Orissa High Court
Lambodar Pujari vs State Of Orissa on 10 October, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 32 of 2009
An appeal under section 374 of the Code of Criminal Procedure
from the judgment dated 17.01.2009 passed by the Special
Judge, Vigilance, Jeypore in G.R. Case No.28 of 1989(V)/ T.R.
No. 113 of 2007.
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Lambodar Pujari ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Dipti Ranjan Bhokta
H. K. Behera
For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vig.)
CRLA No. 54 Of 2009
Kalakar Mohanty ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Ramani Kanta Pattnaik
For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vig.)
2
CRLA No. 55 Of 2009
Prafulla Chandra Patra ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Bikram Kishore Nayak
Nilamani Swain
Sambit Mohanty
For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vig.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 24.08.2017 Date of Judgment: 10.10.2017
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S. K. SAHOO, J.The appellants Lambodar Pujari (CRLA No. 32 of 2009), Kalakar Mohanty (CRLA No. 54 of 2009) and Prafulla Chandra Patra (CRLA No. 55 of 2009) along with co-accused Gupteswar Patnaik and Abhimanyu Mahakud faced trial in the Court of learned Special Judge, Vigilance, Jeypore in G.R. Case No.28 of 1989(V) / T.R. Case No. 113 of 2007 for offences punishable under section 5(2) read with section 5(1)(c) of the Prevention of Corruption Act, 1947 (hereafter '1947 Act') and sections 467/34, 471/34 and 477-A/34 of the Indian Penal Code. 3 The learned Trial Court vide impugned judgment and order dated 17.01.2009 though acquitted the co-accused Gupteswar Patnaik and Abhimanyu Mahakud of all the charges but found the appellants guilty of the offences charged and sentenced each of them to undergo R.I. for two years and to pay a fine of Rs.2,000/- each, in default, to undergo further R.I. for one month each for the offence under section 5(2) read with section 5(1)(c) of the 1947 Act; R.I. for three years and to pay a fine of Rs.3,000/- each, in default, to undergo R.I. for two months on each count for the offence under sections 467/471 of the Indian Penal Code and R.I. for two years and to pay a fine of Rs.2000/- each, in default, to undergo R.I. for one month each under section 477-A of the Indian Penal Code. The substantive sentences were directed to run concurrently.
2. The prosecution case, in short, is that during vigilance enquiry, it transpired that C.D. & R.R. Department of Govt. of Orissa had sanctioned money in 1985 under the Rural Labour Employment Guarantee Programme (in short 'RLEGP') scheme for execution of rehabilitation and restocking of degraded forest work in undivided Koraput district. The appellant Kalakar Mohanty was working as Range Officer, Nabarangpur and he received Govt. funds in advance from D.F.O., Nabarangpur from 4 time to time for execution of restocking of degraded forest works over 385 hectares of land at Pujariguda, Jamuguda and Palapur. He executed trench digging, gap plantation, forest cleaning works through other accused persons and paid wages to the labourers in shape of money, rice and wheat by preparing muster rolls and vouchers. It is the further prosecution case that the appellants and others dishonestly misappropriated Govt. money creating fake documents and falsifying accounts.
Debadatta Patnaik (P.W.22), Sub-Inspector of Vigilance, Nabarangpur presented a written report (Ext.50) before the Superintendent of Police, Vigilance, Berhampur Division, Berhampur alleging misappropriation of an amount of Rs.2,86,838.90 paise by the accused persons by executing less work and preparing false vouchers and muster rolls in the work relating to rehabilitation and restoration of degraded forest in Nabarangpur District during 1985-86, on the basis of which Berhampur Vigilance P.S. Case No. 28 dated 03.11.1989 was registered under section 13(2) read with section 13(1)(c) of the Prevention of corruption Act, 1988 (hereafter '1988 Act') and sections 467/471/477-A/34 of the Indian Penal Code.
