Orissa High Court
Sachidananda Mishra vs State Of Odisha (Vig.) on 31 January, 2022
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 14 Of 2007
From the judgment and order dated 23.12.2006 passed by the
Special Judge (Vigilance), Sambalpur in T.R. Case No.61 of 1995.
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Sachidananda Mishra ......... Appellant
-Versus-
State of Odisha (Vig.) ......... Respondent
For Appellant: - Mr. Trilochan Nanda
For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vig.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 31.01.2022
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S.K. SAHOO, J. The appellant Sachidananda Mishra faced trial in the
Court of learned Special Judge, Vigilance, Sambalpur in T.R.
Case No.61 of 1995 for offences punishable under sections 409,
468, 471, 477-A of the Indian Penal Code and section 13(1)(c)
read with section 13(2) of the Prevention of Corruption Act, 1988
(hereafter '1988 Act') on the accusation that he being employed
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as a Junior Horticulture Officer, Bolangir under the Government
of Odisha and being a public servant abused his position as such,
dishonestly or fraudulently misappropriated or otherwise
converted a sum of Rs.19,047/- (rupees nineteen thousand forty
seven only) entrusted to him or under his control or dominion to
his own use and thereby committed criminal breach of trust and
also forged certain vouchers intending that those would be used
for the purpose of cheating and fraudulently or dishonestly used
those documents as genuine and also altered certain Book
Accounts Register with intent to defraud the employer Govt. of
Odisha.
The learned trial Court vide impugned judgment and
order dated 23.12.2006 though acquitted the appellant of the
charge under section 477-A of the Indian Penal Code but found
him guilty under sections 409, 468, 471 of the Indian Penal Code
and section 13(2) read with section 13(1)(c) of 1988 Act and
sentenced him to undergo rigorous imprisonment for one year
and to pay a fine of Rs.1,000/-, in default, to undergo R.I. for
three months on each count and the substantive sentences of
imprisonment were directed to run concurrently.
2. The prosecution case, in short, as per the first
information report (Ext.34) dated 05.11.1994 lodged by Sri
Page 2 of 52
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Umesh Chandra Panda (P.W.19), Inspector of Vigilance, Bolangir
before the Superintendent of Police, Vigilance, Sambalpur
Division, Sambalpur is that he received reliable information that
the appellant who was the Junior Horticulture Officer in the Office
of the Horticulturist, Khariar was posted at J.H.O., Bolangir from
29.08.1985 to 01.09.1992. During his incumbency as such, a
sum of Rs.2,10,000/- was allotted by the Director of Horticulture,
Odisha, Bhubaneswar during the year 1991-92 and placed at the
disposal of Horticulturist, Bolangir for purchase of 1,50,000
Dwarf Cavendish banana suckers from the farmers @ Rs.1/- per
sucker and distribution of the same to the farmers at the highly
subsidized rate of Rs.0.15 per sucker. The allotted amount of
Rs.2,10,000/- included Rs.45,000/- towards transportation
charges and Rs.15,000/- towards chemical pre-treatment of the
banana suckers. The appellant was entrusted with Rs.47,310/-
for purchase of suckers and transportation, out of the allotted
amount of Rs.2,10,000/-. He purchased 27,200 banana suckers
and paid a sum of Rs.23,200/- to the farmers those who had
supplied the suckers but falsely showed purchase of 36,500
banana suckers from the farmers @ Rs.1/- per sucker and
thereby misappropriated a sum of Rs.13,300/- by preparing false
vouchers. He also showed expenditure of Rs.10,810/- towards
Page 3 of 52
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transportation charges of the banana suckers though he actually
utilized Rs.5,062.40 paisa for that purpose and thus
misappropriated the rest amount of Rs.5,747.60 paisa. In that
process, the appellant misappropriated a total sum of
Rs.19,047.60 paisa out of the entrusted amount of Rs.47,310/-.
The enquiry revealed that the appellant prepared and
manufactured false money receipts in the name of farmers and
vehicle owners and used the same as genuine and committed
criminal breach of trust in respect of an amount of Rs.19,047.60
paisa obtaining pecuniary advantage for himself and thereby he
misconduct himself.
Basing on such first information report lodged by
P.W.19, Sambalpur Vig. P.S. Case No.42 of 1994 was registered
under sections 467, 471, 409 of the Indian Penal Code and
section 13(2) read with section 13(1)(c) of 1988 Act. On the
direction of the S.P. Vigilance, Sambalpur, P.W.19 took up
investigation of the case. During course of investigation, he
examined witnesses and seized seven vouchers on production by
Nabin Kumar Chhatria (P.W.4), Jr. Accountant in the office of the
Horticulturist, Bolangir. On 11.07.1995 P.W.19 handed over the
charge of investigation of the case on his transfer to Sri K.B. Pani
(P.W.20) who continued with the investigation, examined some
Page 4 of 52
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more witnesses, seized some documents and on completion of
the investigation, he submitted charge sheet against the
appellant on 10.12.1995 under sections 467, 468, 471, 420, 409
of the Indian Penal Code and section 13(2) read with section
13(1)(c)(d) of 1988 Act after obtaining the requisite sanction.
3. The defence plea of the appellant as appears from
the statement recorded under section 313 of Cr.P.C. is that he
personally purchased most of the banana suckers @ Rs.1/- per
sucker and also purchased some banana suckers through Shiba
Prasad Mishra and Kambhupani Mishra, Gardeners by giving
them some money out of the advance taken by him. He brought
the banana suckers to the Central Godown of the Horticulturist's
office, Bolangir by the trucks of Muni Banchhor (P.W.5) and
Prabhat Ranjan Nial (P.W.7). The Store Keeper of the Central
Godown after counting the banana suckers received the same.
He also paid transportation charges of the banana suckers to
P.W.5 and P.W.7 and the fact of his purchase of banana suckers
and bringing the same to the office of the Horticulturist, Bolangir
was known to the then Horticulturist Gokula Charan Tripathy
(P.W.10). After making stock entry of the banana suckers in the
stock register, those were given to the gardeners and grafters of
the office on obtaining signatures from them to sell the same to
Page 5 of 52
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the cultivators @ Rs.0.15paisa per sucker and the gardeners and
grafters after selling the banana suckers deposited the sale
proceeds in the office of the Horticulturist, Bolangir.
4. In order to prove its case, the prosecution examined
twenty witnesses.
P.W.1 Kishore Meher stated that he did not sell
banana suckers to the Horticulture Department nor received any
payment by selling it and he had never granted any receipt to
the appellant acknowledging receipt of Rs.3,990/- towards price
of banana suckers.
P.W.2 Dhruba Chandra Mishra was a cultivator who
stated that he sold banana suckers to the Horticulture Deptt.,
Bolangir and received a sum of Rs.3,810/- towards price of 3810
banana suckers @ Rs.1/- each. He was declared hostile by the
prosecution.
P.W.3 Kali Prasad Das was the Head Clerk in the
office of Dist. Election Officer, Bolangir and he stated about the
seizure of one Electoral roll of village Gardi and another Electoral
roll of village Danamal as per seizure list vide Ext.7 by the
Inspector Vigilance.
