Purna Chandra Behera vs State of Orissa

J. Das, J.—This appeal arises out of the conviction and sentence dated 27-4-1983 passed by Sri R.H. Panda, Special Judge (Vigilance), Sambalpur, in T.R. Case No. 10 (a) of 1981 convicting the Appellant u/s 5(1) (c) read with Section 5(2) of the Prevention of Corruption Act and u/s 409, I.P.C. and sentencing him to undergo R.I. for one year and to pay fine of Rs. 1,000/-, in default, to R.L for three months u/s 5(1)(c) read with Section 5(2) of the P.C. Act and awarding no separate sentence u/s 409, I.P.C.

The facts briefly stated are, that one J. Dhar was the Sub-Assistant Engineer in charge of the store in the R E. Sub-Division, Sambalpur North, on His transfer to Pullahara, J. Dhar made over charge of the store to the accused Purna Chandra Behera on 22-10-1975 vide charge Report (Ext. 3). The charge report reveal shortage of four items of building materials. The charge list has been marked as Ext. 18/2. J. Dhar was called upon to explain the shortage vide Ext. 4 dated 27-5-1976. Vide Ext. 5 dated 7th August, 1976 J. Dhar gave a reply that due to unavoidable circumstances his supplier could not supply the materials shown to be in shortage and he also requested for extension of time. Vide Ext. 6 dated 8-6-1976, the Executive Engineer wrote to the Assistant Engineer, R.E. Sub-Division that Sri Dhar was willing to make good the shortage of stock materials and the materials to be received when supplied with intimation to his Executive Engineer) office.

The prosecution alleges that vide the charge list marked Ext. 18/2 dt. 1-8-1976, J. Dhar gave physical delivery of 200 bags of cement, 2 mt. 10 mm. diamters. rod, 76 Kgs. of binding wire and 284 numbers of 4" size but thinges. These items are said to be items found to be in shortage from the store and these items are the subject matter of the prosecution case and also these items are the subject matters of Exts. 4, 5 and 6. It is alleged that on the basis of Ext. 18/2 the articles mentioned above were physically delivered to accused Puma Chandra Behera, who received those articles and did not account for the same F.I.R. was lodged and the case was instituted in the Vigilance, P.S. and after obtaining sanction from the appointing authority prosecution was lodged and the Appellant stood his trial and stands convicted and sentenced as above.

The plea of the accused is that be bas signed Ext. 18/2 in good faith and no physical delivery of the articles mentioned in ext. 18/2 were given to him. The accused had denied to have been entrusted with the articles in question or to have misappropriated the same.

The trial Court disbelieved the plea of the accused and believed the prosecution and held that the accused was entrusted with the building materials in question and dishonestly misappropriated the same.

The prosecution bas examined six witnesses, out of them N.K. Patnaik (P.W. 2) who was the Assistant Engineer at the relevant time and P.C. Rout (P.W. 3) who was the Work Sarkar at the relevant time are the most material witnesses. Other witnesses are formal.

Mr. Panigrahi the learned Counsel appearing for the Appellant argued and submitted that in view of Exts. 4, 5 and 6 the handing over charge under Ext. 18}2 must be held to be a paper transaction and the explanation of the accused that he signed the same in good faith must be held to be true. He also argued that there is, no evidence of entrustment and the only person i.e. J. Dhar, who could have authentically stated regarding the disbursement has not been examined and hence adverse inference should be, drawn against the prosecution.

I perused Exts. 4, 5 and 6. Ext. 4 is the letter No. 2696 dated 22-6-1976 written by the Executive Engineer to J. Dhar appointing therein regarding the shortage of the articles which are the subject matter of this case.

Ext. 5 is the letter of J. Dhar dated 7-8-1976 to the Executive Engineer. R.E. Division with reference to Ext. 4 and J. Dhar has stated in Ext. 5 that extension of time be given to him till the 1st week of September to return the balance materials, as due to unavoidable circumstances his supplier failed to supply the materials in time and he is taking necessary steps to procure the materials for return. Vide Ext. 6 dated 8-6-1976 the Executive Engineer directed the Assistant Engineer. R.E. Sub-Division, Sambalpur that the accused was willing to supply the shortage of the stock materials and he (Assistant Engineer) R.E. Sub-Division should receive those materials when produced.

