Orissa High Court
Pruthwiraj Lenka vs State Of Odisha (Vigilance) on 30 May, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.355 of 2019
(In the matter of an appeal under Section 380 of Code of Criminal
Procedure, 1973)
Pruthwiraj Lenka ....... Appellant
-Versus-
State of Odisha (Vigilance) ....... Respondent
For the Appellant : Mr. P.K. Maharaj, Advocate
For the Respondent : Mr. Niranjan Maharana,
Additional Standing Counsel,
Vigilance Department
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing:03.01.2025 : Date of Judgment: 30.05.2025
S.S. Mishra, J. The appellant-Pruthwiraj Lenka has filed this appeal under
Section 380 of the Code of Criminal Procedure, 1973 to set aside the judgment of conviction passed against him by the learned Special Judge (Vigilance), Phulbani in G.R. Case No.74 of 2013 (v) (T.R. No.74 of 2013) /G.R. Case No.52/2011 (v) (T.R. No.08 of 2013 BAM) arising out of Berhampur Vigilance P.S. Case No.52, dated 28.11.2011 vide impugned judgment and order dated 16.05.2019 under section 477-A of the Indian Penal Code and order of sentence to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for a further period of three months.
2. The appellant was the Technical Consultant of K. Nuagaon Block, Office of the D.P.C., D.P.E.P., S.S.A. in the district of Kandhamal. The co-accused Basant Kumar Mohanty was the Headmaster of Asumadhi Primary School (hereafter 'the school') for the period from 10.05.2002 to 28.02.2008, and co-accused Kantheswar Pradhan was the SEC- President of the school for the period from 31.08.2004 to 02.04.2011. The appellant along with the co-accused Basanta Kumar Mohanty and Kantheswar Pradhan were charged under Section 13(1)(c) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter '1988 Act') and Sections 409, 120-B, 201 of the Indian Penal Code on the accusation that in between the year 2005 to 2007, they dishonestly or fraudulently misappropriated or otherwise converted for their own use Rs.75,798/- (rupees seventy five thousand seven hundred Page 2 of 25 ninety eight) from the school account sanctioned for construction of one additional classroom in the school and they committed criminal breach of trust in respect of the property/amount so entrusted. The appellant was charged additionally and separately for the offence under Section 477-A of the Indian Penal Code on the further accusation that during the period from 2005 to 2007, he wilfully with intention to defraud entered false measurements in the Measurement Book No.144, which was received by him on behalf of his employer D.P.C., S.S.S., Kandhamal and was under
his possession.
The learned Trial Court acquitted the co-accused Kantheswar Pradhan of all the charges and he was set at liberty. The appellant and the co-accused Basnata Kumar Mohanty were acquitted of the charges under Sections 120-B and 201 of the Indian Penal Code. The appellant was also acquitted of the charges under Section 409 of the Indian Penal Code and Section 13(1)(c) punishable under Section 13(2) of the 1988 Act. The appellant was found guilty only for the offence under Section 477-A of the Indian Penal Code.Page 3 of 25
3. The prosecution case, in short, is that pursuant to an allegation of misappropriation of Government money in construction of one additional classroom of the school under K. Nuagaon Block in the district of Kandhamal, a vigilance enquiry was taken up by Santosh Kumar Samantara (P.W.8), Inspector of Vigilance, Berhampur Division. During enquiry, it was found that in the year 2004-05, for construction of one additional classroom of the school, a sum of Rs.1,50,000/- was approved by the D.P.C., D.P.E.P., Kandhamal. By that time, the co- accused Basanta Kumar Mohanty was the Headmaster of the school as well as Secretary of the School Education Committee (SEC) and co- accused Kantheswar Pradhan was the President of the School Education Committee. Both of them entered into an agreement with the D.P.C., D.P.E.P., Kandhamal to execute the construction work and accordingly, work order letter no.470(A) dated 05.03.2005 (Ext.2/3) was issued in their favour. A joint Savings Bank Account vide A/c. No.8032 was opened in the name of the school at UCO Bank, Raikia Branch, in which an amount of Rs.1,30,000/- was credited towards execution of the aforesaid work. It was further found that both the co-accused President Page 4 of 25 and Secretary withdrew Rs.1,30,000/- in between 15.04.2005 to 12.02.2007 from the D.P.E.P. fund and started construction of the work. They constructed the building up to roof level and then stopped the work since 2007. Thereafter, the co-accused Basanta Kumar Mohanty retired from service on 29.02.2008 and the construction work remained as such. In spite of repeated reminders