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Judgment
S. K. Sahoo, J
The appellant/petitioner Pruthwiraj Lenka has filed this interim application under section 389 of Cr.P.C. for staying the order of conviction passed
against him by the learned Special Judge (Vigilance), Phulbani in G.R. Case No. 74 of 2013 (v) (T.R. No.74 of 2013) vide impugned judgment and
order dated 16.05.2019 under section 477-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for one year and to pay a
fine of Rs.5,000/- (rupees five thousand), in default, to undergo rigorous imprisonment for a further period of three months.
The petitioner was the Technical Consultant of K. Nuagaon Block, Office of the D.P.C., D.P.E.P., S.S.A. in the district of Kandhmal. The co-
accused Basant Kumar Mohanty was the Headmaster of Asumadhi Primary School (hereafter ‘the school’) for the period from 10.05.2002 to
28.02.2008 and co-accused Kantheswar Pradhan was the SEC President of the school for the period 31.08.2004 to 02.04.2011. The petitioner along
with co-accused Basanta Kumar Mohanty and Kantheswar Pradhan were charged under section 13(1)(c) punishable under section 13(2) of the
Prevention of Corruption Act, 1988 (hereafter ‘1988 Act’) and sections 409, 120-B, 201 of the Indian Penal Code on the accusation that in
between the year 2005 to 2007, they dishonestly or fraudulently misappropriated or otherwise converted for their own use Rs.75,798/- (rupees seventy
five thousand seven hundred ninety eight) from the school account sanctioned for construction of one additional classroom in the school and they
committed criminal breach of trust in respect of the property/amount so entrusted. The petitioner was charged separately under section 477-A of the
Indian Penal Code on the further accusation that during the period from 2005 to 2007, he willfully with intention to defraud entered false
measurements in the Measurement Book No.144, which was received by him on behalf of his employer D.P.C., S.S.S., Kandhamal and was under his
possession.
The learned Trial Court acquitted the co-accused Kantheswar Pradhan of all the charges and he was set at liberty. The petitioner and co-accused
Basanta Kumar Mohanty were acquitted of the charges under sections 120-B and 201 of the Indian Penal Code. The petitioner was acquitted of the
charges under section 409 of the Indian Penal Code and section 13(1)(c) punishable under section 13(2) of the 1988 Act. The co-accused Basanta
Kumar Mohanty was found guilty under section 409 of the Indian Penal Code and section 13(1)(c) punishable under section 13(2) of the 1988 Act.
The petitioner was found guilty only under section 477-A of the Indian Penal Code.
The prosecution case, in short, is that pursuant to an allegation of misappropriation of government money in construction of one additional classroom
of the school under K. Nuagaon Block in the district of Kandhamal, a vigilance enquiry was taken up by Santosh Kumar Samantara (P.W.8),
Inspector of Vigilance, Berhampur Division. During enquiry, it was found that in the year 2004-05, for construction of one additional classroom of the
school, a sum of Rs.1,50,000/- was approved by D.P.C., D.P.E.P., Kandhamal. By that time, the co-accused Basanta Kumar Mohanty was the
Headmaster of the school as well as Secretary of the School Education Committee and co-accused Kantheswar Pradhan was the President of the
School Education Committee. Both of them entered into an agreement with D.P.C., D.P.E.P., Kandhamal to execute the construction work and
accordingly, work order letter no.470(A) dated 05.03.2005 (Ext.2/3) was issued in their favour. A joint Savings Bank Account vide A/c. No.8032 was
opened in the name of the school at UCO Bank, Raikia Branch, in which account an amount of Rs.1,30,000/- was credited towards execution of the
aforesaid work. It was further found that both the co-accused President and Secretary withdrew Rs.1,30,000/- in between 15.04.2005 to 12.02.2007
from the D.P.E.P. fund and started construction of the work. They constructed the building up to roof level and then stopped the work since 2007.
