PRUTHWIRAJ LENKA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The appellant/petitioner Pruthwiraj Lenka has filed this interim application under sec. 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 dtd. 16/5/2019 under sec. 477-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000.00 (rupees five thousand), in default, to undergo rigorous imprisonment for a further period of three months.

(2.) 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 10/5/2002 to 28/2/2008 and co- accused Kantheswar Pradhan was the SEC President of the school for the period 31/8/2004 to 2/4/2011. The petitioner along with co-accused Basanta Kumar Mohanty and Kantheswar Pradhan were charged under sec. 13(1)(c) punishable under sec. 13(2) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') and Sec. 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.75,798.00 (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 sec. 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 Sec. 120-B and 201 of the Indian Penal Code. The petitioner was acquitted of the charges under sec. 409 of the Indian Penal Code and sec. 13(1)(c) punishable under sec. 13(2) of the 1988 Act. The co-accused Basanta Kumar Mohanty was found guilty under sec. 409 of the Indian Penal Code and sec. 13(1)(c) punishable under sec. 13(2) of the 1988 Act. The petitioner was found guilty only under sec. 477-A of the Indian Penal Code.

(3.) 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.1,50,000.00 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) dtd. 5/3/2005 (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.1,30,000.00 was credited towards execution of the aforesaid work. It was further found that both the co-accused President and Secretary withdrew Rs.1,30,000.00 in between 15/4/2005 to 12/2/2007 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 29/2/2008 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.59,642.00. 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.54,202.00 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.54,202.00 against the sanctioned and received amount by the accused persons to the tune of Rs.1,30,000.00, 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.75,798.00 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.5,440.00. 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.75,798.00 sanctioned for construction of one additional classroom of the school.