The State vs Tribikram Bohidar

S. Acharya, J.—This is an appeal u/s 417, Code of Criminal Procedure by the State against an order of acquittal passed Sundargarh acquitting the accused-Respondent herein of all the charges framed against him u/s 218, 409, 468 and 477-A Indian Penal Code.

The prosecution case in short is that the accused-Respondent was the Head Clerk-cum-Accountant in The Office of the B.D.O. at Jharsuguda. On 10.6.1963, Dayanidhi Thakur (p.w. 1) paid Rs. 254. 48 paise to The Respondent towards the installments due on p.w. 1 for the loan taken by him from the said department, whereupon The Respondent in his own band and signature granted the receipt Ext. 3 dated 10.6.1963 from Book No. 412 for the said amount. p.w. 1 later on The occasion of his paying of the entire loan showed and handed over the said receipt Ext. 3 to the B.D.O. of the said Office (p.w. 2) as desired by him. The B.D.O. (p.w. 2) on verification of Ext. 3 with other records in his office found that the amount mentioned to have been received by the said receipt was not accounted for in the loan ledger or in any of The Books of account maintained in his Office. On verification of the said receipt with its counterfoil Ext. 6 he found that by Ext. 6 a sum of Rs. 110/- only was deposited towards refund of advance taken by the accused on 11.6.1963 for election expenses. The B.D.O. thereafter reported the matter to the Officer-in-charge, Jharsuguda Police Station as per report Ext. 7, and the police instituted the case against the Respondent in which he has been acquitted.

The Respondent admitted the entrustment of the aforesaid amount of Re. 254. 48 p. by p.w. 1 and also the genuineness of the receipt Ext. 3 granted by him to p.w. 1 in token of the aforesaid payment. He however alleged that by the date the aforesaid amount was accepted, he was not actually the Cashier of the department as another clerk was functioning then as the Cashier, and on receipt of the aforesaid amount from p.w. 1 under Ex. 3, he paid that money either to the B.D.O. or the Cashier according to the practice prevailing then in that Office. He further stated that, by June 1963 he was under orders of transfer and for that he was busy in ''squaring up accounts for making over charge on 1-7-1963''. During The period when the said money was received by him he was also under heavy pressure of work and was not in a fit mental state as he had to incur some loan from his G.P.F. account to make up The shortage of money which The previous B.D.Os. had taken from him from the departmental cash. He, however, challenged that Ext. 6 was not the counterfoil receipt of Ext. 3.

Mr. Patnaik, the learned Standing Counsel for the state at the outset submitted that he will not press this appeal with regard to the charges under Sections 218 and 468 Indian Penal Code framed against the Respondent in the trial Court. It was urged that the Court below acquitted the Respondent of the charges under Sections 409 and 477-A, Indian Penal Code absolutely on irrelevant discussions and considerations, and without adverting to the important and relevant considerations, as repeatedly'' laid down by authoritative pronouncements. On a perusal of the impugned judgment I find that the above comment against the impugned judgment is justified and correct, specially view of the defence plea in this case.

I will at first take up the charge u/s 409, Indian Penal Code framed against the Respondent. The Respondent has consistently admitted that p.w. 1 banded over to him Rs. 254. 48 p. towards the instalment dues for the loan taken by p.w. 1 from the department, and that he (the Respondent), in acknowledgment of the said amount, granted him (p.w. 1) the receipt Ext 3. p.w. 2, the B.D.O. testified to the facts that the Respondent was the Head Clerk-cum-Accountant in the said Office till 1963. The Respondent also in his statement u/s 342 specifically admitted that be was the Head Clerk-cum-Accountant in the aid B.D.O''s Office on 10-6-163 and on that date p.w. 1 paid to him Rs. 254. 48 p. towards his loan dues for which he (The resplendent) granted The receipt Ext. 3 to p.w. 1. Therefore on The above evidence and Respondent''s admission there is no controversy that the Respondent accepted from p.w. 1 the said amount towards adjustment of the loan dues of the department, outstanding against p.w. 1, and granted the said receipt Ext. 3, in acknowledgment of payment of the said amount. The Respondent, being the Head Clerk-cum-Accountant of The Department and having received the said amount from p.w. 1, was duty bound to account for the said amount. Once such entrustment of property is proved it is for the Respondent to render suitable accounts and to explain as to where and how the aforesaid amount was deposited and if not, as to how the same was properly and legally appropriated and/or disbursed by him in course of his official duty. Once The prosecution is able to prove that the accused received certain property and he was under an obligation to account for the same, and he has not done so, the onus shifts to the accused to establish that he discharged his obligation by rendering proper accounts for the same amount. It must however been in view that the burden for establishing such a fact by the accused is as in Civil proceedings, namely preponderance of probability constituting sufficient ground for a verdict in his favour. It is to be Been if the defence version of the case is reasonably probable-see State of Orissa v. Rajkishore Singh Samant and three Ors. 32 C.L.T. 41 at p. 47. The observations on this topic by their Lordships of the Supreme Court in Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay, , may profitably quoted below:

... to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation 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 "on version which may not ordinarily be 80 matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, ay 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 be 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.

In he present case though the Respondent admitted to have received the aforesaid amount as stated above, he has not come out with 80 straightforward case as to what Actually he did with the aforesaid amount. The defence taken by him that he was not the cashier on the date when the said money-was received, and that he paid that amount either to the B. D. O. or to the Cashier according to The practice prevalent in the Office at that time, is a vague, uncertain and unconvincing plea and by any standard it cannot be said that the Respondent has been able to give some acceptable explanation for the aforesaid amount received by him p.w. 2, the B.D.O. states that the Respondent was receiving cash during his tenure as Head Clerk-cum-Accountant of the office. The payment under Ext. 3 has not been accounted for in the Loan Ledger or in any other books of accounts which The Respondent in his capacity as the Head Clerk-cum. Accountant of the office, maintained in The said office. It is difficult to believe that The Respondent after receiving the said amount from p.w. 1 handed over the said amount either to the B.D.O. or to the Cashier without entering the said amount in any of the account books maintained by him, and without getting their signature in any of the account books in acknowledgment of the said alleged payment made by the Respondent. This plea of payment to the B.D.O. or even of the alleged practice is not put to the B.D.O. (p.w. 2) even by way of a suggestion. No such suggestion was made to p.w. 3, who testified to the fact that he was the Cashier of the department at the relevant time. There is not even an inkling in the evidence on record, either oral or documentary, on which it can at least be doubted that the Respondent''s plea of payment may be true. Merely on the above uncertain and unconvincing plea, which does not get any support from any source, the Respondent cannot be said to have discharged the burden which falls squarely on him because of the evidence on record and the plea taken by the Respondent in this case-, as stated above.

The Assistant Sessions Judge in acquitting the Respondent of the above charge approached the matter entirely from a wrong angle of vision. He did not appreciate the legal effect of the above admission made by the Respondent himself. On proceeding at first to examine if Ext. 6 was Actually the counterfoil of Ext. 3 The learned Judge arrived at the finding. That Ext. 3 could not be the original receipt for Ext. 6 which finding in my opinion is not based on any convincing and/or cogent reasoning. On the said finding The Court below proceeded very much on the discussion that some B.D.Os previously had taken some money from the accused on different dates by several advance slips as per Exts. A to C, for which the accused was made to pay some money from his own funds. In discussing the above topic the Court on its own appreciation of the evidence on record and its own reasonings, which do not sound very convincing, arrived at the finding that the accounts in the B.D.O''s Office were not kept properly and the affairs in the said Office were not in a happy state. On these findings the Court concluded that:

The accused therefore has justification to state that he was very much mentally depressed and was not within his proper control and this may be the reason for his not accounting for the amount entrusted to him by Sri Thakur.

The aforesaid conclusion is not at all convincing and does not, on the evidence on record and the admissions of the Respondent, exonerate him from The burden of accounting for the aforesaid amount. The above factors taken by the Court below cannot be said to afford any cogent reasons and/or grounds for the failure of the Respondent to account for the above amount, or to render a plausible explanation for his failure to account for the same.