During course of investigation, physical measurements of trench works were taken up at Pujariguda, 5 Jamuguda, Palpur. Several connected documents were seized and specimen left thumb impressions of the accused persons and others were collected and were sent to State Finger Print Bureau, Bhubaneswar along with disputed vouchers for examination and opinion. After receipt of the opinion of Finger Print Bureau, the Investigating Officer produced the same along with other relevant documents before the sanctioning authorities and discussed with them and obtained sanction orders for launching prosecution against the appellants and other co-accused persons.
On completion of investigation, charge sheet was placed against the appellants and other co-accused persons on 09.01.1995 under section 5(2) read with section 5(1)(c) of the 1947 Act and sections 467/471/477-A/34 of the Indian Penal Code.
3. In order to prove its case, the prosecution examined twenty two witnesses.
P.W.1 Baman Chandra Routray was the Junior Clerk in the office of Forest Range Officer, Nabarangpur and he is a witness to the seizure of cash books of RLEGP under seizure list Ext.1.
P.W.2 Banamali Meher was the Head Clerk in the office of D.F.O., Nabarangpur who is a witness to the seizure of 6 general cash book, allotment order and utilization certificate etc. under seizure list Ext.2.
P.W.3 Bairagi Chandra Prusty was the Deputy Conservator of Forest, Vigilance and he conducted spot
verification on the direction of D.G., Vigilance on 21.04.1990 and 05.06.1990 in three villages namely Pujariguda, Jamuguda and Palapur and submitted his report Ext.3.
P.W.4 Soumendra Bose was the Principal, Chief Conservator of Forest, Orissa, Bhubaneswar who accorded sanction of prosecution for appellant Kalakara Mohanty, Ex- Forest Range Officer, Nabarangpur vide sanction order Ext.4.
P.W.5 Yudhisthira Parida was the Junior Clerk of Accounts Section in the office of D.F.O., Nabarangpur who stated about allotment of money for the purpose of plantation as well finishing under RLEGP Scheme and execution of plantation work etc. by appellant Kalakar Mohanty and submission of vouchers by him after execution of work. He is also a witness to the seizure of correspondence file under seizure list Ext.2.
P.W.6 Dibakar Behera was the Chainman in the office of D.F.O., Nabarangpur who measured the trench work at Palpur forest as per the direction of D.F.O., Nabarangpur with the 7 assistance of Amin and he also stated about the preparation of joint verification report under Ext.13.
P.W.7 Narayan Bisoi, P.W.8 Raghunath Ganda, P.W.9 Krupa Bisoi, P.W.10 Falguni Batra, P.W.11 Singh Batra, P.W.12 Jali Batra, P.W.13 Kamal Lochan Batra, P.W.14 Ballva Batra did not support the prosecution case for which they were declared hostile by the prosecution.
P.W.15 Amar Bikram Das was the S.I. of police
-cum- Finger Print Expert, Rasulgarh who examined the disputed documents along with admitted documents which were forwarded by S.P., Vigilance, Berhampur and furnished his opinion under Ext.14.
P.W.16 P. Balka Das was the Junior Accountant in the office of D.F.O., Nabarangpur who stated about the allotment of money under RLEGP Scheme for the purpose of plantation and fencing and appellant Kalakar Mohanty taking charge of such work. He further stated about the submission of vouchers by the said appellant in connection with such work.
P.W.17 Shyamasundar Batra stated that he has never received any rice from any forester nor signed or put his L.T.I. on any paper.
8
P.W.18 Narasingha Behera stated about the measurement of trench works under R.D.A. in Nabarangpur C.D. Block and preparation of Joint Verification Report vide Ext.13.
P.W.19 Ratnala Lingaraju was the Head Clerk, D.F.O. Office, Nabarangpur who stated about the seizure of correspondence file under seizure list Ext.12.
P.W.20 Ajay Raizada was the D.F.O., Nabarangpur who accorded sanction in respect of appellant Lambodhar Pujari, Forest Guard and appellant Prafulla Chandra Patra, Forester and others as per sanction order Ext.33 and Ext.32 respectively.
P.W.21 Madan Khatua was the Inspector of Vigilance, Rayagada who is the Investigating Officer and he submitted charge sheet in the case.
P.W.22 Debadutta Patnaik was the Sub Inspector of Vigilance, Nabarangpur Vigilance Squad who is the informant in the case.