of the D.P.C., D.P.E.P., Kandhamal, the work did not proceed further. As per the direction of the D.P.C., the present appellant measured the work done and valued it at Rs.59,642/-. However, on the requisition of Enquiring Officer, when the building was technically inspected on 26.11.2010, the technical inspection team calculated the cost of the work done to be Rs.54,202/- and as such, it was held that the appellant found to have made some false entries in the measurement book (Ext.3) by showing inflated measurements. As the technical inspection team calculated the value of the work done at Rs.54,202/- against the sanctioned and received the amount by the accused persons to the tune of Rs.1,30,000/-, the Enquiring Officer (P.W.8) lodged an F.I.R. (Ext.15) on 28.11.2011 with the Superintendent of Police, Vigilance, Berhampur alleging misappropriation of Page 5 of 25 Rs.75,798/- (Rs.1,30,000-Rs.54,202) by the co-accused Basanta Kumar Mohanty in connivance with the appellant, who allegedly intentionally entered excess measurements in the measurement book by showing excess work done value of Rs.5,440/- (Rs.59,642.00-Rs.54,202.00).
After the F.I.R. was lodged, investigation was taken up by P.W.8 as per the direction of the Superintendent of Police, Vigilance, Berhampur, who in course of his investigation, examined the witnesses, seized the case records for the work, measurement book, cheque issue registers of the D.P.C., S.S.A., Kandhamal, Resolution Register, paid vouchers of S.B. account vide no.8032 of UCO Bank, Raikia. He found in course of his investigation that the accused persons have not submitted the account register, register of procurement and utilization of materials, and visitors' book to the successor of the co-accused Basanta Kumar Mohanty at D.P.C. Office in order to cause disappearance of evidence. It was also found during course of investigation that neither the co-accused Basanta Kumar Mohanty nor co-accused Kantheswar Pradhan produced any documents in support of purchase of any material, utilization register, cash book as per the terms and conditions of the agreement and Page 6 of 25 all the accused persons in connivance with each other misappropriated a sum of Rs.75,798/- sanctioned for construction of one additional classroom of the school.
4. The learned trial Court in the impugned judgment has been pleased to hold that the prosecution has failed to bring home the charges under Sections 409/120-B of the Indian Penal Code and Section 13(1)(c) punishable under Section 13(2) of the 1988 Act against the appellant as there is no evidence on record to show that the appellant was in charge of the project or in any manner had dominion over the Government money sanctioned for construction of the building. It was further held that there is nothing on record to prove that the accused persons caused disappearance of evidence to screen them from the punishment and that the I.O. has neither examined the successor of the co-accused Basanta Kumar Mohanty nor it is in his evidence that despite he searched for the registers and records, it was not made available at the school. It was further held that in the year 2010, when the enquiry was conducted, the co-accused Basanta Kumar Mohanty had already retired from his service and hence, there was no scope on his part to cause disappearance of the Page 7 of 25 records. Learned trial Court further observed that merely because the letter (Ext.16) goes to show that the co-accused Basanta Kumar Mohanty had not submitted the records to D.P.C., it cannot be said that the accused persons had caused disappearance of the evidence to screen themselves from punishment and accordingly, it was held that the prosecution has failed to substantiate the charge under Section 201 of the Indian Penal Code against all the accused persons.
The learned trial Court, however, held that the appellant was employed as a Technical Consultant under K. Nuagaon Block and he was issued with M.B. No.144 marked as Ext.3 which was of the D.P.C., S.S.A., Kandhamal and he being employed to enter measurement in the measurement book on behalf of the D.P.C., S.S.A., Kandhamal under whom he was employed, made false entries of inflated measurement by showing excess work done value of Rs.5,440/- wilfully with an intent to defraud the Government. It was further held that the prosecution had proved all the essential ingredients of the offence under Section 477-A of the Indian Penal Code against the appellant and accordingly, the learned trial Court found him guilty of such charge. Since the appellant was Page 8 of 25 found to have resigned from his service, when the charge sheet was submitted, it was held that no sanction was required to launch prosecution against him.
