Prafulla Kumar Panda vs The State

N.K. Das, J.—The Appellant has been convicted u/s 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 409, Indian Penal Code and has been sentenced to undergo R. I. for one year on each count, both the sentences to run concurrently.

Prosecution case is that the Appellant was the Nazir of the Tahasil Office, Bargarh. While acting as such, he received a cheque bearing No. 23725 dated 16-5-1967 (Ext. 6) for Rs. 400/- along with a forwarding letter (Ext. 4/1) on behalf of the Tahasildar, Bargarh, issued by the Bargarh Co-operative Land Mortgage Bank Ltd. towards satisfaction of a Tacabi loan taken by one Narayan Meher from the Tahasil office in the year 1966. It is alleged that the Appellant got it encashed through a peon (P.W. 6) on 21-8-1967 and misappropriated the whole amount. When the misappropriation came to light, the Appellant deposited the fun amount on 29-12-1970 to escape the liability. The Vigilance Inspector, after due investigation, lodged F. I. R. and investigation was taken up on the said F. I. R. After investigation, charge-sheet was submitted.

The Appellant denied having got the cheque encashed through P.W. 6 or having deposited the cheque amount on 29-12 1970 as alleged by the prosecution. His case is that soon after receipt of the cheque in question with the forwarding letter he handed over the same to the Head Clerk for necessary action and he does not know as to what happened thereafter.

The learned Special Judge has held that the evidence of P.W. 6 has been supported by certain circumstances namely, that the Appellant did not mention receipt of the cheque in the register of cheques; the endorsement on the back of the cheque is in the hand of the Appellant the plea of the Appellant that he handed over the cheque to the Head Clerk is not acceptable and the cheque was discovered from the Loan Section of the Tahsil Office and the receipt register to that effect having not been produced a reasonable inference is to be drawn that it was the Appellant who had kept the cheque with him. The learned trial Judge has also held that the fact that Appellant had deposited the amount in the year 1970 when the misappropriation was detected from the audit report is also another glaring factor to prove the guilt of the Appellant.

There is no dispute about the fact that the cheque for Rs. 400/- (Ext. 6) was issued by the Bargarh Co-operative Land Mortgage Bank Ltd. in favour of the Tahasildar. This cheque related to a Tacabi loan granted to P.W. 1. This cheque was handed over to the Appellant along with a forwarding letter. Prosecution case is that the Appellant kept this cheque with him and got it encashed on 21-8-1967 by P.W. 6 Thereafter, P.W. 6 handed over the amount to the Appellant but the Appellant did not deposit it till 29-12-1970. The cheque Ext. 6 bears an endorsementn the hand of the Appellant "received payment". This endorsement has admittedly been signed by the Tahasildar on 31-7-1967. It contains two signatures of P.W. 6 who encashed the cheque one on the side which has been attested by the Tahasildar on 31-7-1967 and another at the bottom. P.W. 6 also admits that those signatures are in his hand; one was given by him when the same was attested by the Tahasildar and the other was given by him in the Bank while encashing the cheque. Curiously enough under both the signatures the date has been written as 21-8-1967. It is not the case of the prosecution that the Appellant has put those dates. P.W. 6 says that the date found under his signature at the bottom on the back of the cheque which means at the time of encashment of the cheque is in his hand. He does not say anything about the date found under his signature which has been attested by the Tahasildar. The Tahasildar (P.W. 7) says that he signed and attested the signature of P.W. 6 and P.W. 6 had also signed in his presence and all this was done on 31-7-1967. P.W. 6 states that after he put his signature, this cheque was handed over to him for encashment and he put another signature at the Bank. The learned trial Court has held that it is not at all improbable that the Appellant after getting the endorsement of authorisation signed by P.W. 7 forget to hand over the cheque to P.W. 6 for encashment and by the date he handed over the cheque for encashment, the Bank people finding that there was no date of presentation, might have insisted on the date of presentation being noted and that is how a different date appears below the signature of P.W. 6 in Ext. 6. In view of the discussions about the statements of P.WS. 6 and 7, I hold that this finding of the learned trial Court is against materials on record and he has made only certain surmises and has taken it as a circumstance to corroborate the evidence of P.W. 6. But this is not at all a fact. On the other hand, the evidence of P.W. 6 is just the opposite.

