Orissa High Court
Kishore Chandra Panda vs Republic Of India on 1 June, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No.99 of 1995
(From the judgment dated 27th March, 1995 passed by learned Special
Judge, Bhubaneswar in T.R. No.21 of 1986)
Kishore Chandra Panda .... Appellant
-versus-
Republic of India
.... Respondent
Advocate(s) appeared in this case:-
For Appellant : Mr. P.K. Panda, Advocate
For Respondent : Mr. Sarthak Nayak,
Advocate for C.B.I.
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
1st June, 2023
B.P. Routray, J.
1. Present appeal is directed against the impugned judgment of
conviction and sentence dated 27th March, 1995 passed by learned
Special Judge, Bhubaneswar in T.R.No.21 of 1986.
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
2. The accused-Appellant namely, Kishore Chandra Panda was
employed as Branch Manager of Agriculture Banking Division (ABD)
in State Bank of India, Purusottampur Branch during the year 1984. He
was charged for commission of offence under Sections 5(2) read with
Section 5(1)(c)(d) of the Prevention of Corruption Act, 1947 and
Sections 409, 477-A of the Indian Penal Code and has been convicted
for all such offences and sentenced to undergo rigorous imprisonment
for one year along with payment of fine of Rs.15,000/- with default
sentence of simple imprisonment for one year under Sections 5(2) of
the P.C. Act. No separate sentence was directed for commission of
offences under the I.P.C.
3. The prosecution case is that, the accused worked as Manager,
ABD in the State Bank of India at Purusottampur Branch from 10th
April, 1981 to 10th October, 1984. Being the Manager of the Branch, he
is primarily responsible for grant of loans from the stage of
recommendation, sanction and repayment till closing of loan accounts.
During his incumbency as such, he sanctioned loans to different
loanees and in the process of transactions he received a sum of
Rs.14,918.50 paisa on 2nd July 1984, 9th July 1984, 10th July 1984 and
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
11th July 1984 from different loanees namely, Smt.Jhari Behera
(P.W.8), Sahadev Goud (P.W.5), Jharia Behera (P.W.4), A. Basu Dora
(P.W.3), A Basudev Dora (P.W.26), Smt.A.Saraswati Ama, Mangulu
Goud, Smt.E.Kundan Ama (P.W.7), K.S.Reddy, G.R.Rao Dora, Musa
Goud, Gantei Goud (P.W.22), P.Pati Dora, Smt.Pata Behera, D.P.Dora
(P.W.1), Hadu Das, Budhia Das (P.W.18), Madhu Das (P.W.12) and
Kukta Das towards repayment of their loan amounts. But without
accounting for the same in the relevant registers and documents
maintained in the names of above loanees in the bank, the accused
misappropriated the same, and in order to conceal such
misappropriation he prepared false Agriculture Term Loan (ATL) debit
vouchers and debited the subsidy amount, Transfer Credit Vouchers
(TCV) for like amount collected from the loanees showing same dates
and credited to the respective loan accounts, knowingly the fact that
due subsidy amounts were already credited to those accounts. This was
detected subsequently. Upon detection of the same, an internal inquiry
was conducted by T.K. Das (P.W.27), the then Administrative Officer
in the Regional Office at Bhubaneswar who submitted his report
against the Appellant. The F.I.R. was lodged on 30th September, 1985
Signature Not Verified
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Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
and P.W.32, the then Inspector of C.B.I. conducted investigation and
submitted the charge-sheet.
4. The Appellant denied charges and pleaded innocence. He put-
forth his defence case that T.K. Das and his successor (P.W.15) belong
to the rival Employees Union and they manufactured certain
documents and influenced rustic villagers against him to foist the false
case. He further explained in his statements under Section 313, Cr.P.C.
that due to heavy work pressure during the disputed dates he did not
check the Day Books and the same were checked by other officials. He
also denied to have made any entry in the passbook of the loanees.
5. The prosecution examined thirty two witnesses and marked 111
documents. Four witnesses were examined by the Appellant in support
of his defence and two exhibits were marked at his behest.
6. Learned trial court formulated six points for determination. To
sum up, the pivotal question falls for determination is that, whether the
Appellant received Rs.14,918.50 paisa from different loanees on 2nd,
9th, 10th and 11th days of July 1984 and misappropriated the same being
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
the Manager of the Branch by making false entries in the passbooks,
loan ledgers, debit vouchers etc. with intention to falsify the accounts ?