5. Mr. Maharaj, learned counsel for the appellant has submitted that the principal accused namely, the Secretary and the President of the School, have been acquitted by the learned trial Court. However, on the basis of the same set of evidence, the learned trial Court went on to convict the appellant for the alleged offence punishable under Section 477-A of the IPC. The learned trial Court, in the same breathe has also arrived at a conclusion that the appellant is not found guilty either for the offence punishable under Section 409 or 120-B of the IPC or under Section 13(1)(c) r/w Section 13(1)(2) of the P.C. Act, 1988. He further submitted that the principal accused Secretary and the President of the School, in their statement recorded under Section 313 of the Cr. P.C. have admitted that they have withdrawn the entire amount without executing the work and the said amount apparently has been misappropriated by them. They have also admitted that they did not refund the unutilised fund, despite the same admitted version, the learned Page 9 of 25 trial Court has acquitted them and without there being any credible material on record convicted the appellant for the offence punishable under Section 477-A of the IPC.
It is further contended that the role of the appellant as alleged by the prosecution was that he only made the measurement (estimate) on 28.04.2010 vide Ext.3. On the basis of the measurement of the actual work done, which was found to be inaccurate. The measurement was done after three years from the real construction was carried out. The said measurement was placed before the Senior Technical Consultant, which was verified, checked and also approved. It is further argued by Mr. Maharaj, learned counsel that as per the guideline, a community mobilization-cum-volunteer work was the responsibility of the President and Secretary-cum-Headmaster. Hence, the present appellant is no way liable for any cash related matter. Hence, no misappropriation could be attributed to the appellant.
6. Mr. Maharana, learned Additional Standing Counsel appearing on behalf of the opposite party-Vigilance Department, on the other hand, contended that the conviction recorded by the learned trial Court is Page 10 of 25 justified and on the basis of the overwhelming evidence brought on record by the prosecution. Mr. Maharana, learned Additional Standing Counsel has filed the written note of submission on 10.02.2025 apart from his oral argument, he has urged the following issues/points.
(a). He has submitted that the co-accused Basanta Mohanty in his statement under section 313 Cr.P.C., as against question nos. 5, 6, 7, 8, 9 and 11 has admitted the fact of withdrawal of the aforesaid fund and non-execution of the work by him. In his deposition in paragraphs 3 and 4 he has deposed to the following effect:
"3. I was handling the money received towards construction of additional classroom. I constructed the additional classroom up to roof level without constructing the rook. The remaining unutilized Rs.65,000/- was with me. I do not remember the date when I withdrew the money. I had not withdrawn the money in the year 2005. (The witness however admitted the withdrawal slips on being confronted to him by the Special P.P.).
4. I have not stated about the offering of unutilized money to the tune of Rs.65,000/-before the BRC and DPC, as I was not given an opportunity to explain the same before the Vigilance. I had not intimated in writing to any higher authority to receive the unutilized of Rs.65,000/-nor about the stack of materials like cement, rod, sand etc."Page 11 of 25
(b). The Co-accused Basanta Kumar Mohanty had failed to produce any document in support of purchase of any materials, utilization register, cash book as per the terms and conditions of the agreement and thereby misappropriated a sum of Rs.75,798/- (i.,e., Rs.1,30,000.00 -Rs.54,202.00) sanctioned in his favour towards construction of an additional class room of the school, as revealed from the charge-sheet.
(c). PW 1, i.e., Senior Technical Consultant in paragraphs 6 and 7 of his evidence has deposed to the following effect:-
"6. Though I visited the site, but I have never check measure or test measured the work.