Thereafter, the co-accused Basanta Kumar Mohanty retired from his service on 29.02.2008 and the construction work remained as such. In spite of
repeated reminders of the D.P.C., D.P.E.P., Kandhamal, the work did not proceed further. As per the direction of the D.P.C., the petitioner
measured the work done and valued it at Rs.59,642/-. However, on the requisition of Enquiring Officer, when the building was technically inspected on
26.11.2010, the technical inspection team calculated the cost of the work done to be Rs.54,202/- and as such it was held that the petitioner found to
have made some false entries in the measurement book (Ext.3) by showing inflated measurements. As the technical inspection team calculated the
value of the work done at Rs.54,202/- against the sanctioned and received amount by the accused persons to the tune of Rs.1,30,000/-, the Enquiring
Officer (P.W.8) lodged an F.I.R. (Ext.15) on 28.11.2011 with the Superintendent of Police, Vigilance, Berhampur alleging misappropriation of
Rs.75,798/-by the co-accused Basanta Kumar Mohanty in connivance with the petitioner, who intentionally entered excess measurements in the
measurement book by showing excess work done value of Rs.5,440/-.
After the F.I.R. was lodged, investigation was taken up by P.W.8 as per the direction of the Superintendent of Police, Vigilance, Berhampur, who in
course of his investigation, examined the witnesses, seized the case records for the work, measurement book, cheque issue registers of the D.P.C.,
S.S.A., Kandhamal, Resolution Register, paid vouchers of S.B. account vide no.8032 of UCO Bank, Raikia. He found in course of his investigation
that the accused persons have not submitted the account register, register of procurement and utilization of materials, visitors’ book to the
successor of the co-accused Basanta Kumar Mohanty at D.P.C. Office in order to cause disappearance of evidence. It was also found during course
of investigation that neither the co-accused Basanta Kumar Mohanty nor co-accused Kantheswar Pradhan produced any documents in support of
purchase of any material, utilization register, cash book as per the terms and conditions of the agreement and all the accused persons in connivance
with each other misappropriated a sum of Rs.75,798/- sanctioned for construction of one additional classroom of the school.
The learned trial Court in the impugned judgment has been pleased to hold that the prosecution has failed to bring home the charges under sections
409/120-B of the Indian Penal Code and section 13(1)(c) punishable under section 13(2) of the 1988 Act against the petitioner as there is no evidence
on record to show that the petitioner was in charge of the project or in any manner had dominion over the government money sanctioned for
construction of the building. It was further held that there is nothing on record to prove that the accused persons caused disappearance of evidence to
screen them from the punishment and that the I.O. has neither examined the successor of the co-accused Basanta Kumar Mohanty nor it is in his
evidence that despite he searched for the registers and records, it was not made available at the school. It was further held that in the year 2010,
when the enquiry was conducted, the co-accused Basanta Kumar Mohanty had already retired from his service and hence, there was no scope on his
part to cause disappearance of the records. Learned trial Court further observed that merely because the letter (Ext.16) goes to show that the co-
accused Basanta Kumar Mohanty had not submitted the records to D.P.C., it cannot be said that the accused persons had caused disappearance of
the evidence to screen themselves from punishment and accordingly, it was held that the prosecution has failed to substantiate the charge under
section 201 of the Indian Penal Code against all the accused persons.
The learned trial Court, however, held that the petitioner was employed as a Technical Consultant under K. Nuagaon Block and he was issued with
M.B. No.144 marked as Ext.3 which was of the D.P.C., S.S.A., Kandhamal and he being employed to enter measurement in the measurement book
on behalf of the D.P.C., S.S.A., Kandhamal under whom he was employed, made false entries of inflated measurement by showing excess work
done value of Rs.5,440/- willfully with an intent to defraud the government. It was further held that the prosecution has proved all the essential
ingredients of the offence under section 477-A of the Indian Penal Code against the petitioner and accordingly, the learned trial Court found him guilty
of such charge. Since the petitioner was found to have been resigned from his service when the charge sheet was submitted, it was held that no
sanction order was required to launch prosecution against him.
Mr. Asok Mohanty, learned Senior Advocate appearing for the petitioner strenuously contended that the finding of the learned trial Court in
paragraph-16 of the impugned judgment that the petitioner made false entries in the measurement book with an intent to defraud the government is not
sustainable when the petitioner was found not guilty under section 120-B of the Indian Penal Code so also under section 13 (2) read with section 13(1)
(c) of the 1988 Act after arriving at a conclusion that there was no connivance of the petitioner with the co-accused persons. The alleged act of deceit
to obtain an advantage which might relate to some future occurrence or in other words, might be prospective nature is not at all possible.