P.W.4 Nabin Kumar Chhatria was the Accountant
-cum- Head Clerk in the office of Horticulturist, Bolangir and he
Page 6 of 52
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stated about receipt of fund of Rs.2,10,000/- from the
Government in their office for purchase of banana suckers. He
further stated about the appellant submitting applications for
taking advance for purchase of banana suckers and receiving
Rs.16,500/-, Rs.20,000/- and Rs.5,900/- on three occasions as
advance as per the orders of Horticulturist Gokulananda Tripathy
(P.W.10) by making endorsement in the advance ledger which
was seized by the Inspector Vigilance. He also stated about the
vouchers submitted by the appellant after utilisation of advance
which were also seized the Inspector Vigilance.
P.W.5 Muni Banchhar and P.W.6 Madhu Mangal
Sahoo did not support the prosecution case.
P.W.7 Prabhat Ranjan Nihal was the driver of a Mini
Truck and he stated to have granted a receipt to the Horticulture
Deptt., Bolangir showing receipt of transportation charges. He
was declared hostile by the prosecution.
P.W.8 Debaraj Gadtia was a cultivator who stated
that there was no person by name Debraj Bhoi residing in village
Gerdi at any point of time.
P.W.9 Pareswar Barik stated that he had not supplied
4000 nos. dwarf variety of banana suckers to the appellant nor
received Rs.4000/- towards the cost thereof. He stated that the
Page 7 of 52
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signature appearing in Ext.30 is not that of his brother
Dambarudhar Barik.
P.W.10 Gokula Chandra Tripathy was in-charge
Horticulturist at Bolangir who stated about passing orders on the
application of the appellant and the appellant receiving advance
for the purpose of purchase of banana suckers and submitting
procurement vouchers vide Exts.11 to 17 towards the advance
taken by him.
P.W.11 Budhadev Gadtia was a villager of Gerdi and
he stated that there was no person by name Debraj Bhoi living in
his village Gerdi at any point of time.
P.W.12 Dambarudhar Barik was a cultivator and he
stated that he had never supplied any banana suckers to the
Horticulture Department of Bolangir nor supplied any banana
suckers to the appellant or received any amount from him by
putting his signature in any voucher as token of receipt of
money.
P.W.13 Harisankar Patra was the Asst. Horticulture
Officer, Bolangir who is a witness to the seizure of some
vouchers by vigilance police as per seizure list Ext.18.
P.W.14 Madan Mohan Purohit was the Jr. Clerk, Dist.
Election Office, Bolangir who stated about the seizure of voter
Page 8 of 52
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list of the year 1995 of village Danamal, Patnagarh Assembly
constituency and also voter list of village Gerdi under Loisingha
Assembly constituency by vigilance police as per seizure list
Ext.7.
P.W.15 N.S. Bhanu Patnaik who was the Govt.
Examiner of questioned documents examined the vouchers
received from Vigilance Inspector, Bolangir and gave his opinion
vide Ext.32.
P.W.16 Prahallad Sethy was the Head Clerk in
Fisheries Office, Bolangir who stated about taking of specimen
signatures of Prabhat Ranjan Nial (P.W.7) and Dambarudhar
Barik (P.W.12) in his presence by the vigilance police.
P.W.17 Sri Jagadananda Panda was the Director of
Horticulture, Bhubaneswar who stated that after perusal of all
the relevant documents produced by Inspector of Vigilance and
holding pre-sanction discussion with him and on being satisfied,
he accorded sanction for prosecution of the appellant vide
sanction order Ext.33.
P.W.18 Sri Alekh Barik did not support the
prosecution case and he was declared hostile by the prosecution.
P.W.19 Umesh Chandra Panda was the Inspector of
Vigilance, Bolangir Squad who took up investigation of the case
Page 9 of 52
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on the direction of S.P. (Vig.), Sambalpur on 05.11.1994 and
investigated the case till 11.07.1995 when he handed over
charge of investigation to P.W.20.
P.W.20 Kunja Bihari Pani was the Inspector of
Vigilance, Bolangir who on 11.07.1995 took charge of
investigation of the case from his predecessor Sri Umesh
Chandra Panda (P.W.19) and on completion of investigation,
submitted charge sheet.
The prosecution exhibited thirty six documents.
Exts.1 to 6 are the papers containing specimen signatures,
Exts.7, 18 and 19 are the seizure lists, Exts.8 and 9 are the
applications filed by the appellant, Ext.10 is the Advance ledger
entry showing payment of advance to the appellant, Exts.11 to
17 are the vouchers, Exts.20 to 25 are six sheets of papers
containing specimen signatures, Exts.26 to 31 are the specimen
signatures of Parameswar Barik (P.W.9) in six sheets of paper,
Ext.32 is the opinion given by P.W.15, Ext.33 is the sanction
order, Ext.34 is the written report (F.I.R.), Ext.35 is the advance
ledger and Ext.36 is the statement of reason.
The prosecution proved two material objects. M.O.I
is the negatives and M.O.II is the enlarged photographs.
Page 10 of 52
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5. The defence examined three witnesses in support of
the defence plea.
D.W.1 Karunakar Meher stated about the appellant
was having talk with P.W.1 for supply of banana suckers @
Rs.1/- per sucker and taking delivery of such suckers from
D.W.1 after a few days and the latter putting his signature on a
voucher.
D.W.2 Santosh Kumar Gadtia stated about the
appellant contacting Debraj Bhoi of his village to purchase
banana suckers @ Rs.1/- per sucker and ultimately Debraj Bhoi
selling banana suckers to the appellant after receiving cost
towards it.
D.W.3 Sobha Chandra Bhoi stated about supply of
4000 banana suckers to the appellant by P.W.9 and receiving
money for such supply.
6. The learned trial Court framed the following points for
determination:-
(i) Whether the accused being a public
servant and having been entrusted with a sum
of Rs.47,310/-, dishonestly or fraudulently
misappropriated or otherwise converted to his
own use a sum of Rs.19,047/- out of the said
amount and thereby misconduct himself?
Page 11 of 52
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(ii) Whether the accused being a public
servant and in such capacity entrusted with a
sum of Rs.47,310/-, for purchase of banana
suckers and for transportation of the same,
committed criminal breach of trust in respect of
Rs.19,047/-?
(iii) Whether the accused forged the vouchers
intending that those shall be used for the
purpose of cheating?
(iv) Whether the accused fraudulently or
dishonestly used as genuine certain documents
(vouchers) which he knew or had reason to
believe at the time he used the same to be
forged documents?
(v) Whether the accused being a servant of
the Government willfully and with intent to
defraud, made entries in the book of accounts
belonging to his employer?
