Besa Naik (Dead)Through vs State Of Odisha (Vigilance)
2023 Latest Caselaw 11543 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 CRA No.133 of 1997

              Besa Naik (dead)through            ....             Appellant
              Sushanta Naik & Others           Ms. S. Pattanaik, Advocate

                                        -versus-

              State of Odisha (Vigilance)       ....          Respondent

Mr. M.S.Rizvi, ASC for Vigilance Department

CORAM:

JUSTICE CHITTARANJAN DASH DATE OF JUDGMENT : 22.09.2023 Chittaranjan Dash, J

1. Heard learned counsel for the parties.

2. This Appeal is directed against the judgment and order dated 20th June, 1997 passed in T.R. Case No.37 of 1991 by the learned Special Judge, Vigilance, Sambalpur wherein the learned court convicted the Appellant under Section 5 (i) (c) of the Prevention of Corruption Act ( hereinafter in short called the P.C.Act) and Section 5(2) of the said Act and also Section 477 (A) and U/s. 409 of the Indian Penal Code ( herein after inshort called IPC) and sentenced him to undergo RI for three years and to pay fine of Rs.1,000/- in default to undergo RI for six months under Section 5(2) of the P.C. Act and R.I. for three years and to pay fine of Rs.5,000/- in default RI for one year under Section 409 of the IPC and further sentenced to undergo RI for one year under Section 477 (a) of the IPC.

3. The Prosecution case as emerged from the case record and evidence is that the Appellant, a government servant was working as Senior Clerk in

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the office of the Block Development Officer, Chendipada presently under District Angul. It is alleged that during his incumbency as such, he was kept in-charge of stock and store of levy cement of the said Block for the period from the year 1982 to 1987. Subsequently, the Appellant got transferred to the Tahasil office, Athamalik in pursuance whereof he handed over the charge of his seat including the store and stock of the Block to his successor namely, Sri M.N. Pradhan. It is further alleged that during his tenure at Chhendipada the Appellant misappropriated the sale proceeds against the stock of the levy cement as he did not account for the detail of the proceeds against 1415 bags of cement or the cement in stock costing in total Rs.83,435/- @ Rs.59/- per bag. It is also alleged that he made false entry as to issuance of cement to different persons and reduced the balance. On 12th November, 1987 verification was conducted by the vigilance sleuth in respect to the stock of cement in the store of BDO, Chendipada as well as the stock register maintained by the Appellant till 20th July, 1987. Pursuant to the report of the vigilance enquiry Sambalpur Vigilance P.S. Case No.47 dated 13th November, 1987 was registered against the Appellant and investigation commenced. During investigation the I.O. examined the witnesses, seized the cement stock register Vol. IV( Ext.2), maintenance register book for the year 1987-88 and cash book for the year 1987-88, other incriminating documents and on completion of the investigation, lodged the prosecution against the Appellant obtaining sanction from the competent authority.

4. The case of the Appellant is one of complete denial. In his statement under Section 313 Cr.P.C. he pleaded that the cement was disbursed to the contractors as per practice on the direction of the BDO on their application asking for supply of cement in advance for execution of the

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work to be adjusted in their final bill. He categorically denied any misappropriation of the sale proceeds or shortage of the levy cement.

5. The prosecution, in order to bring home the charges examined 16 witnesses in all. In his defence the Appellant examined 9 witnesses in support of its case. While the prosecution proved the documents vide Ext. 1 to 14, the defence too proved documents vide Exts. A to L. The learned trial court having analysed the evidence of the prosecution held it sufficient and found the charges proved beyond all reasonable doubt holding the Appellant thereby guilty there for.

6. Being aggrieved by the said findings the Appellant preferred the Appeal, inter alia, assailing the impugned judgment on the ground that the evidence of the star witnesses i.e. PW 5 (BDO) and that of PW 16 (Informant) are contradictory to each other and that there is no evidence on record to show the exact quantity of cement entrusted to the Appellant from which the alleged shortage could be found out; that the emphasis laid on Ext.2 said to be the cement issue register allegedly to have been verified on 12th November, 1987 belies by the statement of PW 4, the successor of the Appellant who clearly stated in his cross examination that Ext.2 does not indicate that store verification was made on 12th November, 1987; that there is no evidence establish the exact quantity of cement entrusted to the Appellant while he was in charge of stock and store of cement of the Block during the period from 03.08.1977 to 26.07.1987 and the fact that cement was being issued in advance to the contractor on the order of the BDO and the cost thereof was being adjusted against the final bill found not contradicted thereby the prosecution case ought to have been held inadequate to discharge its

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primary obligation in proving the factum of entrustment so as to shift the burden on the Appellant to prove the contrary.

