.W.2.

P.W.6 Muralidhar Dhal was the Executive Engineer of

the Irrigation Division, Balasore, who stated to have sent one

letter to the Vigilance Police, Balasore and forwarded the letter

of P.W.2 under his letter.

P.W.7 Subash Chandra Dixit was the cashier in

Jaleswar Irrigation Sub-Division and he is a witness to the

// 9 //

seizure of iron rods and some letters as per the seizure lists

Exts.6 and 8 respectively.

P.W.8 Kirtan Chandra Patra was the Junior Engineer

in Jaleswar Irrigation Sub-Division and he is a witness to the

seizure of some letters and documents as per the seizure lists

Exts.18 and 19 respectively.

P.W.9 Kartika Chandra Biswal was the Inspector,

Vigilance Unit, Jaleswar and he is the informant in the case and

also the initial investigating officer of the case and upon his

transfer, he made over the charge of investigation to Inspector

Apurba Kumar Ash (P.W.10) on 05.12.1994.

P.W.10 Apurba Kumar Ash was the Officer in-charge

of Vigilance police station, Balasore, who took over investigation

of the case from P.W.9 as per direction of the Superintendent of

Police, Vigilance, Balasore and on completion of investigation, he

submitted charge sheet against the appellant.

The prosecution exhibited twenty two documents.

Ext.1 is the letter dated 15.03.1993 of P.W.2 to the S.D.O.

regarding deficit of M.S. rods of different diameter, Ext.2 is the

letter dated 27.11.1992 of P.W.2 to S.D.O., Ext.3 is the letter

no.625 dated 30.11.1992, Ext.4 is the letter dated 04.12.1992

to the S.D.O. reply, Ext.5 is the inventory list, Exts.6, 8, 16, 17,

// 10 //

18 and 21 are the seizure lists, Ext.7 is the zimanama, Ext.9 is

the charge report, Ext.10 is the site account register, Ext.10/1 is

the entry in page-13 of Ext.10, Ext.10/2 is the pages 6 and 7 of

Ext.10, Ext.11 is the letter of Executive Engineer to the Vigilance

Department, Ext.12 is the letter of S.D.O. to B.B. Das, Ext.13 is

the report of peon, Ext.14 is the letter dated 27.01.1992, Ext.15

is the letter no.22 dated 15.03.1993, Exts.19 & 19/1 are the

documents seized under Ext.18, Ext.20 is the written F.I.R. and

Ext.22 is the sanction order.

Two witnesses have been examined on behalf of the

defence.

D.W.1 Swapneswar Jena, who was working as

N.M.R. in Section-I of Jaleswar Irrigation Sub-Division, stated

that on 23.07.1992, the appellant was relieved by his successor

(P.W.2) and charge was handed over by the appellant and taken

over by P.W.2 and charge papers were scribed by P.W.2 and the

appellant was showing the articles.

The appellant has examined himself as D.W.2.

The defence exhibited five documents. Ext.X is the

charge report, Ext.Y is the signature of the appellant at page-12,

Ext.A is the answer of P.W.6 to the query of Vigilance police,

// 11 //

Ext.B is the signature of P.W.2 on the letter, Ext.C is the charge

report which was earlier marked „X‟.

Findings of the Trial Court:

The learned trial Court, after assessing the oral as

well as documentary evidence on record, has been pleased to

hold that on 23.07.1992, the appellant handed over the charge

to his successor (P.W.2). It was further held that the prosecution

has established that the appellant had with him the surplus iron

rods on the day as he handed over the charge to his successor

(P.W.2) but he also took the plea that he handed over the said

iron rods to his successor. It was further held that Ext.C has to

be discarded as it does not reveal that the surplus iron rods were

handed over by the appellant to P.W.2. It was further held that

the appellant did not hand over the iron rods in question to

P.W.2 on 23.07.1992 at the time of handing over the charge. It

was further held that the materials available on record and the

false defence of the appellant cumulatively establish that he

criminally misappropriated Q.4.03 kgs. of iron rods received by

him after conclusion of the work in question. The learned trial

Court further held that non-examination of the sanctioning

authority is not fatal to the prosecution and there was a valid

sanction for prosecution of the appellant and in the ultimate

// 12 //

analysis, it was held that the prosecution has succeeded in

establishing the guilt of the appellant for both the charges.

