Allowed

Managobinda Mohapatra v. State

Orissa HC20 Aug 2020CRA/98/1988

Case brief

AI extract

What is this about?

Appeal against conviction of a clerk of Jaleswar N.A.C. for criminal breach of trust, forgery, falsification of accounts and criminal misconduct over Rs.6,000 sanctioned for constructing sweepers' quarters. The court found entrustment not proved, the finger-print expert's opinion unsafe, and the vouchers not shown to be forged, and acquitted the appellant.

What did the court decide?

Conviction and sentence under sections 409, 467, 471 and 477-A IPC and section 5(1)(c) read with section 5(2) of the 1947 Act set aside; appellant acquitted of all charges.

Managobinda Mohapatra Vs State — Corruption | Orissa HC (2020)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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Criminal Appeal No. 98 Of 1988

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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 ……… -Versus-	Appellant
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:

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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

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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

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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.

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In the case of Bani Singh and others -Vrs.- State

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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

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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.

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In the case of Shridhar Namdeo Lawand -Vrs.-

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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.

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In the case of Christopher Raj -Vrs.K. Vijayakumar reported in (2019)7 Supreme Court Cases

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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.

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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

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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.

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The appellant Managobinda Mohapatra along with coaccused 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’).

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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.

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The State of Odisha preferred Government Appeal

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No.07 of 1989 challenging the order of acquittal of the coaccused Laxmidhar Pani which has been dismissed as infructuous on 11.04.2008 on account of death of the said co-accused.

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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 coaccused 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

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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 coaccused 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.

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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

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misappropriated Rs.6,000/- by manipulating and forging official records.

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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.

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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.

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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.

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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

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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.

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In order to prove its case, the prosecution examined eighteen witnesses.

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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.

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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

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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.

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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.

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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.

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P.W.5 Sanatan Misra was the Tahasildar of Jaleswar

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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.

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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.

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P.W.7 Syama Sundar Dhar did not support the prosecution case for which he was declared hostile.

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P.W.8 Nrusingha Charan Sahu was the Chairman of

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Jaleswar N.A.C. and he stated that the sweepers of Jaleswar N.A.C. were having no houses.

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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.

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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.

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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.

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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.

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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.

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P.W.14 Duryodhan Barik was the Finger Print Expert and he proved his reports after examining some documents.

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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.

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P.W.16 Himanshu Sekhar Nandy was the Chairman of

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Jaleswar N.A.C. from 1979 to 1981 who conducted a detailed enquiry on the direction of Examiner of Local Funds and also

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accorded sanction for prosecuting the appellant vide sanction order Ext.71.

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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.

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P.W.18 Bipin Bihari Mohapatra was the Vigilance Inspector who investigated the case and submitted charge sheet.

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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 coaccused 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.

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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.

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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 coaccused 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.

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Mr. Deba Prasad Das, learned Amicus Curiae contended that there are no materials on record to show that the

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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

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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

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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

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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.

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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

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Manohardas Desai -Vrs.- The State of Bombay reported in

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A.I.R. 1960 Supreme Court 889 .

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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.

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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.

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‘Criminal breach of trust’ has been defined under section 405 of the Indian Penal Code. To constitute the offence

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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.

¶108

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.

¶109

In the case of Jaikrishnadas Manohardas Desai

¶110

(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

¶111

¶112

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.

¶113

(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.

¶114

(ii) The next aspect, the prosecution is required to prove is that the petitioner was entrusted with a sum of

¶115

¶116

Rs.6,000/- (rupees six thousand) or he had any dominion over such money in the capacity of a Clerk.

¶117

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.

¶118

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

¶119

¶120

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.

¶121

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

¶122

¶123

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.

¶124

(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

¶125

¶126

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.

¶127

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,

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¶129

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 -

¶130

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

¶131

Nadu : (2014)13 Supreme Court Cases 90 ).

¶132

¶133

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 crossexamined 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

¶134

¶135

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.

¶136

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.

¶137

(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.

¶138

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

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¶140

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.

¶141

In the case of Bishwanath Prasad and Ors. -Vrs.Dwarka Prasad and Ors. reported in (1974)1 Supreme

¶142

Court Cases 78 , it is held as follows:-

¶143

“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

¶144

¶145

Singh -Vrs.- Bhagirathi : A.I.R. 1966 S.C. 405 . This Court disposed of a similar argument with the following observations:

¶146

“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.”

¶147

In the case of Bhagwat Sharan (Dead thr. Lrs.)

¶148

-Vrs.- Purushottam reported in 2020 SCC OnLine SC 348 , it

¶149

¶150

is held that an admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein.

¶151

P.W.11 and P.W.12 have not stated to have made

¶152

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.

¶153

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

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¶155

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.

¶156

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.

¶157

(v) Co-accused Laxmidhar Pani has been acquitted

¶158

of all the charges and there is no material that the appellant was

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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.

¶161

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.

¶162

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

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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.

¶165

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.

¶166

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.

¶167

‘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

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(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.

¶170

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 coaccused Satyanarayan Chand. Therefore, when the co-accused

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¶172

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.

¶173

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

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¶175

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’.

¶176

(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.

¶177

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.

¶178

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

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¶180

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.

¶181

(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.

¶182

¶183

(iii) So far as the L.T.I. of one of the sweepers on

¶184

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.

¶185

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.

¶186

¶187

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.

¶188

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.

¶189

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.

¶190

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

¶191

¶192

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.

¶193

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.

¶194

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

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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.

¶197

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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¶199

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.

¶200

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.

¶201

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.

¶202

Section 5(2) of 1947 Act prescribes punishment for a public servant who has committed ‘criminal misconduct’. So far

¶203

¶204

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:

¶205

(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

¶206

(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.

¶207

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

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¶209

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.

¶210

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.

¶211

Accordingly, the Criminal Appeal is allowed.

¶212

Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information.

¶213

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/-

¶214

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(rupees ten thousand) in toto which would be paid to the learned Amicus Curiae immediately.

¶216

S.K. Sahoo, J.

¶217

Orissa High Court, Cuttack The 20^th August 2020/Pravakar/Sisir/RKM

Managobinda Mohapatra v. State

Case brief

What is this about?

What did the court decide?

Managobinda Mohapatra v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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