From the evidence of P.W. 10. it appears that two registers were all along being maintained in the Tahasil Office, one for receipt of money orders and the other for receipt of cheques. P.W. 8, the successor of the Appellant says that only one register was being mentioned. The learned trial Court has held that the auditor has most probably made confused statements. 1 here is nothing on record to disbelieve the evidence of the auditor. After going through the evidence of P.W. 8, I find that he has tried to suppress many materials. From the records, it appears that charges have been framed against him for interpretation of records and he has been placed under suspension - vide Exts. A and B. After going through the evidence of the auditor, I find that there is nothing to disbelieve his statement that two registers were, in fact, being maintainted. Much reliance has been placed on Ext. 19 which the auditor has said is not the register for receipt of cheques. Therefore, production of Ext. 19 is of no help to the prosecution. In these circumstances. I hold that the finding of the learned trial Court relying on Ext. 19 is nor sustainable. As it appears, the real register has not been produced in Court and, as such adverse inference is to be drawn.

The other circumstance relied on by the learned trial Court is that the endorsement "received cheque" (Ext. 4/1) clearly shows that the Appellant had received the cheque. This fact is not disputed. On the other hand, the plea of the Appellant is that he handed over the cheque to the Head Clerk. From the testimony of P.W. 7, the Tahasildar, it appears that the Head Clerk of the Tahasil Office was supposed to exercise all the powers of Office Superintendent as shown in the Records Manual, Nizarat Manual and Treasury Code. The Head Clerk of the Tahasil Office was receiving daily Daks. In the absence of the Head Clerk, if anybody else of the office used to receive any Dak, he used to place the same before the Head Clerk for his perusal.

According to rules, all Daks received are to be placed before the Tahasildar every day. So long P.W. 7 was the Tahasildar, the said rule was being followed. When Daks were being placed before him, he used to mark the same to the assistants who were to deal with the matters along with necessary directions. In the absence of the Head Clerk if anybody else in the office used to receive any important letter with any important enclosure attached, it was his duty to note in the letter that he received such an enclosure. There was a clerk in charge of receipt and despatch of correspondence known as Diarist who was maintaining one register for letters received and another for letters issued. The Head Clerk, when he received directions on the letters from the Tahasildar, used to send those letters to the Diarist, who in his turn used to hand them over to the concerned Clerks and obtain their signatures against the corresponding entries in the diary.

In view of this procedure as stated by P.W. 7, it is quite natural that after the Appellant received the cheque along with the forwarding letter, it was his duty to initial it and send it to the Head Clerk, who in his turn had to send it to the Tahasildar. The Tahasildar who received it had to send it again to the Head Clerk. So, in any way the Head Clerk is the person who used to receive letters and then send to the Diarist who had to make necessary entries in the concerned register and it was the duty of the Diarist to send the letters to the concerned sections. The plea of the Appellant is that after he received the cheque he sent the same to the Head Clerk and it appears that the procedure as stated by P.W. 7 was followed. But the learned trial Court has held that as there is no entry in the register, it should be deemed that the Appellant retained the cheque and the forwarding letter with him. Neither the Head Clerk nor the Diarist has been examined. The receipt register has also not been produced. In such circumstances, the finding of the trial Court, as stated above, is completely against the materials on record and his inference is absolutely wrong.