7. The learned trial Court after assessing the oral and
documentary evidence on record came to hold that there is no
dispute over the fact that the appellant was working as a Junior
Horticulture Officer in the office of the Horticulturist, Bolangir
during the relevant period and as such he was a public servant
and that the evidence of P.W.4 goes unchallenged by the defence
which revealed that during the Financial Year 1991-92,
Government had placed funds of Rs.2,10,000/- for purchase of
Page 12 of 52
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banana suckers. It was further held that the appellant had taken
the advances mentioned in Ext.10 and submitted the vouchers
Exts.11 to 17 in the office of the Horticulturist, Bolangir. The
defence plea that P.W.1 had sold 3990 banana suckers to the
appellant and in lieu of that he received Rs.3990/- from the
appellant and also granted the voucher (Ext.11) putting his
signature in English thereon was disbelieved by the learned trial
Court. However, the prosecution case that P.W.2 had not sold
3810 numbers of banana suckers for a price of Rs.3810/- to the
appellant and that the appellant dishonestly created the voucher
Ext.12 to misappropriate the amount mentioned therein, was not
accepted by the learned trial Court. Similarly, the prosecution
case that the appellant had not purchased 4000 banana suckers
from P.Ws.9 and 12 for a price of Rs.4000/- and dishonestly
prepared the voucher to misappropriate the amount was not
accepted by the learned trial Court. It was further held that the
appellant committed misappropriation of Rs.3990/- towards
purchase of banana suckers and prepared and submitted the
voucher Ext.11 for the said amount with dishonest intention to
make wrongful gain for himself, however it was held that the
prosecution has failed to prove that the appellant had
misappropriated any amount towards transportation charges of
Page 13 of 52
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banana suckers. It was further held that the prosecution has
successfully proved that the appellant committed criminal breach
of trust in respect of a sum of Rs.3,990/- towards purchase of
banana suckers and as such he committed an offence under
section 409 of the Indian Penal Code. It was further held that the
evidence on record revealed that the appellant being a public
servant misappropriated a sum of Rs.3,990/- out of the amount
entrusted to him in his capacity as a public servant and thus, he
committed the offence of criminal misconduct as laid down under
section 13(1)(c) punishable under section 13(2) of the 1988 Act.
It was further held that the appellant committed forgery
intending that the voucher (Ext.11) would be used for the
purpose of cheating and used the said voucher as genuine
knowing the same to be a forged voucher and as such, he
committed the offences under sections 468 and 471 of the Indian
Penal Code. However, the learned trial Court found that there are
no evidence on record showing that the appellant was
maintaining any book of accounts in the office of Horticulturist,
Bolangir at the relevant time or that he destroyed, altered,
mutilated or falsified any book, paper, writing, valuable security
or account belonging to or in the possession of his employer and
thus the ingredients of the offence under section 477-A of the
Page 14 of 52
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Indian Penal Code against the appellant are not established by
the prosecution against the appellant. Holding that the
prosecution has failed to establish the charge under section 477-
A of the Indian Penal Code against the appellant, the learned trial
Court convicted the appellant under section 13(2) read with
section 13(1)(c) of the 1988 Act and also under sections 409,
468 and 471 of the Indian Penal Code.
8. Mr. Trilochan Nanda, learned counsel appearing for
the appellant contended that P.W.19 being the informant of the
case should not have investigated the case which has caused
serious prejudice to the appellant and it creates a cloud of doubt
on the fairness of the investigation. The charge is not specific as
required under section 212 of the Cr.P.C. as to what amount the
appellant misappropriated showing purchase of banana suckers
from which person and in absence of such specific charge, the
appellant has been seriously prejudiced and conviction of the
appellant is bad in law. The conviction of the appellant is based
on the finding of the learned trial Court that the appellant
committed criminal breach of trust and dishonestly
misappropriated Govt. fund to the tune of Rs.3,990/- towards
purchase of banana suckers from P.W.1, prepared and submitted
the voucher under Ext.11 for the said amount with dishonest
Page 15 of 52
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intention to make wrongful gain for himself. P.W.19, the
Investigating Officer has admitted in his deposition that the fact
of purchase of the banana suckers by the appellant under the
vouchers Exts.11, 12, 13 and 14 have been noted in the stock
register of the Horticulturist, Bolangir but for the best reason
known to the I.O, he has not seized the stock register. One
Shyamsundar Sethi was in-charge of the Central Stock and also
the register of the Horticulturist, Bolangir but the I.O. has not
examined him in the case nor has he made him an accused.
P.W.19 has stated that it was the practice then that after
purchase of banana suckers, the staff of the Horticulture
Department were sending the same to Central Godown of the
Horticulturist, Bolangir after furnishing stock certificates on the
vouchers and as per the procedure, the gardeners were to sell
banana suckers to the cultivators, obtain their signatures in their
stock registers and also mention the receipt of money from them
in the stock registers. The I.O. stated that the gardeners had
deposited the actual sale price of the suckers in the office of
Horticulturist, Bolangir as per the quantity of suckers shown to
have been sold by them to the cultivators which was mentioned
in the Central Stock Register in the office of Horticulturist,
Bolangir. The I.O. (P.W.19) has not seized the stock registers of
Page 16 of 52
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the gardeners in this case. Mr. Nanda further argued that P.W.10
Gokula Chandra Tripathy who was the in-charge Horticulturist,
Bolangir at the relevant point of time has stated in his deposition
that after procurement, the stock was entered in the stock
register and the said stock was then issued to the field staff of
the department for supply to the Farm/Agriculturist and he as
the Head of the Office, after being satisfied about the
genuineness of the voucher submitted before him with respect to
the advance payment or the excess payment, passed the
voucher for payment. According to Mr. Nanda, the I.O has not
intentionally seized the stock registers inasmuch as had he
seized the same, it would have demolished the case of the
prosecution in its entirety and as such adverse inference under
section 114(g) of the Evidence Act is to be drawn against the
prosecution. He drew the attention of this Court to the attested
copies of Stock Book Register of banana suckers, 1991-92, Page
Nos.3 to 7 obtained from the office of the Deputy Director of
Horticulture, Bolangir under R.T.I Act vide letter No.690
dtd.20.03.2018 which has been marked as Ext.B by order
dtd.11.11.2021 passed by this Court in I.A. No.1118 of 2021 by
way of acceptance of additional evidence under section 391 of
the Cr.P.C. He argued that by way of voucher Ext.11, the
Page 17 of 52
// 18 //
appellant purchased 3990 banana suckers from P.W.1 on
26.02.1992 and paid a sum of Rs.3,990/- @ of Rs.1/- per banana
sucker to him. This fact has been clearly reflected and certified at
the back portion of Ext.11 and this particular voucher was passed
for payment of Rs.3,990/- by the Horticulturist, Bolangir on
25.03.1992 and the signature of the Horticulturist, Bolangir has
been marked as Ext.11/3. It is argued that the prosecution
deliberately did not prove the stock register of banana suckers
1991-92 during trial, however, on a perusal of the Ext.B, it is
crystal clear that the fact of the purchase and deposit of the
banana suckers by the appellant from P.W.1 has been clearly
mentioned therein and it is clearly stated therein that on
26.02.1992 banana suckers were purchased from Kishore Meher
(P.W.1) and the number of banana suckers is mentioned as
3990. He argued that on a harmonious reading of all the
evidence on record goes to show that the appellant had
purchased 3990 banana suckers and deposited the same in the
godown as reflected in the stock register and thus there was no
misappropriation of any government money by the appellant nor
any wrongful pecuniary gain for himself. He further argued that
D.W.1 Karunakar Meher had given his lands in the year 1991-92
on rent basis to P.W.1 Kishore Meher for cultivation and D.W.1 in
Page 18 of 52
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his deposition has clearly stated that P.W.1 was doing banana
cultivation in his lands in those years and that the appellant
came to his village and took delivery of banana suckers from
P.W.1 and took a receipt bearing signature of P.W.1 from him.
While concluding his argument, Mr. Nanda, learned counsel for
the appellant contended that the impugned judgment and order
of conviction and sentence passed by the learned trial Court is
not sustainable in the eye of law and should be set aside.
Reliance was placed on the decisions of K.R. Purushothaman
-Vrs.- State of Kerala reported in A.I.R. 2006 Supreme
Court 35, Prahallad Sethy -Vrs.- State of Orissa reported in
2014 Criminal Law Journal 4378 and Mohan Lal -Vrs.- The
State of Punjab reported in (2018) 72 Orissa Criminal
Reports (SC) 196.
