Orissa High Court
Baikuntha Nath Mishra vs The State Of Orissa on 25 July, 1998
Equivalent citations: 1998(II)OLR514
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. This is a Revision against the appellate order of the Second Additional Sessions Judge, Puri in confirming the order of conviction and sentence passed by the trial Court holding the accused-petitioner guilty of an offence under Sections 467, 471 and 409 IPC.
2. The prosecution case in short, is that during the period 1984-85 the accused-petitioner was working as a conductor with the Orissa State Road Transport Corporation, Puri Unit. In course of his duty he was issued with Ticket Books to be used in issuing tickets to the passengers and on return from the route he was to prepare the way bill showing receipt of the amount from the passengers. The way bills were prepared on the basis of the amount reflected in the counter-foils of the Ticket Books prepared in carbon process. The way bills prepared by the accused-petitioner are to be produced before the Way Bill Checker and thereafter the auditors to have a preliminary audit and then the petitioner was to deposit the total amount of sale proceeds of the tickets and the way bills with the cashier. The used Ticket Books are also to be deposited in the office with the Station Master. In course of a special audit the auditor detected that some of the pages of the Ticket Books used by the petitioner were not original and forged pages had been inserted therein. The Auditors submitted their observation vide Ext. 3 along with the report (Ext. 17). On receipt of the said report and statements the then District Transport Manager, Puri (P.W. 3) lodged the FIR (Ext. 2) before the Officer-in-charge, Sea Beach Police Station, Puri. In course of investigation, documents were seized and witnesses were examined. Ticket Books used by the petitioner were sent for examination to the expert. On examination of the Ticket Books the Government examiner of question document (P.W. 9) submitted the reports (Exts. 11 and 12) which revealed that some of the pages in the Ticket Books bearing No. 4502 (Ext.4) and 11222 (Ext. 5) were not the originals and had been substituted. On completion of investigation, charge sheet was submitted against the accused-petitioner. The plea of the accused was one of complete denial. However, in the statement under Section 313, Cr.P.C. the accused indicated that a false case has been foisted due to the dispute between the management and the union.
3. The prosecution had examined 14 witnesses and 17 items of exhibits were admitted into evidence marked Exts. 1 to 17.
4. P.W. 1 was the Way Bill Checker, P.W. 2 was a police constable, P.W. 4 was the A.T.M. of the O.S.R.T.C. P.W. 5 was the Station Master, Puri from 1984 to 1 987, P.Ws. 6, 7 and 10 were the Auditors who conducted the special audit, P.Ws. 12, 13 and 14 were the Investigating Officers and P.W. 11 was the internal Auditor of the O.S.R.T.C.
5. The learned trial Court held that the prosecution was able to establish all the charges against the accused conductor and the accused conductor has forged the valuable securities and used the forged counter-foils as genuine by inserting the same in the Ticket books issued to him and has committed criminal breach of trust in respect of the audited amount of Rs. 1,675.70 in the Ticket Books bearing Nos. 4502 and 11222. In appeal the learned Second Additional Sessions Judge has affirmed the order of conviction and sentence passed by the trial Court.
6. Sri Brahmananda Panda, learned counsel for the accused -petitioner assails the orders mainly on the ground that the entire prosecution case is based on surmises and conjectures and the prosecution having failed to adduce convincing evidence to show that the disputed Ticket Books were entrusted to the petitioner and the Ticket Books were found from his possession having been tampered with or that at the time when the Ticket Books were produced before the Way Bill Checker who was to check the Ticket Books and certify it and then the way bill submitted and checked by the auditor whereafter only the accused-petitioner submitted the way bill and deposited the cash with the cashier. Only after all such procedures the unutilised Ticket Books are deposited with the Station Master. Subsequently thereafter after a long lapse of time to allege or hold that the petitioner had replaced the pages in the Ticket Books and manipulated the amount ought to have been held of no consequence. It is further contended that non-examination of the unit auditor who first checked and audited the Ticket Books and the persons from the Press where there Ticket Books were printed, the learned Courts below could not have held the petitioner guilty. It is further submitted that in view of the evidence of the D.T.M. (P.W. 3), the Way Bill Checker (P.W. 1) and P.W. 5, the Station Master, the only conclusion that could legally be reached could have been that the manipulation or replacement may be correct, but the petitioner not being in possession of such documents throughout and admittedly the authorities being in possession after they were submitted, the learned Courts below ought to have found that even if the manipulation, insertion and interpolation were proved, the conclusion that the accused-petitioner is the author, could not have been found.
