JAGADANANDA MISRA Vs. THE STATE

JUDGEMENT

(1.) THIS is a revision petition against the appellate judgment of the Sessions Judge of Bolangir, maintaining the conviction of the Petitioner under Section 381 of Indian Penal Code and the sentence of 18 months rigorous imprisonment and fine of Rs. 2000/ - passed on him by a First Class Magistrate of Titilagarh.

(2.) THE Petitioner was working as Cashier -cum -Accountant of the Khariar. Block under one Shri B.K. Samantarai (p.w. 5) who was the Block Development Officer of that area in 1958. As a large amount of cash was handled by the Blook Development Officer he -was required to maintain a main cash book (ext. 4) and 22 subsidiary cash books (exts. 5 to 26). The entries in all these cash books were made by the Petitioner in his capacity as Cashier cum Accountant; and the Block Development Officer also used to sign the main cash book every day, and also periodically verify the actual cash in the Block Officer with the cash as noted in the main and subsidiary cash books. The cash was mainly kept in a big iron chest in one of the rooms of the Block office, and, was embedded in the wall of the room. The bunch of keys of this chest was kept with the Block Development Officer, the duplicate set of the keys being kept in Nawapara. Sub Treasury. There was also a small iron chest in the same room the key of which was kept with the Petitioner. In this small iron chest the Petitioner used to keep cash handed over to him by the Block Development Officer daily in respect of small transactions. This small chest was kept connected to the big chest by an iron chain. The Block Development Officer's evidence was to the effect that he, the Petitioner, and the Head -clerk (p.w. 2) were working in the office till about 9 p.m. on 14 -12 -1958 and due to overstrain, he while leaving the office through sight left the bunch of keys of the big iron chest on his table and returned to his quarters. At that time the Petitioner was in the Block office. The Block Development Officer noticed the missing of the key bunch only on the next day at about 7 -30 a.m. and after consulting the Head -clerk he questioned the Petitioner who handed over the key bunch to him saying that he had taken it from his table where it had been kept the previous night. The Block Development Officer then hurried to the Block office and verified the actual cash in the big iron chest and found it to be only Rs. 89848.97 nP.; whereas the cash as shown in the cash book, as closing balance on the previous day, namely, 14 -12 -1958 was Rs. 1, 13, 857.75 nP. There was thus a shortage of Rs. 24008.77 nP. which according to him must have been taken away by some culprit with the help of the keys left by him in the office. While the counting was going on 15 -12 -1958, the Petitioner's conduct was very suspicious and as soon as the shortage was detected the Petitioner was said to have admitted before the Block Development Officer that he had given it to some friends and further promised to return the money as soon as possible. But the Block Developments Officer took care to obtain from the Petitioner a confession in writing (ext. 1) admitting having taken the money from the cash chest of the Block office. The Petitioner also subsequently handed over to the Block Development Officer a sum of Rs. 3500.00 nP. that evening and the receipt of the sum was also duly recorded in writing (ext. 2) signed by several witnesses of the Block office. On the next day, viz., 16 -12 -1958 at about 3 p. m. the Petitioner paid a further sum of Rs. 1309/ - (ext. 3) and also gave a written statement to that effect. The Petitioner did not pay up the balance and then the Block Development Officer lodged a regular F.I.R. at 9 p.m. (ext. 13) at Khariar Police Station enclosing along with his F.I.R. exts. 1, 2 and 3.

(3.) A part from the evidence of the watchman, the prosecution has also relied on the admission of guilt by the Petitioner before the Block Development Officer made in ext. 1, his conduct in paying a portion of the misappropriated money in two installments by exts. 2 and 3 and his own suspicious conduct when the money was being counted by the Block Development Officer in the morning of the 15th December 1938. As the Block Development Officer was then not a Magistrate the written confession (ext. 1) handed over to him by the Petitioner would be admissible, and will not be affected by the principle laid down in, A.I.R. 1936 P.O. 253 reiterated by the Supreme Court in : A.I.R. 1954 S.C. 312 regarding the necessity of a Magistrate complying with the strict requirements of Section 164, Code of Criminal Procedure. Moreover though some suggestions were made nothing has been brought out to show that when the Petitioner gave this written confession to the Block Development Officer there was any inducement, threat or promise held out to him by to Officer though he was undoubtedly a person in authority. It is true that the confession was subsequently retracted and hence would require adequate corroboration. The best corroboration is found in the conduct of the Petitioner in returning a portion of the money in two installments (ext. 2 and 3). Ext. 3 written in his own hand. These documents, coupled with the evidence of the Block Development Officer (p.w. 5) his Head -clerk (p.w. 2) and two other members of the Block office (p.ws. 3 and 4) and that of the watchman (p.w. 1) are sufficient to fix the guilt of the Petitioner beyond reasonable doubt.