9. Mr. Sanjay Kumar Das, learned Standing Counsel
appearing for the Vigilance Department, on the other hand,
supported the impugned judgment and submitted that merely
because P.W.19 being the informant conducted investigation to
an extent cannot be a ground to discard the prosecution case,
particularly when he is having proper authority and jurisdiction to
investigate the case. The charge was framed that the appellant
dishonestly or fraudulently misappropriated Govt. fund of
Page 19 of 52
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Rs.19,047.60 which obviously includes Rs.3,990/- which the
learned trial Court found the appellant misappropriated towards
purchase of banana suckers from P.W.1 by preparing and
submitting voucher Ext.11 for the said amount with dishonest
intention to make wrongful gain for himself. It is argued that
charge is rolled-up one involving the total amount of
misappropriation reflected in various vouchers without specifying
amount involved in each voucher and the name of the person
relatable to such vouchers and in such a situation, it cannot be
said to be fatal by itself unless prejudice is shown to have been
caused to the appellant. Relying on section 464 of Cr.P.C., it is
argued that a finding or sentence of a Court shall not be set
aside merely on the ground that a charge was not framed or that
charge was defective unless it has occasioned in prejudice. He
argued that entry in the stock Book Register regarding purchase
of 3990 banana suckers from P.W.1 on 26.02.1992 and payment
of sum of Rs.3,990/- @ of Rs.1/- per banana sucker to him
cannot be ground to prove the innocence of the appellant
particularly when P.W.1 himself has stated that he never took up
banana plantation nor sold any banana suckers to Horticulture
Department nor received any payment for the same nor
executed any receipt with his signature. It is further argued that
Page 20 of 52
// 21 //
defence evidence has been rightly rejected by the learned trial
Court and the appellant has been rightly found guilty by the
learned trial Court and therefore, the appeal should be
dismissed. He placed reliance in the cases of State represented
by Inspector of Police -Vrs.- V. Jayapaul reported in
(2004) 5 Supreme Court Cases 223, Mukesh Singh -Vrs.-
State (Narcotic Branch of Delhi) reported in (2020) 79
Orissa Criminal Reports (SC) 924, Jaikrishnadas M. Desai
-Vrs.- State of Mumbai reported in A.I.R. 1960 Supreme
Court 889, Brahmananda Mohanty -Vrs.- The State
reported in A.I.R. 1967 Orissa 135, Bhargaban Pallai -Vrs.-
State of Kerala reported in A.I.R. 2004 Supreme Court
2317, Minaketan Das -Vrs.- State of Orissa reported in Vol.
73 (1992) Cuttack Law Times 312 and Harish Chandra
Singh -Vrs.- State of Orissa reported in (1994) 7 Orissa
Criminal Reports 594.
10. Adverting to the contentions raised by the learned
counsel for the respective parties, let me deal with the issues
point-wise.
(i) Whether prosecution case becomes doubtful as
P.W.19 being the informant investigated the
case:
Page 21 of 52
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It is not in dispute that P.W.19 Umesh Chandra
Panda, Inspector of Vigilance, Bolangir Squad lodged the first
information report before the Superintendent of Police, Vigilance,
Sambalpur Division, Sambalpur on 05.11.1994 and accordingly,
Sambalpur Vigilance P.S. Case No.42 of 1994 was registered
against the appellant. It is also not in dispute that the
Superintendent of Police, Vigilance, namely, Surendra Panwar
directed the Officer in-charge, Vigilance Police Station,
Sambalpur to register the case and further directed P.W.19 to
take up investigation of the case. P.W.19 investigated the case
from 05.11.1994 to 11.07.1995 whereafter he handed over the
charge of investigation to P.W.20 Kunja Bihari Pani on his
transfer and the latter on completion of investigation submitted
chargesheet.
The question that now crops up for consideration is
whether the prosecution case becomes doubtful as investigation
in part was conducted by P.W.19, the informant in the case.
Learned counsel for the appellant placed reliance in
the case of Mohan Lal (supra), wherein the Hon'ble Supreme
Court has held that a fair investigation, which is but the very
foundation of fair trial, necessarily postulates that the informant
and the investigator must not be the same person. Justice must
Page 22 of 52
// 23 //
not only be done, but must appear to be done also. Any
possibility of bias or a predetermined conclusion has to be
excluded. This requirement is all the more imperative in laws
carrying a reverse burden of proof.
On the other hand, learned Standing Counsel for the
Vigilance Department placed reliance on two decisions to counter
the submission of learned counsel for the appellant i.e. V.
Jayapaul (supra) and Mukesh Singh (supra).
In the case of V. Jayapaul (supra), it has been held
as follows:
"6.....We find no principle or binding authority to
hold that the moment the competent police
officer, on the basis of information received,
makes out an FIR incorporating his name as the
informant, he forfeits his right to investigate. If
at all, such investigation could only be assailed
on the ground of bias or real likelihood of bias
on the part of the investigating officer. The
question of bias would depend on the facts and
circumstances of each case and it is not proper
to lay down a broad and unqualified proposition,
in the manner in which it has been done by the
High Court, that whenever a police officer
proceeds to investigate after registering the FIR
on his own, the investigation would necessarily
be unfair or biased. In the present case, the
Page 23 of 52
// 24 //
police officer received certain discreet
information, which, according to his assessment,
warranted a probe and therefore made up his
mind to investigate. The formality of preparing
the FIR in which he records the factum of having
received the information about the suspected
commission of the offence and then taking up
the investigation after registering the crime,
does not, by any semblance of reasoning, vitiate
the investigation on the ground of bias or the
like factor. If the reason which weighed with the
High Court could be a ground to quash the
prosecution, the powers of investigation
conferred on the police officers would be unduly
hampered for no good reason. What is expected
to be done by the police officers in the normal
course of discharge of their official duties will
then be vulnerable to attack."
In the case of Mukesh Singh (supra) which is a five-
Judge Constitution Bench decision constituted to decide the
correctness of the ratio laid down in the case of Mohan Lal
(supra), it was held that whether the investigation conducted by
the concerned informant was fair investigation or not is always to
be decided at the time of trial. The concerned
informant/investigator will be cited as a witness and he is always
subject to cross-examination. There may be cases in which even
the case of the prosecution is not solely based upon the
Page 24 of 52
// 25 //
deposition of the informant/informant -cum-investigator but
there may be some independent witnesses and/or even the other
police witnesses. The testimony of police personnel will be
treated in the same manner as testimony of any other witness
and there is no principle of law that without corroboration by
independent witnesses, his testimony cannot be relied upon. It
has also been held that there is no reason to doubt the credibility
of the informant and doubt the entire case of the prosecution
solely on the ground that the informant has investigated the
case. Solely on the basis of some apprehension or the doubts,
the entire prosecution version cannot be discarded and the
accused is not to be straightway acquitted unless and until the
accused is able to establish and prove the bias and the prejudice.
While concluding, it was observed that in a case where the
informant himself is the investigator, by that itself cannot be said
that the investigation is vitiated on the ground of bias or the like
factor. The question of bias or prejudice would depend upon the
facts and circumstances of each case. It was held that merely
because the informant is the investigator, by that itself the
investigation would not suffer the vice of unfairness or bias and
therefore on the sole ground that informant is the investigator,
the accused is not entitled to acquittal. The matter has to be
Page 25 of 52
// 26 //
decided on a case to case basis. It was held that a contrary
decision in the case of Mohan Lal (supra) and any other
decision taking a contrary view that the informant cannot be the
investigator and in such a case the accused is entitled to
acquittal are not good law and they are specifically overruled.