The prosecution exhibited fifty documents. Exts.1, 2, 12, 38 are the seizure lists, Ext.3 is the spot inspection report of P.W.3, Exts.4, 32, 33, 34, 35 are the sanction orders, Exts. 5 and 18 are the letters of D.R.D.A., Ext. 6 is the intimation letter, Exts.7, 8 and 10 are the letters of appellant Kalakar Mohanty, Ext.9 is the letter of the D.F.O., Ext.11 is the further allotment, 9 Ext.13 is the joint verification report, Ext.14 is the report of P.W.15, Ext.15 series are the photographs of disputed L.T.I. with negatives, Ext.16 series are the photographs of specimen L.T.I. with negatives, Ext.17 is the letter no.185 dated 10.01.1986, Ext.19 is the letter no.702 dated 12.02.1986, Ext.20 is the office copy of letter of D.F.O., Ext.21 is the complaint, Ext.22 is the letter no.443 dated 29.03.1986, Ext.23 is the office copy of letter no.2602 dated 13.06.1986, Ext.24 is the office copy letter, Ext.25 is the letter no.1404 dated 08.10.2006, Exts.26 to 28 are the cash books, Exts.29 to 31 are the vouchers, Exts.32 to 35 are the sanction orders, Ext.36 is the forwarding letter no.6730 dated 25.11.1997, Ext.37 is the letter no.320 dated 06.03.1998, Ext.39 is the letter no.25557 dated 24.12.1994, Ext.40 is the trace map, Ext.41 is the M.B. book, Ext.42 is the food grain register, Ext.43 is the allotment order, Ext.44 is the utilization certificate for 1986-87, Exts.45 and 46 are the RLEGP cash books, Ext.47 is the tour diary of appellant Kalakar Mohanty, Ext.48 is the tour diary of appellant Prafulla Ch. Patra, Ext.49 is the plantation journal and Ext.50 is the report of P.W.22.
4. The defence plea of the appellants was one of denial. Four witnesses were examined on behalf of the defence. 10
D.W.1 Bhudan Jani stated about his engagement as a labourer in the plantation work, drain digging work and jungle cleaning work in Palapur Jungle.
D.W.2 Gangadhar Gouda stated about his engagement as a labourer for cleaning of drains, forest and plantation of trees in Jamuguda forest area.
D.W.3 Arjun Nayak stated about the trench digging, gap plantation and cleaning works conducted during the year 1985-86 and 1986-87 in Pujariguda, Jamuguda and Palapur forest.
D.W.4 Rajkishore Patnaik was the R.I. who stated about the trench work and fixation of pillars in Jambuguda forest.
5. The learned trial Court after assessing the evidence on record came to hold that the Exts. 4, 32, 33, 34 and 35 taken together established that at the relevant time appellant Kalakar Mohanty was the Range Officer, appellant Prafulla Chandra Patra was the Forester and other accused persons including appellant Lambodar Pujari were the Forest Guards. It was further held that from the evidence of P.Ws.1, 5 and 16 and the documents, it is crystal clear that appellant Kalakar Mohanty received money and food grains from the D.F.O., Nabarangpur to execute restocking of degraded forest work over 385 hectares at Pujariguda, 11 Jamuguda and Palapur through other accused persons. It was further held that Exts.3 and 13 taken together established that the accused persons had executed 10,831 running meters of trench in the disputed sites but they had shown to have executed 11,792 running meters of trench and therefore, the shortage was 961 running meters of trench works which involves Rs.11,665.97 paisa as per scheduled rate and the appellant Kalakar Mohanty had submitted expenditure statement under letter Ext.25. It was further held that the prosecution has failed to produce and prove the connected vouchers to gain advantage out of the report of the finger print expert and therefore, the opinion of the finger print expert Ext.14 is of no help to the prosecution and without the proof of other vouchers, the Court cannot jump into irresistible conclusion that the accused persons forged the L.T.Is. of some labourers for the purpose of misappropriation. It was further held that the appellants Kalakar Mohanty, Prafulla Chandra Patra and Lambodar Pujari are liable for the excess payment of Rs.11,765.97 paisa. It was further held that Exts.3 and 13 disclosed that the accused had shown excess work in the measurements, vouchers, cash books and expenditure statement and length of 961 meters of trench was found shortage and that the appellants in furtherance of their common intention forged 12 the records, registers and documents of their employer by making false and fictitious entries with an intention to misappropriate Government money and property dishonestly and in that process, they gained wrongfully and forest department of Government of Orissa sustained substantial loss.