7. It is a fact that in the Agreement there is a clause that all the money will be handled by the Secretary Headmaster."
(d). PW 6-Assistant Engineer has deposed in favour of the prosecution in paragraphs 7, 8 and 9 to the following effect:-
"7. I have taken the measurement both from outer wall and inner wall. There was step foundation laid at the work site. I cannot say the depth of digging earth in course of my inspection. As per M.B. I have mentioned the thickness of the iron rods inserted during foundation. I have not mentioned the transportation costs of the materials. I have not gone through the guidelines of the Sarva Sikhya Aviyan Page 12 of 25 before conducting inspection. I cannot say, if the royalties are not deducted in the work of Sarva Sikhya Aviyan and there is a fixed royalty deducted at the time of final bill.
8. I ascertained the valuation of the work done after deducting royalty and also the cost of empty cement bags.
9. It is not a fact that I have not visited the work site and prepared Ext.13 in my office mechanically."
(e). PW 8-Investigation Officer has deposed in paragraphs 12, 13, 14, 15, 16, 27, 28, 29, 31, 32, 33 and 36 of his evidence to the following effect, which corroborates the case of the prosecution against the appellant and the co-accused Basanta Kumar Mohanty.
"12. I received Letter No.697, dtd. 07.09.2012 from D.P.C., SSA, Kandhamal that the Headmaster Sri Mohanty has not submitted any documents like Vouchers of construction materials, Register of procurement and utilization and also cashbook of construction of additional classroom. This is the Letter marked Ext. 16.
13. As the Headmaster already retired and Pruthviraj Lenka resigned from the service by the time I filed charge sheet, I have not obtained any sanction for prosecution.
14. The T.C. Pruthviral Lenka has mentioned in the M.B. that the work done was for Rs.59,642/-, which was not true as per the Technical Inspection Report.
15. I have not received any complaint regarding non- payment of labour charges. The Work order issued Page 13 of 25 in the name of the Headmaster and the Secretary- Headmaster of the School. It is a fact that in the Agreement there is mention that the money will be handled by the Headmaster.
16. It is not a fact that the real work done status has been mentioned in the M.B. The signature of the Technical Consultant is not found in any withdrawal form. It is not a fact that the money were withdrawal as per the Resolution of the VEC in all and every transaction. It is not a fact that the Technical Inspection Report has been prepared basing on the estimate and not on the field position.
27. On verification of M.B. No. 144, Page No. 1 to 12 written by Sri Pruthviraj Lenka, Technical Consultant, Office of the DPC, DPEP/SSA, Kandhamal, Phulbani, it is found that some false entries have been made by him. During technical inspection it is found that Sri Lenka has made excess measurement of Rs.5,440/- as he mentioned the valuation of the work done as Rs.59,642/- and the Technical Inspection Team measured the work done at Rs.54,202/-.It is the Joint Memorandum submitted by the Technical Team which is already marked as Ext. 13/2 and Ext. 13/6 is my signature thereon.
28. The Technical Inspection of the work site was conducted on 26.10.2010. I have lodged the report (FIR) on 28.11.2011. I am the Investigating Officer of this case.
29. It is a fact that the M.B. No.144 (Ext.3) contains signature of the Senior Technical Consultant Pramod Dash at Page No. 12 with an endorsement "checked and verified". I was present during the Technical Inspection of the work site.
31. I cannot say the exact depth of the foundation dug during inspection.
Page 14 of 25
32. No sample of earth, cement or concrete has been taken during the inspection.
33. I cannot say if only fixed royalty is deducted during preparation of final bill in connection with the work executed under Sarva Sikhya Aviyan.
36. It is not a fact that the successor of accused Basanta Mohanty namely Sunita Pradhan has not taken charge from him despite his repeated request and I have not intentionally examined Sunita Pradhan to implicate the accused Basanta Mohany in this case."
7. Mr. Maharana, learned counsel further submitted that even if co- accused Basanta Kumar Mohanty has withdrawn the money towards the work in the year 2007 to the tune of Rs.1,30,000/- and has only executed the work to the tune of Rs.54,202/ as per Ext. 13, however, the appellant has done the estimate of the executed work showing Rs. 59,642/- (vide Ext.3), thereby, shown excess estimation to the tune of Rs. 5,440/-. Therefore, learned trial court has rightly found him guilty under section 477A of the IPC (for utilizing the forged document as genuine).
