The State of Orissa vs Maheswar Mohanty and Another

K.B. Panda, J.—Maheswar Mohanty the Nazir (Respondent No. 1) was charged u/s 5(2) of the Prevention of Corruption Act read with Section 5(1)(c) of the said Act and u/s 477 A. Indian Penal Code while Suryanarayan Patnaik the head Clerk (Respondent No. 2) was charged under the above sections read with Section 109, Indian Penal Code but were finally acquitted occasioning this appeal by the State of Orissa.

The prosecution case was thus: Respondent No. 1 was working as Nazir in the office of the Subdivisional Officer, Bhanjanagar till 27-5-1970 when he made over charge to Parsuram Patnaik (P.W. 3). Similarly, Respondent No. 2 Suryanarayan was the Head Clerk of that office from 18-6-1969 till 4-12-1970. Respondent No. 1 as Nazir was in charge of handling the office cash. He was maintaining Accounts Register including the General Cash Book (Ext. 7/2) and the Subsidiary Register VI relating to development grants (Ext. 8). As Head Clerk, Respondent No. 2 had to check and initial the entries in the Accounts Register every day. It is alleged by the prosecution that out of the development grants, the Nazir disbursed on the whole an amount totalling Rs. 14,367/- but he fraudulently and dishonestly showed the total disbursement to be Rs. 35,267.00/- in the Subsidiary Register (Ext. 8) as per Ext. 8/1. He carried this inflated total to the General Cash Book of the same day as per Ext. 8/3 which the other Respondent as Head Clerk initialled. P.W. 10 the Nizarat Officer (who succeeded the Nizarat Officer during whose time the embezzlement was made) who has also responsible for the F.D.R. grant, made a cash analysis of the amounts allotted to the subdivision and detected the shortage of Rs. 20,900/- from the actual cash. He reported this fact to P.W. 9, the then Subdivisional Officer. There was a further detailed verification which showed that really an amount of Rs. 20,900/- had been misappropriated. Accordingly P.W. 9 lodged F.I.R. (Ext. 20) in which these two Respondents a long with the then Nizarat Officer Jadumani Samantaray were shown as accused. But, however, finally, sanction for prosecution was obtained as against these two Respondents and they� were charge-sheeted by P.W. 11, the Investigating Officer under the above sections resulting in their acquittal as aforesaid.

The plea of Respondent No. 1 was that he was merely keeping the Register while the actual cash was being handled by the Nizarat Officer. The entries in the General Cash Book and in the Subsidiary Cash Book were being made on the direction of the Nizarat Officer. So far as Respondent No. 2 is concerned, his case is that he merely initialled the Cash Book which was being maintained by Respondent No. 1 at the instance of the Nizarat Officer.

The prosecution examined 11 witnesses of whom the material witnesses are P.W. 3 the successor of accused No. 1 P.W. 9, the Subdivisional Officer during whose time the alleged misappropriation took place; P.W. 10 the successor of the Nizarat Officer Jadumani Samantaray during whose time the alleged misappropriation took place and P.W. 11, the Investigating Officer.

P.W. 1 is the predecessor-in-office of accused Head Clerk. P.W. 4 is the clerk in the S.D.O.�s office. P.W. 5 was the Additional District Magistrate (Executive), Ganjam from 27-5-1970 to 22-6-1973. P.W. 8 is the Senior Auditor of the Revenue Department who audited the accounts of the S.D.O.�s office relating to the F.D.R. grant and forwarded his report (Ext. 19) under forwarding letter (Ext. 19/1) that there has been an inflated amount entered in the Subsidiary Cash Book from

what has been actually disbursed to the tune of Rs. 20,900/- which is amply proved. The question for consideration is whether it has been done by these two Respondents or .by the Nizarat Officer who though named as accused in the F.I.R. has not been charge-sheeted as an accused nor has been examined as a witness.

The learned Court has held as a fact thus:

....it must be held that the accused Nazir actually received die whole of the above amount of Rs. 15,68,754/- at the first instance and entered the same in to connected accounts registers. viz., in S.I.R. VI, register and General Cash Book. In this view, the plea of the Nazir that he did not know about the receipt of these amounts in the Nizarat, is totally baseless.