Ordinarily if a police officer is the informant in a case,
in the fairness of things, the investigation should be conducted
by some other empowered police officer or at least the
investigation should be supervised by some other Senior police
officer as the informant police officer is likely to be interested in
the result of the case projected by him. However, if the
informant police officer in the exigencies of the situation
conducts investigation and submits final form, it cannot be per se
illegal. Investigation into criminal offences should be fair,
unobjectionable and should not percolate the apprehension in
the minds of the accused that it is carried out unfairly and with
designed motive. An onerous and responsible duty is cast on the
investigating officer to conduct the investigation avoiding any
kind of fabrication of evidence and his impartiality must dispel
any suspicion. His prime duty is to bring out the real truth to
instill confidence of the public and rule out the sense of being
partitioned or to suppress. Any extraneous force and/or influence
Page 26 of 52
// 27 //
in the investigation process may result into tainted and unfair
investigation. Thus the investigating agency should not be
influenced by any extraneous influence and investigation must
be done judiciously, fairly, transparently and expeditiously to
secure the rule of law. The defence has to prove in what way
such investigation is impartial, unfair, biased or has caused
prejudice to the accused.
Learned counsel for the appellant though contended
that non-seizure of Central stock register from the office of
Horticulturist, stock registers of the gardeners and non-
examination of in-charge of Central Stock indicates about the
unfairness on the part of P.W.19 while investigating the case, but
in my humble view since he is not the person who on completion
of investigation submitted chargesheet, entire blame cannot be
thrown on him. Each and every omission made by the
Investigating Officer will not enure to the benefit of the accused
if the other materials which are available on record justify
arriving at a conclusion to the positive nature of the prosecution
case. The learned counsel for the appellant has failed to place
any material to suspect the investigation by P.W.19 as biased
and impartial and in absence of anything that the informant
-cum- investigating officer was personally interested to get the
Page 27 of 52
// 28 //
appellant convicted, I am not inclined to accept that since
P.W.19, the informant conducted investigation for a substantial
period, the prosecution case should be held doubtful.
(ii) Whether the appellant has been prejudiced on
account of non-framing of specific charge:
The learned counsel for the appellant urged that
framing of charge that the appellant being a public servant and
having been entrusted with a sum of Rs.47,310/-, dishonestly or
fraudulently misappropriated or otherwise converted to his own
use a sum of Rs.19,047/- out of the said amount and thereby
misconduct himself, was not proper and justified. According to
him, the charge should have been specific as required under
section 212 of the Cr.P.C. as to what amount the appellant
misappropriated showing purchase of banana suckers from each
person and in absence of such specific charge, the appellant has
been seriously prejudiced.
The learned Standing counsel for the Vigilance
Department, on the other hand, submitted that charge is rolled-
up one involving the total amount of misappropriation reflected
in various vouchers without specifying amount involved in each
voucher and the name of the person relatable to each such
voucher and in such a situation, it cannot be said to be fatal by
Page 28 of 52
// 29 //
itself unless prejudice is shown to have been caused to the
appellant.
The object of framing a charge is to give notice of the
essential facts which the prosecution proposes to establish to
bring home against the accused so that he should not be
prejudiced in his defence. The provisions of section 212 of the
Code are meant to give a notice to the accused to meet the
charge framed against him. Sub-section (2) of section 212 of
Cr.P.C. does not provide the normal rule with respect to framing
of charges in cases of criminal breach of trust, misappropriation
etc. It is only in the nature of an exception to meet a certain
contingency. Non-observance of any of the conditions under
section 212 of Cr.P.C., unless cause prejudice to the accused or
result in miscarriage of justice, cannot be a ground to vitiate the
order of conviction. By non-specification of the amount
misappropriated in the charge, trial cannot be held to be vitiated
unless there is failure of justice. Sub-section (2) does not require
any particular formulation of the accusation, but only enacts that
it is sufficient to show the aggregate sum without specifying the
details. It dispenses with the necessity for amplification, does not
prohibit the enumeration of the particular items in the charge. In
a charge of criminal misappropriation, it is enough to mention
Page 29 of 52
// 30 //
the gross sum of money in respect of which the offence was
committed. All the items of misappropriation included in the
gross sum need not be specified. They can be grouped into one
lump sum and that can be shown as the sum misappropriated.
Omission to give particulars in the charge can be
cured by section 465 of Cr.P.C. unless the defect occasions a
failure of justice. The question of prejudice is ultimately one of
inference from all the facts and circumstances of each case. To
say that there was prejudice, is not enough; it should further be
pointed out as to how or in what manner the accused was
prejudiced. Defect, irregularity, omission, or error in framing of
charges would not render sentence or order of the Court as
invalid.
After going through the framing of charge under each
heading, I am not inclined to accept the contention raised by the
learned counsel for the appellant that on account of non-
mentioning of the exact amount the appellant misappropriated
showing purchase of banana suckers in each case from each
person, the appellant has been seriously prejudiced.
(iii) Charge under section 409 of Indian Penal Code:
The appellant was charged under section 409 of the
Indian Penal Code on the accusation that during the years 1991
Page 30 of 52
// 31 //
and 1992, being a public servant employed as Junior Horticulture
Officer, Bolangir under the Government of Odisha and in such
capacity entrusted with or dominion over a sum of Rs.19,047/-
committed criminal breach of trust in respect of such amount.
It is not disputed that the appellant was working as
Junior Horticulture Officer, Bolangir during the years 1991-1992
and on his applications which are dated 30.03.1992 and
06.04.1992, P.W.10 Gokul Chandra Tripathy, Horticulturist,
Bolangir directed P.W.4 Nabin Kumar Chhatria, Accountant
-cum- Head Clerk of the office of Horticulturist, Bolangir to pay
Rs.20,000/-and Rs.5,900/- for purchase of banana suckers and
towards transportation charges of the same, which was received
by the appellant by making endorsement on his own applications
as well as in the advance ledger and that apart the appellant had
also taken an advance of Rs.16,500/- for purchase of banana
suckers from P.W.4 and he had also submitted vouchers marked
as Exts.11 to 17 making endorsement thereon that he had paid
the amount and also endorsed certificates on the reverse of
those vouchers. In that respect, questions have been put to the
appellant in the accused statement recorded under section 313
of Cr.P.C. and the appellant has admitted the same. Thus, in my
humble view, the finding of the learned trial Court in paragraph 8
Page 31 of 52
// 32 //
of the impugned judgment that the appellant had taken the
advances mentioned in Advance Ledger Ext.10 and had
submitted the vouchers Exts.11 to 17 in the office of the
Horticulturist, Bolangir is quite justified.
The learned trial Court accepted the prosecution case
that the appellant had not purchased 3990 banana suckers from
P.W.1 nor paid Rs.3990/- to him i.e. @ Rs.1/- per sucker and
that P.W.1 had not granted voucher (Ext.11) putting his
signature in English thereon. The learned trial Court has
discussed the evidence of P.W.1 and D.W.1 to arrive at such a
conclusion. In fact, the evidence of D.W.1 supporting defence
plea of the appellant has been disbelieved.
