Orissa High Court
Managobinda Mohapatra vs State Of Odisha on 20 August, 2020
Equivalent citations: AIRONLINE 2020 ORI 171
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
Criminal Appeal No. 98 Of 1988
From the judgment and order dated 06.04.1988 passed by the
Special Judge, Bhubaneswar in T.R. Case No. 01 of 1982.
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Managobinda Mohapatra ......... Appellant
-Versus-
State of Odisha ......... Respondent
For Appellant: - Mr. Deba Prasad Das
(Amicus Curiae)
For State of Odisha (Vig.) - Mr. Sanjay Kumar Dash
Senior Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 13.08.2020 Date of Judgment: 20.08.2020
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S. K. SAHOO, J. This is the oldest Single Judge Bench criminal appeal
of this Court. It was presented on 22.04.1988, admitted on
27.04.1988 and the appellant was directed to be released on bail
and realization of fine amount was stayed. After its admission,
the case was listed before different Benches on different
occasions for hearing but it was adjourned either on the prayer
of the learned counsel for the appellant or learned counsel for
2
the Vigilance Department. The matter was listed before me for
hearing on 06.08.2020 and I took up the matter through Video
Conferencing. The report of the Superintendent of Police,
Vigilance Cell, Cuttack revealed that it was intimated to the
appellant that the matter would be taken up on 06.08.2020. In
spite of that, none appeared on behalf of the appellant. Since the
appeal was pending before this Court for more than thirty years,
in presence of the learned Senior Standing Counsel for the
Vigilance Department, Mr. Deba Prasad Das, Advocate who is
having extensive practice on criminal law for more than thirty
five years, both in the trial Court as well as before this Court was
appointed as Amicus Curiae to conduct the case for the appellant
and the Registry was directed to supply the paper book to Mr.
Das by 07.08.2020 and to intimate him that the matter would be
taken up for hearing in the week commencing from 10.08.2020.
Accordingly, Registry supplied the paper book to Mr. Das. On
13.08.2020 when the matter was again listed for hearing and it
was taken up through video conferencing, Mr. Das, learned
Amicus Curiae was ready for hearing but the learned counsel for
the appellant who had filed the criminal appeal in the year 1988
appeared and sought for two weeks adjournment which was
refused and accordingly, the hearing was taken up and
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concluded on that date itself and the judgment was reserved. Mr.
Das, learned Amicus Curiae took time till 17.08.2020 to file his
written note of submission and accordingly he also filed the
same.
In the case of Bani Singh and others -Vrs.- State
of Uttar Pradesh reported in 1996 (II) Orissa Law
Reviews (SC) 216, a three Judge Bench of the Hon'ble
Supreme Court was called upto to decide the question as to
whether the High Court can dismiss an appeal filed by the
accused-appellant against the order of conviction and sentence
issued by the trial Court, for non-prosecution. Considering the
provisions under sections 385 and 386 of Cr.P.C., it was held
that the law does not envisage the dismissal of appeal for default
or non-prosecution but only contemplates disposal on merits
after perusal of the record. It was further held that the law does
not enjoin that the Court shall adjourn the case if both the
appellant and his lawyer are absent. If the Court does so as a
matter of prudence or indulgence, it is a different matter, but it
is not bound to adjourn the matter. It can dispose of the appeal
after perusing the record and the judgment of the trial Court. If
the accused is in jail and cannot, on his own, come to Court, it
would be advisable to adjourn the case and fix another date to
4
facilitate the appearance of the accused/appellant if his lawyer is
not present. If the lawyer is absent, and the Court deems it
appropriate to appoint a lawyer at State expense to assist it,
there is nothing in the law to preclude it from doing so. The ratio
laid down in the case of Bani Singh (supra) was followed in the
case of K.S. Panduranga -Vrs.- State of Karnataka reported
in (2013)3 Supreme Court Cases 721 wherein it was held
that the High Court cannot dismiss an appeal for non-prosecution
simplicitor without examining the merits and the Court is not
bound to adjourn the matter if both the appellant or his
counsel/lawyer are absent. The Court may, as a matter of
prudence or indulgence, adjourn the matter but it is not bound to
do so. It can dispose of the appeal after perusing the record and
judgment of the trial Court. If the accused is in jail and cannot,
on his own, come to Court, it would be advisable to adjourn the
case and fix another date to facilitate the appearance of the
appellant-accused if his lawyer is not present, and if the lawyer
is absent and the Court deems it appropriate to appoint a lawyer
at the State expense to assist it, nothing in law would preclude
the Court from doing so.
In the case of Shridhar Namdeo Lawand -Vrs.-
State of Maharastra reported in 2013 (10) SCALE 52, a
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three Judge Bench of the Hon'ble Supreme Court held that it is
the settled law that Court should not decide criminal case in the
absence of the counsel for the accused, as an accused in a
criminal case should not suffer for the fault of his counsel and
the Court should, in such a situation must appoint another
counsel as an amicus curiae to defend the accused.
In the case of Christopher Raj -Vrs.- K.
Vijayakumar reported in (2019)7 Supreme Court Cases
398, it was held that when the accused did not enter appearance
in the High Court, the High Court should have issued second
notice to the appellant-accused or the High Court Legal Services
Committee to appoint an Advocate or the High Court could have
taken the assistance of Amicus Curiae. When the accused was
not represented, without appointing any counsel as Amicus
Curiae to defend the accused, the High Court ought not to have
decided the criminal appeal on merits.
Thus, a criminal appeal against the judgment and
order of conviction and sentence passed by the trial Court cannot
be dismissed for default owing to the absence of the appellant or
his counsel. If on the date when such criminal appeal is listed for
hearing, the counsel does not appear, it is the duty of the
appellate Court to engage an advocate well versed in criminal
6
law as Amicus Curiae to conduct the case for the appellant and
give sufficient time to him to prepare the case by providing him
the paper book and other necessary documents. A panel list of
advocates ready and willing to act as Amicus Curiae is required
to be prepared in advance. Of course, the Court can engage any
other advocate beyond such panel list to act as Amicus Curiae. It
is general judicial experience that most of the time when old
criminal appeals are listed for hearing where the appellant is on
bail and realization of fine amount has been stayed, neither the
learned counsel for the appellant nor the State counsel shows
any interest to argue the matter and they pray for adjournment
on some grounds and when the Court accepts the prayer taking
into account the difficulty expressed by the learned counsel, the
disposal of the appeal gets delayed. Unless there are compelling
circumstances, the Courts should not adjourn the hearing of the
old matters on mere asking of the learned counsel of either side.
It is the duty of the learned counsel for the respective parties to
discharge their duties as Officers of the Court and act objectively
and dispassionately and assist the Court in early disposal of the
cases particularly the old ones. Unless there is active cooperation
from the Bar and able assistance, it would be a herculean task
for the Court to dispose of the matters early in the event of
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which pendency would increase which would be felt like a
"Democles sword" hanging over the head of judiciary.