In addition to the above circumstances, it would also appear, as admitted by the prosecution witnesses, that in the audit report responsibility of shortage of money was fixed on the Additional Tahasildar. The successor of the Appellant has also been suspended and charges have been framed against him. Ext. 19 is the register in which certain interpolations have been found. There is no evidence in whose hand these interpolations have been made. There is also no evidence that these interpolations are in the hand of the Appellant. Therefore, the interpolations found in Ext. 19 are of no help to the prosecution. Many documents are said to have been proved by P.W. 6, but in the beginning of his statement in chief he has stated that he does not know reading or writing English. The documents proved through him are all in English. After going through the evidence of the prosecution witnesses relating to those documents, it transpires that some mischief might have been done somewhere in the Tahasil Office, but there is no evidence to implicate the Appellant with the same. From the prosecution evidence it also transpires that in the audit report responsibility has not been fixed on the Appellant, but on the Tahasildar who was 10 charge of the transaction.

Prosecution has banked on the deposit said to have been made on 29-12-1970 by the Appellant. This has been considered to be a circumstance to support the prosecution story that as the Appellant deposited the money after misappropriation was detected, it should be one of the important circumstances to show that he had misappropriated the money. The discussions made above would show that prosecution has failed to establish that money was really handed over to the Appellant after encashment.

It is in prosecution evidence that an order was necessary directing the Nazir to receive any money. No such order has been produced in this case. P.W. 6 is the peon of the office who is sale witness to state in this respect. The learned trial Court has held that his evidence is not to be accepted fully without corrobration. He has, therefore, discussed about certain circumstances said to have corroborated the testimony of P.W. 6. I have already held that the findings of the trial Court on those circumstances are absolutely based on no materials on record and are misconceived. On the analysis of evidence, both oral and documentary, I hold that prosecution has failed to establish that Appellant was entrusted with the amount of Rs. 400/- said to have been encashed by P.W. 6.

The learned Additional Standing Counsel contends that consideration of the evidence of P.W. 6 along with Exts. 12 to 18 would show that the Appellant made an indorsement in the relevant registers that a sum of Rs. 425/- was deposited on 31-5-1968. Reliance has been placed on Ext. 12 a chalan. This chalan is not in the hand of the Appellant. On the other hand, it appears to be in the hand of P.W. 8, a clerk of the Loan Section. It would thus appear that the chalan was issued from the Loan Section, money was deposited and after chalan was received back in the office the Appellant made entries in the necessary registers which have been signed by the Tahasildar. This would not show that the very same amount was deliberately kept by the Appellant and he had misappropriated the same. Prosecution treats it as a circumstance against the Appellant. But circumstantial evidence would be such that it would not give scope to any other hypothesis excepting the guilt of the accused and the entire chain of incidents should also be established. These circumstances do not show that prosecution has established entrustment of money to the Appellant. Admittedly, the Appellant was serving in the office of the R. T. A., Sambalpur when the alleged misappropriation is said to have been detected. The cheque was encashed on 21-8-1967 and audit was held by 1970. It is stated that on 29-12-1970 the Appellant came from Sambalpur being called by the Tahasildar and deposited the amount. There is no evidence on record to show that the Appellant himself deposited the amount. The concerned receipt Ext. 20 appears to be in the hand of P.W. 8. Though the prosecution story is that the Appellant was called by a letter sent to the R. T. A. Office, the said letter has not been produced. The learned trial Court has observed that Bargarh being only about thirty-five miles away from Sambalpur, it was possible for the Appellant to come on that very day after finishing official work and deposited the money. The Appellant has produced Ext. C series to show that he was working 10 the office of the R. T. A., Sambalpur and contends that he never came to Bargarh on that day. After going through the evidence of the prosecution witnesses, I find that prosecution has failed to show that Appellant, in fact, came on that date to Bargarh to deposit the money. Ext. 20 shows that money was deposited on a receipt fined up by P.W. 8. The accused is not to establish his plea beyond all reasonable doubts as in the case of prosecution. The plea of the accused is to base on reasonable probabilities. On the other hand, there may be preponderance of probabilities. In this case, documents have been produced from the office of the R. T. A. to show that the accused was in fact, present on that date at Sambalpur. There is no evidence worthy of credit to show that the Appellant came on that date to Bargarh. Thus, I hold that though it appears that the amount has been deposited on 29-12-1970, prosecution has not been able to establish that Appellant himself had deposited the amount. It is quite natural that when shortage was found in the office on audit, the said shortage has been made up. The audit party has also not fixed responsibility on the Appellant in this respect, but on other officers.