Let me now analyse the evidence of P.W.1 and
D.W.1.
P.W.1 Kishore Meher has stated in his evidence that
he was having no land and he was not a cultivator and he never
took up banana plantation and he did not sell banana suckers to
the Horticulture Department, Bolangir and did not receive any
payment by selling banana suckers. He further stated that he
had never executed any receipt with his signature showing
receipt of payment. He further stated that he is an illiterate
person and had never granted any receipt to the appellant
Page 32 of 52
// 33 //
acknowledging receipt of Rs.3990/- towards price of banana
suckers. He disowned the signature appearing on the receipt
which was shown to him by the Special Public Prosecutor marked
as 'X'. Suggestion has been given by the learned defence counsel
that he was cultivating the lands of others on 'Bhag' basis and
earning his livelihood by cultivating land of others, but P.W.1 has
denied it. Specific suggestion has also been given to him by the
defence that he had sold banana suckers to the appellant worth
of Rs.3,990/- @ Rs.1/- per sucker and granted receipt to the
appellant to that effect but he has denied the same. Ext.11 is the
particular voucher in which signature of one 'Kisor Meher' on a
revenue stamp with date 26.02.92 is appearing. This particular
voucher Ext.11 and signature appearing thereon should have
been shown to P.W.1 by the Special Public Prosecutor. Nothing
on Ext.11 has been marked as 'X' and thus it is clear that Ext.11
has not been shown to P.W.1.
At this stage, the evidence of D.W.1 Karunakar
Meher is required to be considered, who has stated that he was
having a medicine shop where P.W.1 was working as a salesman
from 1988-89 till 1994. He further stated that P.W.1 was writing
the cash memos in English and giving it to the customers. He
further stated that in 1991-92, he had given his land on 'bhag'
Page 33 of 52
// 34 //
basis to P.W.1 for cultivation and P.W.1 was doing banana
cultivation. He further stated that the appellant came to his
medicine shop and enquired from him about supply of banana
suckers for which he called P.W.1 and the appellant talked with
him (P.W.1) regarding supply of banana suckers to him @ Rs.1/-
per sucker. He further stated that P.W.1 suggested to the
appellant to come after four to five days with a vehicle to take
the banana suckers and accordingly, the appellant came and
took delivery of banana suckers from P.W.1 and also took receipt
with signature of P.W.1 from him. D.W.1 was cross-examined by
the learned Special Public Prosecutor and he stated that he had
not seen the educational certificate of P.W.1. However, he stated
that P.W.1 was a non-matric. He further stated that he could not
produce any document bearing the signature of P.W.1. He stated
that he could not say the khata no. and plot no. of his lands and
could not produce any document showing P.W.1 to be cultivating
his lands on 'Kar' basis. Suggestion was given to D.W.1 by the
learned Special Public Prosecutor that P.W.1 was an illiterate
person and he was also a landless person and he never worked
in his shop to which D.W.1 had denied.
The learned trial Court has disbelieved the evidence
of D.W.1 on the ground that he could not produce any document
Page 34 of 52
// 35 //
showing that P.W.1 was cultivating his land on Kar basis and
could not produce any document showing that P.W.1 was
cultivating banana on his land. It was further held that when
D.W.1 was not selling banana suckers, it is hard to believe that
the appellant had gone to his shop to contact him for purchase of
banana suckers in the month of March 1992.
While judging the veracity of witnesses, there cannot
be any different yardstick for judging the prosecution witnesses
and defence witnesses. The defence witnesses are to be given
equal treatment like the prosecution witnesses. Defence
witnesses cannot be said to be untruthful, merely because they
support the case of the accused. The evidence of a defence
witness carries the same weight as that of the prosecution. His
credibility should not be doubted merely because his attendance
has been procured by the accused. Prosecution witnesses are not
necessarily truthful and the defence witnesses are false
witnesses. When two versions are before the Court, one by the
prosecution and the other by the defence adduced by examining
defence witnesses or proving some documents or eliciting
something from the prosecution witnesses in support of defence
plea, it is for the Court to appreciate both the versions, scrutinize
it carefully and minutely and find out as to which of them is more
Page 35 of 52
// 36 //
probable and believable. The Court should always keep in mind
that accused has only to establish his defence on a
preponderance of probability not by proving the same beyond
reasonable doubt as the prosecution is required to prove its
case. If on assessment of the evidence led by the parties,
probability factor echoes in favour of the defence, the Court
should give benefit of doubt to the accused.
P.W.1 was a co-villager of D.W.1 and according to
D.W.1, he had given his land to P.W.1 to cultivate on Kar basis.
D.W.1 also stated that P.W.1 was serving in his medicine shop
for about six years. Merely because D.W.1 could not produce any
document showing P.W.1 was cultivating his land or that P.W.1
had raised banana plantation on his land, the same cannot be
ground to discard the evidence of D.W.1. In villages, ordinarily
nobody keeps any document for entrusting his land to someone
as bhag-chasi. Similarly, there is no improbability feature in the
appellant coming to know from some sources that there was
banana cultivation in the land of D.W.1 and accordingly
approached him, who in turn called P.W.1 who had raised
banana plantation to contact the appellant.
P.W.4, the Accountant -cum- Head Clerk in the office
of Horticulturist, Bolangir has stated that the appellant took
Page 36 of 52
// 37 //
advance of Rs.20,000/- on 30.03.1992, Rs.16,500/- on
22.01.1992 and Rs.5,900/- on 06.04.1992. The same was
reflected in Advance Ledger (Ext.10) and it was acknowledged by
the appellant. After utilisation of the advance, the appellant
submitted vouchers vide Exts.11 to 17. The voucher which is
relevant for adjudication of this appeal is Ext.11. P.W.4 has
stated that in Ext.11, the endorsement 'paid by me' with
signature was given by the appellant and that has been marked
as Ext.11/1 and Ext.11/2 is the certificate with signature of the
appellant given on the reverse of the voucher. P.W.4 further
stated that all the vouchers were in his custody which was seized
by the Inspector, Vigilance on his production as per seizure list
Ext.18. In the cross-examination, he has stated that a sum of
Rs.42,900/- was advanced to the appellant under the Scheme,
out of which Rs.36,500/- was advanced for purchase of banana
suckers and Rs.5,900/- was advanced for transportation of
banana suckers. The appellant had given the vouchers showing
utilization of the advance taken by him and the Horticulturist,
Bolangir verified those vouchers. He further stated that the
drawing officer passed order for payment after he was satisfied
about the authenticity of the vouchers.
Page 37 of 52
// 38 //
P.W.10, the in-charge Horticulturist at Bolangir
stated that in the reverse of the procurement vouchers, the
appellant had endorsed that he had received the stock in good
condition and made entry thereof in the stock register and he
had also put his signature under his endorsement. He further
stated that in Ext.11, there is endorsement of the appellant that
he had received the goods in good condition and the same was
entered in the stock register at page 4 and the appellant had
also certified that he had made payment of the cost amounting
to Rs.3,990/- under the said voucher. Ext.11/2 is the certificate
of the appellant and Ext.11/3 is the endorsement of P.W.10
passing the amount for payment to the appellant. He further
stated that after procurement, the stock was entered in the stock
register and the said stock was issued to the field staff of the
department for supply to the Farm/Agriculturist. He further
stated that as Head of the office, after being satisfied about the
genuineness of the vouchers submitted before him with respect
to the advance payment or excess payment, he had passed the
voucher for payment.
