BHUBANESWAR DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner was the Secretary of Bajusold Grama Panchayat. He was appointed as such in the year 1967 and he continued till 1970. In his capacity as the Secretary of the Grama Panchayat, he was entrusted with the funds of the Graroa Panchayat. He was also the custodian of the cash book and other registers. The petitioner was operating' the pass book (Savings Bank Pass Book No. 65198) of the Grama Panchayat from 5. 1. 1958. It is alleged that on 24. 2. 1969 he withdrew a sum of Rs. 4,000/ -from the pass book, but did not enter the same in the cash book. It was only on 30. 6 1969 that the petitioner entered in the cash book the deposit of Rs. 3,600/ - for payment of certain loan and on the said date he had shown to have withdrawn Rs. 4,000/ - from the pass book. During inspection the Subdivisional Officer, Parlakhemundi detected the said irregularity. He also found that there was no challan in respect of the deposit of Rs. 3,530/ - towards pisciulture loan. Subsequently it was found that the petitioner instead of repaying the loan has misappropriated the said amount. It is further alleged that between 10.4.1969 and 25.4.1970 a sum of Rs. 423/ - was shown in the cash book and acquittance roll to have been paid to the two sweepers of the Grama Panchayat. But actually they had not received the amount. So the petitioner was prosecuted for misappropriating a total sum of Rs. 4,020/ -.

(2.) THE plea of the accused -petitioner was that in his capacity as the Secretary of the Grama Panchayat, he withdrew a sum of Rs. 4,000/ -from the pass book on 24. 2. 1959. But the same was paid to the Sarpanch (P.W. 3). He had not deposited Rs. 3,600/ - towards pisciculture loan on 30.6.1969. He has merely entered the same in the cash book on the verbal direction of the Sarpanch. He has also taken the plea that the Sarpanch was the custodian of the cash, cash book and pass book etc., of the Grama Panchayat and he was working under the direction of the Sarpanch from time to time.

(3.) MR . Das, learned counsel appearing for the petitioner, submitted as follows : That the petitioner as the Secretary of the Grama Panchayat is a public servant and he cannot be prosecuted without valid sanction from the competent authority as required under Section 197, Cr. P. C. Under Section 138 of the Orissa Grama Panchayat Act (for short the 'Act'), no suit or other legal proceeding shall be instituted against any officer or other employee of the Grama Panchayat or against any person acting under his direction for anything done or purported to have been done under this Act, until the expiration of one month next after notice in writing has been delivered to him or left at his office or place of residence explicitly stating therein the cause of action; the nature of the reliefs sought, the amount of compensation, if any, claimed and other details as specifically mentioned in that section. In this case, this provision has not been complied with. So the prosecution is bad in the eye of law. In support of his contention, he relied on a decision reported. In 1973 Cr. L.J. 962 (Madhab Prasad Misra and Ors. v. State of Orissa and Anr.). Moreover the evidence adduced on behalf of the accused -petitioner that the money was paid to the Sarpanch has not been considered in the proper perspective.