2. The appellant Managobinda Mohapatra along with co-
accused Laxmidhar Pani and Satyanarayan Chand faced trial in
the Court of learned Special Judge, Bhubaneswar in T.R. Case
No. 01 of 1982 for offences punishable under sections 409, 467,
471, 477-A read with section 120-B of the Indian Penal Code and
section 5(1)(c) read with section 5(2) of the Prevention of
Corruption Act, 1947 (hereafter '1947 Act').
The learned trial Court vide impugned judgment and
order dated 06.04.1988, though acquitted the appellant of the
charge under section 120-B of the Indian Penal Code and also
the co-accused persons of all the charges but found the appellant
guilty of the offences under sections 409, 467, 471, 477-A of the
Indian Penal Code and section 5(1)(c) read with section 5(2) of
the 1947 Act and sentenced him to undergo rigorous
imprisonment for two years for the offences under sections 409,
467, 477-A of the Indian Penal Code and section 5(1)(c) read
with section 5(2) of the 1947 Act and further sentenced to
undergo rigorous imprisonment for one year for the offence
under section 471 of the Indian Penal Code and to pay a fine of
Rs.2,400/- (rupees two thousand four hundred), in default, to
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undergo further R.I. for three months on each count with a
further direction that the sentences are to run concurrently.
The State of Odisha preferred Government Appeal
No.07 of 1989 challenging the order of acquittal of the co-
accused Laxmidhar Pani which has been dismissed as infructuous
on 11.04.2008 on account of death of the said co-accused.
3. The prosecution case, as per the first information
report lodged by Shri Bipin Bihari Mohapatra (P.W.18), Inspector
Vigilance, Intelligence Cell, Cuttack on 21.05.1980 before the
Superintendent of Police, Vigilance, Central Division, Cuttack is
that in course of Vigilance enquiry, it revealed that the co-
accused Lakshmidhar Pani, O.A.S., Ex-Tahasildar, Jaleswar was
functioning as Executive Officer, Jaleswar N.A.C. from
14.12.1967 to 10.11.1972 whereas the appellant was the Clerk
dealing with accounts and co-accused Satyanarayan Chand was
the Sub-Assistant Engineer of Jaleswar N.A.C. during the period
1969-71. By virtue of letter No.4732 dated 07.03.1969 of the
Tribal & Rural Welfare Department, Government of Odisha, a
sum of Rs.6,000/- (rupees six thousand) was sanctioned to
Jaleswar N.A.C. for construction of five houses for Scheduled
Caste people engaged in un-cleaned occupation of the N.A.C.
The said amount of Rs.6,000/- was drawn by the co-accused
9
Laxmidhar Pani from Balasore Treasury vide T.V. No.117 dated
20.03.1969 and credited to P.L. accounts of the N.A.C. on the
same day. From the records, it appeared that an utilization
certificate showing expenditure of Rs.6,000/- in providing
housing facilities to the sweepers was furnished by the co-
accused Laxmidhar Pani on 10.04.1972 although no houses had
been actually constructed for the sweepers and no land had been
acquired by the N.A.C. nor any land was alienated by the
Revenue Department for the said purpose and even no site
selection was made. The construction of the houses was shown
to have been done in case of five sweepers of the N.A.C. namely
Kartika Mukhi (P.W.11), Jatindra Ghadai (P.W.12), Puniti Mahal,
Tuni Mirdha and Narendra Mukhi which was found to be not true
and payment of Rs.1,200/- to each of the sweepers was also
shown. The appellant reflected the expenditure in the Cash
records on 31.05.1971 and the co-accused Satyanarayan Chand,
Sub-Assistant Engineer also recorded false measurements
regarding the construction work. The co-accused Laxmidhar Pani
had falsely recorded check measurement.
It is the further prosecution case as per the first
information report that the appellant and the two co-accused
persons namely Laxmidhar Pani and Satyanarayan Chand
10
misappropriated Rs.6,000/- by manipulating and forging official
records.
4. The Superintendent of Police, Vigilance Central
Division, Cuttack directed for registration of the case on receipt
of the first information report and accordingly, Cuttack Vigilance
P.S. Case No.30 of 1980 was registered under sections 409, 467,
471 and 477-A of the Indian Penal Code and section 5(2) read
with 5(1)(c) of 1947 Act and the informant (P.W.18) was
directed to investigate the matter.
During course of investigation, P.W.18 visited
Jaleswar N.A.C., examined the witnesses and recorded their
statements, seized the documents like proceeding book,
attendance register, P.L. account book, measurement book no.4,
cash book of Jaleswar N.A.C. from the N.A.C. office, Jaleswar
and other documents as per seizure list Ext.72 on production by
the Executive Officer, Jaleswar N.A.C. P.W.18 further seized
personal file of co-accused Laxmidhar Pani, joining reports,
charge reports, appointment letters of sweepers and other
documents as per seizure list Ext.73. P.W.18 collected the finger
prints of sweepers Jatindra Ghadei, Kartika Mukhi and Punti
Mahal in presence of the then Tahasildar and Executive Officer.
The thumb impression of the appellant and other co-accused
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persons were also collected. The other two sweepers i.e. Tuni
Mirdha and Narendra Mukhi died during course of investigation.
The specimen thumb impression as well as the disputed thumb
impression in the voucher purported to have been put by the five
sweepers on the money receipts and also the disputed thumb
impression of the five sweepers in the measurement book were
sent to the finger print expert, Bhubaneswar and accordingly the
reports were received. Steps were taken for obtaining sanction
to prosecute the accused persons. The I.O. found that no tender
was called for to construct the quarters by any agencies nor any
muster roll was maintained for doing the work departmentally.
The I.O. also found that the utilization certificate was submitted
falsely. After receiving the sanction orders, P.W.18 submitted
charge sheet on 30.09.1981.
5. The learned trial Court framed charges as stated
above on 13.12.1982 and the appellant refuted the charges and
pleaded not guilty and claimed to be tried.
6. The defence plea of the appellant was that he was
working as a clerk in the office of Jaleswar N.A.C. and that a
sum of Rs.6,000/- was brought to the Municipal account from
the Treasury for construction of sweeper's quarters, however
there was no land under the N.A.C. nor any land was acquired
12
for the purpose of construction of quarters nor any site was
selected. It was further pleaded that there was resolution of the
council relating to the construction of the sweeper's quarters and
those were also constructed and that no documents were forged.
The appellant denied the writing in the measurement book
(Ext.70) to be his handwriting though he admitted his
handwriting in the N.A.C. case records i.e. Ext.3/1 to 7/1
showing measurement 'passed for payment'. He also admitted
the writing in the vouchers to be his handwriting. It was further
pleaded that the L.T.Is. of the sweepers were genuine and
money was paid to the sweepers which they received by putting
their L.T.Is.
7. In order to prove its case, the prosecution examined
eighteen witnesses.
P.W.1 Harmohan Mohanty was the officer in-charge
of Vigilance police station, Central Division, Cuttack who
registered the case on the orders of Superintendent of Police,
Vigilance.
P.W.2 Kasinath Das was the Sub-Asst. Engineer,
Jaleswar N.A.C. who proved the handwritings of the appellant in
the measurement book of Jaleswar N.A.C. vide Ext.2 and also
the handwritings of the appellant in the order sheets relating to
13
payment of money to different sweepers marked as Exts.3, 4, 5,
6 and 7. He further stated about the procedure for issuance of
work orders as per Municipal Rules. He also proved some
vouchers which were in the handwriting of the appellant.