He further contended that the mandate demands to establish beyond all reasonable doubt that false entries were made with intent to defraud, but in
absence of any connivance, the petitioner should not have been convicted for making mere wrong entries in the measurement book and as such the
intent to defraud government is not made out. It is further argued that the petitioner should have been acquitted by the application of doctrine of
preponderance of probabilities as convincing and cogent materials are lacking to indicate that the wrong entries in the measurement book were made
with intent to falsify the accounts for defrauding. He further argued that the learned trial Court has failed to appreciate the peculiar facts and
circumstances of the case in proper perspective that by the time the petitioner came to the picture, the entire sanctioned amount had already been
withdrawn for the purpose of incurring expenditure since long and the co-accused had retired from service much earlier and the measurement book
was issued thereafter and therefore, at that stage, there was no scope for connivance or misappropriation or to have an intent to defraud by way of
making wrong entries. He further contended that the learned trial Court also took a view that had the petitioner agreed to misappropriate the unutilized
amount of Rs.75,798/- with the accused headmaster, he could have inflated the measurement to the tune of such amount. It was further contended
that in absence of any acceptable reasoning/findings as to why the petitioner is found guilty under section 477-A of the Indian Penal Code after being
acquitted of the charges under sections 409/120-B/201 of the Indian Penal Code so also under section 13(2) read with section 13(1)(c) of the 1988
Act, the impugned judgment and order of conviction against the petitioner is perverse and suffers from non-application of mind and cannot be
sustained in the eye of law. Mr. Mohanty argued that since on the face of the impugned judgment, the petitioner has a very good case for acquittal
and the appeal being of the year 2019 is not likely to be taken up for hearing in the near future, unless the order of conviction is stayed, the petitioner
would suffer irreparable loss and injury. Reliance was placed on the cases of Harihar Mishra -Vrs.- Republic of India reported in 2010 (Supp.-I)
Orissa Law Reviews 87, Dr. Shailendra Kumar Tamotia -Vrs.- Republic of India reported in 2009 (Supp.-II) Orissa Law Reviews 226 and Bedadyuti
Samantaray -Vrs.- State reported in 2013(I) Orissa Law Reviews 1081.
Mr. Sanjay Kumar Das, learned Standing Counsel for the Vigilance Department on the other hand vehemently opposed the prayer for stay of order
of conviction and also filed his objection to such petition. It is contended that the learned trial Court after going though the evidence on record has
rightly found the petitioner guilty and since stay of conviction should be exercised only in exceptional circumstances and in rare cases where failure to
stay conviction would lead to injustice and irreversible consequences, nothing having been pointed out by the learned counsel for the petitioner in that
respect, no favourable order should be passed in favour of the petitioner. It is further contended that delay in disposal of the appeal and the submission
that there are good arguable points by itself are not sufficient to grant stay of order of conviction. It is further contended that the petitioner, who was
the Ex-technical Consultant in the office of the D.P.C., D.P.E.P., S.S.A., Kandhamal and was working as the Asst. Executive Engineer under N.H.
Division, Berhampur, Ganjam was dismissed from service as per the office order dated 15.10.2019 of Govt. of Odisha, Works Department after he
was found guilty by the learned trial Court. The copy of the dismissal order has been annexed as Annexure-A to the objection affidavit filed by the
respondent/opposite party. The learned counsel further contended that laxity in corruption cases would encourage corruption and therefore, the misc.
case should be dismissed. He placed reliance in the case of K.C. Sareen -Vrs.- C.B.I., Chandigarh reported in (2001) 21 Orissa Criminal Reports
(SC) 325 and State of Maharashtra through C.B.I. -Vrs.- Balakrishna Dattatrya Kumbhar reported in (2012) 12 Supreme Court Cases 384.
First, let me deal with the cases which were placed by the learned counsel for the respective parties on the ambit and scope of section 389(1) of
Cr.P.C. relating to stay of order of conviction by the appellate Court.
In the case of K.C. Sareen (supra), it is held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to
section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge
of the conviction, the Court should not suspend the operation of the order of conviction. The Court has a duty to look at all aspects including the
ramifications of keeping such conviction in abeyance.