6. Learned counsels for the appellants while challenging the impugned judgment and order of conviction contended that though the case was registered, inter alia, under section 13(2) read with section 13(1)(c) of the 1988 Act but the investigation has not been conducted by the designated police officer as prescribed under section 17 of the said Act but it was conducted by Inspector of Vigilance and therefore, the investigation is vitiated in the eye of law. It is further contended that the prosecution has miserably failed to establish the fact that the appellants have abused their official positions with dishonest intention causing pecuniary benefits either to them or to any other persons. It is further contended that the joint verification report as per Ext.13 is suspicious in nature and the prosecution has not shown any reason for non-examination of Amins through whom the trench works were measured. It is further contended that the presence of P.W.3, the Deputy Conservator of Forest during the period of joint verification on three dates i.e. 13 21.04.1990, 04.06.1990 and 05.06.1990 is very much doubtful. It is further contended that the joint verification was made in respect of trench work after lapse of four (4) rainy seasons and therefore, at that stage, it would be too difficult to find out the exact nature of works done. It is further contended that the prosecution has failed to establish the involvement of the appellants in payment of wages to fake labourers. It is further contended that the mere maintenance of Cash Book by appellant Kalakar Mohanty relying upon the muster rolls of the labourers and measurement book is not sufficient to hold him guilty of misappropriation of cash with the other co-accused persons in falsifying the cash book with malafide intention to defraud the Govt. and thereby gaining wrongfully. It is further contended that the prosecution has miserably failed to establish in which way the appellants have forged the documents, using the forged documents as genuine and willfully and with intent to defraud, destroyed, altered or mutilated or falsified any accounts and therefore, the charges under sections 467, 471 and 477-A of the Indian Penal Code have not established beyond reasonable doubt. Learned counsels placed reliance in the cases of S. Harnam Singh -Vrs.- The State (Delhi Admn.) reported in A.I.R. 1976 S.C. 2140, S.K. Mansur Alli -Vrs.- State of 14 Orissa reported in 2008 (Supp-II) Orissa Law Reviews 963 and Birabar Sethi -Vrs.- State of Orissa reported in (2012) 53 Orissa Criminal Reports 319.
Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department on the other hand contended that the defect or irregularity in investigation would not vitiate the trial unless there is miscarriage of justice. It is further contended that the learned trial Court has minutely assessed the evidence on record and while acquitting the two co- accused persons came to the conclusion regarding proving of the prosecution case against the three appellants. The learned counsel placed reliance on the evidence of P.W.3, P.W.16 and the Investigating Officer (P.W.21) and contended that such evidence is very clinching against the appellants and the joint verification report also established the guilt of the appellants. It is further contended that the opinion of the finger print expert also proves that details of labourers shown to have been engaged in the trench works, fencing, plantation etc. are not fully correct and payment has been shown against some fake persons. Learned counsel placed reliance in the cases of State of Madhya Pradesh -Vrs.- Shri Rama Singh reported in 2000 (1) 15 Crimes 245 and Ashok Tshering Bhutia -Vrs.- State of Sikkim reported in A.I.R. 2011 S.C. 1363.