8. Mr. Maharana, learned counsel submitted that misappropriation of public fund without execution of work is well established against the Page 15 of 25 co-accused Basanta Kumar Mohanty and the present appellant, being the public servant, knowing fully well has prepared inflated measurement report, which is utilized for official purpose in determination of the quantity of misappropriation amount, and for that the present appellant is liable under section 477A of the IPC.
9. I have carefully gone through the material placed before me along with the appeal memo, record obtained from the learned trial Court as well as the written note of submission. The appellant has been convicted for the offence punishable under Section 477-A of the IPC, which deals with the falsification of the account. The ingredients of the offence under Section 477-A of the IPC are as follows:
"(i) The person coming within its purview must be a clerk, officer, or servant or acting in the capacity of a clerk, officer, or servant
(ii) He must willfully and with intent to defraud-
(a) destroy, alter, mutilate, or falsify any book, paper, writing, valuable security, or account which belongs to, or is in possession of, his employer; or has been received by him for or on behalf of his employer; or
(b) make or abet the making of any false entry in, or omit or alter or abet the omission or alteration of any material particular from or in, any such book, paper, writing, valuable security, or account.Page 16 of 25
'Willfully' means that the act is done deliberately and intentionally, not by accident or inadvertency, so that the mind of the person who does the act goes with it. The term 'with intent to defraud' means either an intention to deceive and by means of deceit to obtain an advantage or an intention that injury should befall some person or persons. Advantage which is intended must relate to some future occurrence or, in other words, must be of a prospective nature. Making false entries in the measurement book in order to conceal fraudulent or bogus acts, falls within the purview of section 477-A of I.P.C. If an accused makes fictitious entries in the measurement book though in fact he had not measured up the work with intent that the contractor's bill might be passed without actual measurement, his act amounts to a 'fraudulent falsification of account'. It is necessary to show not merely false entries in the books of accounts, but that such false entries were made with intent to defraud. Even if the intention with which the false entries were made was to conceal a fraudulent or dishonest act previously committed, the intention will be to defraud. Making a false document with a view to enable the persons who committed misappropriation to retain the wrongful gain which they had secured also amounts to the commission of a fraud and the act brings the case under this section."
The prime ingredient to bring home the charge of the offence under Section 477-A is the "willfull and fraudulent intent" to defraud the exchequer by wrongfully making entries in the books. In the facts scenario of the present case, the trial Court appears to have gone wrong in tracing the ill-intent of the appellant to cause defraud the exchequer.
10. The learned trial Court while considering the role played by the petitioner in paragraph 16 of the impugned judgment has been pleased to hold that M.B. No.144 marked as Ext.3 was issued to the petitioner by Page 17 of 25 the Financial Consultant, SSA, Kandhamal to enter the measurement of the work done. The petitioner measured the work done for Rs.59,642/-. The entries made by the petitioner and his signature in the measurement book were proved by P.W.1. On the other hand, P.W.6, Asst. Engineer at K. Nuagaon Block who along with others technically inspected the additional class room building work and prepared the technical inspection report (Ext.13) and the map with findings (Ext.13/1) stated in his evidence that the final measurement of the work done came to Rs.54,202/-. Thus, the work done value as measured by the petitioner as per Ext.3 did not tally with the work done value as assessed by P.W.6 in Ext.13. The learned trial Court analyzed the evidence of P.W.6 carefully and found that the plinth bent thickness has been given as 6" instead of 4" in M.B. No.144 Page No.05, R.R. stone masonry third footing height has been given as 2' instead of 1' 6" actual in M.B. No.144, page No.04 and Leveling Course with C.C.124 has not been done, but given in item no.07 of M.B. No.144, page no.07 by the petitioner. The learned trial Court accepted the evidence of P.W.6 coupled with the map with findings recorded in Ext.13/1 and held that the petitioner has made false Page 18 of 25 entries in the M.B. Since the work done value ascertained by the petitioner is for Rs.59,642/- against the actual work done value of Rs.54,202/- as opined by the Technical Inspection Team and mentioned in Ext.13, the learned trial Court found that the petitioner had shown excess work done value of Rs.5440/-. If the work done value entered by the petitioner in M.B. was accepted, there would be loss of Rs.5440/- to the Govt./State Exchequer. The learned trial Court held that the wrong committed by the petitioner cannot be said to be unintentional and result of miscalculation, rather appears to be willful and intentional. Therefore, it was held that with an intent to defraud the Govt., the petitioner made false entries in the M.B. which was received by him on behalf of DPC/SSA, Kandhamal, under whom he was employed as Technical Consultant.
