D. Dash, J.@mdashThe State has called in question, the order of acquittal passed by learned Additional Civil Judge (Sr. Division)-cum-JMFC, Dhenkanal in G.R. Case No. 89 of 1993 (Trial Case No. 126 of 1996) acquitting the respondent of the charge under Section 409 of IPC. Facts necessary for disposal of this appeal are as under:--
Respondent was a Village Agricultural Worker (VAW) and he in addition to his duty as such remained in charge of Additional Agriculture Sales Center during the period 7-11-1990 to 28-10-1992. The sale center was being supplied with different improved varieties of seeds for being sold to farmers and those include paddy, groundnut, green gram, black gram, maize etc. Those are sent from the offence of Deputy Director, Agriculture to the sale center where the registers showing receipt and sale of the seeds are being maintained.
On 11-10-1992, Asst. Agricultural Officer, Dhenkanal made physical verification of stocks of different varieties of seeds with reference to the registers and noted discrepancies. So again Deputy Director, Agriculture and Assistant Director, Agriculture with other staff checked and they also detected the discrepancies. It was then found that mere has been misappropriation of Rs. 1,98,920/- towards the sale proceeds of different varieties of seeds. Therefore, an audit was conducted when total misappropriation amount was ascertained at Rs. 2,73,137.64/-. The Audit report being received, the FIR was lodged for alleged commission of offence under Section 409 of IPC by the respondent and necessary case came to be registered. Finally on completion of investigation, charge-sheet was submitted and the respondent faced the trial.
2. The respondent pleaded innocence taking specific plea that he was never in charge of the said sale center w.e.f. 7-11-1990 to 28-10-1998 and as such he denied to have been entrusted with the seeds for their sale to farmers.
3. The prosecution in order to bring home the charge against the appellant examined 13 witnesses. The head clerk and senior clerk of the office of Deputy Director have been examined as P.W. 1 and P.W. 2 respectively, P.W. 3 is the person who took charge of the sale center from the respondent on 28-10-1992. The Deputy Director of Agriculture has been cited as P.W. 5 when the Assistant Deputy Director is P.W. 6, P.W. 7 is the Agriculture Overseer, whereas P.W. 8 is the Assistant Agriculture Officer. The Auditors are P.W. 9 and 12. When the seizure witnesses are PWs. 4, 10 and 11; the Investigating Officer has appeared as P.W. 13.
Besides the above, the prosecution proved the FIR, Ext. 3, the Audit report Ext. 4 and other documents such as seizure lists etc.
The defence cited no witness nor proved any document.
4. The trial Court, on examination of evidence and upon their evaluation, has found the evidence to be insufficient to prove the entrustment of the seeds to the respondent for onward sale to farmers and also the factum of misappropriation as projected.
According to the trial Court, the prosecution evidence is not acceptable to show that the respondent was in charge of that sale center and in the absence of documentary evidence, the trial Court has not accepted the oral evidence. Next, in the absence of proof of receipts as regards supply of seeds, the factum of entrustment has been held to have not been established; simultaneously viewing the factum of non-proof of those stock books, cash books and as well as cash memo books though seized. Also for not proving the original audit report, adverse inference on the prosecution case has been drawn.
In view of the above, the trial Court has recorded the order of acquittal which is impugned in this appeal.
5. Learned Additional Government Advocate forcefully submits that in this case, the trial Court has erred in law by rendering a finding of non-establishment of factum of entrustment of seeds to the respondent as according to him overwhelming evidence stands on record to that effect particularly when the evidence of prosecution witnesses and the audit report do establish that aspect. The submission is that trial court''s appreciation of evidence is improper that too by ignoring the important evidence on record. He further submitted that when all the senior officers have deposed as regards the respondent to have remained in charge of seed center, the trial court simply in the absence of office order to that effect ought not to have discarded such weighty and acceptable evidence of official witnesses who have no axe to grind against the respondent.
He further submits that in this case the factum of entrustment and misappropriation has been well proved through clear, cogent and acceptable evidence both oral and documentary. So he urges for interference with order of acquittal in this appeal.
