Ramchandra Nanda vs State of Orissa

K.B. Panda, J.—The Petitioner stands convicted under Sections 406 and 477A, Indian penal Code and sentenced "to pay a fine of Rs. 1000/- in default to undergo S. I. for 3 months on each count. Out of the fine amount realised a sum of Rs. 900/- is to be paid to the Lord Balunkesha Mohesh as compensation u/s 357, Code of Criminal Procedure (new)." This has been confirmed in appeal in the following words:

In the result, the appeal is dismissed and the conviction and sentence passed against the Appellant are maintained as also the direction of the learned lower Court relating to payment of Rs. 900/- out of the fine, if realised, as compensation to Lord Balunkesh Mohesh.

The background of the case is as follows: The Petitioner was admittedly managing the affairs of the deity Shri Balunkesh Mohesh and the deity Shri Joy Gopal Jew installed in village Badasasan. The deity Shri Balunkesh Mohesh has some source of income but not of the deity Shri Joy Gopal Jew. As it appears from the proceeding book (Ext. 26), there was a Grameena chosen on elective basis which was looking after the affairs of the village Kotha including the affairs of the deities. The income derived from the properties of Balunkesh Mohesh were expended for both the deities.

Admittedly for leasing out some lands of Shri Balunkesh Mohesh, P.W. 2 paid Rs. 600/- and P.W. 3 Rs. 300/- on 17-10-1958 and 29-10-1958 respectively. The prosecution alleged that these two amounts have been misappropriated by the Petitioner omitting the same from the accounts of Shri Balunkesh Mohesh.

The plea of the Petitioner was that he had realised this amount but had expended it for Shri Joy Gopal Jew who had no separate source of income. His further plea was that the expenses of Shri Balunkesh Mohesh, Shri Joy Gopal Jew and of Badasasan Koth were being maintained in a consolidated form and therefore it is well-nigh difficult to account for it at this distant date. That apart, all the relevant papers not having been obtained from the previous Grameena and others, there cannot be any proper accounting. Be that as it may, these are some of the outstanding features of the case as transpired at the time of evidence. But the specific case of the prosecution as against the Petitioner was that he had misappropriated a sum of Rs. 900/- which he realised from P.Ws. 2 and 3 and bad falsified account to cover up that misappropriation.

The prosecution examined 10 witnesses and the defence 5 Out of the prosecution witnesses, P.W. 10 is the complainant and the Petitioner has examined himself as D.W. 5. It may be stated here that the accounts of Shri Balunkesh Mohesh was taken over by the Orissa Hindu Religious Endowment Department sometime in the year 1970. The management was taken over sometime in 1961. Thereafter some Inspectors were appointed to look after the management of the deity. On 11-8-1972 P.W. 10 was appointed as the Executive Officer. In the meantime, the accounts of the deity has been regularly audited by the Endowment Department. On 13-11-1972, P.W. 10 filed the present complaint wherein he alleged that the Petitioner had misappropriate Rs. 5,930. 55p. Therein it was also specifically stated that they had not moved the Police in respect of this alleged misappropriation. The Petitioner has admitted to have received Rs. 600/- from P.W. 2 on 17-10-1968 and from P.W. 3, Rs 300/- on 29-10.1958. Accordingly both the Courts held that the entrustment having been admitted, it was incumbent on the Petitioner-accused to explain how he expended that amount but in that he had failed. The trying Court held that Exts. D and E are manufactured. The learned lower appellate Court held that even if Exts. D and E were genuine yet he is guilty of having misappropriated the amount. Further the finding of the learned lower appellate Court was that since there has been no charge for falsification of Exts D and E, the conviction u/s 477-A, Indian Penal Code in respect of falsification of Exts. D and E cannot stand. All the same, he maintained the conviction on the finding that the Petitioner had falsified the accounts not in respect of Exts. D and E, but in respect Ext. 26.

True, the Petitioner has admitted entrustment of both the amounts; yet there are certain features in the instant case that militate against the prosecution case. To begin with I would refer to the inordinate delay in filing of this complaint. The two amount alleged to have been misappropriated were admittedly received from P.Ws. 2 and 3 on 17-10-1958 and 29-10-1958, but the complaint petition was filed on 30-11-1972 after a long lapse of nearly fourteen years. It is not the case of the prosecution that in the meantime, there has been no checking of accounts or change in the management of the Grameena which was looking after the affairs of the village deities and the Badasasan Kotha.