Contentions of the Parties:

Ms. Tejasmita Mohapatra, learned counsel appearing

for the appellant challenging the impugned judgment contended

that though it is the prosecution case that the appellant received

the iron rods in question from one Brundaban Chandra Dey, but

in the charge, it has been mentioned that he received the same

from one K.C. Ray. Neither K.C. Ray nor Brundaban Chandra

Dey has been examined during trial to substantiate that they

handed over Q.4.03 kgs. of M.S. rods of different sizes to the

appellant. Learned counsel further argued that in the accused

statement, question no.3 has been put by the learned trial Court

that from the evidence of P.W.2, it transpired that the appellant

had received surplus/unutilized Q.4.03 kgs. of M.S. rods of

different sizes from contractor Brundaban Chandra Dey to which

the appellant answered in affirmative but nowhere P.W.2 had

stated about the said aspect in his evidence. Therefore, the

learned trial Court should not have put such question in the

accused statement. It was further argued that in question no.14,

it was put to the appellant that from the evidence of P.W.10, the

I.O., it revealed that during the investigation, he had examined

// 13 //

contractor Brundaban Chandra Dey and the said contractor had

stated before him that he had returned the excess iron rods after

completion of the construction work to the appellant. Since

Brundaban Chandra Dey, contractor has not been examined, the

learned trial Court was not justified in putting the statement of

Brundaban Chandra Dey recorded under section 161 of the

Cr.P.C. in the accused statement to the appellant. It is

contended that since the learned trial Court has committed

illegality in putting questions like questions no.3 and question

no.14, the answers given by the appellant cannot be utilized

against him and should be taken out of consideration. Learned

counsel further submitted that in absence of examination of the

relevant witnesses like Brundaban Chandra Dey and K.C. Ray

from whom the appellant stated to have received M.S. rods of

different sizes, the entrustment part cannot be established and

even if in the accused statement, it was elicited that the

appellant is having possession of the M.S. rods of different sizes

of Q.4.03 kgs. but Ext.C, which is the original charge handing

over the documents, would reveal that same has been handed

over to P.W.2 and the learned trial Court without relying on the

original document has relied upon a carbon copy of the same in

which tampering has been made by P.W.2 mentioning not to

// 14 //

have received the iron rods. Learned counsel further submitted

that once the original document vide Ext.C is taken into account

and it shows that the M.S. iron rods were handed over to P.W.2,

the question of misappropriation by the appellant does not

arises, in fact, it would be the responsibility of P.W.2 to explain

as to what he did with the iron rods. Learned counsel further

argued that there is every possibility that after receiving the iron

rods from the appellant, P.W.2 has misappropriated the same

and manipulated some documents and in order to save his own

skin, foisted a case against the appellant and therefore, it is a fit

case where benefit of doubt should be extended in favour of the

appellant.

Mr. M.S. Rizvi, learned Additional Standing Counsel

appearing for the Vigilance Department, on the other hand,

contended that when in the accused statement, the appellant

has specifically admitted to have received the surplus/unutilized

M.S. rods of Q.4.03 kgs. from the contractor Brundaban Chandra

Dey, non-examination of the contractor cannot be a factor to

disbelieve the prosecution case. Learned counsel further argued

that the documentary evidence like Ext.10 reveals that as on the

date, the appellant handed over the charge, for the month of

July 1992, there was having the stock of Q.4.03 kgs. of rods and

// 15 //

in that month, there was no transaction and therefore, he should

have handed over the entire iron rods to his successor who is

none else than P.W.2, but P.W.2 has mentioned in Ext.10 that

while handing over the charge, the appellant had not handed

over the iron rods and therefore, the learned trial Court was

justified in relying on Ext.9 in which it is specifically mentioned

that P.W.2 has not taken over the charge of the iron rods

mentioned in page-12 of Ext.9. Learned counsel further

submitted that the learned trial Court has rightly taken into

account the evidence on record so also the documents proved on

behalf of the prosecution to arrive at the conclusion that the

appellant was entrusted with Q.4.03 kgs. of rods and he has

misappropriated the same and therefore, the charges have been

duly proved and thus, the appeal being devoid of merits should

be dismissed.

Analysis of the Evidence:

Adverting to the contentions raised by the learned

counsel for the respective parties, in order to prove a case under

section 409 of the I.P.C., it must be established that (i) the

accused was a public servant (ii) he was entrusted with any

property and (iii) that he has committed breach of trust in

respect of such property. Once entrustment is proved, it is for

// 16 //

the accused to prove how the property entrusted was dealt with.

„Criminal breach of trust‟ has been defined under section 405 of

the I.P.C. which is as follows:-

"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that 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, commits criminal breach of trust."

Thus, in order to prove criminal breach of trust,

there must be an entrustment, there must be misappropriation

or conversion to one‟s own use or use in violation of any legal

direction or of any legal contract and the misappropriation or

conversion or disposal must be with dishonest intention. Where

the entrustment is missing, the same would not constitute a

criminal breach of trust.