P.W.3 Dwarikanath Misra was the Executive Officer
-cum- Municipal Engineer of Jaleswar N.A.C. who proved certain
documents relating to the taking over the charge by co-accused
Laxmidhar Pani as Executive Officer, Jaleswar N.A.C. He also
proved the joining report of the appellant and the relevant letter
in which money was sanctioned in favour of local bodies for
providing housing facilities to Scheduled Caste peoples engaged
in unclean occupation. He proved the utilization certificate issued
under the signature of co-accused Laxmidhar Pani and also
taking of specimen L.T.Is of the appellant and sweeper Kartika
Mukhi in his presence.
P.W.4 Prafulla Chandra Ghosh was working as U.D.
Clerk -cum- Head Clerk in the Office of Jaleswar N.A.C. who
made over the charge to the appellant. He proved the
handwriting of the appellant in some of the entries of office cash
book.
P.W.5 Sanatan Misra was the Tahasildar of Jaleswar
Tahasil who proved the specimen L.T.Is. of sweeper Jatindra
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Ghadei taken in his presence. He further stated that during the
period from 1969 to 1972, the Revenue Department did not
transfer any land to Jaleswar N.A.C. for constructing sweeper's
quarters.
P.W.6 Atul Chandra Patro was a Private Medical
Practitioner who was a nominated member of Jaleswar N.A.C. He
stated about the procedure regarding the expenditure of any
money granted to Jaleswar N.A.C. He further stated that no
houses were constructed for sweeper of Jaleswar N.A.C. from
1964 to 1973. He proved the attendance register of councilors of
Jaleswar N.A.C. regarding meetings and other documents.
P.W.7 Syama Sundar Dhar did not support the
prosecution case for which he was declared hostile.
P.W.8 Nrusingha Charan Sahu was the Chairman of
Jaleswar N.A.C. and he stated that the sweepers of Jaleswar
N.A.C. were having no houses.
P.W.9 Chittaranjan Sahu was nominated as councilor
of Jaleswar N.A.C. and he did not support the prosecution case
for which he was declared hostile.
P.W.10 Brajendranath Dutta was the Chairman of
Jaleswar N.A.C. from 07.08.1973 to 10.08.1973 and he stated
that the sweepers were not provided with any quarters and
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Jaleswar N.A.C. was not having any land of its own nor the
N.A.C. had acquired any land.
P.W.11 Kartika Mukhi was the sweeper of Jaleswar
N.A.C. who did not support the prosecution case for which he
was declared hostile.
P.W.12 Jatindra Ghadei also was another sweeper of
Jaleswar N.A.C. who did not support the prosecution case for
which he was declared hostile.
P.W.13 Pramod Chandra Das produced the detailed
report of investigation in Cuttack Vigilance P.S. Case No.30 of
1980 sent by General Administration Vigilance Department.
P.W.14 Duryodhan Barik was the Finger Print Expert
and he proved his reports after examining some documents.
P.W.15 Rohini Kumar Sahu was the Chief Engineer,
Irrigation, Odisha who after going through the consolidated
report prepared by the Vigilance Department passed the
sanctioned order (Ext.53) for prosecuting co-accused
Satyanarayan Chand.
P.W.16 Himanshu Sekhar Nandy was the Chairman of
Jaleswar N.A.C. from 1979 to 1981 who conducted a detailed
enquiry on the direction of Examiner of Local Funds and also
16
accorded sanction for prosecuting the appellant vide sanction
order Ext.71.
P.W.17 A.N. Tiwari was the Special Secretary to
General Administration, Government of Odisha, Bhubaneswar
who accorded sanction for prosecuting co-accused Laxmidhar
Pani who was then working as Executive Officer, Jaleswar N.A.C.
P.W.18 Bipin Bihari Mohapatra was the Vigilance
Inspector who investigated the case and submitted charge sheet.
The prosecution exhibited seventy six documents.
Ext.1/3 is the first information report, Ext.2 is the entry in
measurement book of Jaleswar N.A.C., Exts.3, 4, 5, 6 and 7 are
the order sheets relating to construction of houses of sweepers
namely Punti Mahal, Tuni Mirdha, Narendra Mukhi, Kartika Mukhi
and Jatindra Ghadei respectively, Ext.8 is the resolution book,
Ext.9 is the office order copy, Exts.10 to 14 are the vouchers,
Ext.15 is the Government Notification dated 14.03.1964, Ext.16
is the charge report dated 13.12.1967, Ext.17 is the three
specimen signatures of co-accused Laxmidhar Pani, Ext.18 is the
charge report dated 10.11.1972, Ext.19 is the specimen
signatures of D. Misra, Ext.20 is the order no.217 dated
17.07.1965, Ext.21 is the joining report dated 19.07.1965,
Ext.22 is the letter no.4732 dated 07.03.1969, Ext.23 is the Bill
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No.8 of 1968-69 dated 12.03.1969, Ext.24 is the letter dated
29.03.1969, Ext.25 is the Utilization certificate dated
10.04.1972, Exts.26 to 31 are the specimen L.T.Is. of the
appellant, Exts. 32 to 37 are the specimen L.T.Is. of sweeper
Kartika Mukhi, Exts.38 to 43 are the specimen L.T.I. of co-
accused Satyanarayan Chand, Ext.44 is the entry in cash book
dated 20.03.1969, Ext.45 is the entry in P.L. account register
dated 20.03.1969, Ext.46 is the joining report of co-accused
Satyanarayan Chand, Exts.47 and 48 are the office copies of
order dated 16.08.1966, Ext.49 to 49/5 are the specimen L.T.I.
of sweeper Jatindra Ghadei, Ext.50 is the letter of P.W.5, Ext.51
is the attendance register of Collector, Jaleswar, Ext.52 is the
issue register, Exts.53 and 54 are the sanction orders, Ext.55 is
the specimen L.T.I. of sweeper Puniti Mahal, Ext.56 is the
requisition, Ext.57 is the statement, Exts.58 to 58/6 and Ext.59
are the enlarged photographs Ext.60 is the forwarding letter,
Ext.61 is the L.T.I. of co-accused Laxmidhar Pani, Ext.62 is the
photo, Exts.63 and 64 are the letters, Exts.65, 66 and 67 are the
complaints of sweepers Jatindra Ghadei, Kartika Mukhi and Punti
Mahal respectively, Exts 68 and 69 are the statements of
sweepers Jatindra Ghadei and Punti Mahal, Ext.70 is the
measurement book, Ext.71 is the sanction order, Exts.72 and 73
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are the seizure lists, Ext.74 is the letter of Executive Officer,
Jaleswar, Ext.75 is the detail investigation report of I.O. and
Ext.76 is the statement of Punti Mahal.
The co-accused Laxmidhar Pani examined himself as
a defence witness. The defence exhibited the resolution dated
05.11.1972 of the meeting of the N.A.C. as Ext.A.