7. Adverting to the first contention raised by the learned counsels for the appellants regarding power of the Inspector of Vigilance to investigate the case, Chapter-IV of 1988 Act deals with investigation into the cases under the said Act. Section 17 of the Act states about the persons authorised to investigate any offence punishable under the Act. Section 17 (c) of the Act, inter alia, states that no police officer below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank shall investigate any offence punishable under the Act without the order of a Magistrate of the first class. Therefore, a Deputy Superintendent of Police or a police officer of equivalent rank can investigate any offence punishable under the 1988 Act. Any other police officer who is below the rank of D.S.P. can also investigate such offence, inter alia, under the order of a Magistrate of the first class. The proviso to section 17 of the Act states that the order of a Magistrate of the first class is not required for investigation of such offence in the case of a police officer not below the rank of an Inspector of Police, if he is authorised by the State Government in that behalf by general or special order. The Parliament in its wisdom has conferred power on the State 16 Government, as per the first proviso to section 17 of the Act, to empower police officers not below the rank of Inspector of Police, for investigation of the offence under the Act. Thus not only the Deputy Superintendent of Police or a police officer of equivalent rank can investigate the offence but also other police officer below the rank of D.S.P. can investigate the offence under the order of a Magistrate of the first class and even police officer not below the rank of an Inspector of Police can also investigate the offence being authorised by the State Government in that behalf by general or special order even without the order of a Magistrate of the first class.
In the present case, the investigation was first conducted by one S.C. Biswal, Inspector of Vigilance and then by P.W.21 Madan Khatua, Inspector of Vigilance, Rayagada who took charge of investigation on 03.04.1990 and after completion of investigation submitted charge sheet.
The learned counsels for the appellants have not placed any materials before this Court with regard to incompetency of the Investigating Officers to investigate the case. Even P.W.21 has not been asked a single question in that line in the cross examination relating to his incompetency to 17 investigate the case. No such point was taken by the defence before the learned trial Court.
Moreover the following two orders dated 29.07.1970 and 13.10.1977 issued by the Government of Orissa, Home Department and the letter dated 17.04.1993 issued also by the Government of Orissa, Home Department clarifies the position that the Inspectors of Vigilance Department is also empowered to investigate such cases. The aforesaid orders and letter are extracted herein below:-
Government of Orissa Home Department *** ORDER Dated, Bhubaneswar, the 29th July 1970 No.Vig-Law-1/65/3-70-26181/HC: In exercise of the power conferred under the first proviso to sub-section (1) of Section 5-A of the Prevention of Corruption Act, 1947 (Act No.II of 1947) the State Government do hereby authorise Inspectors of Police attached to the Political and Services (Vigilance) Department to investigate, any offence punishable under section 5 of the said Act, other than an offence referred to in clause (e) of sub-section (1) thereof, or any offence punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code (45 of 1860) and to make arrest therefor without a warrant.
By order of the Governor Sd/- B.B. Rath Secretary to Government 18 Government of Orissa Home Department *** ORDER No.46337/HC Dated, Bhubaneswar, the 13th October 1977 In exercise of the powers conferred by the first proviso to sub-section (i) of Section-5A of the Prevention of Corruption Act, 1947 (Act No.2 of 1947) the State Government do hereby authorise Inspectors of Police attached to the Political and Services (Vigilance) Department to investigate into any offence punishable under clause (e) of sub-section (1) of Section 5 of the said Act in addition to the power given under Home Department Order No.26181/HC dt. the 29th January, 1970 and to make arrest therefor without a warrant subject to fulfillment of the condition laid down in the 2nd proviso thereto.
By order of the Governor Sitakanta Mohapatra Secretary to Government Government of Orissa Home Department .....
Memo No.20041/HS Ref. 45092 Dated the Bhubaneswar, 17.04.93 To All Departments of Government 19 Sub:- Authority of Inspectors of Vigilance Department to investigate offences under the Prevention of Corruption Act, 1988 (Act 49 of 1988) The undersigned is directed to say that it has come to the notice of Government that doubts have arisen in the minds of some officers whether the authority vested in Vigilance Inspectors in the orders of the Government of Orissa in the Home Department No.2618/HC dated 29th July, 1970 and No.46337/HC dated the 13th October, 1977 to investigate the cases under the Prevention of Corruption Act, 1947 (2 of 1947) is still in force under the new Prevention of Corruption Act, 1988 (49 of 1988) After careful examination of all aspects of the matter, Government have been pleased to clarify that by virtue of the provision of Sections 6 and 24 of the General Clauses Act, 1897 (10 of 1897) read with section 30 of the Act, 49 of 1988, the aforesaid orders are still in force even after the Prevention of Corruption Act, 1947 is repealed, since the same are not inconsistent with the provisions of Act 49 of 1988.
