Orissa High Court
State Of Orissa vs Gopinath Panigrahi And Anr. on 21 April, 1995
Equivalent citations: 1995CRILJ4095
JUDGMENT R.K. Dash, J.
1. These two appeals by the State are against the judgment and order of the First Additional Sessions Judge, Ganjam, Berhampur wherein he set aside the conviction recorded against each of the respondents under Section 409/34, I.P.C. and sentence of two years rigorous imprisonment and fine of Rs. 4,000/-, in default to undergo further rigorous imprisonment for six months imposed by the learned Sub-divisional Judicial Magistrate, Berhampur.
2. Accused Dr. Ramesh Chandra Padhi and Gopinath Panigrahi, respondents herein, were the Additional District Medical Officer (Family Planning) and the Cashier respectively in the District Medical Office, Ganjam. It was alleged that they being entrusted with Government money in course of their employment misappropriated a sum of Rs. 30,188/- during the year 1973-74. Hence, they were prosecuted and put on trial under Section 409/34, I.P.C. The learned Sub-divisional Judicial Magistrate upon consideration of the evidence held both the accused persons guilty of the charge and consequently convicted and sentenced them as hereinbefore stated. Feeling aggrieved, the accused persons preferred appeal separately which were analogously heard and disposed of by the First Additional Sessions Judge, Berhampur, by a common judgment setting aside their conviction. It is against this judgment that the state has preferred these two appeals.
3. A synoptical resume of the prosecution case may be stated thus:
During the relevant period accused Dr. Ramesh Chandra Padhi being the Add). District Medical Officer, Family Planning, was the drawing and disbursing officer and accused Gopinath Panigrahi was the Cashier of the District Family Planning Bureau. Moneys were being drawn under A/C bills and disbursed to different family planning centres by both the accused. In the year in question they drew a sum of Rs. 30,198/-, but instead of disbursing to various centres, they misappropriated the same. This being disclosed by the auditor in his report (Ext. 73), the C.D.N.O., Ganjan, Berhampur (P.W.1) lodged F.I.R. to the Police on receipt whereof a case under Section 409, I.P.C. was registered and after usual investigation charge-sheet was laid against both the accused to stand their trial.
4. While denying the accusations both the accused pleaded that the amount in question had been disbursed to various family planning centres under proper receipts. Added to that, A.D.M.O. Dr. Sodhi contended that some times he was attesting the entries is the cash book in good faith without verifying the documents personally. So far as the cashier is concerned, his plea was that since he resigned from services, he left all the relevant records, registers and receipts, etc. in the custody of his successor, So, if he was called to attend the audit, he would have personally verified and placed all the records, registers and receipts to enable the auditor to arrive at a proper decision. He therefore, urged that audit report being incomplete and incorrect should not be given any importance to support the prosecution case.
5. A good number of witnesses were examined and a voluminous documents were brought in evidence by the prosecution. On an appraisal of the evidence and upon hearing the counsel for the parties, the learned trial court believed the prosecution case and held accused persons guilty and consequently convicted and sentenced them as stated earlier. On appeal, the learned Additional Sessions Judge set aside the conviction and sentence mainly on two grounds, viz.:
(a) that there having nexus between act complained of and the official duty, sanction as required under Section 187 of the Code of Criminal Procedure was necessary to prosecute both the accused who were public servants; and
(b) that accounts of various family planning centres of the district ought to have been audited to know as to if the amount in question had been disbursed as pleaded by the defence.
6. The learned counsel appearing for the State while challenging the appellate court's finding, contended that the provision of Section 397, Cr. P.C. does not apply to the present case since it is no part of official duty of the accused persons to misappropriate Government money. As to the factual aspect of the case, learned counsel submitted that the fact of withdrawal of the amount in question having been admitted and there having no entry in the cash books of various centres regarding receipt of the said amount, the learned Additional Sessions Judge should have believed the prosecution case and concurred with the findings recorded by the trial court.
7. Controverting what have been urged by the counsel for the State, Shri P. K. Misra, learned counsel appearing for accused Dr. Padhi, raised the following contentions:
(I) It being an appeal against acquittal, Court should be slow to disturb the findings recorded by the first appellate court, since there is no inherent illegality in appreciating the evidence and the law involved:
(II) Prosecution has utterly failed to prove 'entrustment' of the amount in question with the accused persons;
(III) Since the defence plea was that money had been disbursed to various centres under proper receipts and the prosecution having failed to lead acceptable evidence that in fact nothing reached the centres, benefit of doubt has to go to the accused persons.
(IV) As provided in Section 34 of the Evidence Act, mere entries in the books of account of various centres cannot fasten the accused with criminal liability since the prosecution utterly failed to prove the correctness thereof. Further, evidence is also lacking that attempt was ever made by the prosecution to search for the receipts, if any, under which money is alleged to have been disbursed to various centres and in absence of such evidence, it cannot be said with certainty that in fact the accused persons had misappropriated the Government money; and (V) In the facts of the present case, Section 197, Cr. P.C. squarely applies inasmuch as the act complained of and official duty being inseparable and the accused persons being public servants, sanction was necessary to prosecute them.
