NANDA KISHORE PATTNAIK Vs. DHRUBENDRA CHANDRA MOHANTY

JUDGEMENT

(1.) THIS Criminal Appeal has been filed inter alia challenging the order of acquittal of the respondents passed by the learned Subordinate Judge -cum -J.M.F.C., Khurda in ICC No.115 of 1982. The complainant -appellant had admittedly taken an agricultural loan from the Chhatipur Service Cooperative Society in the district of Khurda. He did not repay the loan in time for which a decree was passed against him under the provisions of the Orissa Cooperative Societies Act. Thereafter an execution case was initiated against him being E.P. No.943 of 1981 in the Court of the Assistant Registrar, Cooperative Societies Khurda, for realisation of the decretal amount. In consonance with an order of the executing Court, the two respondents, it is alleged, went to the village of the complainant -appellant on behalf of the decree -holder Society in a jeep along with three other members of the staff of the Society for attachment of the properties of the complainant -appellant who was the judgment -debtor. The complainant was absent at his house at the relevant time and his wife asked the respondents to come later. But it is alleged that the respondents forcibly entered into the house of the appellant, brought out a trunk, broke open the same by means of one iron -rod and took away two gold necklaces, four gold bangles and one 'Lota therefrom. They prepared a seizure -list in English which the wife of the appellant could not understand. She insisted on the respondents to prepare the said seizure -list in Oriya, but they forced her to sign the seizure -list prepared by them and left. Next day it was found that the respondents did not mention regarding seizure of the two necklaces in the aforesaid seizure -list. Thus, according to the appellant, the respondents cheated the appellant and his wife. On the basis of a complaint petition, ICC No.115 of 1982 was registered before the S.D.J.M., Khurda and the respondents faced trial under Sections 448 and 420 IPC. The case was ultimately tried by the Subordinate Judge -cum -J.M.F.C., Khurda. 3. The defence took the plea that the respondents had gone to the house of the appellant being fortified with an order passed in an Execution Case for collecting the decretal dues from the appellant -judgment debtor. The wife of the judgment -debtor voluntarily handed over to them four Nos. of bronze bangles which were gold -coated. As the value of the said bangles was not sufficient to clear up the decretal amount of Rs. 10,000.00, the wife of the judgment -debtor also handed over a 'Lota and expressed that there was nothing more in the house. Accordingly a seizure -list was prepared in form No.4 in consonance with Rule 109 of the Orissa Cooperative Societies Rules. The allegations that the respondents forcibly entered into the house of the judgment -debtor, broke open a trunk and removed the alleged ornaments was repudiated by defence. 4. To substantiate the case, the complainant -appellant examined four witnesses and exhibited one document, i.e. the seizure -list. Out of the witnesses, P.W.1 was the complainant himself, P.Ws 2 and 3 were the villagers and P.W.4 was the wife of the complainant. On behalf of defence, one witness was examined and three documents, being the ordersheets in the Execution Case, were exhibited. 5. The trial Court after discussing the evidence held that the evidence adduced by the complainant varied from stage to stage regarding the manner in which he lodged the FIR before police. A postal receipt though filed in Court was not proved. No police officer had been summoned to state that actually an FIR had been lodged nor a copy of the FIR was filed in Court. On the basis of such observation the trial Court found that there was a delay of eight days in filing the complaint petition which was not sufficiently explained by the complainant and such delay was fatal to the prosecution case. 6. The trial Court also arrived at the conclusion that the evidence regarding breaking open a trunk of the complainant varied from witness to witness. More so, in the complaint petition there was no mention about the alleged breaking of the trunk by any of the accused -respondents According to the trial Court, the evidence of the alleged eye -witnesses as regards material facts was highly contradictory. The trial Court was satisfied that the prosecution had totally failed to prove its case and acquitted the accused respondents under Section 248(1) CrPC. 7. Mr. Palit, learned counsel for the appellant, forcefully submitted that the Court below has not properly appreciated the evidence on record and the conclusions arrived at were de hors the materials available on record. According to him, the discrepancies in the evidence of the prosecution witnesses were minor and the Court below should have ignored the same. He also submitted that the employees of the Cooperative Societies are not public servants and they are not protected under Section 197 CrPC. In support of his submission, Mr. Palit relied upon the decisions reported in AIR 1996 SC 3197 (Pattu Lal v. State of Punab), AIR 1995 SC 2121 (Ramesh Kumar Gupta v. State of M.P.) and AIR 1981 SC 1395 (S.S. Dhanoa v. Municipal Corporation, Delhi). 