For convenience of the ready reference, paragraph-16 of the impugned judgment of the learned trial Court is reproduced hereunder:
"16. Now on consideration of the role played by the accused Prithwiraj Lenka, it is seen that the M.B. No.144 marked vide Ext.3 was issued to him by the Financial Consultant, SSA, Kandhamal to enter the measurement of the work done. It is evident from the oral evidence of P.W.1 that the M.B. was maintained by P.R. Lenka and Page 19 of 25 he measured the work done for Rs.59,642//. He also proved the entries in the M.B. (Ext.3/1) and also signature of P.R. Lenka in it. Furthermore, it is deposed by the 1.0. (P.W.8) that the Technical Consultant Prithwiraj Lenka has mentioned in the M.B. that the work done was for Rs.59,642/- and it was not true as per the Technical Inspection Report. P.W.6 Jnanada Prasad Sahu, who prepared the Technical Inspection Report (Ext.13) and the Map with findings (Ext.13/1) stated in his evidence that the final measurement of the work done came to Rs.54,202/-. This Court also perused the M.B. marked vide Ext.3 and found that accused P.R. Lenka has measured the work done and ascertained the work done value at Rs.59,642/-, which does not tally with the work done value mentioned at Ext.13. The defence raised on behalf of the accused P.R. Lenka is that the measurement entered by him was check measured by Senior Technical Consultant of DPEP, Kandhamal, who has also put his signature on the M.B. having found the entire measurement correct. Therefore, he cannot be held liable for making any false entries in the M.B. It is no doubt true that the M.B. marked vide Ext.3 reveals that the measurements entered in the M.B. are check measured by Sr. Technical Consultant and in course of cross-examination, P.W.6 also admitted that the Senior Technical Consultant use to put his signature on the M.B. as a token of check measurement, if the measurement are recorded properly in the work done. He also admitted that the Ext.3, the measurement book, bears the signatures of the Senior Technical Consultant. But on the other hand, P.W.6 during his further examination in chief on alteration of charges stated that the plinth bent thickness has been given as 6"
Instead of 4" In M.B. No.144 Page No.05, R.R. Stone Masonry Third Footing Height has been given as 2' Instead of 1"6" actual In M.B. No.144, Page No.04 and Leveling Course with C.C. 124 has not been done, but given in Item No.07 of M.Β. No.144, Page No.07 by the Technical Consultant P.R. Lenka. I also perused Ext.13/1, the map with findings and found that those inflated measurement recorded in the M.B. by accused Prithwiraj Lenka has been noted specifically therein. Even though the M.B. found to have been check measured by the Senior Technical Consultant, in view of the specific findings recorded in Ext.13/1 regarding the inflated measurement recorded by accused Prithwiraj Lenka, this Court is not able to accept the defence plea to the effect that correct entries has been made in the M.B. showing correct work done value. Page 20 of 25
Rather, Ext.13/1 is found specific in pointing out the inflated measurement and corroborated by oral evidence of P.W.6. Therefore, this Court accepted the evidence of P.W.6 coupled with the map with findings recorded in Ext. 13/1 and held that accused Prithwiraj Lenka has made false entries in the M.B. Since the work done value ascertained by P.R. Lenka is for Rs.59,642/- against the actual work done value of Rs.54,202/- as opined by the Technical Inspection Team and mentioned in the Ext.13, this Court found that accused Prithwiraj Lenka has made excess work done value of Rs.5440/-. If the work done value entered by P.R. Lenka in M.B. was accepted, there would be loss of Rs.5440/- to the Govt./ State Exchequer. The wrong committed by accused P.R. Lenka cannot be said to be unintentional and result of miscalculation, rather appears to be willful and intentional. Therefore, it is held with an intent to defraud the Govt., the accused P.R. Lenka has made false entries in the M.B., which has been received by him on behalf of DPC/SSA, Kandhamal, under whom he was employed as T.C."