That being so, it was quite natural that this defalcation, if any; could have been well detected much prior to the filing of this complaint. Besides it is in evidence that the Endowment Department having taken over the management of the deity Shri Balunkesh Mohesh caused the accounts to be audited. In the audit the relevant registers were scrutinised. It is in evidence that a surcharge proceeding has been started against the Petitioner for realisation of about Rs. 7,000/- and odd. Obviously it is on the basis of expenses which were unauthorised. There is no knowing that these two amounts of Rs. 900/- in all are not included in that sum.

The second feature which I wish to high-light is that in the petition of complaint, that was filed after much deliberation, it is alleged that the Petitioner has misappropriated a sum of Rs. 5,930 55p. But in that petition, there is no mention of misappropriation of Rs. ''3001- alleged to have been received from P.W. 3 on 29-10-1958. It is really difficult to appreciate how when a complaint was filed after 14 years, there would be an omission of this specific item of Rs. 300/- received from P.W. 3. Both the Courts below have missed this point and in the charge it is mentioned that the Petitioner had misappropriated. Rs. 600/- and Rs. 300/- totalling Rs. 900/- and falsified a certain book to wit the cash book of the deity and thus had committed an offence u/s 406, Indian Penal Code and Section 477A, Indian Penal Code. But as already indicated the amount of Rs. 300/- is not in the petition of complaint. Further by the time of the framing of the charge Exts. D and E filed by the defence were not before the Court and therefore there could not have been any charge of falsification in respect of Ext. D and E. It follows, therefore, that the conviction recorded by the learned trying Court that the Petitioner had falsified Exts. D and E is without any basis. The learned appellate Court, however, realising this set aside the conviction of the Petitioner for falsification of Exts D and E but held that be has falsified accounts of Shri Balunkesh Mohesh. Unfortunately the learned appellate Court missed the point that in the charge it is not stated that the offence is for omission of the amounts realised from P.Ws.2 and 3. Be that as it may, even offence u/s 477A becomes academic if the offence u/s 406. Indian Penal Code is not proved. In this context. I would only like to bring into focus the fact that in the charge the case of omission of realisation of the amounts from P.Ws. 2 and 3 has not been mentioned.

Thirdly, the Petitioner specifically states that P.W. 10 has launched this case because of enmity in as much as he has filed partition before the Collector alleging that the complainant has misappropriated certain amount of the Co-operative Society. He has examined D.W. 3 for this purpose who has stated that p. w 10 misappropriated the funds of a pounding co-operative society and the accused filed an application to the Collector regarding the same along with other villagers.

Lastly, I will refer to how the complainant was conscious of the fact that the Police will not move in the matter and so did not approach the Police though the case is a cognizable one. Again both the Courts while convicting the Petitioner under Sections 406 and 477A, Indian Penal Code have only awarded a fine of Rs. 1000/- over an alleged misappropriation of a sum of Rs. 900/-. The learned trying Court has observed that he was not inclined to invoke the provisions of the Probation of Offenders Act in as much as the offence was serious. True if he held that the offence was serious, then there was no meaning in passing a sentence of a fine of Rs. 1000/- only for a misappropriation of Rs. 900/-. That is why at the time of admission of the case, when 1 had no opportunity to go into the details I had issued notice of enhancement. The appellate Court also confirmed the sentence. This shows that both the Courts were reluctant to pass a substantive sentence of conviction which indicates that they were being influenced that it is not a criminal case where a substantive imprisonment was warranted. Besides passing a sentence, they have also said that out of the sum of Rs. 1000/- realised. Rs. 900/- would go by way of compensation to Shri Balunkesh Mahesh, as if they were adequately compensating the deity and not punishing the accused.

In view of the above features of the case, namely, inordinate delay; the manner in which the accounts were being maintained; the consolidated account of Shri Balunkesh Mohesh, Shri Joy Gopal Jew and of Badasasan Koth ; the surcharge proceeding; the hostility between P.Ws. 1 and 10; non-mention of realisation of Rs. 300/- alleged to have been misappropriated in the petition of complaint filed long after the alleged misappropriation; and the view of the Courts below in passing the sentence of fine only on him only persuade me to hold that it is a case of civil nature where a criminal charge of misappropriation and falsification of accounts cannot stand.

As such I allow the revision and set aside the conviction and sentence of the Petitioner. Fine, if paid, be refunded. Notice of enhancement is discharged.

Revision allowed.