PRAFULLA KUMAR PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of conviction recorded against the petitioner by the trial court finding him to be guilty of the charge under section 408 of the Indian Penal Code (the Code, for short) and sentencing him to undergo rigorous imprisonment for a period of eight months and to pay a fine of Rs. 1,000/- and in default of payment thereof, to undergo imprisonment for a further period of four months by accepting the case of the prosecution that while serving as the depot man for country liquor in the Aska Co-operative Sugar Industries Ltd, the petitioner had committed criminal breach of trust between 1.4.1975 and 27.11.1975 in respect of 2340 liters out of 180669 litres of 60 U. P. country liquor and 2080 litres out of 65609 litres of 40 U. P. country liquor entrusted with him, maintained by the court of appeal has been assailed in this revision as unreasonable and illegal without evidence either of entrustment or of misappropriation.

(2.) Mr. Kalyan Patnaik, appearing for the petitioner, has taken me through the evidence and has submitted that entrustment had not been established as alleged by the prosecution and some entries in the books of accounts and the contents of an audit report on which the prosecution based its case could not, by themselves, prove entrustment and in addition there was no evidence of misappropriation by the petitioner. Mr. M. R. Mohanty, the learned Additional Standing Counsel, has submitted that the petitioner was himself maintaining Ext. 3, the Stock Register and the entries made therein coupled with some invoices with regard to the purchase of liquor and the audit report would establish the entrustment of 1,80,669 litres of 60 U.P. country liquor and 65,609 litres of 40 U.P. country liquor and taking into consideration the sales and the balance left on the day of inspection, there had been shortage of 2340 litres, of 60 U.P, country liquor and 2080 litres of 40 U.P. country liquor. He had, however submitted that apart from some entries in the Stock Register and the documents referred to above, there was no independent evidence of entrustment of either of the two varieties of liquor with the petitioner on any occasion.

(3.) In a case of criminal breach of trust, the prosecution must establish the factum of entrustment and the factum of misappropriation. In Dadarao v. State of Maharashtra1, the Supreme Court has held: The High Court has rightly observed that there is no evidence of entrustment to the appellant. We have gone through the record in order to find whether there is any indirect evidence of entrustment but we see none. All that the prosecution did was to produce the books of account of the Chikhli head office and of the Buldana Branch. There is a debit entry in the books of the Buldana Branch showing that a sum of Rs. 7,000/- was given to the appellant on 10.11.1965 for using taken to the head office but the mere entry, unsupported by any oral evidence cannot prove entrustment. 5. 34, Evidence Act, says that entries in books of account, regularly kept in the course of business are relevant but such statements shall not alone be sufficient evidence to charge any person with liability. The prosecution did not examine anyone even to show that the books of account were regularly kept in the course of business or indeed was any attempt made to lead evidence apart from the production of book s of account to prove the entrustment of the amount to the appellant.T