Orissa High Court
Rabindra Kumar Mahalick vs State Of Orissa on 30 January, 1989
Equivalent citations: 1989CRILJ2020
ORDER L. Rath, J.
1. The petitioner's conviction under Section 408, I.P.C. and sentence to undergo R.I. for one year and to pay a fine of Rs. 2,000/- in default to undergo R.I. for six months more having been confirmed in appeal he has preferred this revision. The facts of the prosecution case briefly narrated are that during the period from 17-5-76 to 26-6-76 the petitioner was working as a Clerk-B in the office of the S.D.O. (Electrical), Jharsuguda and was In charge of receiving cash collections from the bill collectors, but had not deposited an amount of Rs. 20,262.51 collected during the period and hence faced the charge for which he stood trial.
2. The sole contention raised by Mr. B. Nayak, the learned Counsel for the petitioner, assailing the conviction is that on the facts adduced in evidence by the prosecution itself, no misappropriation against the petitioner had been made out and hence his conviction has to be set aside.
3. The F.I.R. against the petitioner was lodged by the S.D.O. (Electricals) on the allegation that during the period the petitioner had not deposited Rs. 20,262.51 and after investigation chargesheet was submitted alleging that during the period a total sum of Rs. 36,275.17 collected by the bill collectors had been entrusted to the petitioner and out of such amount he had misappropriated Rs. 20,251.28. On perusal of papers, charge was framed against the petitioner of his having been entrusted with an amount of Rs. 36,275.17 of which a sum of Rs. 16,012.66 had been accounted for and that the petitioner had committed misappropriation in respect of Rs. 20,262.51.
4. During the trial it is urged by Mr. Nayak, as is also admitted by the learned Addl. Standing Counsel, that entrustment of only Rs. 23,580.79 made to the petitioner during the period was proved. Such sum represented an amount of Rs. 11,172.33 collected by P.W. 2, a Bill Collector, and Rs. 12,408.46 collected by another Bill Collector, M. D. Patel who has not been examined. It was observed by the learned Sessions Judge that there was no proof of Rs. 11,172.33 having been deposited by the petitioner even though the entrustment to him of the sum stood proved by the entries in the Cash Register, Ext. 24. Such finding of the learned Sessions Judge is not correct as is also acknowledged by the learned Addl. Standing Counsel in view of the entries in the Cash Register at page 42 which show that each such amount as shown to have been collected and entrusted to the petitioner have been deposited by Bank-drafts mentioned in the last but one column of the right side page. The evidence of P.W. 8, the S.D.O. (Electrical) proves the respective daily collection sheets, Exts. 3 to 9 and the corresponding receipt entries made in Ext. 24 at page 42 showing the sum entrusted. P.W. 8 in the very evidence testified that while left of the Cash Book is the receipt head, the right side is the deposit head and that on the deposit side entries have been made up to 26-6-76. Such entries at the right side of the page 42 show the receipted and exhibited amounts entered at the left side to have been duly deposited in bank through respective bank-drafts. In view of such fact, it must be stated that there was no misappropriation so far as the amount of Rs. 11,172.33 was concerned. As regards the other sum of Rs. 12,408.46 entrusted to the petitioner by the Bill Collector, M. D. Patel, it is the admitted case of the prosecution that the petitioner had deposited Rs. 16,012.66 on 24-7-76 being called upon to do so. The charge itself shows this deposit to have been taken as partial accounting for the entrusted amount the indictment being that the total entrustment was Rs. 36,275.17 and the sum of Rs. 16,012.66 having been paid, the balance amount of Rs. 20,262.51 had been misappropriated. Thus once the deposit of the amount by the petitioner had been taken into account it cannot be said that there was any misappropriation by him of the amount entrusted to him by M. D. Patel. The prosecution having not been able to prove entrustment of Rs. 36,275.17, but only of Rs. 23,580.79 and the total deposit by the petitioner being Rs. 27,184.99, i.e. Rs. 11,172.33 and Rs. 16,012.66, he cannot be said to have committed any misappropriation.
5. The learned Addl. Standing Counsel being faced with such difficulty urged that the petitioner was nonetheless guilty of temporary misappropriation for having retained the amount of Rs. 16,012.66 and depositing the same only on 24-7-76 after the threatening letter Ext. 31 was issued to him by the Executive Engineer. The submission has no force since the petitioner has never been charged for such an offence with such facts. On the other hand, the specific change against him was that the payment of Rs. 16,012.66 had been taken as having accounted for towards the entrusted amount and such facts also appear in the chargesheet. In the F.I.R. also such allegation has not been made. Further, even if the retention of the amount collected during the relevant period up to 24-7-76 is taken as a circumstance against the petitioner to base a conviction for temporary misappropriation, yet admittedly such circumstance as an adverse one had not been put to him in his examination under Section 313, Cr. P.C. and obviously cannot form the basis of his conviction.
6. For a conviction for temporary misappropriation what is most essential to be proved is not only the retention of money over the period but also the criminal intention behind it. Unless such mens rea is established, the offence would not be taken to have been committed. The question was examined by an earlier decision of this Court in (1978) 45 Cut LT 511 (Achutananda Dash v. State of Orissa), wherein it was held:
Mere retention of money in the absence of any evidence of dishonesty does not amount to criminal misappropriation. The mere fact that the retention was for a long time is no ground for imputing criminal intention. It cannot be assumed, in the absence of evidence to show or circumstances to infer, that the. petitioner misapropriated the amount dishonestly. The possibility of his not having refunded the amount due to negligence or inadvertence or forgetfulness cannot be excluded, Some overt act has to be proved in order to show dishonest intention, besides the mere retention of money for a long period.
Nothing has been stated in the case also by which time the money was to be refunded. The petitioner was called upon to deposit the amount by Exts. 31, the letter dt. 16-7-76, and the petitioner deposited the amount on 24-7-76. The very fact that the payment of the money by the petitioner had been taken by all the authorities as his having partially accounted for the money entrusted would go to show that any criminal intention was never imputed to him in the matter. Such submission by the learned Addl. Standing Counsel must thus be rejected,
7. In the result, the revision is allowed and the conviction and sentence passed against the petitioner are set aside.