8. A cumulative reading of all the aforesaid decisions leads to an irresistible conclusion that uncorroborated evidence if otherwise reliable can be relied upon by a Court. Keeping in mind the ratio of the aforesaid decisions and the constraints of the Court in an appeal against acquittal, I scrutinised the evidence on record and the other materials on record. A perusal of the complaint petition clearly reveals that the same was filed almost seven days after the alleged occurrence. The complainant though asserted that he had filed an FIR before police and sent a copy of the same by registered post to the local police station, the same was not proved by cogent evidence. Thus I have no hesitation to agree with the Court below that there was delay in filing the complaint petition in Court. 9. A reading of the complaint petition also clearly reveals that there was absolutely no allegation with regard to breaking of the trunk by the respondents. But then, in course of evidence the said fact has been introduced which, according to me, is a subsequent development and should not be taken into consideration. The evidence of P.W.1, the complainant, as has been admitted by him in cross -examination, was only hearsay. He had no direct knowledge about the incident. Thus the said evidence cannot be relied upon. P.W.2, a villager of the complainant, in his cross -examination has stated as follows : - "By standing in front of the house, I saw the accused persons inside the house. The females were shouting due to attachment of the properties. I did not enter ...........I did not talk with the accused or the ladies. I had no talk with others regarding this occurrence." 10. It is not practicable for a person standing outside a house to know what was happening inside the house. Thus the statement of this witness that the respondents broke open the trunk of the complainant cannot be believed. Though this witness has stated that the females were shouting due to attachment of properties, no female excepting the wife of the complainant has been examined in the case. P.W.3, another villager of the complainant, did not state anything regarding resistance of the wife of the complainant to sign the seizure -list. He also stated that seven to eight villagers were standing in front of the house of the complainant and that there was no trouble and everything went on peacefully. He was with P.W.2 all through. Though he has stated about breaking open of the trunk, but then in absence of such allegation in the complaint petition, the said statement cannot be accepted. P.W.4 was the wife of the complainant. She has specifically stated that none of the villagers came to her house at the time of the occurrence. Thus the statements of P.Ws 2 and 3 fall to the ground. P.W.4 though has stated that she cannot read English, she has admitted that she had signed the seizure -list Ext.1. A perusal of Ext.1 reveals that each of the items seized was categorised in seriatim, inasmuch as to the gold bangles as item No.1 and the Lota as item No.2. If in fact two gold necklaces were seized, definitely the same should have been described as another item. The signature of this witness in the seizure -list clearly shows that she is not illiterate. She is definitely able to count. She has not stated anywhere that though four items of articles were seized, only two were mentioned. At the other hand, her consistent story is that she had no knowledge that the two necklaces were not mentioned in the seizure -list. This is contradictory to her evidence. 11. Admittedly the complainant was a judgment -debtor. The officials of the Cooperative Society had been to the house of the complainant to enforce an order of the executing Court. A reading of the evidence adduced in the case vis -a -vis the allegations made in the complaint petition throws a cloud of suspicion. Added to it, there was a delay in filing the complaint petition. There is also no evidence to come to the conclusion that the incident was reported to the local police immediately. The entire scenario reveals that the complaint case cannot be believed in toto. The evidence adduced was also not very much reliable and the prosecution story was developed from stage to stage. 12. Law is well settled that appellate Court should be slow in reversing an order of acquittal and unless there are good and strong grounds, the order of acquittal should not be interfered with. 13. A perusal of the order passed by the Court below clearly reveals that the findings arrived at by the Court below are not perverse and are not unsustainable in view of the evidence discussed above. Even otherwise where two views are possible on appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the appellate Court should not legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. But then in the present case, after going through the evidence, both oral and documentary, I am convinced that the Court below has not committed any error of law or fact. I am, therefore, not inclined to interfere with the order of acquittal. 14. The Criminal Appeal is dismissed. Appeal dismissed.