7. Further, it is assailed on the ground that there is no material on record to show that the Appellant destroyed, altered, mutilated or falsified any book, paper, valuable security or account which belonged to or was in possession of his employer and that the Appellant acted willfully to defraud and as such the charge under Section 477 A of the IPC cannot be said to have been proved.

8. According to the Appellant, the evidence laid through PWs 1, 3, 4, 11 and 14 to the effect that cement was issued in advance to the contractor on the order of the BDO pursuant to the recommendation of the Junior Engineer which is adjusted in the final bill that finds supports to the plea propounded by the Appellant raises a strong doubt as to if such thing had happened in the case of the Appellant since the investigation was never directed in that line. Further, the evidence of the prosecution witnesses is itself sufficient to raise suspicion on the prosecution case to the effect that the shortage of cement allegedly to have been found in course of verification of stock in the register is because of the fact that the same have been disbursed in favour of the contractor. Finally, it is assailed on the ground that in the case of defence the evidence does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution is required to prove the charge. It is sufficient if the accused is able to prove his case by the standard and pre- ponderence of probability inasmuch as probability of defence version throws doubt on the prosecution case.

8. Learned counsel for the Appellant, in course of the hearing advanced his argument akin to the ground propounded in assailing the impugned

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judgment as discussed above and relied upon the decisions reported in 1994 CLR 547, 1987 Vol.II OLR 519, 1981 (1) OLR 585, 2009 Suppl. II OLR 578, 198=78 CRLJ NOC 26 Orissa. The learned counsel for the State, Vigilance on the contrary submitted that the impugned judgment is in consonance with evidence adduced before the trial court and it being consistent with law and fact emerging in the case during trial requires no interference and insisted for its confirmation.

9. Having heard the arguments advanced by the parties, perused the evidence adduced before the learned trial court. While analyzing, at the outset in connection to the charge in the offence U/s. 409 IPC it can be said that the principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved may in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion. Section 409 IPC consists of any one of the positive act mainly misappropriation, conversion, and user of disposal of property by any person belonging to one of the category of persons enumerated in the section. In Criminal misappropriation, the property comes into possession of the offender by some casualty or otherwise and he afterwards misappropriates it. In the case of criminal breach of trust the offender is lawfully entrusted with the property and he dishonestly misappropriated the same, or willfully suffers any other person so to do, instead of discharging the trust attached to it.

10. From the above annotation of law, it is inferred that in case of dishonest misappropriation it is incumbent upon the prosecution to prove two essential facts: The factum of entrustment and the factum of

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misappropriation. Perusal of the allegation basing on which the entire case of the prosecution rest goes to the fact that the Vigilance personnel conducted a verification of the store and stock of the Chendipada Block on 12.11.1987 and found shortage of Cement entrusted to the Appellant by 1415 bags either in the shape of cement or the sale proceeds thereof. Pursuant to such verification report was prepared by the vigilance team and submitted to the S.P., Vigilance proved under Ext.8, subsequent whereof Vigilance Case was registered and investigation commenced as discussed above. Admittedly, on the date of verification the Appellant had already been transferred and not present during verification. The evidence is crystal clear that prior to the verification or on the date of verification no such information was conveyed to the Appellant for his presence during verification. However, Ext. 8 proved as verification report submitted by the Vigilance Inspector before the Superintendent of Police, Vigilance stated by some witnesses to have been signed by the Appellant which is false as no such signature found proved. In the entire evidence except the register allegedly to have been maintained by the Appellant proved vide Ext.2 showing entry of Cement, the prosecution evidence is silent as regards the actual number of cement bags supplied to the store. Such an evidence is inevitable to establish the fact that the Appellant was required to deposit the cost against it quantified at Rs.83,435/-, as, according to the prosecution itself the stock register under Ext.2 is held to be improperly maintained by the Appellant. Therefore, an independent evidence as to the entrustment of actual quantum of cement ought to have been proved shown to have been supplied by the authority to the store which was either not entered by the Appellant or to have been misappropriated.