Section 13(1)(c) of the 1988 Act also states that if a

public servant dishonestly or fraudulently misappropriates or

// 17 //

otherwise converts for his own use any property entrusted to

him or under his control as a public servant or allows any other

person to do so, then he can be said to have committed the

offence of criminal misconduct, which is punishable under

section 13(2) of the 1988 Act.

In the case in hand, the prosecution case as per the

F.I.R. is that Q.4.03 kgs. of steel and iron rods were received by

the appellant from contractor Brundaban Chandra Dey on

02.12.1989, however in the charge, it is mentioned that the M.S.

rods of different sizes weighing Q.4.03 kgs. were received by the

appellant from contractor K.C. Ray. It cannot be lost sight of the

fact that the F.I.R. was lodged after receipt of information and

conducting enquiry. Therefore, there is inconsistency as to from

which contractor the appellant received the steel and iron rods in

question. Neither any of those contractors have been examined

during trial to substantiate the same nor was any documentary

evidence proved on behalf of the prosecution to show that on

02.12.1989, steel and iron rods were received either from

Brundaban Chandra Dey or from K.C. Ray. The learned trial

Court has put the following question to the appellant:-

"Q.3. It transpires from the evidence of P.W.2- J.E. (Anil Kumar Panda) that you had received

// 18 //

surplus/unutilized 4.03 quintals of M.S. Rods of different sizes from contractor Brundaban Ch. Dey. What have you got to say?"

The appellant answered the above question in

affirmative.

After going minutely through the evidence of P.W.2,

the learned Additional Standing Counsel for the Vigilance

Department Mr. Rizvi fairly submitted that nowhere P.W.2 has

stated that the appellant received surplus/unutilized Q.4.03 kgs.

of M.S. rods of different sizes from contractor Brundaban

Chandra Dey. I have also gone minutely through the evidence of

P.W.2 and found that there is nothing in his statement in that

respect.

Similarly, question no.14, which was put to the

appellant in the accused statement, reads as follows:-

"Q.14. It transpires further from the evidence of P.W.10- I.O. that during his investigation, he had examined contractor Brundaban Ch. Dey and that the contractor had stated before him that he had returned the excess iron rods after completion of the aforementioned construction work to you. What have you got to say?"

The answer to this question is in affirmative but it

seems that this question is based on the statement of contractor

// 19 //

Brundaban Chandra Dey recorded under section 161 of the

Cr.P.C. before the Investigating Officer and as already stated the

said contractor has not been examined during trial.

Law is well settled that statement recorded under

section 161 Cr.P.C. is not a substantive piece of evidence and it

can only be used for the limited purpose of contradiction and

corroboration to the evidence of a witness, when he is examined

in Court. Again section 313 of the Cr.P.C. requires that the

attention of the accused must specifically be brought to the

inculpatory pieces of evidence so as to give an opportunity to

him to offer an explanation if he chooses to do. Circumstances

which were not put to the accused in his statement under

section 313 of the Cr.P.C. cannot be used against him and have

to be excluded from consideration. The examination of the

accused under section 313 of the Cr.P.C. is not a mere formality,

the questions put and the answers given thereunder have great

use. It is a direct dialogue between the Court and the accused.

The material evidence against the accused should be brought to

his notice in order to enable him to give explanation. When there

is no evidence or there is no circumstance appearing in the

evidence against the accused on a particular aspect and there is

// 20 //

nothing for him to explain, no question is required to be put to

him on that aspect.

In the case in hand, when the evidence of P.W.2 is

silent that the appellant had received surplus/unutilized Q.4.03

kgs. of M.S. rods of different sizes from contractor Brundaban

Chandra Dey, the learned trial Court should not have put such

question to the appellant in the accused statement as there was

no evidence in that respect. By putting such question, the

learned trial Court has committed illegality by going beyond the

scope of section 313 of Cr.P.C. and therefore, answers given, if

any, has no relevance and cannot be utilized against the

appellant.

Coming to the question no.14 as pointed out by the

learned counsel for the appellant, it reveals that the question

was formulated on the basis of 161 Cr.P.C. statement of

contractor Brundaban Chandra Dey recorded by P.W.10 and in

that statement, the contractor allegedly stated that he had

returned excess iron rods after completion of the construction

work to the appellant. Brundaban Chandra Dey has been cited as

charge sheet witness no.14 but for the reason best known to the

prosecution, he has not been examined during trial. A statement

made by a witness to a police officer during course of

// 21 //

investigation recorded under section 161 of the Code is not and

cannot be treated as substantive evidence. It may be used for

the purpose of contradicting the evidence of the prosecution

witness and by confronting it in the manner provided under

section 145 of the Evidence Act. Therefore, when despite being a

charge sheet witness, the prosecution has not examined

Brundaban Chandra Dey, whatever allegedly he has stated

before the Investigating Officer (P.W.10), on that basis a

question should not have been put to the appellant under section

313 Cr.P.C. Hence, the learned trial Court has committed

illegality in putting such question and therefore, the answer

given, if any, to such question is taken out of consideration.