Thus on 7-8-1976 J. Dhar had admitted that the materials in question were really found in shortage and he also owned the responsibility to procure those materials from the suppliers and produce the same. Ext. 5 is important from another angle and it is that the materials which were found to be in shortage were not actually brought to the store from the supplier and this state continued till 7-8-1976 and thereafter. In these circumstances, the explanation of the accused that he signed the second charge list marked Ext. 18/2 dated 1-8-1976 in good faith and that actually not physical delivery of possession of the materials in question were given to him must be held to be true and this negates the prosecution allegation in total than on J. Dhar has admitted that he had not procured the materials from supplier, by no stretch of imagination it can be believed that J. Dhar gave physical delivery of those articles to the accused on, 1-8-1976.

I perused the evidence of P.Ws. 2 and 3 and also the relevant paragraphs of the learned special Judge and I find that the learned Special Judge has not appreciated the evidence in their proper perspectives. It is not established principle of law that in order to establish the charge u/s 5(1)(c) read with Section 5(2), P.C. Act or Section 409, I.P.C. the prosecution is bound to prove that the accused was entrusted with materials in question or money etc. and that he dishonestly misappropriated the same. Unless these two elements are proved beyond all reasonable doubts the charge can pot be established in accordance with the law.

In this case it is found that P.Ws. 2 and 3 were most material witnesses and they are in a position to say as to whether there was physical delivery of the materials given by J. Dhar to the accused-Appellant Puma Chandra Behera. P.Ws. 2 and 3 have denied their knowledge regarding the delivery of the materials to the accused. Thus, there is no proof of entrustment. J. Dhar is another person who is a most competent witness to state that he gave the charge of the materials in question to the accused-Appellant. Although the prosecution wanted to examine J. Dhar, he was withheld at the last stage for reasons best known to the prosecution. In any case there is no reason for withholding the examination of J. Dhar. Hence, adverse inference must be drawn against the prosecution as the presumption is available that J. Dhar on being examined might not have supported the prosecution and hence the prosecution withheld him from examination. This is fatal to the prosecution.

When there is no convincing and reliable evidence of entrustment of the materials In question to the accused, there is no scope for any dishonest misappropriation and hence the prosecution bas failed to establish its case beyond all reasonable doubts.

Ext. 1 is the sanction order. In paras 1, 2 and 3 facts have been written. In Para-4 it has been made to appear, that the Chief Engineer, who is the appointing authority has written.

...after fully and carefully examining the materials before me in regard to'' the said allegation and the circumstances of the case....

In Ext. 1 the word Drafts occurring at the top as Draft Sanction orders has been scored through by ink, so as to make it clear that it is the sanction order in original and it is not the draft for approval. The Chief Engineer who has been examined as p. w. 1 has stated in his examination-in-chief that on this materials placed before him be was satisfied that, the accused committed the offence. He has not stated as to what materials were actually placed before him. The sanction order has also no reference to any other documents or materials having been placed before the Chief Engineer at the time of according sanction.

In cross-examination P.W. 1 has stated.

...I am not in a position to recollect the materials that was placed before me before I accorded the sanction. The sanction order does not bear the date or the official seal. I do not remember the date when I issued the sanction order. I have not initialled the scoring the word ''draft'' appearing at the top of the'' sanction order. Generally I initial whenever I myself score through any writing....

The above statement of P.W. 1 goes to show that it is doubtful, if P.W. 1 had actually applied his mind to the facts of the case before according the sanction. The authenticity and genuineness of the sanction order is also quite doubtful as there is no official seal or date in the sanction order. Added to it the word "Draft" appearing at the top of the sanction order has been scored through and P.W. 1 has given the clear statement that he has not scored through the draft as he initialled whenever he scored through a word. In such circumstances, it may just be possible that the draft sanction order was put up for approval when that was signed someone has scored through the word "Draft" and the order has been sent for being produced in the Court. In any case the statement of P.W. 1 together with Ext. 1 clearly goes to show that the prosecution has failed to prove that the sanctioning authority has applied his mind to the materials appearing against the accused and after intelligent appreciation of the facts has accorded the sanction. All the circumstances point to the fact that the signing of the sanction order is only mechanical and this does not serve the purpose envisaged by law. According to the established principles enunciated by various judicial authorities including the highest Court of the land i.e. the Supreme Court. the sanction order is vitiated in the circumstances of the case and as a result of that the entire trial is also vitiated. On this ground also the accused- Appellant is entitled to an acquittal.

In the result, the appeal is allowed and the conviction and sentence passed against the Appellant are set aside.

Appeal allowed.