In the case of Balakrishna Dattatrya Kumbhar (supra), it is held as follows:-
“15. Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that the Appellate Court in an exceptional case, may put the conviction in
abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the
Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a
judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The Court
additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an
employee may lose his job, if the same is not done.â€
In the case of Harihar Mishra (supra), it is held as follows:-
“10. From the discussion as aforesaid, five broad principles emerge, which, in my considered view, is a guide so far as exercise of discretion under section 389(1)
Cr.P.C. in relation to stay/ suspension of conviction is concerned. They may be called the 'Panchasheel' for exercise of discretion under section 389(1) Cr.P.C. for
suspension of an order of conviction. They are-
(i) The appellant, who seeks interference of the appellate court under section 389(1) Cr.P.C. so far as the order of conviction is concerned, must come with clean
hands, and with due frankness and fairness specifically draw attention of the appellate Court to the specific consequences he is going to suffer, if discretion by the
Court is not exercised in his favour.
(ii) Such discretion by the appellate Court may be exercised in favour of the appellant only in rare and exceptional cases depending upon the special facts of the case
and not as a matter of course.
(iii) Such discretion may be exercised only where failure to stay the conviction would lead to injustice and irreversible consequences. The Court has to examine
carefully on the basis of materials supplied and materials available on record as to whether the consequences sought to visit the appellant at present or on a future
date is/are real.
(iv) While exercising the discretion, the appellate court has a duty to look at all the aspects including ramification of keeping the conviction in abeyance, and it is
under further obligation to support its order for reasons to be recorded by it in writing.
(v) In case of public servants convicted of corruption charges, the discretion should not be exercised.
In the case of Dr. Shailendra Kumar Tamotia (supra), it is held that the appellate Court is duly empowered under section 389(1) of Cr.P.C. to grant
stay of conviction but only in an ‘exceptional case’ where ‘the ramification and the consequences’ are such which may justify the
exercise of such authority. Such power is not to be casually exercised and it is necessary for the Court to look into the ‘special facts’ of the
case if any, and not to grant by way of a routine order.
In the case of Bedadyuti Samantaray (supra), it is held that the power to stay conviction in terms of section 389 of Cr.P.C. should be exercised only in
exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences.
In view of the ratio laid down in the aforesaid decisions and keeping in view the submissions raised by the learned counsel for the respective parties,
it is to be seen whether it is a very exceptional case for grant of stay of order of conviction? What the evil that is likely to befall on the petitioner, if the
order of conviction is not stayed? Whether failure to stay the order of conviction would lead to injustice and irreversible consequences?
Law is well settled that possible delay in disposal of the appeal and/or presence of arguable points in the appeal by itself may not be sufficient in
staying the order of conviction of the trial Court without assigning any special reasons. An order granting stay of conviction is not the Rule but is an
exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues
to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. As order of stay, of
course, does not render the conviction non-existent, but only non-operative.
The fact remains that on the basis of impugned judgment and order of conviction, the petitioner has already been dismissed from service since more
than two years back. The petitioner has been convicted under section 477-A of the Indian Penal Code which deals with falsification of accounts. The
ingredients of the offence are as follows:-
(i) The person coming within its purview must be a clerk, officer, or servant or acting in the capacity of a clerk, officer, or servant
(ii) He must willfully and with intent to defraud-
(a) destroy, alter, mutilate, or falsify any book, paper, writing, valuable security, or account which belongs to, or is in possession of, his employer; or has been
received by him for or on behalf of his employer; or
(b) make or abet the making of any false entry in, or omit or alter or abet the omission or alteration of any material particular from or in, any such book, paper, writing,
valuable security, or account.
‘Willfully’ means that the act is done deliberately and intentionally, not by accident or inadvertency, so that the mind of the person who does the
act goes with it. The term ‘with intent to defraud’ means either an intention to deceive and by means of deceit to obtain an advantage or an
intention that injury should befall some person or persons. Advantage which is intended must relate to some future occurrence or, in other words, must
be of a prospective nature. Making false entries in the measurement book in order to conceal fraudulent or bogus acts, falls within the purview of
section 477-A of I.P.C. If an accused makes fictitious entries in the measurement book though in fact he had not measured up the work with intent
that the contractor’s bill might be passed without actual measurement, his act amounts to a ‘fraudulent falsification of account’. It is
necessary to show not merely false entries in the books of accounts, but that such false entries were made with intent to defraud. Even if the intention
with which the false entries were made was to conceal a fraudulent or dishonest act previously committed, the intention will be to defraud. Making a
false document with a view to enable the persons who committed misappropriation to retain the wrongful gain which they had secured also amounts to
the commission of a fraud and the act brings the case under this section.