There is no dispute that the site account register has

been marked as Ext.10 and for the month of July 1992, it was

mentioned that there was availability of stock of Q.4.03 kgs. of

steel and M.S. iron rods of different sizes and during that month,

the transaction was „Nil‟, but the appellant specifically pleaded

that while handing over the charge to P.W.2, he handed over

such rods, which would be evident from Ext.C, the original of the

charge hand over document in which P.W.2 has put his signature

and received different articles including the steel and M.S. iron

rods in questions. From the side of the prosecution, Ext.9 was

// 22 //

proved, which is the carbon copy of the charge report and P.W.2

has stated that at the time of handing and taking over charge,

four carbon copies were prepared of the charge report, the

original remained with the person, who gave the charges,

another copy remained with the person who took the charge and

other two copies remained with the concerned authority. In the

carbon copy of charge report which has been proved to be Ext.9

by the prosecution, in page no.12 thereof, P.W.2 admitted to

have mentioned in original ink in Remark Column against the

steel and M.S. rods to be „Nil‟, which were not there in the

original charge report. D.W.1 Swapneswar Jena has stated that

on 23.07.1992, the appellant was relieved by his successor

P.W.2 and the charge was handed over to P.W.2 and he was

present at that point of time and the charge papers were scribed

by P.W.2 and the appellant was showing articles charge of which

he was handing over to P.W.2 and he along with the staff were

bringing the documents as per the version of the appellant and

after scribing the charge papers, the appellant and P.W.2 put

their signatures in the respective columns on each page and

accordingly, he proved the document marked as Ext.C. When in

the original charge report marked as Ext.C on behalf of the

defence, it is reflected that P.W.2 has received the steel and

// 23 //

M.S. rods in question from the appellant on 23.07.1992 and in

Ext.9, the carbon copy, there has been tampering and it was

mentioned not handed over, the learned trial Court was not

justified in acting upon a carbon copy of the charge report where

there is tampering and not relying on the original charge report,

which is proved by the defence as Ext.C. If on 23.07.1992, the

steel and iron rods were available in the stock and the same was

handed over by the appellant to P.W.2 and the charge report

was prepared, it cannot be said that the appellant

misappropriated the same. Once P.W.2 had taken over the

charges, it is he who was to explain as to how the same was not

found in the stock. The possibility of P.W.2 himself

misappropriating the rods in question and by manipulating the

charge report Ext.9 (carbon copy) in his own hand and foisting

the case against the appellant cannot be ruled out.

Conclusion:

In view of the foregoing discussions, when there is

no clear evidence regarding entrustment of steel and M.S. rods

in question in favour of the appellant and the material witnesses

have been withheld by the prosecution and when it appears that

tampering has been made with the charge report (Ext.9) and on

the basis of original charge report (Ext.C), it appears that the

// 24 //

rods were handed over to P.W.2, in my humble view, the

ingredients of the offences either under section 409 of the I.P.C.

or section 13(1)(c) of the 1988 Act, which is punishable under

section 13(2) of the said Act are not made out against the

appellant.

In the result, the criminal appeal is allowed. The

impugned judgment and order of conviction of the appellant

under section 13(2) read with section 13(1)(c) of the 1988 Act

and section 409 of the I.P.C. is not sustainable in the eye of law

and the sentence passed thereunder is hereby set aside and the

appellant is acquitted of all the charges.

The appellant, who is on bail by order of the Court, is

hereby discharged from liability of the bail bonds and the surety

bonds shall also stand cancelled.

The trial Court records with a copy of this judgment

be sent down to the concerned Court forthwith for information

and necessary action.

Before parting with the case, I would like to put on

record my appreciation to Ms. Tejasmita Mohapatra, learned

counsel for the appellant for rendering her valuable help and

assistance towards arriving at the decision above mentioned.

This Court also appreciates the valuable help and assistance

// 25 //

provided by Mr. M.S. Rizvi, learned Additional Standing Counsel

for the Vigilance Department.

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

S.K.Sahoo,J.

Orissa High Court, Cuttack The 24th August 2023/RKMishra

Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 15-Sep-2023 18:54:19