6. Learned counsel for the respondent supports the finding as regards failure of the prosecution in establishing the factum of entrustment and the misappropriation. According to him, the trial Court has not committed any mistake in discarding the oral evidence, in the absence of proof of documentary evidence when there remains no sort of explanation to that effect. Thus, he contends that the appeal bears no merit.
7. Against the backdrop of above submissions, it''s apposite to take note of the power of this Court in interfering with an order of acquittal in seisin of an appeal against the judgment of acquittal. It has been held in case of Basappa v. State of Karnataka, (2014) 57 OCR 1044 : (AIR 2014 Sc (Cri.) 901) that the High Court in an appeal under section 378, Cr.P.C. is entitled to reappraise the evidence and put the conclusions drawn by the trial Court to test but the same is permissible only if the judgment of the trial Court is perverse. Relying the case of
8. In order to establish the charge under Section 409 of IPC, the prosecution is under obligation to prove that the accused being a public servant has been entrusted in such capacity with property and has committed criminal breach of trust which involves entrustment or dominion over property and dishonest misappropriation, conversion, use or disposal thereof.
9. In the instant case, it is said that the respondent being in charge of that seed center in addition to his duty as VAW, there was entrustment of seeds for sale to farmers and there has been this appropriation of the sale proceeds of the seeds. Normally, in such a case where the duty is quite a responsible one and where it concerns with entrustment of property and dealing of money as well as looking after the day to day business, in discharge of official duty of a public servant, it is definitely by virtue of one office order that the respondent must have been kept in charge of that store in addition to his normal duty as VAW. However, in the instant case, only oral evidence on the score has been laid. That too P.W. 1 when has simply stated that respondent was in charge of the center, he is not even saying the period. Similarly evidence of P.W. 2 is to the effect that the respondent was in charge of the center. But he again is silent as to since when the respondent remained in charge. In a general way P.W. 4 and 5 have stated about it. When only P.W. 6 has stated about it with reference to dates but that is also without any official document. The office order having not been proved, the specific case that from 7-11-1990 to 28-10-1992, the respondent remained in charge of that seed center cannot as it is be accepted and the oral evidence can not stand as the substitute of the same. Even in the case the prosecution if would have proved the relevant registers of that seed center then it would have been seen that the respondent being in charge was making all the entries in the relevant documents and also in relevant registers from a particular date till another. It is, thus, seen that when respondent denies to have remained in charge of that seed center, the prosecution has remained content without any proof of the document from any official quarter. There also comes no sort of explanation to that effect. More so when it has been said by P.W. 13(20) that he had seized that order No. 5968 dated 2-6-1990, there was no reason on the part of the prosecution in simply banking upon the oral evidence without tendering proof of that office order. This affects the root of the case.
10. Next, in this case the relevant registers usually maintained in the seed center have been withheld. These documents would have clinched the issue as regards the respondent remaining in the helm of affairs of that seed center. Those stocks registers when would have shown the total receipt of quantity of seed, the sale registers would have shown the total sale made during the period or even day to day. These registers though seized have not seen the light of the day. It is not understood as to why those were not placed and proved during trial. The cash memo book for the period has also not been proved in the case. All these have gone un-explained and the oral evidence or audit report are no substitute. P.W. 2 has stated about those documentary evidences being available and the audit being conducted accordingly. The verification reports have been prepared on the basis of those documents and by going through the entries and looking at the shortfall in cash. The I.O. (P.W. 13) has said about the seizure of the stock receipt statement as well as the cash memo books besides other documents. Though the seizure list to that effect is forthcoming here as Ext-5, the documents seized under it are not proved when those are the primary evidence as regards the entrustment and in order to conclude on the factum of misappropriation of the entrusted seeds.
For the aforesaid, the prosecution is found to have failed to establish the factum of entrustment of the seeds, the sale proceeds of which is said to have been misappropriated and consequently the charge fails.
11. In view of above discussion and reappraisal of evidence, the finding of trial Court as regards failure of the prosecution to establish the charge under Section 409 of IPC against the respondent is found to be just and proper and this Court finds no reason to interfere with the same. Resultantly, the appeal fails.