Apart from the above The important ingredient of dishonest misappropriation for an Office u/s 409, Indian Penal Code becomes palpable in this case as the Respondent having accepted the amount of Rs. 254.48 p from p.w. 1 and granting him the receipt Ext. 3 for the aforesaid mount in his own band, falsified its counterfoil Ext. 6 by mentioning therein in his own hand an amount of Rs. 110/. only deposited towards the advance money which he had taken from the department for election expenses. Ext. 6 is written on the counterfoil sheet of the receipt form on which Ext. 3 is granted to p.w. 1 by the accused. Ext. 3 is written on a sheet from the Receipt Book No. 412 of 1963.64, and Ext. 6 is also from the same book. Both the sheets bear exactly the same numbers. p.w. 2 stated that the accused was the custodian of the receipt Books in the Office. Ext. 3 is admittedly in the'' Respondent''s own hand, and he, without stating that the writing and signature in Ext. 6 are not his own, merely stated that Ext. 6, does not appear to be a counterfoil of receipt Ext. 3. p.w. 2 stated that the writing and signature in Ext. 6 are in the handwriting of the, Respondent and his evidence to that effect has not been successfully assailed in cross-examination. On a perusal of Exts. 3 and 6 I am satisfied that the writings and signatures in Exts. 3 and 6 are in the same hand, and the sheet on which Ext. 6 is written is the counterfoil of the form in which the receipt EXt. 3 is granted. The payment of the aforesaid amount of Rs. 254. 48 p. is not mentioned in Ext. 6, and instead by Ext. 6 dated 12-6-1963 Rs. 110/. only was deposited by the Respondent, entirely on another account as stated above. From all this it is quite evident that the Respondent having received the aforesaid amount of Rs. 254. 48 p. from p.w. 1 by Ext. 3, did not carry over the said amount in the counterfoil of that receipt, from which it is quite clear that the Respondent had the dishonest intention of misappropriating the said amount of Rs. 254. 48 p. received by him from p.w. 1 towards payment of his loan dues.

On the above findings, discussions and considerations I am satisfied that an offence u/s 409, Indian Penal Code against the Respondent has been established in this case, and so he is liable to be convicted u/s 409, Indian penal Code, and the order acquitting him of the said offence is wrong and unjustified being based on irrelevant considerations, improper appreciation of the evidence on records, and failure to take into account the salient and important features of the case borne out by the evidence on record.

The Respondent admits that he was the Head Clerk-cum-Accountant of the B.D.O''s Office on 10.6.1963 and on that day p.w. 1 came to the said Office and paid Rs. 254.48 p. towards his loan dues to the Respondent, who granted the receipt Ext. 3 to p.w. 1. From the discussion in the preceding paragraph it is seen that Ext 6 is the counterfoil sheet of its original on which Ext. 3 is granted to p.w. 1 by the accused, and it is established beyond doubt that both Exts. 3 and 6 are in the handwriting and signature of the Respondent. The amount mentioned in Ext. 3 and the purpose for which it is received, as mentioned therein, are entirely different from what is stated in Ext. 6 as seen above. From all this it is quite evident that the Respondent while acting in the capacity of the Head Clerk-cum-Accountant wilfully and with the intent to defraud falsified Ext. 6 an official receipt of the B.D.O.''s Office, and hence he is also guilty of an offence u/s 477-A, Indian Penal Code. The order acquitting the accused-Respondent of this Office is accordingly liable to be set aside.

In the result, therefore, the'' order of acquittal passed by the Court below in respect of the charges under Sections 409 and 477-A, Indian Penal Code are Bet aside, and the accused Respondent is convicted under Sections 409, and 477-A, Indian Penal Code, "and he is sentenced thereunder to R.I. for three months on each count, and further to pay a fine of Rs. 300/- only for the offence under action 409, Indian Peal Code, in default to undergo R.I. for one month. The substantive sentences of imprisonment are to run concurrently.

The Respondent must immediately surrender to his bail bond to serve out the above sentences imposed on him.