8. The learned trial Court after assessing the evidence
adduced by the witnesses as well as the documentary evidence
has been pleased to hold that co-accused Laxmidhar Pani was
the Executive Officer and therefore, the Drawing and Disbursing
Officer and for all practical purposes, he was the custodian of
Government money. The appellant can also be said to have been
entrusted with money since it was claimed by him that money
was paid to the sweepers by him. Both the appellant and co-
accused Laxmidhar Pani admitted that money was paid to the
sweepers which obviously mean money was entrusted to them
and in particular to co-accused Laxmidhar Pani who was the
Drawing and Disbursing Officer and the prosecution has proved
several other documents to prove entrustment. Taking into
account the evidence of P.W.3 and P.W.4 and documents like
Exts.23, 24, 25 and Ext.44, it was held that entrustment of
money has been proved. It was further held that though co-
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accused Laxmidhar Pani arbitrarily exercised his discretion in the
so-called payment of money to the sweepers, he did not commit
criminal breach of trust so far as the ingredient mentioned under
section 405 of Indian Penal Code. It was further held that no
quarters or houses were in fact constructed and that the finger
prints on Exts. 12 and 13 so also the finger prints in the
measurement book marked as Ext.A/5 to A/9 by the expert were
the finger prints of the appellant. The learned trial Court further
held that the appellant forged the money receipts Exts.12 and 13
and committed the offence of forgery. The learned trial Court did
not accept the evidence of P.W.11 and P.W.12 with regard to
construction of their houses and held that the appellant
committed the offence of criminal misappropriation and forgery.
It was further held that the sanction order against the appellant
was a valid one. The learned trial Court however held that the
prosecution failed to bring out a case under section 120-B of the
Indian Penal Code against all the accused persons and further
held that the prosecution has failed to prove the charges against
the co-accused persons Laxmidhar Pani and Satyanarayan Chand
and acquitted them of all the charges.
9. Mr. Deba Prasad Das, learned Amicus Curiae
contended that there are no materials on record to show that the
20
petitioner was entrusted with Rs.6,000/- which was credited to
the P.L. Account of Jaleswar N.A.C. on 23.09.1989 or that he had
any dominion over the said money. There is also no material that
the petitioner dishonestly misappropriated the amount in
question or converted to his own use in violation of the order of
the Government in providing house facilities to Scheduled Caste
people engaged in un-cleaned occupation. It was argued that out
of the five sweepers in whose favour Rs.1200/- each was
sanctioned for the purpose of constructing houses, two of them
have only been examined as P.W.11 and P.W.12 and both stated
to have received the amount from the appellant and gave
receipts and therefore, the ingredients of the offence of criminal
breach of trust as defined under section 405 of the Indian Penal
Code are not attracted which makes the conviction of the
appellant under section 409 of the Indian Penal Code not
sustainable in the eye of law. It is the contention of Mr. Das that
the learned trial Court has observed in paragraph 8 of the
judgment that so far as entrustment is concerned, the appellant
and co-accused Laxmidhar Pani were found to have been
entrusted jointly and severally with regard to the amount in
question and that they admitted that money was paid to the
sweepers which obviously means money was entrusted to them
21
and particularly to co-accused Laxmidhar Pani who was the
Drawing and Disbursing officer. It is contended that in view of
such observation, as the co-accused Laxmidhar Pani has been
acquitted of the charge under section 409 of the Indian Penal
Code, on the self-same set of evidence, the conviction of the
appellant for the said offence cannot be sustained. The learned
trial Court has given undue emphasis on Exts.65 and 66 which
were the complaints stated to have been made by P.W.11 and
P.W.12 respectively and erroneously treated those documents as
their previous statements reduced to writing and as admissions.
According to Mr. Das, when P.W.11 and P.W.12 have not stated
to have made any such complaints before P.W.16, the Chairman
N.A.C. and the statement stated to have been made by P.W.12
before P.W.16 during enquiry vide Ext.68 has also not been
confronted to P.W.12 by the prosecution during trial and no
questions on these documents have been put to the appellant in
his accused statement, therefore, it is not legally permissible on
the part of the learned trial Court to use those documents
against the appellant. According to Mr. Das, the evidence of the
finger print experts (P.W.14) is shaky in nature and his evidence
that disputed finger prints on the vouchers tally with the
specimen L.T.I. of the appellant is not acceptable. Placing
22
reliance in the case of Musheer Khan -Vrs-. State of Madhya
Pradesh reported in (2010) 2 Supreme Court Cases 748, it
was contended that the evidence of the finger print is not
substantive evidence and therefore, the evidence of P.W.14
should be discarded and once it is so discarded, there would be
nothing to show that forgery has been committed and as such
conviction under section 467 of the Indian Penal Code is
misconceived. It was argued by Mr. Das that when the evidence
of the witnesses is that the measurements were recorded in the
measurement book by co-accused Satyanarayan Chand and in
the case record relating to the work of construction of the houses
of the sweepers, it has been mentioned that the work has been
completed and measured by the said co-accused and in the
measurement book (Ext.17), the entries were made in the
handwriting of the said accused as per the evidence of P.W.16
and even the said co-accused in his accused statement has also
admitted to have made the entries in the measurement book and
since he has been acquitted of all the charges, therefore, it can
be inferred that the recording in the measurement book was
genuine and when the two beneficiaries examined in the trial
Court i.e., P.W.11 and P.W.12 have also stated to have utilised
the money received in the construction of the houses, it was not
23
proper on the part of the learned trial Court to convict the
appellant under various offences. While concluding his argument,
Mr. Das contended that the prosecution has miserably failed to
prove the charges against the appellant beyond all reasonable
doubt and therefore, benefit of doubt should be extended in
favour of the appellant.
Mr. Sanjay Kumar Das, learned Senior Standing
Counsel for the Vigilance Department on the other hand
supported the impugned judgment and submitted that no
quarters were found to have been constructed and there was
also no resolution for spending Rs.6,000/- by constructing the
houses of the sweepers and no meeting was convened for the
said purpose. He placed the evidence of P.W.6 and P.W.16 to
substantiate such aspects. It is contended that as per the
evidence of the finger print expert (P.W.14), the money receipts
vide Exts.12 and 13 bear the left thumb impression of the
appellant and not of the sweepers. According to him, the
sweepers themselves lodged the complaints before P.W.16 which
have been marked as Exts.65 to 67 and therefore, the learned
trial Court is justified in convicting and sentencing the appellant
under various sections of the Indian Penal Code as well as under
1947 Act. He placed reliance in the case of Jaikrishnadas
24
Manohardas Desai -Vrs.- The State of Bombay reported in
A.I.R. 1960 Supreme Court 889.
10. Adverting to the contentions raised by learned
counsel, it appears that charge has been framed for the offence
under section 409 of the Indian Penal Code on the accusation
that the appellant and the two acquitted co-accused persons in
the employment of N.A.C., Jaleswar in their respective capacity
being entrusted with Rs.6,000/- for construction of five houses
for scavengers engaged by N.A.C. committed criminal breach of
trust in respect of such money.
