RAMAKRUSHNA TRIPATHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) CHALLENGE in this revision is to the judgment and order passed by Mr. K.M. Subudhi. Additional Sessions Judge. Bhubaneswar, maintaining the judgment and order passed by the Additional Chief Judicial Magistrate, Bhubaneswar, convicting the Petitioner under Section 409 of the Indian Penal Code accepting the case of the prosecution that the Petitioner having been entrusted with the bank draft bearing No. 7039706 dated 24 -12 -1969 (Ext. 7) for a sum of Rs. 9,000/ - payable as compensation for the death owing to an accident of Adityanath Misra, an Assistant Bridge Inspector of the South Eastern Railway, Khurda Road, which had been sent to the Deputy Labour Commissioner -cum -Commissioner for Workmen's Compensation, Government of Orissa, Bhubaneswar, encashed the bank draft on July 17, 1970 in the State Bank of India at Bhubaneswar on the basis of a letter of authority (Ext. 8/1) of the Deputy Labour Commissioner -cum -Commissioner for Workmen's Compensation (P.W. 4) containing the signature (Ext. 8/2) of the Petitioner therein which had been attested by P.W. 4 vide Ext. 8/3 after his own signature (Ext. 8/4) was taken by the State Bank of India authorities and compared with the attested signature (Ext. 8/2) which tallied and misappropriated this amount without showing the drawal in the office papers and in the process, committed criminal misappropriation of the amount with the intention to cause wrongful gain to himself and wrongful loss to the State. The sentences passed against the Petitioner to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 2,000/ - and in default of payment thereof, to undergo rigorous imprisonment for a further period of six months for his conviction under Section 409 of the Indian Penal Code were maintained by the appellate Court.

(2.) MR . R. Mohanty, the learned Counsel for the Petitioner, has submitted that in order to constitute an offence of criminal breach of trust punishable under Section 409 of the Indian Penal Code, the prosecution must prove both entrustment and criminal misappropriation and in the instant case, neither of these two elements had been established and therefore, the order of conviction cannot be sustained. Mr. A. Rath, the learned Additional Standing Counsel, has, however, submitted that the evidence would substantiate the findings of the trial and appellate courts that having been entrusted with the bank draft for Rs. 9,000/ -, the Petitioner did encash the amount and then failed to account for it and committed criminal misappropriation.

(3.) THE evidence of P.Ws. 1 and 2 would clearly show that the bank draft in question had been received in the office on 18 -5 -1970 on which day the Petitioner was not present in the office and P.W. 2, the Diarist had made the entry (Ext. 1), on that day regarding its receipt he handed it over to the Head Assistant (P.W. 1) who signed the entry, as per Ext. 1/1, showing the receipt of the bank draft by him. The appellate court, without reasonable care, had recorded in, the judgment that Ext. 1/1 was signature of the Petitioner. It would be seen from the evidence of P.W. 1 that he had handed over the bank draft to the Petitioner when he came to the office.