Janamitra Kumar Sharma vs State Of Odisha
2023 Latest Caselaw 5207 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                      CRLMC No.117 of 2015

  Janamitra Kumar Sharma                ....             Petitioner
                                    Mr. Sudipta Panda, Advocate


                              -Versus-


  State of Odisha                       ....         Opposite Party
                              Mr. T.K. Praharaj, Standing Counsel
               CORAM:
               JUSTICE R.K. PATTANAIK

                DATE OF JUDGMENT:05.05.2023

1.

Instant petition under Section 482 Cr.P.C is filed by the petitioner assailing the impugned order dated 26th June, 2014 passed in C.T. Case No. 25 of 2014 by the learned J.M.F.C.-cum- Nyayadhikari, Grama Nyayalaya, Komna, whereby, cognizance of offence under Section 409 read with 34 of the I.P.C and Section 7 of E.C. Act was taken against him despite the fact that no case of misappropriation and criminal breach of trust has been established.

2. As per the F.I.R dated 20th April, 2014 lodged by the District Manager, OSCSC Limited, Nuapada, on the basis of an agreement, the petitioner being the Custom Miller received paddy stocks procured from the farmers for milling and was to supply resultant FAQ standard rice to the Corporation for KMS 2012-13, which was valid up to 30th September, 2013 in respect of Bargarh A/c extended till 31st March, 2014 and rice against the total paddy received within the period of contract and up to 30th September, 2013, however, delivered rice against the total due in respect of Bargarh A/c relating to KMS 2012-13 and no delivery vis-à-vis Nuapada for KMS 2013-14 till 22nd April, 2014 leaving balance of

Janamitra Kumar Sharma Vrs. State of Odisha

outstanding Q 10824.181 and Q 12232.19 respectively. It is further alleged that due to non-delivery of balance rice within the period of agreement, the mill was physically verified by the CSO Nuapada and shortage of Q15819 of paddy was detected in the godown which is equivalent to custom milled rice of Q 10824.81 and as a result, the misappropriated rice amounted to Rs. 5.10 crores, thereby, the petitioner committed criminal breach of trust. Based on the agreement, since the petitioner is the Custom Miller failed to honour the obligation and due to shortage detected during physical verification, with the misappropriation alleged, the report was lodged. After investigation was concluded, the chargesheet was submitted against the petitioner under the alleged offences and the learned court below by order dated 26th June, 2014 vide Annexure-2 passed the impugned order of cognizance dated 26th June, 2014.

3. Heard Mr. Panda, learned counsel for the petitioner and Mr. Praharaj, learned counsel for the State-opposite party.

4. Mr. Panda, learned counsel for the petitioner submits that the learned Court below miserably failed to take cognizance of the materials on record and in spite of the fact that no offence under Section 409, I.P.C was prima facie proved against the petitioner, took cognizance of the same. It is contended that misappropriation has been alleged since the petitioner failed to deliver the milled rice against the paddy received for the alleged period, such as, KMS 2012-13 and 2013-14. It is further submitted that the essential ingredients of Section 409 I.P.C are not satisfied, however, the learned Court below even without any case of entrustment took cognizance of it. As per Mr. Panda, the foundation of the criminal prosecution is based on the Special Audit Report, which also revealed that the status of the paddy issued for milling could not be definitely ascertained, which is

Janamitra Kumar Sharma Vrs. State of Odisha

with regard to the report for KMS 2013-14. The further contention is that considering the Books of Accounts, which are though relevant, cannot be sufficient to fasten the liability against the petitioner. By referring to the Special Audit Report of KMS 2013-14, Mr. Panda submits that there is a disclosure about the fact that the CSO-in-charge remained silent about the status of paddy lifted and CMR delivered by M/s. Shri Lingaraj Rice Industries, who had participated as Custom Miller in Nuapada and Bargarh for KMS 2013-14 rather suggested lapses of the Department. It is contended that the Special Audit Report is not exhaustive since it only contains the accounting aspects of the transaction quantitative in nature and not qualitative and therefore, a prosecution cannot rest upon it and qualify as the conclusive evidence of misappropriation of criminal breach of trust. Relying on a decision of the Apex Court in Janeshwar Das Aggarwal Vrs. State of U.P. AIR 1981 SC 1646, Mr. Panda submits that no case of dishonest misappropriation established against the petitioner since the essential fact of entrustment and thereafter misappropriation are established. The other citations, such as, Okila Luha Vrs. State of Orissa 58 (1984) CLT 6; Dadarao Vrs. State of Maharashtra AIR 1974 SC 388; Sardar Singh Vrs. State of Haryana (1977) 1 SCC 463; and Krishnan Vrs. Krishnaveti (1997) 4 SCC 241 have been placed reliance on by Mr. Panda challenging the legality and judicial propriety of the impugned order under Annexure-2.