8. Before going to the various contentions raised by the counsel appearing for the parties, at the outset if it desirable to have a glimpse on the principle enunciated by the Apex Court on the question of question of appreciation of evidence by the appellate court in the case of an appeal against acquittal. Their lordships in the case of K. Gopal Reddy v. State of Andhra Pradesh, , observed thus:
"The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and Courts used to launch on a search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling. reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan, . In Sanwat Singh's case, this Court marked back to the principles enunciated by the Privy Council in Ram Swarup v. Emperor (61 Ind App 398 (DB) : AIR 1984 PC 227 (2) and re-affirmed those principles. After Sanwat Singh v. State of Rajasthan, this Court has consistently recognised the right of the appellants Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Shaw Swarup's case, occasionally phrases like 'manifestly illegal', and grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion."
Referring to some earlier decisions (Ramabhupala Reddy v. State of A.P., one Bhim Singh Rup Singh v. State of Maharashtra, , their Lordships further held :
"If two reasonably probable andevenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonably even as any doubt, the benefit of which an accused may claim, must be reasonable. 'A reasonable doubt', it has been remarked 'does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason."
Further, in the case of Pala Singh v. State of Punjab, , it was observed that 'substantial and compelling reasons', 'good and sufficient cogent reasons', 'strong reasons' are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so the appellate court should not only consider every matter on record having a bearing on the question, of fact and the reasons given by the Court below in support of order of acquittal, but should express the reasons in its own judgment which led it to hold that the acquittal was not justified.
Keeping in view the position of law as aforesaid, it is to be seen whether the view taken by the learned Additional Sessions Judge for recording an order of acquittal of the accused persons is reasonable and probable, so that this Court should be slow to interfere with the same in exercise of appellate jurisdiction.
9. In order to constitute an offence of criminal breach of trust defined in Section 406, IPC the prosecution has to prove that the accused was entrusted with some property, that in respect of such property, so entrusted, there was dishonest misappropriation or dishonest use or dishonest conversion by the accused, that the ownership in the property in respect of which criminal breach of trust is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.
The definition of word 'dishonestly' finds its berth in Section 24, IPC. According to the said definition one who does anything with intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'. To 'appropriate' scene setting apart or assigning to a particular person for use and to 'misappropriate' means improperly setting apart for one's use to the exclusion of the owner, 'convert' means appropriation and dealing with property of another with right as if it is his own property.
10. In the present case, it appears from the cash book of the family planning bureau (Ext. 20) that moneys in question had been withdrawn and were in the custody of both the accused. In their statement recorded under Section 313, Cr. P.C. they admitted that the cash of the family planning bureau was being kept by them in the iron safe in double lock system. In this view of the matter, the question that emerges for consideration is whether they misappropriated Government money or, as pleaded by them, they disbursed to various family planning centres.
11. Regarding procedure and practice of withdrawal and disbursement of money to various centres, a reference may be made to the evidence of P.W. 8 who speaks that only after orders are passed by the Additional District Medical Officer, cashier makes payment to the centre on receiving temporary receipt and regarding such payment necessary entries are made in the cash book. He would further say that account is usually kept open and temporary receipt is preserved until a regular receipt is obtained from the centre. This being the admitted fact, prosecution ought to have led evidence that in course of audit attempt was made to search for the receipts under which the amount in question is alleged to have been disbursed to various centres. It is only during trial the prosecution brought in evidence two documents marked Exts. 40 and 77 to show that receipts were not traceable. P.W. 38, the author of Ext. 40 when cross-examined, admitted that on receiving Ext. 77 he wrote Ext. 40 on the request of Mr. Murty (meaning thereby P.W. 20. He further stated that he kept Ext. 77 with him and did not send the same to higher authority, viz., Additional Director of Health Services or the Accountant General. He even did not hand over these two documents to the police during investigation. Those were produced from the custody of P.W. 28 and were proved. It was therefore suggested to P.W. 36 by the defence that he in connivance with P.W. 3 created those documents to falsely rope the accused persons in the present case. It need be mentioned that these two documents if were available during audit should have been placed before the Auditor to enable him to arrive at a definite conclusion.
12. Apart from what has been stated above, prosecution except exhibiting entries of certain cash registers also failed to prove by leading cogent and convincing evidence that amount in question had not been received by the centres. It is the settled law that mere proof of entries in the books of account, unsupported by oral evidence, is alone not sufficient to charge any person with liability. In a case of criminal breach of trust like the present one, onus always lies upon the prosecution to establish the charge. It may, however, be difficult to prove the actual mode or manner of misappropriation. Therefore, in such a case the prosecution will have to rely hugely on the truth or falsity of the explanation given by the accused. In Jaikrishnadas Manohardas Desai v. State of Bombay, , the Supreme Court observed thus:
"The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. 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 any explanation of his failure to account which is untrue, an inference of misappropriation with dishonest intention may readily be made."