Sd/-
PRINCIPAL SECRETARY TO GOVERNMENT It is in the lawful exercise of the powers conferred under the first proviso to sub-section (1) of Section 5-A of the 1947 Act that the State Government has issued the aforesaid two orders dated 29.07.1970 and 13.10.1977 empowering the Inspector of Police attached to the Vigilance Department to investigate the cases under the 1947 Act which has also been 20 clarified to be applicable for investigation under the 1988 Act by letter dated 17.04.93.
In case of Ashok Tshering Bhutia -Vrs.- State of Sikkim reported in A.I.R. 2011 S.C. 1363, it is held as follows:-
"8. The issues raised hereinabove are no more res integra. The matter of investigation by an officer not authorised by law has been considered by this Court time and again and it has consistently been held that a defect or irregularity in investigation however serious, has no direct bearing on the competence or procedure relating to cognizance or trial and, therefore, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competence of the Court or procedure relating to cognizance or trial. (Vide H.N. Rishbud and Anr. -Vrs.- State of Delhi:
AIR 1955 SC 196, Munnalal -Vrs.- State of U.P.: AIR 1964 SC 28, Khandu Sonu Dhobi and Anr. -Vrs.- The State of Maharashtra: AIR 1972 SC 958, State of M.P. -Vrs.-
Bhooraji and Ors.: AIR 2001 SC 3372, State of M.P. -Vrs.- Ramesh Chand Sharma:21
(2005) 12 SCC 628 and State of M.P. -Vrs.-
Virender Kumar Tripathi: (2009) 15 SCC
533."
In case of Din Dayal Sharma -Vrs.- The State of U.P. reported in A.I.R. 1959 S.C. 831, it is held that generally a conviction is not vitiated because there has not been strict compliance with the provisions of the Act in the matter of investigation by a police officer.
In case of State of Madhya Pradesh -Vrs.- Shri Rama Singh reported in 2000 (1) Crimes 245, it is held that procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Prevention of Corruption Act. The overall public interest and the social object is required to be kept in mind interpreting various provisions of the Act and decided cases under it.
In view of the aforesaid discussions, the submission made by the learned counsels for the appellants that since the investigation has been conducted by the Inspector of Vigilance, therefore, the investigation is vitiated in the eye of law cannot be accepted. I am of the humble view that the investigation conducted in this case by the two Inspectors of Vigilance is with 22 proper authority and jurisdiction and therefore, the challenge to the competency of the investigating officers is without any merit.
8. Much comments have been made by the learned counsels for the appellants on the spot inspection report Ext.3 and joint verification report Ext.13.
It is the prosecution case that P.W.3 Bairagi Ch. Prusty, the Deputy Conservator of Forest, Vigilance conducted the spot verification as per the direction of D.G., Vigilance on 21.04.1990 and 05.06.1990 as there was complain about large scale bungling of Govt. money by the Forest Department during the rehabilitation of degraded forest work in the Nabarangpur Forest Division in the year 1986-87. P.W.3 has stated that there were three components of such work i.e., regeneration cleaning, graft planting and trench fencing and 385 hectors of such work were spreaded over three villages namely Pujariguda, Jamuguda and Palapur. He has further stated that in respect of the first two components i.e. regeneration cleaning and graft planting, it was difficult to assess the quantum of work done and possibility of the extent of misappropriation. However, P.W.3 has stated that in respect of the third component i.e. trench fencing, out of 11792 meters length of trench to have been charged in the work done vouchers, only 10,831 meters trench could be measured 23 and the balance 961 meters of trench have not been done and the proportionate cost of which was calculated to be Rs.11,765.97 paisa which might have been misappropriated.
P.W.3 has admitted in the cross examination that his verification was done three and half years after execution of the work. He has further admitted that the trenches were partially filled up due to soil erosion during rainy season. He has stated that he completed the verification in two days time and the verification was conducted in the presence of P.W.18, P.W.21 and other officers. He proved the spot inspection report Ext.3.