7. Some of the prosecution witnesses turned hostile. Accordingly,
learned trial judge upon analysis of the evidences has concluded that
the prosecution has proved receipt of Rs.12,383/- by the Appellant
from different loanees towards repayment of loan amount which he
failed to account for. The prosecution has established that the
Appellant being the Manager of the Branch falsified the account
documents like ledger book, credit and debit vouchers etc. for ATL to
reveal credit of subsidy amount twice. When the subsidies were
already credited in the respective loan accounts of the loanees, the
question of crediting subsidy for the second time did not arise, but the
Appellant did so with a view to conceal the fact of misappropriation.
8. The offence of criminal breach of trust by a public servant under
Section 409 of the I.P.C. and the offence of criminal misconduct under
Section 5(1)(c) of the P.C. Act, 1947 are almost identical and to
constitute both offences, entrustment of property is most important.
The required ingredients, for both the offences, are that, the accused
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Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
must be a public servant or a banker, merchant or agent; secondly, he
must have been entrusted with property in such capacity; and thirdly,
he has committed breach of trust in respect of such property. To satisfy
breach of trust criminally, it must be proved that the person entrusted
with property has dishonestly misappropriated or converted that
property for his own use. Prosecution is duty bound to satisfy all the
ingredients against the accused beyond all reasonable doubts.
9. The employment of Appellant as a public servant, i.e. Manager
of A.B.D., Purusottampur Branch during the relevant period is not
disputed. The same has also been established from the evidences of
different witnesses including P.W.13, 15, 19, 24 & 27. As per the
allegations, the Appellant received the amounts from the loanees and
did not deposit the same in the Bank, but misappropriated. In order to
conceal the misappropriation, he made false entries as well as
manipulated the records to show credit of subsidy amount twice.
10. The Appellant denies this and as per his defence, P.W.27 and his
successor Branch Manager have prepared false documents in
connivance with prosecution agency to foist a false case against him. In
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
other words, as per Appellant, he did not receive any amount from the
loanees and therefore the question of depositing the amount in the
Bank does not arise. This means, the Appellant does not dispute non-
deposit of the amounts in the Bank which he had not received/collected
from the loanees. Nonetheless, it is the duty of the prosecution to
satisfactorily prove receipt of the amounts by the Appellant from
different loanees so also non-deposit of the same in the Bank. It is
immaterial for the purpose how the Appellant utilized misappropriated
amounts.
11. As seen from record, P.Ws.1 to 10, 26 & 31 are the loanees, who
stated to have paid different amounts, Viz. Rs.1625/-, Rs.1000/-,
Rs.908/-, Rs.1850/-, Rs.500/-, Rs.2150/-, Rs.500/-, Rs.900/-, Rs.300/-,
Rs.1700/- & Rs.800/- on different occasions to the Appellant and the
Appellant has received those amounts towards repayment of loan
amounts by entering the same in their Bank Passbooks under different
exhibits Viz. Exts.1 to 3, 6 to 11, 13 to 16, 25, 27, 28, 54 & 70 along
with entries under Exts.1/1, 2/1, 2/2, 3/1, 6/1, 6/3, 8/1, 9/1, 10/1, 25/1,
28/1. Out of the aforesaid amounts, the sum of Rs.2150/-, Rs.900/-,
Rs.500/- & Rs.300/- were received from the respective loanees or their
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
representatives on 9th July, 10th July & 11th July, 1984, and rest of the
amounts were received on 2nd July, 1984. This has been clearly stated
by the respective loanees in their depositions and the entries in that
respect in the corresponding Passbooks have been proved to be in the
handwriting of the Appellant by the expert document examiner,
P.W.20. P.W.15 is the successor of the Appellant, who took over
complete charge from the Appellant on 10th October 1984. This
P.W.15 has categorically stated in his evidence regarding the entries
made in the Passbook of different loanees in the handwriting of the
Appellant. P.W.13, who was working as Branch Manager of State
Bank of India, Purusottampur Branch for a long time including the
period of incumbency of the Appellant as the Branch Manager of
A.B.D. Branch has also certified that the entries in the Passbooks are in
the handwriting of the Appellant. P.W.28, an independent witness, has
also stated regarding receipt of some amounts from some of the
loanees collected at the field by the Appellant on 10th July 1984.
Besides, a departmental enquiry was conducted by P.W.27
immediately after detection of the misappropriation which led to
lodging of the FIR. This witness in course of his enquiry examined
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
number of witnesses and recorded their statements with signatures. The
statements of the loanees made before P.W.27 in course of internal
inquiry, who were examined as prosecution witnesses, have also been
adduced in evidence from the side of the prosecution. Again this
P.W.27 has supported the case of prosecution what he observed in
course of his inquiry. So there are overwhelming materials in support
of prosecution case against the Appellant to conclude that the
Appellant received a total sum of Rs.12,383/- from different loanees
towards repayment of their loan amounts by making necessary entries
in their Passbooks. Accordingly, it is established beyond reasonable
doubt that the Appellant has received Rs.12,383/- or in other words, the
entrustment of the amount has been proved beyond reasonable doubt.