Section 409 of the Indian Penal Code prescribes
punishment for criminal breach of trust committed by public
servant, or by banker, merchant or agent etc. In order to attract
the provision of the section, the following essential ingredients
are required to be proved, i.e. (i) the accused is a public servant
or banker or merchant or agent etc.; (ii) he has been entrusted
with any property, or has dominion over the property in question
in the capacity of such public servant, banker, merchant or agent
etc.; (iii) he must have committed criminal breach of trust in
respect of such property.
'Criminal breach of trust' has been defined under
section 405 of the Indian Penal Code. To constitute the offence
25
of criminal breach of trust, the ingredients are (i) entrustment of
a person with property, or with any dominion over the property;
(ii) the person so entrusted has (a) dishonestly misappropriated
or converted the property to his own use, or (b) dishonestly used
or disposed of the 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, or willfully suffers any other
person so to do.
Any breach of trust is not an offence; the dishonest
intention is an essential factor. Wrongful gain or loss actually
resulted is the consequence but not always a decisive factor.
In the case of Jaikrishnadas Manohardas Desai
(supra) upon which strong reliance was placed by the learned
Senior Standing Counsel for the Vigilance Department, it is held
that to establish a charge of criminal breach of trust, the
prosecution is not obliged to prove the precise mode of
conversion, misappropriation or misapplication by the accused of
the property entrusted to him or over which he has dominion.
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
26
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.
(i) In order to prove the charge under section 409
of the Indian Penal Code, the prosecution is first required to
prove that the petitioner was a public servant. It is not in dispute
that the appellant was working as a Clerk in the office of
Jaleswar N.A.C. during the period from 13.12.1967 to
10.11.1972 and therefore, he was a public servant. Obviously he
was to act under the direction of co-accused Laxmidhar Pani who
was the Tahasildar, Jaleswar and functioning as the Executive
Officer of Jaleswar N.A.C. in between 13.12.1967 to 10.11.1972.
(ii) The next aspect, the prosecution is required to
prove is that the petitioner was entrusted with a sum of
27
Rs.6,000/- (rupees six thousand) or he had any dominion over
such money in the capacity of a Clerk.
It is not in dispute that a sum of Rs.6,000/- (rupees
six thousand) was sanctioned by the Government of Odisha in
the Tribal & Rural Welfare Department as per the order dated
07.03.1969 in favour of Jaleswar N.A.C. for construction of five
houses at Rs.1,200/- (rupees one thousand two hundred) each
for Scheduled Caste people engaged in un-cleaned occupation.
P.W.3 has stated so in that respect and proved the relevant
document Ext.22. It is clearly mentioned in Ext.22 that the
concerned Executive Officer of the Local Bodies would be the
Drawing and Disbursing Officer and the Executive Officer was
requested to draw and utilise the grant in time and furnish
necessary utilisation certificate to the Tribal & Rural Welfare
Department through the concerned District Magistrate.
Co-accused Laxmidhar Pani being the Executive
Officer of Jaleswar N.A.C. was the Drawing and Disbursing
Officer. The learned trial Court has rightly observed that for all
practical purposes, co-accused Laxmidhar Pani was the custodian
of Government money. Having so observed, the learned trial
Court erroneously held that the appellant can also be said to
have been entrusted with the money since the money was paid
28
to the sweepers by him. Co-accused Laxmidhar Pani being
examined as D.W.1 has stated that the decision of disbursement
of money of Rs.1,200/- to each of the sweepers was taken by
him and although there were no rules for handing over the
money to the sweepers, he used his discretion and passed order
for payment to the sweepers and that the money to each of the
sweepers was paid in his presence.
In view of such admission made by the co-accused
Laxmidhar Pani, even if it is held that as per the decision taken
and order made by the said co-accused who was the Superior
Officer, the appellant disbursed the amount to five sweepers in
the presence of the co-accused, it cannot be said that the
appellant was entrusted with Rs.6,000/- (rupees six thousand).
Mere payment of money to the sweepers by a subordinate staff
like the appellant as per the order of the Superior Officer like the
co-accused is not sufficient to prove entrustment with the
appellant. Entrustment arose in this case when Rs.6,000/- was
credited to the P.L. account of N.A.C. with a direction to use the
money for a particular purpose and co-accused Laxmidhar Pani
being the Drawing and Disbursing Officer had full
control/dominion over that money and he was supposed to use
that money in terms of the direction. Therefore, the observation
29
of the learned trial Court that the appellant can be said to have
been entrusted with the money as he paid the money to the
sweepers is not legally sustainable.
(iii) The next aspect, the prosecution is required to
prove is that the money was used in violation of any direction for
which it had been credited to the P.L. account of Jaleswar N.A.C.
The prosecution case is that though documentary evidence
indicates that money was paid to five sweepers @ Rs.1,200/- to
each for construction of their houses but the same has not been
actually done and the amount has been misappropriated. Out of
the five sweepers, only two sweepers have been examined as
P.W.11 and P.W.12. P.W.11 has stated that the appellant gave
him money for constructing his house and he received
Rs.1,200/- from the appellant and the appellant wrote the
receipt and on receipt of the money, he gave his left thumb
impression. The witness has been declared hostile by the
prosecution and his previous statement before the I.O. has been
confronted to him. In the cross-examination, P.W.11 has further
stated that five sweepers including he himself received
Rs.1,200/- each and acknowledging the receipt of money, each
of them gave their L.T.Is. in the receipts marked as Exts. 10 to
14 and that the money was paid to them by the appellant as was
30
directed by co-accused Laxmidhar Pani. Similarly P.W.12 has
also stated that he received Rs.1,200/- from the appellant and
passed a receipt Ext.12 giving his L.T.I. and with the money
received, he constructed his house in his own village. This
witness has also been declared hostile by the prosecution and his
previous statement before the I.O. was confronted to him.
It is the settled law that even in a criminal
prosecution when a witness is cross-examined and contradicted
with the leave of the Court, by the party calling him, his
evidence cannot, as a matter of law, be treated as washed off
the record altogether. It is for the Judge of fact to consider in
each case whether as a result of such cross-examination and
contradiction, the witness stands thoroughly discredited or can
still be believed in regard to a part of his testimony. If the Judge
finds that in the process, the credit of the witness has not been
completely shaken, he may, after reading and considering the
evidence of the witness, as a whole, with due caution and care,
accept, in the light of the other evidence on the record, that part
of the testimony which he finds to be creditworthy and act upon
it. If in a given case, the whole of the testimony of the witness is
impugned, and in the process, the witness stands squarely and
totally discredited, the Judge should, as a matter of prudence,
31
discard his evidence in toto. (Ref: Sat Paul -Vrs.- Delhi
Administration : (1976)1 Supreme Court Cases 727). The
mere fact that the Court gave the permission to the Public
Prosecutor to cross-examine his own witness by declaring him
hostile does not completely efface the evidence of such witness.