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11. Further, it is the case of the Prosecution since inception that Ext. 2 i.e register of cement have not been maintained in accordance with the law and/or practice. Section 34 of the Evidence Act stipulates that the entry in books of account regularly kept in course of business are relevant but such statement not alone is sufficient evidence to charge any person with liability. This enunciation of law is relevant to the present context because the evidence of the prosecution witness more particularly the P.Ws 1, 3, 4, 11 and 14 deposed regarding the practice prevalent in the Block in relation to the disbursement of cement which supports the plea of the Appellant that cement was being disbursed to the contractors on the basis of their application for the purpose and it is disbursed on the recommendation of the BDO without the cost being deposited instantly but is adjusted at the time of drawing of the final bill in favour of the contractor concerned. This part of evidence of the prosecution witness is very vital as the witnesses are not only competent to speak about the relevant practice but could bring on record that was required to be explained by the Prosecution, which, however, has not been controverted except a bald denial to the suggestion of the defence by the BDO(P.W.5) or the Junior Engineer (P.W.11) leading thereby a probability that such practice was prevalent and makes the case of the prosecution inadequate in ascribing the liability of misappropriation.

12. It is rightly referred to by the learned trial court that if the accused is able to prove his case by the standard of preponderance of probability as envisaged in Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and therefore the prosecution cannot be said have established the charges beyond all reasonable doubt. In other words, the defence need

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not prove its case but to bring on record a reasonable doubt in the mind of the court as to the truthfulness and the gravamen of the prosecution case, which is evident in this case. The Prosecution evidence has been directed contrary to its case as one deposed to by the witnesses above stated coupled with the defence evidence laid by the Peon of the Block (D.W.9) who was declined as witness from the side of the prosecution and was examined in favour of the defence. D.W.9 candidly stated that upon the entry made in the Peon book in respect to the applications of 25 persons, who intended for supply of cement in advance, he brought the matter before the BDO/ JE who made endorsement on the face of the application in affirmative and accordingly the supply was made. A discrete investigation in this direction could have also established the factum of entrustment and misappropriation but was ignored.

13. It is clarified on several occasions that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. There are several other infirmities, contradictions and discrepancies in the testimonies that strike to the root of the Prosecution case. One more such evidence would be that while some Prosecution witnesses rules out the presence of the Appellant at the time of verification, some deposed that the Appellant was present. As discussed above presence of the Appellant at the time of verification would have otherwise assured the case of the Prosecution but is contrary. Absence of the Appellant gives rise to several inferences to be read against the Prosecution. This is because the Appellant had been transferred from the relevant post prior to the date of verification. He had no scope to explain with material before him to establish his claim as by then somebody else

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is in possession of the store and the stock as well. No report as such has been proved that the successor made any complaint showing shortage of cement. Consequently, the learned trial court though analysed the evidence misdirected itself in appreciating the important and relevant aspects in the evidence including the version of the defence witnesses, thereby arrived at an erroneous conclusion holding the Prosecution to have proved the factum of entrustment and consequent misappropriation. In essence, the Prosecution case cannot be held sufficient to establish either the factum of entrustment or misappropriation. As a necessary corollary the offence U/s 5(1) (c) of the P.C Act cannot also be held established except to the extent that the Appellant is a public servant by deafault of his service under the government establishment.

14. Coming to the offence U/s. 377A IPC, admittedly, there is no evidence of any kind in the prosecution case showing the Appellant to have altered, mutilated or manipulated the register so as to attract the offence under Section 477A of the IPC.

15. The allegation of the prosecution to the effect that the Appellant did not make proper entry in the register of cement (Ext.2) thereby giving rise to the suspicion that the number of cement bag allegedly entrusted to the Block has not been disbursed in favour of the person and has been in discriminately disbursed in favour of 25 person not directly connected to the work of the Block making the Appellant liable, in absence of a definite evidence said to be one of presumption which falls short of conclusive proof.

16. In view of the above discussions, it is found that the Prosecution has not been able to establish the charges for commission of any of the offences under which he stands convicted. Therefore, the impugned

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judgment and order are not sustainable in the eye of law and accordingly, set aside. Consequently, the Criminal Appeal is allowed.

(Chittaranjan Dash) Judge

KC Bisoi /A.R.-cum-Sr. Secretary

Signature Not Verified Digitally Signed Signed by: KRUSHNA CHANDRA BISOI Designation: Secretary Reason: Authentication Location: orissa high court Date: 26-Sep-2023 18:39:52