7. Law is well settled that concurrent findings of fact by the Courts below are not open to interference by re-appreciating the evidence by the Revisional Court, but it is equally well settled that there is no bar for the Court to interfere in a Revision for doing substantial justice in a given case where there is non-consideration or misconstruction of evidence resulting in miscarriage of justice.
8. The undisputed prosecution case, as revealed from the testimony of the prosecution witnesses is that, the accused-petitioner was a conductor working under the Puri Unit of O.S.R.T.C. As usual practice the accused conductor was issued with the Ticket Books for issuance of tickets to travelling passengers in the bus. On return from the route, the accused was to produce the way bills and the Ticket Books with its counter-foils and used tickets to the Way Bill Checker and on verification and checking of the tickets with the way bills prepared by the accused conductor, the Way Bill Checker gives a certificate of correctness on the body of the way bill and the Ticket Books whereafter it is placed by the conductor before the Unit Auditor and the Unit Auditor after verification certifies its correctness or otherwise whereafter the conductor is to submit the same before the cashier and deposit the sale proceeds. After the cash is deposited, the Ticker book and the way bills are deposited with the Station Master or the Assistant Station Master authorised on its behalf. It is undisputed that the aforesaid formalities and procedures were duly followed by the accused conductor. The Way Bill Checker had been examined as P.W. 1 who testified the aforesaid procedure and stated that he had checked the way bill and had gone through the Ticket book, but did not notice any insertion of any page in the ticket book produced by the accused-petitioner. It is further stated by him that the Ticket Books are so prepared that no page can be inserted or replaced. The Divisional Transport Manager, P.W. 3 had stated that besides the audit report he has no personal knowledge of the matter. The Station Master, P.W. 5 has stated that he used to sign on the last counterfoils of the Ticket Book before it is issued to the conductor and similarly he used to receive the Ticket Books from the conductor after return from the route and after the verification and scrutiny is made and certificate granted by the Way Bill Checker, the Unit Auditor of the Unit. He, however said that he heard from the D.T.M. P.W.3 that some conductors have inserted pages in the Ticket Book and forged the signature of Station Master. He denied his personal knowledge about the insertion of pages in the Ticket Books. This witness further stated that in case of forgery and insertion of pages, the Way Bill Checker and the auditor can detect such defects. The defects and discrepancies found by the Way Bill Checker and auditor are rectified by the conductor before the cash is deposited with the cashier According to him the used Ticket Books are kept with the Station Master or Assistant Station Master. He has not enquired from either Way Bill Checker or Auditor about the insertion and forgery made by the accused-petitioner.