P.W.19, the Inspector of Vigilance has stated in his
cross-examination that the fact of purchase of banana suckers
under the voucher Ext.11 had been noted in the stock register of
Page 38 of 52
// 39 //
the Horticulturist, Bolangir, but he had not seized the stock
register. He further stated that Shyam Sundar Sethi was the in-
charge of the Central Stock Register of the Horticulturist,
Bolangir, but he had not examined him in the case. He further
stated in the cross-examination that as per the procedure, the
gardeners were to send the banana suckers to the cultivators
and obtain their signature in their stock register and also
mention the receipt of money from them in the stock register.
The gardeners had deposited the actual sale price of the suckers
in the office of the Horticulturist, Bolangir as per the quantity of
suckers shown to have been sold by them to the suckers and
they had deposited the sale price of the suckers said to have
been received by them as per Central Stock Register in the office
of the Horticulturist, Bolangir and that he had not seized the
stock registers of the gardeners. When the documentary
evidence as well as oral evidence indicates that banana suckers
purchased under Ext.11 were received in good condition and to
that effect entry has been made at page 4 of the stock book
(banana suckers), 1991-92 and the said stock book register of
banana suckers has been marked as Ext.B as per the order dated
11.11.2021 passed in I.A. No. 1118 of 2021, which was an
application filed by the appellant under section 391 of Cr.P.C. to
Page 39 of 52
// 40 //
mark the same as additional evidence and when the stock
register (Ext.B) clearly indicates about receipt of 3,990 banana
suckers on 26.02.1992 purchased from Kishore Meher, Village/
P.O.-Jarsingh, P.S.-Tusra, District-Bolangir vide S.V. No.2,
therefore, it is difficult to doubt that Ext.11 is not a genuine one
particularly when P.W.10 has stated that as Head of the office,
after being satisfied about the genuineness of the voucher
submitted before him with respect to the advance payment or
the excess payment, he had passed the voucher for payment. No
explanation has been given as to why the person who was in
charge of the central stock and register of the Horticulturist,
namely, Shyam Sundar Sethi was not examined by the I.O. and
as to why the stock register was not seized by the I.O. It
presupposes that since proving of the stock register and
examination of Shyam Sundar Sethi would have strengthened
the defence plea, the same was not done deliberately, which
reflects that the Investigating Officers were not fair while
investigating the case. The documents further revealed that not
only 3990 banana suckers were received in the Central Stock but
those were also issued to the gardeners for selling the same to
the cultivators at a subsidized rate of Rs.0.15 paise per sucker.
The gardeners also received the banana suckers from the Central
Page 40 of 52
// 41 //
Stock and sold the same to the cultivators and deposited the sale
proceeds in the Central Stock and to that effect the stock
registers of the gardeners were very much relevant, which were
also not seized by the Investigating Officer. The contention of
the learned counsel for the appellant that the I.O has not
intentionally seized the stock registers inasmuch as had he
seized the same, it would have demolished the case of the
prosecution in its entirety and as such, adverse inference under
section 114(g) of the Evidence Act is to be drawn against the
prosecution, has got substantial force.
Illustration (g) to section 114 of the Evidence Act
deals with the presumption that evidence which could be and is
not produced would if produced be unfavourable to the person
who withholds it. The rule on which this illustration is based is
contained in the well-known maxim i.e. 'omnia praesumuntur
contra spoliatorem' i.e. if a man wrongfully withholds evidence,
every presumption to his disadvantage consistent with the facts
admitted or proved will be adopted. The essence of the rule
contained in illustration (g) lies in the fact that if a party to lis is
in possession of the best evidence, which one way or other is
decisive on the fact in issue, then there is heavy duty cast upon
him to assist the Court with the same that notwithstanding what
Page 41 of 52
// 42 //
the abstract doctrine of the onus of proof may suggest about and
the case he fails to produce it without any reasonable
justification, whether called upon to do so or not then in law, it is
open to the Court to draw an adverse inference against him for
that reason. A presumption under section 114(g) is a question of
fact and not a question of law. An adverse inference can be
drawn against a party if there is withholding of evidence and not
merely on account of the failure of the party to obtain evidence.
The function of the prosecution is to bring the truth before the
Court and it is the duty of the Public Prosecutor to ensure with all
diligence and carefulness required to see that all the details are
brought on record and that the prosecution does not fail due to
such neglect. The prosecutor must not suppress or keep back
from the Court evidence relevant to the determination of the
guilt or innocence of the accused. He must present a complete
picture and not one-sided picture. He has to be fair to both the
sides in the presentation of the case. If relevant documents
admitted to have been in existence were not placed before the
Court by the party concerned, adverse inference has to be drawn
against that party. In the case of Union of India -Vrs.-
Ibrahim Uddin and another reported in (2012) 8 Supreme
Court Cases 148, it is held that generally it is the duty of the
Page 42 of 52
// 43 //
party to lead the best evidence in his possession, which could
throw light on the issue in controversy and in case such material
evidence is withheld, the Court may draw adverse inference
under section 114(g) of the Evidence Act notwithstanding, that
the onus of proof did not lie on such party and it was not called
upon to produce the said evidence. The Hon'ble Supreme Court
placed reliance on the decisions in the cases of Murugesam
Pillai -Vrs.- Manickavasaka Pandara, A.I.R 1917 PC 6;
Hiralal -Vrs.- Badkulal, A.I.R 1953 SC 225; A.
Raghavamma -Vrs.- A. Chenchamma, A.I.R 1964 S.C 136;
Union of India -Vrs.- Mahadeolal Prabhu Dayal, A.I.R 1965
S.C 1755; Gopal Krishnaji Ketkar -Vrs.- Mohd. Haji Latif,
A.I.R 1968 S.C 1413; M/s. Bharat Heavy Electrical Ltd.
-Vrs.- State of U.P., A.I.R 2003 SC 3024; Mussauddin
Ahmed -Vrs.- State of Assam, A.I.R 2010 SC 3813 and
Khatri Hotels(P) Ltd. -Vrs.- Union of India, (2011) 9
Supreme Court Cases 126.
Thus, in my humble view non-seizure of the stock
register of the Central Stock, stock registers of gardeners and
non-examination of the in-charge of Central Stock was
deliberately done by the Investigating Officers for which adverse
Page 43 of 52
// 44 //
inference is to be drawn against the prosecution as attempts are
being made to suppress the truth from the Court.
Now, coming to the charge under section 409 of
Indian penal Code, let me discuss the citations placed by Mr.
Das, the learned Standing Counsel for the vigilance department.
In the case of Jaikrishshnadas M. Desai (supra), it
is held that the principal ingredient of the offence under section
409 of the Indian Penal Code 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. Conviction
of a person for the offence of criminal breach of trust may not, in
all cases, be founded merely on his failure to account for the
property entrusted to him, or over which he has dominion, even
when a duty to account is imposed upon him, but where he is
unable to account or renders an explanation for his failure to
account which is untrue, an inference of misappropriation with
dishonest intent may readily be made.
In the case of Bhargaban Pallai (dead) by L.Rs.
and another(supra), the Hon'ble Supreme Court has held that
Page 44 of 52
// 45 //
in a case under section 409 of the Indian Penal Code, the actual
mode of entrustment or misappropriation is not to be proved by
the prosecution. Once entrustment is proved, it is for the
accused to prove as to how the property entrusted was dealt
with.