The evidence remains admissible in the trial and there is no legal
bar to base conviction upon his testimony, if corroborated by
other reliable evidence. (Ref: Anil Rai -Vrs.- State of Bihar :
(2001)7 Supreme Court Cases 318). In the event of a portion
of evidence not being consistent with the statements given under
section 161 of Cr.P.C. and the witness stands declared hostile by
the prosecution that does not, however, mean and imply total
rejection of the evidence. The portion which stands in favour of
the prosecution or the accused may be accepted but the same
shall be subjected to close scrutiny. (Ref: Gurpreet Singh -
Vrs.- State of Haryana : (2002)8 Supreme Court Cases
18). The testimony of a hostile witness cannot be rejected in
toto as the evidentiary value of his testimony is not lost and can
be accepted to the extent that the version is found corroborated
with material evidence. (Ref: Paulmeli -Vrs.- State of Tamil
Nadu : (2014)13 Supreme Court Cases 90).
32
Even though the public prosecutor put questions to
P.W.11 and P.W.12 after getting permission of the Court under
section 154 of the Evidence Act, nothing has been elicited from
these witnesses which would be in any way helpful to the
prosecution. The prosecutor merely confronted some of the
previous statements of those witnesses made before the
investigating officer which were later proved through the
investigating officer. On the other hand, on being cross-
examined by the defence, P.W.11 has stated that the co-accused
Pani Babu called all the five sweepers including him and told
them that the Government had sanctioned money for
construction of their quarters but lands were not available for
construction of the same. P.W.11 further stated that they told
the said co-accused that the amount be given to them so that
they would construct their houses on their own respective lands
and accordingly, all the five sweepers including he himself
received Rs.1200/- each and acknowledging the receipt of the
money, each of them gave their L.T.Is. in the receipts marked as
Exts.10 to 14 and that money was paid to them by the appellant
as was directed by co-accused Pani Babu. Similarly, P.W.12 has
stated in the cross-examination that they received the money for
construction of their houses from the Executive Officer L.Pani
33
which was actually given to them by the appellant. He further
stated that he constructed his house in his own village and that
after receiving Rs.1,200/- from the appellant, he passed a
receipt Ext.12 giving his L.T.I.
Therefore, the defence plea taken by the appellant
that the sweepers were given money for construction of their
houses gets corroboration from the evidence of the beneficiaries
like P.W.11 and P.W.12. In other words, in view of such
evidence, it cannot be said that money was used in violation of
any direction for which it had been credited to the P.L. account of
Jaleswar N.A.C.
(iv) Apart from the material contradictions in the
statements made by P.W.11 and P.W.12 in Court vis-a-vis before
the investigating officer, the learned trial Court found their
evidence to be not acceptable being untrue in view of their
complaints made before P.W.16 and statement made by P.W.12
before P.W.16 during enquiry.
P.W.16, the Chairman of Jaleswar N.A.C. has stated
that during course of enquiry, he received the complaints from
three persons out of which Ext.65 is the complaint of P.W.12 and
Ext.66 is the complaint of P.W.11. He also recorded the
statement of P.W.12 vide Ext.68. The learned trial Court held
34
that Exts.65 and 66 are in the nature of their previous
statements reduced to writing and are no doubt admissions and
therefore relevant for the purpose of the case. It was further
held that Exts.65 and 66 cannot be treated as inadmissible as
those were made much before registration of the case.
In the case of Bishwanath Prasad and Ors. -Vrs.-
Dwarka Prasad and Ors. reported in (1974)1 Supreme
Court Cases 78, it is held as follows:-
"8.....There is a cardinal distinction between a
party who is the author of a prior statement and
a witness who is examined and is sought to be
discredited by use of his prior statement. In the
former case, an admission by a party is
substantive evidence if it fulfills the
requirements of section 21 of the Evidence Act;
in the latter case a prior statement is used to
discredit the credibility of the witness and does
not become substantive evidence. In the former,
there is no necessary requirement of the
statement containing the admission having to be
put to the party because it is evidence proprio
vigore; in the latter case the Court cannot be
invited to disbelieve a witness on the strength of
a prior contradictory statement unless it has
been put to him, as required by section 145 of
the Evidence Act. This distinction has been
clearly brought out in the ruling in Bharat
35
Singh -Vrs.- Bhagirathi : A.I.R. 1966 S.C.
405. This Court disposed of a similar argument
with the following observations:
"Admissions are substantive evidence by
themselves, in view of sections 17 and 21 of the
Indian Evidence Act, though they are not
conclusive proof of the matters admitted. We are
of opinion that the admissions duly proved are
admissible evidence irrespective of whether the
party making them appeared in the witness box
or not and whether that party when appearing
as witness was confronted with those
statements in case it made a statement contrary
to those admissions. The purpose of
contradicting the witness under section 145 of
the Evidence Act is very much different from the
purpose of proving the admission. Admission is
substantive evidence of the fact admitted while a
previous statement used to contradict a witness
does not become substantive evidence and
merely serves the purpose of throwing doubt on
the veracity of the witness. What weight is to be
attached to an admission made by a party is a
matter different from its use as admissible
evidence."
In the case of Bhagwat Sharan (Dead thr. Lrs.)
-Vrs.- Purushottam reported in 2020 SCC OnLine SC 348, it
36
is held that an admission made by a party is only a piece of
evidence and not conclusive proof of what is stated therein.
P.W.11 and P.W.12 have not stated to have made
any such complaint before P.W.16. P.W.16 has stated that Exts.
65 to 67 contain the L.T.I. of the sweepers but he cannot say
who wrote the complaints. Similarly the so-called previous
statement of P.W.12 vide Ext.68 has also not been confronted to
P.W.12. No questions on Exts. 65, 66 and 68 have been put to
the appellant in his accused statement.
Section 313 of Cr.P.C. deals with the power of the
Court during enquiry or trial to examine the accused for the
purpose enabling him personally to explain any circumstances
appearing in the evidence against him. It imposes a duty and
makes it mandatory on the Court to question the accused
generally on the case after the prosecution has completed the
examination of its witnesses and before the accused is called on
for his defence. Indisputably, the attention of the accused should
be invited to the inculpatory piece of evidence or circumstances
laid on record and to give an opportunity to offer an explanation
if he chooses to do it. The purpose of examination of the accused
under section 313 of the Code is to give the accused an
opportunity to explain the incriminating material which has come
37
on the record. The words 'shall question him' in section
313(1)(b) of the Code clearly bring the mandatory character of
the clause and cast an imperative duty on the Court and confer a
corresponding right on the accused to an opportunity to offer his
explanation for such incriminating material appearing against
him. If any circumstances had not been put to the accused in his
statement, the same shall be excluded from consideration. Of
course, this is subject to a rider whether omission to put
question under section 313 of the Code has caused miscarriage
of justice or prejudice to the accused.
Since P.W.11 and P.W.12 are totally silent to have
made any complaints by way of Ext.66 and Ext.65 respectively
before P.W.16 and Ext.68, the statement of P.W.12 stated to
have been recorded during enquiry conducted by P.W.16 has not
been put to the concerned witness in terms of section 145 of the
Evidence Act and nothing on these aspects have been put to the
appellant in his accused statement, I am of the humble view that
the same has caused serious prejudice to the appellant and
learned trial Court was not justified in using those documents
against the appellant.
