STATE OF ORISSA Vs. PRASANNA KUMAR PANDA

JUDGEMENT

(1.) THE State has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (for short 'Cr. P.C.') challenging the judgment dated 9 8 1996 passed by the Chief Judicial Magistrate, Kendrapara in G. R. Case No. 1219 of 1992 (Tr. No. 249 of 1994) acquitting the respondent of the charge under section 409 of the Indian Penal Code (for short 'I.P.C.').

(2.) THE respondent (hereinafter referred to as 'the accused') was serving as the Revenue Cashier in the Electrical Division Office of the Orissa State Electricity Board at Kendrapara. On 17 12 1992 he received cash amounting to Rs. 67, 219.35 from Junior Engineers of the Department and other persons and duly entered the same in the Books of Accounts maintained by him. He then kept the said amount in the iron chest provided to him which was in the Cash Room of the office. The night watchman of the office (p. w. 1) who had slept in one of the rooms of the office along with a member of the audit party, woke up in the morning and found the back side grill gate broken and a passage being made for entry through the same. Then he went inside and found the lock of the Cash Room removed and the door was open and when he went insidethe Cash Room he found that the iron chest was also open. Immediately he rushed to the Revenue Divisional Accountant (p. w. 2) and reported the matter to him. P. w. 2 informed the matter to the S. D. O. of the Electrical Division (p. w. 6) and a Junior Engineer who were his neighbours and all of them went to the office and found the back side grill gate broken, lock of the Cash Room removed and the iron chest inside the Cash Room was open. P. w. 2 then went to the Executive Engineer to report about the occurrence, but the Executive Engineer was absent in his house. Thereafter all the employees of the office including the respondent were called to the office and asked to remain present there. P. w. 2 intimated police over phone about the occurrence and when the I. I. C. of Kendrapara P. S. arrived in the office, p. w. 2 submitted the F. I. R. (Ext. 1). The respondent had told p. w. 2 that the cash of Rs. 67,219. 35 kept in the iron chest on 17 12 1992 was not there. The I.I.C. of the police station returned back to the police station, registered P. S. Case No. 437 of 1992 under sections 457/380, I. P. C. and directed an S. I. of the said P. S. (p, w. 9) to take up investigation. During investigation, p. w. 9 visited the office of the Executive Engineer, Electrical Division, examined witnesses, seized the cash book (Ext. 6), the daily collection register (Ext. 7) and some other documents besides an almirah, an iron chest from the Cash Room, one Godrej lock and five keys (M.Os. I to V) under the seizure lists (Exts, 2 to 4). He found no mark of violence on the door, lock or iron chest and therefore requisitioned the services of a Scientific Officer as also a police tracking dog. After completion of investigation, p. w. 9 found that there was no house breaking by night and burglary in the said office, but the respondent had misappropriated the cash and hence he submitted chargesheet under section 409, I. P. C. against the respondent who stood his trial. The defence is one of denial.

(3.) MR . S. C. Misra, learned Addl. Standing Counsel for the State and the accused, in person, were heard at length. Learned Addl. Standing Counsel contended that the learned Chief Judicial Magistrate has failed to properly appreciate the evidence on record and has come to an erroneous conclusion that prosecution failed to establish the charge under section 409, I.P.C. against the accused. The accused supported the impugned judgment to be legally sustainable, not warranting any interference.