9. The contention of Shri Panda, learned counsel for the petitioner is that in view of the specific case as revealed from the evidence of the prosecution witnesses that the conductor, after return from the route produces the counter-foil of the Ticket Books to the Way Bill Checker who examines the same and appends certificate of correctness, whereafter, it is taken to the Auditor who on verification grants a certificate and after these formalities are over, the conductor is to deposit the cash with the cashier and after depositing the cash, the used Ticket Books are to be deposited with the Station master, none of these persons have found out or detected any so called forged inserted tickets in the Ticket Book when the same was produced by the conductor, inasmuch as, the used Ticket Books admittedly remains in the custody of the Station Master and thus, the insertion of pages, if any, could never be attributed to the accused-petitioner. But in absence of any specific evidence of the prosecution that the conductor had any access to these books after they were deposited, it is his submission that in these facts, it cannot be said conclusively that it is the accused-petitioner, who can be the sole person to have perpetrated the crime. In the face of the prosecution allegation, unless and until it is proved that the Way Bill Checker, the auditor, the cashier and the Station Master of the unit had connived in the transaction, the accused-conductor cannot alone be held responsible for the crime. On a reading of the allegations and the charges, the manipulation, forgery and the criminal breach of trust against the accused-petitioner as found by the Courts below appears to be the outcome of misappreciation of evidence on record and misconception and misinterpretation of the provisions of law. The ingredients of the offence has to be proved to its hilt by the prosecution.
The learned Chief Judicial Magistrate formulated the following points for determination -
(i) Whether the accused being a public servant working as a Conductor of O.S.R.T.C, Puri Unit in the year 1984-85 has forged the ticket book counter foils which is a valuable surety intending to receive money and thereby liable under Sec. 467, IPC ?
(ii) Whether the accused being a Conductor of O.S.R.T.C. dishonestly forged counter-foils in the Ticket Books knowing or having reason to believe at the time of use to be forged counter-foils and thereby liable under Sec. 471, IPC ?
(iii) Whether the accused in the year, 1984-85, being the servant in the employment of O.S.R.T.C, Puri Zone, a Government of Orissa Organisation and in such capacity as a conductor entrusted with the Ticket Books for collection of amount by issuing tickets and committed criminal breach of trust by misappropriation Rs. 1685.70 paise from the said Ticket Books and thereby liable under Sec. 409, IPC ?
The ingredients of an offence punishable under Sec. 471, IPC are that (a) the document is a forged one; (b) the accused used the document an genuine; (c) and that the accused knew or had reason to believe that it was a forged documents; and (d) that he used it fraudulently or dishonestly knowingly or having reason to believe that it was a forged document. The prosecution thus has to prove the aforesaid facts in order to sustain a conviction.
10. The petitioner has also been charged and convicted under Section 409 IPC. In order to sustain the conviction, the prosecution has to prove that the accused on a public servant or merchant or banker or factor of broker of attorney and agent and in such capacity he was entrusted with property. If there is no entrustment the question of misappropriation does not arise and, therefore, if the fact of entrustment is not proved the prosecution has to fail. In the absence of any independent evidence with regard to entrustment of the amount conviction cannot be based merely on the basis of an audit report which is of anintrinsic character. The prosecution has to establish that the accused was entrusted with the same property and that there was dishonest intention for use or disposal of the property in violation of discretion. The burden lies on the accused later on to probabilise his explanation and he has to prove the truth of his explanation beyond reasonable doubt. A reference may be made to the decision of the apex Court in Challoor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin : AIR 1963 SC 478.
11. The prosecution witnesses have testified that the accused-petitioner was issued with the Ticket Books and after their use the same were produced before the Way Bill Checker along with the way bill prepared by the accused conductor and after obtaining the certificate of correctness the same were produced before the auditor for further verification. The auditor after verification having satisfied regarding correctness of the said books placed before the cashier and the cash was deposited with him. Ultimately, the Ticket Books were deposited with the Station Master/Assistant Station Master for custody. The prosecution has not enquired from the O.S.R.T.C. Press or from any other sources about the defects in the monogram available with the tickets namely the discrepancy and defect in the pages of Ticket Books alleged to be inserted, P.W. 9, the Government Examiner of questioned documents in his statement has stated that the Ticket Books were sent to him and he examined both the Ticket Books in original process and in order to ascertain the forgery of the tickets he compared each disputed tickets with that of the other tickets in the same Ticket Book and accordingly marked tickets were examined by him which are indisputed. According to this witness the red enclosed disputed printed numbers which he has stamped and marked as P-716 to p-747 and p-740 to p-762 and the standard printed numbers present in the other pages of the corresponding Ticket Books have not been produced from a common origin and in the Ticket Books bearing No. 4592 and 11222 respectively the same have been substituted. He has further stated that the books which were produced before him were not under sealed packets.
