Mohini Mohan Nanda vs State of Orissa

K.P. Mohapatra, J.—This is a petition u/s 482, Code of Criminal Procedure for expunction of an adverse remark in the impugned judgment of the learned Judicial Magistrate, First Class, Panposh at Uditnagar, in G. R. Case No. 1924 of 1985/Trial No. 1113 of 1987 State of Orissa v. Kedar Nath Misra and two Ors.

It appears from the impugned judgment that the three accused persons were employees of the U.Co. Bank, Bazar Branch, Rourkela. On 17-10-1985 there was shortage of cash of Rs. 60,000/- in the Bank and so the Branch Manager lodged F.I.R. at the police station. Eventually after investigation, charge-sheet was submitted against the three accused persons for having committed an offence u/s 408, I.P.C. for misappropriation of the sum of Rs. 60,000/-. The Petitioner Mohini Mohan Nanda was one of the accused.

It appears from the impugned judgment that only three witnesses were examined. P.Ws. 1 and 2 denied their knowledge about the offence. P.W. 3 was the Investigating Officer who did not state anything about the entrustment and misappropriation.

Most peculiarly, neither the informant nor any other employees of the Bank were examined in order to prove entrustment of the cash to the accused persons and commission of misappropriation by them. In the background of the aforesaid evidence, the learned Magistrate specifically observed:

I do not find any entrustment of cash to accused M.M. Nanda,

If there was no entrustment, there could be no misappropriation. In that view of the matter, he should have recorded a clean acquittal of the accused persons. But instead of doing so, he observed that he gave benefit of doubt to them.

Mr. Ray, learned Counsel appearing for the Petitioner, submits that on account of the observation that the Petitioner was given benefit of doubt, he is being deprived of call benefits as an employee of the Bank and has not been reinstated into service. In support of his contention that the observation that benefit of doubt is a derogatory remark; he has relied upon 1977 LAB. I.C. 1471, Doraikannu v. The General Manager, Parrys Confectionary Ltd., Nellikuppam and Anr., in which a Bench of the Madras High Court observed as follows:

The question that arose was whether the departmental enquiry against A was bona fide in view of his acquittal by a competent Court. It was held, that, if the acquittal of A would have been on merits, no depart-mental enquiry could have been taken against him on the same charge but as in the instant case A was given

benefit of doubt, the departmental enquiry was not barred as his acquittal was not based on merits. Hence departmental enquiry made against A was bona fide.

It thus appears that the remark made by the learned Magistrate was actually adverse to the interest of the Petitioner and on the basis thereof even a disciplinary enquiry may be started against him by the Bank authorities. There was, however, no basis for making such an observation, because acquittal was on merits on the finding that there was no entrustment of cash in his favour and so there was no question of misappropriation of the cash. Unless in such a case the Court intervenes in exercise of inherent powers, irreparable damage would be caused to an innocent person.

Therefore, in exercise of inherent powers, I direct that the observation made by the learned Magistrate that the acquittal was on the basis of reasonable doubt should be treated as nonexistent, but on the other hand the acquittal should be treated as on merits. The following observation is expunged from para 5 of the impugned judgment:

as such they are entitled to get an order of benefit of doubt.

beyond all reasonable doubt.

In the result, the Criminal Misc. Case is allowed.

Misc. Case allowed.