The learned lower Court further held thus:

As such, since accused Nazir initially received the entire F.D.R. grant amounts, encashed under the different bills and entered the same in the accounts registers, which he was maintaining and since the totalling of the four items of disbursements in Ext. 8/1 is apparently inflated by Rs. 20,900/., it would be for the accused Nazir to account for this amount and or to explain as to what happened thereto and/or how it was dealt with.

In that context, the learned lower Court holds thus in para. 12:

The plea of the accused Nazir in this connection is that he was not actually handling any Government cash, received in the Nizarat and that the then Nizarat Officer used to exclusively handle such cash and make disbursements therefrom and that he (accused) used to merely maintain the accounts registers. It is also his specific case that he wrote Ext. 8/1 as per direction of the then Nizarat Officer. In other words, accused Nazir�s plea is that though in the accounts registers, Exts. 8 and 7/2, there appears a deficit of Rs. 20,900/- in the cash in hand out of F.D.R. grant amounts, he was in no way responsible therefore as he was not in custody of and had nothing to do with the actual handling of cash or disbursement thereof.

Since in this case, it has been established that accused Nazir upon receipt of the F.D.R. grant amounts at the first instance, correctly posted the same in the S.R. VI register and General Cash Book, the crucial question in view of the defence plea, is as to who was actually handling Government cash after it was received in the Nizarat and who was making actual disbursements therefrom, in other words, who had custody of such cash. In case accused Nazir was not entrusted with this job, then naturally he cannot be made responsible for any deficit in actual cash.

In para. 15 of the judgment, the learned lower Court has rightly held thus:

In this case, prosecution is also guilty of suppression of the most material evidence. The then Nizarat Officer, Jadumani Samantaray the best witness besides the two accused persons, who could have spoken about the true and correct position relating to handling, and disbursement of Government cash after it was received in the Nizarat from his personal knowledge, is withheld by prosecution. And prosecution assigns no reason at all for his non-examination. P.W. 11 the Investigating Officer states that he did examine this Nizarat Officer during his investigation and his name also appears in the charge sheet as the accused, who was not sent up for trial. The non-examination of this witness thus calls for a strong adverse inference against the prosecution case. This also causes material prejudice to accused Nazir in his defence as he is deprived from putting his case to the only witness, competent to speak about it. And since prosecution, deliberately and without any cause, with-held this witness, it is not for the Court to examine him to fill up the prosecution lacunae. On this account alone, prosecution case is liable to fail

I see no reason to differ from this finding of the learned lower Court. Again the S.D.O. (P.W. 9) does not say that at the relevant time the Nizarat Officer was not handling the cash, but it was the Nazir. The rule of accounts is that the person who would be handling the cash would not be keeping the accounts. It follows, therefore, that when the Nazir was keeping accounts he would not be handling the cash. The necessary inference, therefore, would be that it is the Nizarat Officer who was handling cash but that Nizarat Officer for reasons best known to the prosecution was not made an accused nor a witness who the accused persons would have got a chance to cross-examine. The learned Standing Counsel had to concede that non-examination of the then Nizarat Officer Jadumani Samantaray is evidently a lacuna in the prosecution case. That being the position, there is very title reason to interfere in the acquittal of the Nazir Respondent No. 1 and the Head Clerk who was merely initialing the entries in the General Cash Book and the Subsidiary Cash Book. In this context, the evidence of P.W. 3 is very material. It has been put specifically to P.W. 9 the S.D.O. who has admitted thus:

A wrong totalling in S.R. VI cash book will be carried over to the General Cash Book.

It means thereby that any wrong entry in the Subsidiary Register which reflects the F.D.R. grant will be reflected in the General Cash Book. It has been specifically put to the S.D.O. thus:

It is not a fact that while I was the S.D.O. both the keys of the double lock were in custody of the Nizarat Officer, Jadumani Samantaray. It is not a fact that in order to protect him, I am suppressing the truth.

This suggestion to P.W. 9 coupled with the fact that the Nizarat Officer has been with-held from the witness box supports the defence that the defalcation if any has been made by the Nizarat Officer and not by the Nazir. Be that as it may, there is sufficient lacuna in the prosecution for which the accused Respondents have been acquitted and there is no justification for interference.

The appeal is dismissed and the Respondents be released from their bail bonds.

Appeal dismissed.