12. The prosecution has to prove that the Ticket Books containing several pages with page marks by a mechanical process were supplied to the conductor intact in a different form than what was returned by him to the Station Master. It was incumbent upon the prosecution further to prove that the books when it was supplied to the accused-conductor was not in the form and state in which it was received inasmuch as the pages have been inserted. It was further for the prosecution to show that the accused dishonestly misappropriated or converted the receipts to his own use or dishonestly used or disposed of it. There is no evidence on the record that the accused had utilised the receipt books and used such pages to his own advantage by inserting the new pages. In absence of such evidence from the prosecution the ingredients of the offences are not proved nor the burden is discharged by the prosecution. The amount of Rs. 1685.70 paise found by the special audit has no basis inasmuch as it has not been proved that in fact the original pages which have been used by the accused was for that amount. The prosecution has also not adduced any evidence that the discrepancies found by the examiner of the questioned documents in the so called inserted pages and the other originals were not prepared at the O.S.R.T.C. Press. None from the O.S.R.T.C. Press has been examined to say that the Ticket Books said to have been manipulated was not the books supplied by the Press to the O.S.R.T.C. inasmuch as the Station Master has not said a word that the book in the present form was not supplied to the conductor and the pages said to have been inserted and/or replaced were not there or was different. The fact that in the process of printing different papers might have been used, while mixing or that during the binding operation while sorting out the papers, there might have been insertions due to missing of pages cannot be altogether rules out. Similarly also the discrepancies or defect in the number of the pages, it may be due to several factors which the printer or the binder of the books, were competent to say. The persons from the O.S.R.T.C. Press which printed and bounded the book and supplied the same to the O.S.R.T.C, were competent to speak about the state of things in the Ticket Book. Unfortunately in spite of the report of the Examiner of questioned documents none from the Press have been examined nor the Station Master who supplied the book to the accused has said anything regarding the state of the book when it was supplied and in which state it was received or the state in which it was found during audit. In such view of the matter, the learned Courts below have misdirected themselves in holding that the accused-petitioner is the author of the crime.
13. The offence of criminal breach of trust is defined in Section 405, IPC and the essential ingredients are that the accused being in any manner entrusted with the property or with dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. The accused was admittedly issued with the receipt books, but that it was issued with some different contents or that the book which has been returned to the Station Master is not the same but with replacement of some pages by new ones has not been proved. Even according to the prosecution when the accused conductor produced the receipt books to the Way Bill Checker, to the auditor, to the Cash section and ultimately to the Station Master, even though it passed through scrutiny at each stage to ascertain the amount received, none has noticed the insertions or manipulations. In absence of such evidence the benefit of doubt has to go to the accused. Both the Courts below have fallen into error in recording a finding about the guilt without considering the question as to whether the prosecution has been able to prove the ingredients of the offence as alleged against. It is the settled law that if the Courts arrive at a finding without properly considering the evidence on record and without applying the principles of law correctly, it cannot be said that those are findings of facts irreversible and as such, such findings can be interfered with in revision. A reference may be made to the decision in Dambarudhar Pradhan v. Ramesh Chandra Gadnaik and Ors., (1990) 1 Crimes 177 (Ori.) wherein this Court took the view that where evidence not considered or misconstrued by the lower Court, the High Court can probe in revision into the evidence. A revisional Court has the jurisdiction to interfere with the findings when it is based on no evidence or without appreciation of evidence and is perverse.
14. In view of the aforesaid analysis of the matter the accused has to be extended the benefit of doubt and acquittal.
15. In the result the Revision is allowed, the conviction and sentence passed by the Courts below are set aside and the accused-petitioner is acquitted of the charges framed against him.