(v) Co-accused Laxmidhar Pani has been acquitted
of all the charges and there is no material that the appellant was
38
entrusted with Rs.6,000/- (rupees six thousand) by the
Government or that he had any control or dominion over such
money. He merely disbursed the amount as per the
direction/order of the co-accused Laxmidhar Pani. In view of the
evidence of P.Ws.11 and 12, there is no clinching material that
money was used in violation of any direction for which it had
been credited to the P.L. account of Jaleswar N.A.C. Therefore,
the ingredients of the offence under section 409 of the Indian
Penal Code are lacking so far as the appellant is concerned and
as such his conviction under section 409 of the Indian Penal
Code cannot be sustained in the eye of law.
11. Coming to the conviction of the appellant under
section 467 of the Indian Penal Code, the charge has been
framed for such offence on the accusation that the appellant and
the two acquitted co-accused persons forged six vouchers, made
false entries in the registers and measurement books purporting
to be used as valuable security in between 20.03.1969 to
31.05.1971.
The learned trial Court took into account the
endorsement 'check measured' mentioned in the measurement
book (Ext.70) proved to be in the handwriting of the appellant
and also relied upon the entry of Rs.6,000/- on 20.03.1969
39
made in the cash book (Ext.44) at page 157 to be in the
handwriting of the appellant showing payment of Rs.1,200/- to
each to the five sweepers and also the entries made in the two
vouchers Exts.12 and 13 in support of the forged money receipts
to record a conviction under the offence.
The appellant has disputed his handwritings in the
measurement book (Ext.70), however he has admitted that the
vouchers showing receipt of money of Rs.1,200/- in each case
under Ext.10 to 14 including the endorsement 'identified' to be
his handwriting and he further admitted that in the N.A.C. case
records i.e. Exts.3/1 to 7/1 showing measurement 'passed for
payment' to be his handwritings.
In order to prove to the ingredients of the offence
under section 467 of the Indian Penal Code, it is required to be
proved that the appellant has forged the documents and the
documents come within one of the classes specified under the
said section.
'Forgery' has been defined under section 463 of the
Indian Penal Code. The basic elements of forgery are making of a
false document or electronic record or part of it and such making
should be with an intention (i) to cause damage or injury to the
public or to any person, or (ii) to support any claim or title, or
40
(iii) to cause any person to part with money, or (iv) to cause any
person to enter into any express or implied contract, or (v) to
commit fraud or that fraud may be committed. Section 464 of
the Indian Penal Code defines what is 'making a false document'.
Whoever dishonestly or fraudulently makes, signs, seals or
executes a document or part of a document with the intention of
causing it to be believed that such document or a part of
document was made, signed, sealed, executed or affixed by a
person whom he knows that it was not made, signed, sealed,
executed or affixed can be said to have made a false document.
Relating to the entries made in the measurement
book (Ext.70), P.W.16 has proved the same and stated that Ext.
70/1 which are from pages 1 to 19 relating to the measurement
only were in the handwritings of co-accused Satyanarayan
Chand. The said co-accused Satyanarayan Chand in his accused
statement to question nos.6 and 7 has also admitted that the
entries in the measurement book are his handwritings and he
further admitted that he has conducted measurement and made
the entries in the measurement book. P.W.2 has stated in the
cross-examination that measurements are recorded in the
measurement book by Sub-Assistant Engineer which is co-
accused Satyanarayan Chand. Therefore, when the co-accused
41
Satyanarayan Pani who has made the entries in the
measurement book (Ext.70) after conducting measurement has
been acquitted of all the charges, it was not proper on the part
of the learned trial Court to have fixed the entire responsibility
on the appellant for the endorsements 'check measured' made in
the top of pages of the measurement book. No question has
been put to the appellant relating to the entry of Rs.6,000/- on
20.03.1969 made in the cash book (Ext.44) at page 157 to be
his handwriting. Coming to the vouchers vide Exts.12 and 13,
the appellant has not disputed the same and stated in the
accused statement that he prepared the vouchers.
The main crux of the matter is whether the left
thumb impressions on Ext.10 and Ext.12 which are the two
vouchers showing receipt of Rs.1,200/- by P.W.11 and P.W.12
were forged or not inasmuch as it is the prosecution case that
such left thumb impressions on Ext.10 and 12 were of the
appellant and not of P.W.11 and P.W.12. In this respect, the
prosecution mainly relies on the evidence of the finger print
expert (P.W.14). In the case of Musheer Khan (supra), it is
held that the evidence of fingerprint expert falls under the
category of expert evidence under section 45 of the Evidence Act
and the evidence of fingerprint expert is not substantive
42
evidence. Such evidence can only be used to corroborate some
items of substantive evidence which are otherwise on record.
P.W.14 received and examined five vouchers which are stated to
be bearing the disputed L.T.Is. of five sweepers marked as 'A',
'A-1', 'A-2', 'A-3', 'A-4' and 'A-5'.
(i) Since only two sweepers have been examined as
P.W.11 and P.W.12, first I have to examine the vouchers related
to them.
The voucher relating to disputed L.T.I. of P.W.11
Kartika Mukhi has been marked as 'A' and that of P.W.12 has
been marked as 'A-2'. P.W.14 stated that the disputed L.T.I.
marked 'A' on the voucher did not tally with any of the specimen
L.T.Is. including that of the appellant.
So far as the L.T.I. 'A-2' on the voucher is concerned,
P.W.14 has opined that it tallied with the left thumb impression
of the appellant. According to P.W.14, the enlarged photograph
of 'A-2' is Ext.58. In the cross-examination, P.W.14 has stated
that the photographic print Ext.58 is not clear and therefore,
from such photograph, the ridge count between the point of
Delta and point of Core cannot be taken. The Core point of the
print Ext.58 is smudged and therefore, the ridge count from the
point of Core to different points marked in the print was not
43
possible and likewise the ridge count from the point of Core to
point of Delta is also not possible. He has further stated that if
the Core is smudged or faint in the photo print, the ridge count
cannot be taken from the Core to different points or between the
Core and the Delta. Likewise if the Delta is smudged or faint, the
ridge count cannot be taken from the Delta to different points or
between the Delta and the Core. In view of such statement made
by P.W.14, it is difficult to believe that with the nature of
enlarged photograph of 'A-2' i.e. Ext.58 he had, he would be in a
position to give a sound opinion which would be acceptable in
the eye of law. Therefore, the opinion given that the disputed
finger print marked as 'A-2' (whose enlarged photograph is
Ext.58) is identical with the L.T.I. of the appellant cannot be
accepted.
(ii) No definite opinion could be given by P.W.14 in
respect of the disputed L.T.Is. on the vouchers marked as 'A-1'
and 'A-4' as those were smudged and devoid of required number
of clear ridge characteristics for the purpose of comparison. If for
some particular features, P.W.14 was not in a position to give his
opinion on 'A-1' and 'A-4' , it is not understood how could it be
possible on his part to give his opinion on disputed finger print
marked as 'A-2' when similar features were present.
44
(iii) So far as the L.T.I. of one of the sweepers on
the voucher which has been marked as 'A-3' is concerned, the
said sweeper has not been examined during trial and the
enlarged photograph of 'A-3' has been marked as Ext.58/1.