12. P.W.29 is the Cashier worked in the same Branch under the
Appellant on those relevant dates. He has stated in his evidence that the
amounts received by the Appellant on 2nd July, 9th July, 10th July & 11th
July, 1984 as per the entries made in the corresponding Passbooks of
respective loanees have not been deposited in the Bank account. In this
regard, it needs to be mentioned here that P.W.29 being the Cashier of
the Branch is competent to speak about deposit of specific amount in
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
the Bank account. He has stated to the effect that even any Officer of
the Branch receives any amount due to the Bank, said amount is to be
deposited with the Cashier through credit voucher. He has categorically
stated that he has not received the sum of Rs.1625/-, Rs.1850/-,
Rs.908/-, Rs.1000/-, Rs.150/- & Rs.500/- on 2nd July, 1984, and
Rs.2150/-, Rs.900/-, Rs.500/-, Rs.300/- on 9th July to 11th July, 1984.
He has further stated that the aforesaid amounts have neither been
received by him nor was there any entry made regarding deposit of the
same in the Cashier's Receipt Scroll on those dates in respect of such
amounts. The complete Cashier's Receipt Scrolls have been marked as
Ext.48, 48/5 & 48/6 in respect of aforesaid dates. In his cross-
examination, though some discrepancies have been brought in respect
of the Cashier's Receipt Scrolls, but the same are found immaterial for
the purpose and would not help the Appellant in any manner. Moreover
it is the defence case that the Appellant did not receive the amounts
from the loanees. P.W.15, the successor of the Appellant, has described
how the Appellant manipulated the credit and debit ATL vouchers to
falsely justify the deposit of the amounts through subsidy. A
cumulative perusal of evidences of P.W.15 & 29 and the corresponding
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
exhibits stated above establishes the fact that the afore-stated amounts
have not been deposited on those relevant dates. Accordingly, it is
established by the prosecution beyond all reasonable doubts that the
entrusted amount has not been deposited to the Bank account by the
Appellant. This shows that the Appellant has misappropriated the
same. So it is established beyond reasonable doubt that the Appellant
has misappropriated the property entrusted to him being a public
servant.
13. Law is well settled that once misappropriation is established,
prosecution need not prove the manner how the misappropriation has
been utilized.
14. So the offence of criminal misconduct as well as criminal breach
of trust has been proved against the Appellant beyond all reasonable
doubts.
15. So far as the offence of falsification of accounts under Section
477-A is concerned, the credit and debit ATL vouchers speak ample of
the same. The evidences of different witnesses including P.W.13, 15,
27, 29, 31 and perusal of those debit and credit vouchers under Ext. 46,
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
46/1, 46/2, 46/3, 43/1, 43/2, 44, 45, 45/1, 45/2, 45/3, 45/4, 45/5, 45/6,
45/7, 45/8, 45/9, 45/10, 45/11, the Ledger Sheets under Ext.4/2, 6/2,
7/2, 8/2, 10/2, 12/2, 28/2, 25/2, 3/2, 14/3, 15/3, 27/2, 17/3, 22/3, 21/2,
19, 23/1, 24/2, 26/2, the Subsidy Receipt Account Register under
Ext.29 series, the Day Book under Ext.30, the Subsidy Claim Bills
under Ext.31 series etc justify manipulation and falsification of the
entries made by the Appellant in the account sheet. In addition to the
above, the evidences of P.W.15, 27, 29 & 20 prove that the entries are
in the handwriting of the Appellant. So the ingredients of the offence
of falsification of accounts Viz. intentional falsification of the books,
accounts, records etc belong to the Bank to defraud are clearly attracted
and established beyond all reasonable doubts against the Appellant in
the capacity of Manager, A.B.D..
16. It has been submitted on behalf of the Appellant that the order of
sanction of prosecution granted by P.W.19 is invalid one on the ground
that P.W.19, the Chief General Manager of the Bank, is not the
competent authority to remove the Appellant from service under the
State Bank of India Act, 1955 read with Clause 55 of State Bank of
India General Regulation, 1955 and the relevant rules under State Bank
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
of India (Supervising Staff) Service Rules. It is therefore prayed that in
absence of any valid sanction order, the prosecution against the
Appellant is vitiated and legally untenable.