Applying the aforesaid principles to the present case, it cannot be assumed that the explanation offered by the accused persons that the amount in question had been disbursed to the centres was false. Evidence Act does not contemplate that the accused should prove his case with same amount of rigour and certainty as the prosecution is required to do. Therefore, the mode of proof by standard as necessary for the prosecution is not applicable to the accused where he is called upon to prove his case or to prove an exception of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the court. The explanation of the accused persons in the present case being that the money had been disbursed to various centres and there having no oral evidence led by the prosecution to disprove the same, it can be safely concluded that the prosecution has utterly failed to bring home the charge of misappropriation to the accused persons. This being my finding, the question of sanction to prosecute the accused persons becomes academic.
13. The learned appellate court applying the principles laid down in the cases of Shreekantiah Ramayya Munipalli v. State of Bombay, and Amrik Singh v. State of Pepsu, , and considering the provision of Section 197, Cr. P.C. held that the prosecution against the respondents was bad for want of sanction. The facts of Shreekantiah's case (supra) are quite distinguishable from the present case. So far as Amrit Singh's case, (supra) is concerned, the view propounded therein has been doubted by the Supreme Court in the case of Baijnath v. State of Madhya Pradesh, . In this case their Lordships followed the principles laid down in the cases of Dr. Hari Ram Singh v. Emperor, AIR 1939 FC 43 : 40 Cri LJ 468 and H.H.B. Gill v. The King, AIR (35) 1948 Privy Council 128 : 49 Cri LJ 503.
In AIR 1939 FC 43 :40 Cri LJ 468, the question for consideration was as to the necessity of sanction under Section 270 of the Government of India Act, 1935 which is similar to Section 197(1), Cr. P.C. In that case Veradachariar, J. discussed the scope of Section 197 and observing that the decisions on that section were not uniform, proceeded to group them under three categories -- those which had held that sanction was necessary when the act complained of attached to the official character of the person doing it, those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the commission of the crime, and those which had held it necessary when the offence was committed while the accused was actually engaged in the performance of official duties. The Hon'ble Judge agreed and asserted the first of the three views.
In AIR 1948 PC 128 : 49 Cri LJ 503, Lord Simonds approving the view of Varadachariar, J. observed as under:
"In the consideration of Section 197 such assistance is to be derived from the judgment of the Federal Court in 1930 FCR 158 : (AIR 1939 FC 43), and in particular from the careful analysis of previous authorities which is to be found in the opinion of Varadachariar, J. Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceeding may be necessary for public officials, cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the charge of his official duty, if his Act is such as to lie within the scope of his official duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. Applying such a test to the present case, it seems, clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held. Without further examination of the authorities their Lordships, finding themselves in general agreement with the opinion of the Federal Court in the case cited, think it sufficient to say that in their opinion no sanction under Section 197 of the Code of Criminal Procedure was needed."
The views expressed in the aforesaid two decisions, viz., AIR 1920 FC 43 and AIR 1948 PC 138 : 49 Cri LJ 503 was followed by the Judicial Committee in Albert West Meads v. The King, 75 Ind App 185 : (AIR 1948 PC 156 : 49 Cri LJ 660 and Phanindra Chandra v. The King, 76 Ind Appeal 10, AIR 1949 PC 117 : 50 Cri LJ 395 and has been approved by the Supreme Court in R.M. Mathana v. State of West Bengal, AIR 1944 SC 456 (sic). In the opinion of the Supreme Court it is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1), Cr. P.C., nor even every act done by him while he was actually engaged in the performance of official duties; but if the act complained of is directly concerned with his official duties so that, if questioned it could as claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it fails within the scope and range of his official duties the protection contemplated by Section 197 will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection, it is only when it. is either within the scope of the official duty or in excess of it that the protection is claimable. In Saidnath's case (supra), appellant Gupta was charged with having committed criminal breach of trust in respect of sum of Rs. 21,450/- and Rs. 10,000/-, on the different occasions. It was the prosecution case that he was an officer of Indore Electric Power House, a Government concern, and moneys belonging to the said Power House were being kept in the safe under lock and key and the key of the safe remained with him. So far as expenditure is concerned, the cash book was written by the Cashier Kala, the other appellant and it was being counter-signed by appellant Gupta. Embezzlement of huge amount of cash was suspected which necessitated to call the audit party for auditing the accounts. It was then found that huge amount had been unaccounted for and the cash books were not written. So a report was made to the local police whereupon a prosecution was launched against both the appellants. Considering the facts of the case, majority view of the Hon'ble Supreme Court was that sanction was not necessary and having held that, upheld the conviction of both the appellants Gupta and Kala recorded by the lower courts under Sections 409 and 409/109, IPC respectively. The decision of that case squarely applies to the present case and therefore, I hold that sanction to prosecute the accused persons as engaged in Section 197, Cr. P.C. was not required.
14. In view of my discussions made above, both the appeals having no merit are dismissed.