The learned trial Court while considering the role played by the petitioner in paragraph 16 of the impugned judgment has been pleased to hold that
M.B. No.144 marked as Ext.3 was issued to the petitioner by the Financial Consultant, SSA, Kandhamal to enter the measurement of the work done.
The petitioner measured the work done for Rs.59,642/-. The entries made by the petitioner and his signature in the measurement book were proved by
P.W.1. On the other hand, P.W.6, Asst. Engineer at K. Nuagaon Block who along with others technically inspected the additional class room building
work and prepared the technical inspection report (Ext.13) and the map with findings (Ext.13/1) stated in his evidence that the final measurement of
the work done came to Rs.54,202/-. Thus, the work done value as measured by the petitioner as per Ext.3 did not tally with the work done value as
assessed by P.W.6 in Ext.13. The learned trial Court analyzed the evidence of P.W.6 carefully and found that the plinth bent thickness has been given
as 6†instead of 4†in M.B. No.144 Page No.05, R.R. stone masonry third footing height has been given as 2’ instead of 1’ 6†actual in
M.B. No.144, page No.04 and Leveling Course with C.C.124 has not been done, but given in item no.07 of M.B. No.144, page no.07 by the petitioner.
The learned trial Court accepted the evidence of P.W.6 coupled with the map with findings recorded in Ext.13/1 and held that the petitioner has made
false entries in the M.B. Since the work done value ascertained by the petitioner is for Rs.59,642/- against the actual work done value of Rs.54,202/-
as opined by the Technical Inspection Team and mentioned in Ext.13, the learned trial Court found that the petitioner had shown excess work done
value of Rs.5440/-. If the work doe value entered by the petitioner in M.B. was accepted, there would be loss of Rs.5440/-to the Govt./State
Exchequer. The learned trial Court held that the wrong committed by the petitioner cannot be said to be unintentional and result of miscalculation,
rather appears to be willful and intentional. Therefore, it was held that with an intent to defraud the Govt., the petitioner made false entries in the M.B.
which was received by him on behalf of DPC/SSA, Kandhamal, under whom he was employed as Technical Consultant.
The learned trial Court in paragraph no.22 of the impugned judgment further held that the petitioner was working as Technical Consultant under K.
Nuagaon Block. This factum is also proved by his bio-data (Ext.5) proved through P.W.3. Ext.5 goes to show that he was posted as Technical
Consultant of K. Nuagaon Block from the period from 17.01.2006 to 30.11.2011. It was also held that the petitioner was issued with the M.B. No.144
marked vide Ext.3, which is of the DCP/SSA, Kandhamal in which he made false entries of inflated measurement and excess work done value
willfully with an intent to defraud the government. The Court held that all the essential ingredients of section 477-A of Indian Penal Code are proved
by the prosecution against the petitioner.
After carefully analyzing the finding of the learned trial Court, the submission made by the learned counsel for the respective parties and the evidence
on record, at this stage, it cannot be said that it is a case of no evidence against the petitioner. Whether the evidence available on record would be
sufficient to uphold the conviction of the petitioner under section 477-A of the Indian Penal Code or on the basis of points raised by the learned
counsel for the petitioner particularly in view of his acquittal of other charges, the conviction under section 477-A of the Indian Penal Code would not
be sustainable, is to be adjudicated at the final stage when the appeal would be heard on merit. In my humble view, giving finding thereon at this stage
is likely to cause prejudice to either of the parties. For the limited purpose of ascertaining whether stay of order of conviction be granted or not, I find
that the case is not a very exceptional one for keeping the conviction in abeyance. The consequential order of dismissal of the petitioner from his
service having already been passed by the competent authority, the correctness of such order cannot be adjudicated in this petition. The possibility of
reinstatement of the petitioner in service in case of staying the order of conviction is not a criteria to grant such interim relief.
Therefore, I am of the humble view that in the facts and circumstances of the case, the relief sought for by the petitioner for staying the order of
conviction cannot be granted.
Accordingly, the interim application being devoid of merits, stands dismissed.
By way of abundant caution, I would like to place it on record that whatever has been stated hereinabove in this order has been so said only for the
purpose of disposing of the prayer for staying the order of conviction of the petitioner. Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done at the final stage of the
hearing of the criminal appeal on merit.
Urgent certified copy be granted on proper application.
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