P.W.18 who was the Range Officer, Vigilance, Berhampur and a member of joint verification party has stated that the joint verification was done on 06.06.1990 and other dates which contradict the evidence of P.W.3. He has proved the joint verification report Ext.13 which indicates that such verification was conducted on three dates i.e. 21.04.1990, 04.06.1990 and 05.06.1990 and the report was prepared on 06.06.1990 in which the officers who were present at the time of physical verification have put their signatures. P.W.18 has categorically stated that for the spot verification, P.W.3 had visited the spot only one day with them. The Investigating Officer (P.W.21) has also stated that the joint verification i.e. physical 24 measurement of trench work was taken on 21.04.1990, 04.06.1990 and 05.06.1990 in three different village site forests. If the evidence of P.Ws.18 and 21 are taken into account then it is clear that P.W.3 was not present on all the three dates of joint verification. The statement made by P.W.18 even falsifies the evidence of P.W.3 that he conducted spot verification on two dates i.e. on 21.04.1990 and 05.06.1990. Ext.3 does not contain the signatures of the officers in whose presence the verification was conducted. Ext.13 does not indicate that P.W.3 was present at the time of physical verification on any day. Ext.13 indicates the presence of P.W.22, the Sub Inspector of Vigilance on the dates of physical verification but P.W.22 has stated that he was present only on 06.06.1990. Ext.13 further reveals the presence of P.W.6 on the dates of physical verification but P.W.6 who was the chainman in the office of D.F.O., Nabarangpur has stated that he accompanied the vigilance staff only on 04.06.1990 and measurement of trench work at Palpur forest was taken by him. His evidence is totally silent regarding the measurement of works in other areas. P.W.18 and P.W.22 stated about the joint verification on 06.06.1990 whereas the evidence of P.W.3 and P.W.21 is silent about any joint verification on that day. Therefore, the evidence of the official witnesses in whose 25 presence joint verification is stated to have been made are discrepant and it does not tally with the joint verification report Ext.13. All these pre-supposes that even though the officers whose names find place in Ext.13 were not present on all the three dates of physical verification but they have put their signatures subsequent to measurement and the dates placed under their signatures are ante-dated. The presence of the Amin at the time of measurement has been stated by P.Ws.3, 18 and
21. Two Amins who as per Ext.13 were stated to be present at the time of joint verification and put their signatures on the verification report were not chosen to be examined for the best reasons known to the prosecution. P.W.21 has specifically stated that Ext.40, the trace map was prepared by the Amins during joint verification. Though the said trace map was exhibited by the prosecution as Ext.40 but the Amins, who had prepared the same have not been examined. In view of the aforesaid infirmities, the spot inspection report (Ext.3) prepared by P.W.3 and joint verification report Ext.13 loses its sanctity.
9. The learned trial Court has failed to appreciate that though the trench works in respect of three village sites forests were executed in the year 1986-87 but the trenches were measured after passing of four consecutive rainy seasons and 26 therefore, the possibility of most part of the trenches being filled up due to soil erosion during those rainy seasons cannot be ruled out and it would be too difficult to ascertain the exact nature of work done by measurement at that stage. Merely because P.W.3 has stated that even after lapse of three and half years, the works done in respect of the trench can be ascertained is not sufficient to believe prosecution case that the trenches have been properly measured. In case of Birabar Sethi -Vrs.- State of Orissa reported in (2012) 53 Orissa Criminal Reports 319, it is held that judicial notice can very well be taken of the fact that the concrete road used by the villagers constructed over four years back, cannot have the same measurement and quality as it had on the date, when it constructed.