P.W.14 has stated that in the photo print Ext.58/1, the Core is
faint and therefore, the ridge count from the Core to different
points is not possible and likewise the ridge count from the Core
and Delta was not possible. In view of such statement, the
opinion given by P.W.14 that the L.T.I. on the voucher marked
as 'A-3' was identical with the specimen L.T.I. of the appellant
cannot be accepted.
P.W.14 has stated that the specimen thumb marks
were not taken in his presence. In view of such evidence
adduced by P.W.14, it becomes doubtful that the L.T.Is. given on
the vouchers relating to payment of money to the sweepers were
the L.T.Is. of the appellant. When two of the sweepers examined
as P.W.11 and P.W.12 have stated that they have put their
L.T.Is. on Ext.10 and Ext.12 and received money, it cannot be
said that the appellant forged any document which is one of the
basic ingredients of the offence under section 467 of the Indian
Penal Code.
45
12. Coming to the conviction of the appellant under
section 471 of the Indian Penal Code, the charge has been
framed for such offence on the accusation that the appellant and
the two acquitted co-accused persons fraudulently and
dishonestly used the six vouchers as genuine which they knew to
be forged at the time when they used those documents.
The learned trial Court held that the two vouchers
marked Exts.12 and 13 after having being forged by the
appellant have been fraudulently and dishonestly used as
genuine by him knowing those to be forged and therefore he has
committed the offence under section 471 of the Indian Penal
Code.
To attract the ingredients of the offence under
section 471 of the Indian Penal Code, it is required to be proved
(i) fraudulent or dishonest used of a document as genuine and
(ii) knowledge or reasonable believed on the part of the person
using the document that it is a forged one.
Since it is already held while discussing the offence
under section 467 of the Indian Penal Code that the prosecution
has failed to establish that any of the vouchers bearing the
disputed L.T.Is. were that of the appellant, therefore, there is no
material that the vouchers particularly Exts.12 and 13 are forged
46
documents and there has been any fraudulent or dishonest use
of such documents as genuine knowing the same or having
reasonable believe that those were forged documents. As the
prosecution failed to prove that the documents are forged and
the appellant used the same as genuine documents knowing
those to be forged documents and it cannot be said that there
has been any fraudulent or dishonest use, therefore, the
conviction of the appellant under section 471 of the Indian Penal
Code is not sustainable.
13. Coming to the conviction of the appellant under
section 477-A of the Indian Penal Code, the charge has been
framed for such offence on the accusation that the co-accused
Satyanarayan Chand has made fictitious entries in the
measurement book and the appellant and the co-accused
Laxmidhar Pani accepted six vouchers knowing them to be
forged and thereby with an intention to defraud, willfully utilised
the forged document as genuine as falsified account.
In order to attract the ingredients of the offence
under section 477-A of the Indian Penal Code which deals with
falsification of accounts, the prosecution is required to prove the
following ingredients: (i) The person concerned must be a clerk,
officer, or servant, or employed or acting in the capacity of a
47
clerk, officer or servant; (ii) he has willfully and with intent to
defraud, destroyed, altered, mutilated or falsified any book,
paper, writing, valuable security or account which (aa) belonged
to or is in possession of his employer or (bb) has been received
by him or on behalf of his employer, or (iii) he has willfully and
with intent to defraud, made or abetted the making of any false
entry in, or omitted or altered or abetted the omission or
alteration of any material particular from or in, any such book,
paper, writing, valuable security, or account.
The learned trial Court has held that while the
appellant was working in the capacity as clerk, by his act he
willfully intended to defraud and thereby defrauded the N.A.C.
authority as well as the two beneficiaries by reflecting the
disbursement of the amount in the name of two sweepers falsely
in the cash book vide Ext.44/1. As already held, the prosecution
has failed to prove that any false entries relating to
disbursement of amount to P.W.11 and P.W.12 have been made
in any document. Not only those two sweepers have stated that
they have received money from the appellant and utilised it for
constructing their respective houses but also they have put their
L.T.Is. on the vouchers. The prosecution has also failed that the
L.T.Is. appearing on the vouchers related to any of the sweepers
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particularly P.W.11 and P.W.12 are forged and that to those
were the L.T.Is. of the appellant. No question on the cash book
entry has been put to the appellant in his accused statement.
Therefore, the prosecution has failed to establish that there is
any falsification of account and as such the conviction of the
appellant under section 477-A of the Indian Penal Code is not
sustainable in the eye of law.
14. Coming to the conviction of the appellant under
section 5(1)(c) read with section 5(2) of 1947 Act, the charge
has been framed for such offence on the accusation that the
appellant and the two acquitted co-accused persons being public
servant dishonestly misappropriated Rs.6,000/- for their own use
which was entrusted to them as such public servant during the
period from 20.03.1969 to 31.05.1971.
The learned trial Court has held that the appellant is
a public servant and in that capacity, he handled the cash and
valuable document of Jaleswar N.A.C. and committed forgery
and falsification of accounts and criminal misappropriation to the
tune of Rs.2,400/- and therefore, found him guilty under such
offence.
Section 5(2) of 1947 Act prescribes punishment for a
public servant who has committed 'criminal misconduct'. So far
49
as section 5(1)(c) of 1947 Act is concerned, it is stated that if a
public servant dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted to
him or under his control as a public servant or allows any other
person so to do can be said to have committed 'criminal
misconduct'. Thus, the essential ingredients of the offence under
section 5(1)(c) read with section 5(2) of the 1947 Act are as
follows:
(i) The accused must be a public servant;
(ii) He must have been entrusted with any
property or the property was under his control
as such public servant; and
(iii) He must have dishonestly or fraudulently
misappropriated or otherwise converted the
property to his own use or allowed any other
person so to do.
As has already been discussed while dealing with
other offences that the prosecution has failed to prove that there
has been any forgery or dishonest misappropriation and the
prosecution has also failed to prove the entrustment of the
money with the appellant. There is absolutely no material that
the money in question has been converted to the own use of the
50
appellant rather in view of the evidence of P.W.11 and P.W.12
and the corresponding documents, it appears that the money
has been utilised for the purpose for which it has been credited
to the P.L. account of Jaleswar N.A.C. Therefore, it cannot be
said that the appellant has committed any criminal misconduct in
discharge of official duty and as such the conviction of the
appellant under section 5(1)(c) read with section 5(2) of 1947
Act is not sustainable in the eye of law.
15. In view of the foregoing discussions, the impugned
judgment and order of conviction of the appellant under sections
409, 467, 471, 477-A of the Indian Penal Code and section
5(1)(c) read with section 5(2) of the 1947 Act and the sentence
passed thereunder is not sustainable in the eye of law and
hereby set aside. The appellant is acquitted of all such charges.
Accordingly, the Criminal Appeal is allowed.
Lower Court records with a copy of this judgment be
sent down to the learned trial Court forthwith for information.
Before parting with the case, I would like to put on
record my appreciation to the learned Amicus Curiae for
rendering his valuable help and assistance in deciding this oldest
pending appeal. The hearing fees is assessed to Rs.10,000/-
51
(rupees ten thousand) in toto which would be paid to the learned
Amicus Curiae immediately.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 20th August 2020/Pravakar/Sisir/RKM