5. On the contrary, Mr. Praharaj, learned Standing Counsel for the State-opposite party submits that the paddy was lifted by the petitioner and as the Custom Miller, he was to deliver the milled rice an obligation which could not be discharged but after physical verification held, shortage of paddy was detected equivalent to the custom milled rice of Q 10824181, whereafter, the FIR was lodged with the allegation of misappropriation of

Janamitra Kumar Sharma Vrs. State of Odisha

stock worth of Rs.5.10 crore. It was investigated upon and finally the chargesheet was submitted against him leading to the passing of the impugned order under Annexure-2, which is absolutely justified and in accordance with law and hence, calls for no interference.

6. Admittedly, the FIR i.e. Annexure-1 was lodged alleging shortage of paddy and default on the part of the petitioner to deliver the custom milled rice of quantity of Q10824.181 and as per clause 36 (i) to (iv) of the agreement entered between the parties, the economic cost of the misappropriated rice was assessed at Rs.5.10 crores. The petitioner is stated to have lifted the paddy and as per the agreement, he was to supply the resultant rice during the contract period up to 30th September, 2013. The petitioner since failed to deliver the custom milled rice and shortage was noticed during a physical verification conducted by CSO, Nuapada, as revealed from Annexure-1, misappropriation was detected. Since, the petitioner was appointed as a Custom Miller of the Corporation, he had been authorized to receive paddy stock procured from the local farmers for custom milling and thereafter to supply the standard rice to the Corporation for the periods in question. The details of the stocks lifted by the petitioner from Bargarh A/c and Nuapada A/c with proper acknowledgement and delivery have been described in Annexure-1. Since the stocks were received and it was obligatory on the part of the petitioner to supply and deliver the standard rice after custom milling and since he failed to do so as per the agreement, on account of detection as to shortage of stock in the godown, the misappropriation has been alleged. So therefore, the prima facie considering the F.I.R and chargesheet so submitted against the petitioner, since there has been allegation of dishonest misappropriation or disposal of the milled rice as against the stocks lifted, the Court is of the considered view that

Janamitra Kumar Sharma Vrs. State of Odisha

he has therefore been prosecuted under Section 409 I.P.C. The details of the accounts and the extent of shortage and loss suffered by the Corporation shall have to be examined during trial. So therefore, the Court is of the conclusion that the alleged misappropriation since alleged in the F.I.R and prima facie proved at the end of investigation which led to the submission of the chargesheet, the learned Court below cannot be said to have committed any serious error in taking cognizance of the alleged offence vide Annexure-2.

7. Mr. Panda, learned counsel for the petitioner referring to the Special Audit Report for KMS 2013-14 submits that the status of the paddy whether issued for milling or not could not be ascertained. With such a disclosure, as according to the learned counsel for the petitioner, misappropriation cannot be alleged against the petitioner. The Court before commencement of trial cannot by merely referring to the observation made in the Special Audit Report reach at a conclusion one way or the other. Such observation in the Special Audit Report cannot be accepted to draw any inference or conclusion regarding absence of any shortage in stocks, which has been alleged in the F.I.R. For whatever laches of the CSO-in-charge as revealed from the Special Audit Report, the Court is also the view that the same cannot be treated as sufficient to exonerate the petitioner from the charge of misappropriation. In any view of the matter, such aspect which is factual based needs a threadbare examination during trial. Furthermore, Mr. Panda, learned counsel for the petitioner alleges that the prosecution has been launched on the strength of the Special Audit Report. It is made to appear from the chargesheet that the investigation is kept open since special audit was in progress. It may be that the F.I.R was lodged after shortage in stocks was detected later to physical verification by the CSO, Nuapada and on account of such audit but for that sake, it would

Janamitra Kumar Sharma Vrs. State of Odisha

not be justified to take a view favourable to the petitioner. It is reiterated that having regard to the physical verification held with a finding of stock shortage arrived at leading to the lodging F.I.R., the charge which has been levelled against the petitioner and decision thereon shall have to be examined by the learned Court below. In view of the materials on record which prima facie proved the misappropriation due to the shortage of stocks and failure on the part of the petitioner to deliver the resultant FAQ standard rice to the Corporation, on the submission of the chargesheet by the local police, the learned Court below did not commit any error or illegality while taking cognizance of the offence under Section 409 of the I.P.C. as well as section 7 of the E.C. Act. So to say, the impugned order under Annexure-2, in the considered view of the Court, does not suffer from any serious legal infirmity.

8. Accordingly, it is ordered.

9. In the result, the CRLMC stands dismissed.

BALARAM Digitally signed by
        BALARAM BEHERA                          (R.K. Pattanaik)
BEHERA Date:  2023.05.05
        20:51:10 +05'30'
                                                    Judge


Balaram