10. The prosecution evidence reveals that the Forest Guard enters the names of the labourers in muster roll and at the time of payment to the labourers, their L.T.Is. or signatures as the case may be are taken against their names in the muster roll. The Forester disburses the wages of the labourers in presence of the Forest Guard and makes endorsement to the effect. The Cash Book is maintained by the Range Officer. The prosecution has failed to bring home any materials on record as to who are the fake labourers whose names were indicated in the 27 muster rolls and payment of wages have been made in respect of such labourers. As per the Orissa Forest Code, measurement book is prepared by the Forester and after the Cash Book is placed before the D.F.O., the vouchers can be withheld, disallowed or adjusted, if the D.F.O. finds any inaccuracy in the accounts and suspects fraud. The D.F.O. can also call for explanation from the officer concerned who had disbursed the amount as per the voucher. In the present case, neither the vouchers were withheld nor disallowed which shows that there was no suspicion of fraud or dictation of inaccuracy in the vouchers for which the D.F.O. has allowed the vouchers.
The learned trial Court has observed in its judgment that the prosecution has failed to produce and prove the connected vouchers to gain advantage out of the report of the finger print expert (P.W.15). It is further held that though the voucher no.48 of 9/87 has been marked as Ext.29 and it was sent to P.W.15 but P.W.15 has failed to give any definite opinion on the said document due to certain infirmities. It was further held that the opinion of the finger print expert vide Ext.14 is of no help to the prosecution and the prosecution has not proved any vouchers save and except Exts.29, 30 and 31 and in absence of proof of other vouchers, Ext.14 is inconsequential for the 28 prosecution. It is further held that without proof of other vouchers, the Court cannot jump to the irresistible conclusion that the accused persons forged the L.T.Is. of some labourers for the purpose of misappropriation. When the labourers like P.Ws.7 to 14 have categorically admitted that they have received their wages, the question of false L.T.Is. does not arise at all.
In case of S. Harnam Singh -Vrs.- The State (Delhi Admn.) reported in A.I.R. 1976 S.C. 2140, it is held that in order to bring home an offence under section 477-A of the Indian Penal Code, the prosecution has to establish (1) that at the relevant time, the accused was a clerk, officer or servant; and (2) that acting in that capacity he destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or account which belonged to or is in the possession of his employer or has been received by him for and on behalf of his employer etc. (3) that he did so willfully and with intent to defraud.
In case of S.K. Mansur Alli -Vrs.- State of Orissa reported in 2008 (Supp-II) Orissa Law Reviews 963, it is held that a plane reading of sections 463 and 464 of the Indian Penal Code goes to show that the two essential elements of forgery contemplated under section 463 of the I.P.C. are: (i) the 29 making of a false document or part of it, and (ii) such making should be with such intention as is specified in the section. The accused must have made a false document or a part of such document, in the absence of which he cannot be held guilty under this section. When it is not proved that the accused affixed the false signature or thumb impression, he cannot be held guilty under section 464 of the IPC for which what is essential is that the accused must make document with the intention of making it to be believed that it was signed by or by the authority of someone else, while he knows that it was not so made or authorised by that person.
In view of the finding of the learned trial Court that there is lack of evidence to come to a conclusion regarding forgery of L.T.Is. of the labourers by the appellants for the purpose of misappropriation, the conviction of the appellants under sections 467, 471, 477A/34 of the Indian Penal Code is totally misconceived inasmuch as all these three offences require the element of forgery as defined under section 463 of the Indian Penal Code which is conspicuously absent in the case.
11. The prosecution has failed to establish that the appellants have abused their official position with dishonest intention causing pecuniary benefit to themselves or to any 30 persons. When the offence of forgery is not made out and there is lack of clinching evidence that the appellants dishonestly or fraudulently misappropriated any property entrusted to them or otherwise converted the same for their own use, it cannot be said that they have conducted any criminal misconduct and therefore, the offence punishable under section 5(2) read with section 5(1)(c) of the 1947 Act cannot be presumed to have been established against them.
12. In view of the foregoing discussion, when the prosecution case suffers from serious infirmities, the guilt of the appellants have not been established beyond reasonable doubt and the impugned judgment suffers from perversity, I am constrained to give benefit of doubt to the appellants.
In the result, the appeals are allowed. The impugned judgment and order of conviction and the sentence passed thereunder is set aside and the appellants are acquitted of all the charges. The appellants are on bail by virtue of the orders of this Court. They are discharged from liability of their bail bonds. The personal bonds and the surety bonds stand cancelled.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 10th October 2017/Sisir