Mr. Misra, the learned Counsel for the Appellant, contends that even if it is assumed that the Appellant, In fact, deposited the amount in the Bargarh Treasury on 29-12-1970. this subsequent conduct cannot be taken into consideration for proving the guilt of the Appellant. Reliance has been placed on the decision reported in Anant Chintaman Lagu Vs. The State of Bombay, , wherein it has been held:

A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material.

Judging the facts on the aforesaid dictum of the Supreme Court and as has been analysed above by me, it would appear that this subsequent piece of conduct cannot be held to be incriminatory because it does not rest on the hypothesis destroying the presumption of innocence that is was the Appellant alone who could have misappropriated the money. Evidence on the other hand shows that prosecution has failed to establish entrustment of money to the Appellant.

A Division Bench of the Madras High Court In re Marudai AIR 1960 Mad. 370, in a case where the accused was reluctant to proceed to the spot of occurrence to see if the body was that of the missing person when he was called after discovery, has held:

When rumours are afloat connecting a man with a grave and brutal murder, a quite innocent man may behave very foolishly, guite like a guilty one. He may attempt to fabricate some evidence, in order to see that he is not made to undergo the torture and suspense of a trial for murder. Such apparently guilty-conscious conduct should not be heavily weighed against an accused, particularly where the identification itself is a matter of doubt.

A Division Bench of this Court in Paramhansa Jadab and Another Vs. The State, , had to consider a case where an accused had absconded as he was suspected of commission of the crime and whether such conduct could be a consideration for establishing the guilt. It was held that even innocent persons may lose their balance, absfcond and try to conceal their identities under a false name, after suspIcion has failed on them and no importance is to be attached to his subsequent conduct.

The case of AIR 1930 324 (Oudh) , was one u/s 409, Indian Penal Code where a statement was made by the accused and the question arose for consideration whether the subsequent conduct of the accused should be a material factor for proving his guilt and it was held:

The simple answer to this method of reasoning is that different persons are differently constituted and that some accused even though innocent deliberately absecond rather than face the order of a criminal trial and that some other innocent accused do equally foolish things such as make false ad mission of guilt or payoff the amount said to have been stolen or embezzled in the vain hope that they may escape a criminal prosecution or get off with a light punishment. Such subsequent conduct dispenses with the positive proof of the guilt of the accused, the burden of which lies upon the prosecution. When once the Crown has established, the guilt of the accused by the evidence of prosecution witnesses then such subsequent conduct may be utilised for furnishing further proof of the correctness of the conclusion; as to guilt of the accused drawn from the evidence of the prosecution witnesses by itself, however, it can furnish no legitimate proof of the guilt of the accused.

It is well settled that the subsequent conduct may support the conclusion arrived at from the evidence adduced by the prosecution establishing the guilt of the accused. But when the prosecution fails to establish the guilt, subsequent conduct cannot be utilised to establish the guilt of the accused. In this case, as I have already held that prosecution has failed to establish the guilt of the accused, even it is assumed that the Appellant had deposited the money on 29-12-1970, such a fact will not help the prosecution in proof of the guilt. A vain attempt has been made by the prosecution in the testimony of a witness to show that the Appellant deposited the money as directed by the Tahasildar. Even if it is assumed that he deposited the money under the direction of the Tahasildar, it does not amount to an admission of misappropriation. On the aforesaid analysis, I hold that prosecution has failed to establish the charges levelled against the Appellant.

In the result, the appeal is allowed. The Appellant is acquitted of the charges levelled against him and his conviction and sentences passed thereunder are set aside and he is set at liberty.

Appeal allowed.