11. The findings recorded by the learned trial Court as reproduced above create a serious doubt in view of the evidence of the material witnesses and the other documents placed on record. It is an admitted case on record that in the year 2007, the alleged misutilization of funds meant for construction of additional room took place at the behest of the Secretary-cum-Headmaster and the President of the School management during the period from 2005 to 2007. The principal accused demitted the Office on superannuation on 29.02.2008. The alleged construction remained unfinished. Nothing has been brought on record as to when the successor of the co-accused Basanta Kumar Mohanty had joined. Page 21 of 25 However, it appears that on the requisition of the Enquiring Officer, when the building was technically inspected on 26.11.2010, the alleged miscalculation done by the appellant came to light. The appellant has estimated the finished work to be Rs.59,642/- whereas it is alleged that the real work estimated to have been done was Rs.54,202/-. Therefore, there was a difference in value of the work to the tune of Rs.5,440/-.
12. The prosecution has alleged that the excess measurement was deliberately done by the present appellant so as to defraud and cause loss to the exchequer. This was done in connivance with the other accused persons. Surprisingly, the appellant has been acquitted of the charges for the offence punishable under Section 120-B of the IPC. It is also admitted on record that the prosecution has also failed to bring on record any document worth the name of the evidence to connect the present appellant with the co-accused person. The measurement was done after three years of the alleged construction of the work. The minor deviation in the measurement may be an error of the judgment on the part of the appellant. Hence, no mens rea could be attributed to the appellant. Page 22 of 25
13. It is not the case of the prosecution that the appellant has derived any financial or other advantage from the impugned conduct of alleged excess measurement. The prosecution also alleged that out of the total amount of Rs.1,30,000/-, which was admittedly withdrawn by the co- accused person, the amount equivalent to the unfinished work, which came to be Rs.73,798/- has not been returned back by those accused persons. The learned trial Court has also ignored the statements of the co-accused persons recorded under Section 313 of the Cr. P.C. If the entire evidence including the oral and documentary are taken into consideration, it clearly illuminates that the appellant had no deliberate intention or wilfully carried out the measurement work so as to cause loss to the exchequer or to defraud. Moreover, the measurement carried out by the appellant was placed before his superior officer namely Senior Technical Consultant, who has checked, verified and approved the same. The variation in the calculation is only Rs.5,444/-, which could be an aberration, but cannot be said to be intentional or deliberate.
14. Hence, the learned trial Court has gone wrong in convicting the appellant for the offence punishable under Section 477-A of the IPC Page 23 of 25 while acquitting him from all the charges for the offence punishable under Section 409/120-B/201 of the IPC r/w Section 13(1)(c) r/w Section 13(2) of the P.C. Act.
15. Therefore, I am of the view that the judgment of conviction and the order of sentence passed by the learned trial Court are not sustainable, when the appellant was found not guilty of the offence punishable under Section 120-B of the IPC and the other offences. The alleged act of deceit to obtain an advantage, which might relate to some future occurrence or in other words, might be prospective in nature is not at all possible in the fact scenario of this case. Therefore, the appellant could safely be acquitted by the application of the doctrine of preponderance of probability as convincing and cogent materials are lacking to indicate that wrong entries in the measurement book were made with the intent to falsify the account for defrauding.
16. Hence, the impugned judgment of conviction and the order of sentence dated 16th May, 2019 passed by the learned Special Judge (Vigilance), Phulbani in G.R. Case No.74 of 2013 (v) (TR No.74 of 2013)/G.R. Case No.52/2011 (v) (TR No.08 of 2013 BAM) arising out Page 24 of 25 of Berhampur Vigilance P.S. Case No.52, dated 28.11.2011 is set aside. The appellant is acquitted of the charge under Section 477-A of the IPC and the bail bond stands discharged.
17. The CRLA is allowed and disposed of.
(S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 30th of May, 2025/Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Page 25 of 25 Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack.
Date: 18-Jun-2025 17:51:36