At the same time it is further submitted that the order of sanction
under Ext.58 has been granted by P.W.19 without application of mind
and as such the sanction order being a product of non-application of
mind and issued mechanically is invalid to render entire prosecution as
illegal and legally untenable.
17. It needs to be mentioned here that the Appellant cannot take both
the pleas simultaneously. On one hand while he is challenging the
competency of the authority (P.W.19) to grant sanction, on the other
hand he is saying that said authority granted sanction without
application of mind. If the Appellant contends that P.W.19 did not
apply his mind while granting sanction and Ext.58 is a product of non-
application of mind, then he should not question his competency to
grant sanction. Nonetheless, this Court deals with both the grounds in
following paragraphs.
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
18. As per Section 6 of the P.C. Act, 1947, the authority competent
to remove the public servant, other than the case of the Central
Government or the State Government, from his office at the time when
the offence was committed, is competent to grant sanction. In the
instant case the Appellant during the relevant time was serving as
Manager of Agricultural Banking Division in State Bank of India at
Purusottampur Branch under Bhubaneswar Circle Office. P.W.19 is the
Chief General Manager of Bhubaneswar Circle, State Bank of India.
The Appellant has admitted during his examination under Section 313,
Cr.P.C. (Question No.108) that P.W.19 is the competent authority to
remove him from service. As per Rule 50 of the State Bank of India
(Supervising Staff) Service Rules read with Circular No.ADM/041909
dated 22nd October, 1982 of State Bank of India issued by Dy.
Managing Director (Personnel & Services), the Chief General Manager
is the disciplinary authority, who can impose the penalty of removal
from service in respect of officers in the cadre of Junior Management
Grade Scale-I, Middle Management Grade Scale-II & III, Senior
Management Grade Scale-IV & IVA serving within the circle. But it is
contended on behalf of the Appellant that the local board is the
Signature Not Verified
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Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
competent authority to remove the Appellant from service and not the
Chief General Manager. This submission is without any force in view
of the provisions contained in the State Bank Act read with the Service
Rules discussed above.
19. Coming to next contention of the Appellant that P.W.19 did not
apply his mind before issuance of sanction order, the same is also
found without merit. The sanction order under Ext.58 is dated 29th
September, 1986. As per the statements of P.W.32, the Investigating
Officer, made in course of his cross-examination at para-21 to 23, he
placed the extracts of statements of witnesses and the documents
before P.W.19 on 29th September, 1986 at 2:00 P.M. and received the
sanction order before closure of the office on the same day and he
recorded the statement of P.W.19 at about 2:30 P.M. on the same day.
As per the evidence of P.W.19, the Sanctioning Authority, the
documents along with extracts of statements of witnesses etc and
investigation report were produced before him for consideration in the
matter of sanction for prosecution. He went through all the papers,
applied his mind and being satisfied about prima facie case against the
Appellant, accorded sanction for prosecution. In his cross-examination
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
this P.W.19 has clarified the nature of documents produced before him
and gone through by him.
It is the submission of the Appellant that during such short span
of time on the same day, it is humanly impossible to apply mind on all
those documents. I would like to answer here that P.W.19 being the
Chief General Manager and there being a prior internal enquiry
conducted by the Bank on the same issue against the Appellant, it
would not have been difficult on his part to catch hold of the issue
within limited time getting through the account books, vouchers and
other relevant papers. Therefore, all such submissions and doubts
raised on behalf of the Appellant that it would not have been possible
on the part of P.W.19 to apply mind before grant of sanction for
prosecution are meritless. Accordingly, this Court concludes that this is
not a case of non-application of mind rather it is satisfactorily proved
that the order of sanction for prosecution has been granted with
application of mind based on the evidence of P.W.19 & 32. Both the
contentions put forth on behalf of the Appellant in this regard are
rejected as such.
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
20. The Appellant has been sentenced to undergo imprisonment of
minimum punishment as was there in the erstwhile 1947 Act and
though no separate sentence has been inflicted for commission of
offences under Section 409 & 477-A of the I.P.C., the same remains
unchallenged. The appeal being found without merit as per the
discussions made above, the quantum of sentence is not required to be
interfered with.
21. In the result, the appeal is dismissed. The bail bonds are
cancelled and the Appellant is directed to surrender before the trial
court immediately, failing which learned trial court is directed to
proceed as per law.
(B.P.Routray)
Judge
C.R. Biswal/Secy.
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
C.R.B iswal
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 02-Jun-2023 12:40:45