In the case of Minaketan Das (supra), this Court
has held that the onus lies on the prosecution to prove
entrustment by adducing cogent evidence. It is not, however,
necessary to prove that any specific sum of money, received on
particular dates from particular persons, has been dishonestly
misappropriated. Once it is proved that the money was entrusted
to a person, the burden rests on him to show as to what he did
with the money and if he, completely denied having received
money the presumption is that he misappropriated or converted
it to his own use. In a prosecution for criminal breach of trust,
direct evidence of dishonest conversion to the accused's own use
of the money, entrusted to him, can seldom be found and such
dishonest intention and conversion have to be inferred from
relevant facts and circumstances.
In the case of Brahmananda Mohanty (supra), it is
held that:-
"16. The settled position in law is that it is not
necessary or possible in every case to prove in
Page 45 of 52
// 46 //
what precise manner the accused person has
dealt with or appropriated the goods, the
question is one of intention and not a matter of
direct proof but giving a false account of what he
has done with the goods received by him may be
treated as a strong circumstance against the
accused person. In such a case the elements of
criminal offence of misappropriation will be
established if the prosecution proves that the
accused received the goods, that he was under
duty to account for the same and had not done
so. It is not the law that the prosecution has to
eliminate all possible evidences or circumstances
which may exonerate him. If the facts are within
the knowledge of the accused then he was to
prove them. Of course, the prosecution has to
establish a prima facie case in the first instance.
It is enough to establish facts which give rise to
a suspicion; and then by reason of section 106
of the Evidence Act, the onus is thrown on the
accused to prove his innocence.
In the case of Harish Chandra Singh (supra), this
Court has held as follows:
"10....That is because, law is well settled that it
is neither necessary nor possible in every case of
criminal breach of trust to proved the precise
mode of criminal breach of trust to prove the
precise mode of misappropriation or conversion
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to one's own use of the entrusted property, by
the accused, the same being ordinarily not
capable of proof by direct evidence. It does not
mean thereby that the prosecution is absolved
from the burden of proving misappropriation.
This burden can be discharged by proof of
circumstances which lead to the irresistible
conclusion of misappropriation. Then again mere
proof of misappropriation is not enough. The
further burden that lies on the prosecution is to
prove that the accused was actuated by
dishonest intention while misappropriating the
entrusted property. In other words,
misappropriation with intention of causing
wrongful gain or wrongful loss cannot be
assumed and must be proved either by positive
evidence or may be presumed from proved
circumstances. Wrongful gain includes wrongful
retention and wrongful loss includes being kept
out of the property and being deprived of the
same. It is, however, not necessary to prove
either actual wrongful gain or actual wrongful
loss. Mere failure on the part of the accused the
account for the property entrusted is not enough
since it is only a piece of evidence pointing
dishonest intention and must be considered
along with other facts and circumstances
appearing in a case. Where however an accused
is unable to account or renders a false
explanation for failure to account, an inference
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of misappropriation with dishonest intention may
readily be inferred."
In this case, the prosecution has successfully proved
the entrustment of the advance money with the appellant for
purchasing banana suckers which is also not disputed by the
appellant, but since in view of the documentary evidence Ext.11,
Ext.B and the evidence of P.W.4, P.W.10 and P.W.19 so also the
evidence of D.W.1, it is apparent that not only 3990 banana
suckers were purchased by the appellant but the same were also
deposited in the Central Stock and thereafter, those were given
to the gardeners who in turn sold the same to the cultivators,
obtained the sale price and deposited the same in the Central
Stock, in my humble view the appellant had offered proper
explanation as to what he did after receiving advance of
Rs.3,990/- towards purchase of banana suckers from P.W.4 and
there is no wrongful gain on the part of the appellant and
therefore, the appellant has not committed criminal breach of
trust and as such the charge under section 409 of the Indian
Penal Code fails.
(iv) Charges under section 468 and 471 of the
Indian Penal Code :
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Section 468 of the Indian Penal Code deals with
forgery for the purpose of cheating. The prosecution must prove
that the document is a forged one and that the accused forged
the document and that he did it for the purpose that the forged
document would be used for the purpose of cheating.
In the case of Prahallad Sethy (supra), this Court
has held that in order to secure conviction for offence punishable
under section 468 of Indian Penal Code, one must be found to
have done forgery within the meaning of section 463 of Indian
Penal Code which again implies that there has to be the making
of a false document in terms of section 464 of Indian Penal Code.
It is further held that a conjoint reading of section 463 and 464
of the Indian Penal Code goes to show that two essential
elements of forgery contemplated under section 463 of Indian
Penal Code are (i) the making of a false documents or part of it
and (ii) such making is with such intention as is specified in the
section. These aspects are required to be established.
Since I have already held that prosecution has failed
to prove that Ext.11 is a forged document, the ingredients of the
offence under section 468 of the Indian Penal Code are not
attracted and therefore, the charge for such offence fails.
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Section 471 of the Indian Penal Code deals with
using a forged document as a genuine one. 'Forged document'
has been defined in section 470 of the Indian Penal Code which
states that a false document as described in section 464 made
wholly or in part by forgery is a forged document. Fraudulent or
dishonest use of a document as genuine and knowledge or
reasonable belief on the part of the person using the document
that it is a forged one are the essential ingredients of the offence
under section 471 of the Indian Penal Code. Since I have already
given the findings that Ext.11 is not a forged document,
therefore, the charge under section 471 of the Indian Penal Code
also fails.
(v) Charge under section 13(2) read with section
13(1)(c) of the 1988 Act :
In the case of K.R. Purushothaman (supra), the
Hon'ble Supreme Court has held that to constitute an offence
under clause (c) of section 13(1) of the Act, it is necessary for
the prosecution to prove that the accused has dishonestly or
fraudulently misappropriated any property entrusted to him or
under his control as a public servant or allows any other person
to do so or converts that property for his own use. The
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entrustment of the property or the control of the property is a
necessary ingredient of section 13(1)(c).
Since Ext.11 is a genuine document and after receipt
of the advance from P.W.4, the appellant not only purchased
banana suckers spending Rs.3,990/- but also deposited the
banana suckers in the Central Stock with Shyam Sundar Sethi,
the in-charge of Central Stock and relevant entry has been made
in the stock register (Ext.B) of the Central Stock and banana
suckers were given to the gardeners from the Central Stock who
sold it to the cultivators in a subsidized rate and deposited the
sale amount in the Central Stock, therefore, there is no material
regarding dishonest or fraudulent misappropriation of Rs.3,990/-
by the appellant and as such, the charge under section 13(2)
read with section 13(1)(c) also fails.
Conclusion:
11. In view of the foregoing discussions, I am of the
humble view that the impugned judgment and order of conviction
of the appellant passed by the trial Court is not sustainable in the
eye of law and the same is hereby set aside. The appellant is
acquitted of the charges under sections 409, 468, 471 of the
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Indian Penal Code and section 13(2) read with section 13(1)(c)
of 1988 Act.
Accordingly, the Criminal Appeal is allowed. The
appellant is on bail by virtue of the order of this Court. He is
discharged from liability of his bail bond. The personal bond and
the surety bond stand cancelled.
Lower Court records with a copy of this judgment be
sent down to the learned trial Court forthwith for information.
.....................................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 31st January 2022/Pravakar/PKSahoo Page 52 of 52