STATE OF ORISSA Vs. CHAMARA PANDA

JUDGEMENT

(1.) The State is in appeal against the judgment and order of acquittal recorded by the learned Special Judge (Vigilance), Sambalpur, finding the respondent to be not quality of the charges under Section 5(2) read with Section (l) (c) of the Prevention of Corruption Act, 1947 and under Section 409 of the Indian Penal Code with having committed criminal misappropriation in respect of an amount of Rs. 5,486.44 paise between April 1, 1968 and March 31, 1969 in his capacity as the Store -keeper -cum -Accounts Clerk in the Attabira Block Office in the district of Sambalpur and the misappropriated sum, it was alleged, had not been deposited by the respondent out of the sale proceeds of pesticides and fertilizers kept in his charge. It had not been disputed by the defence that the respondent at the relevant time had been functioning as the Store -keeper -cum -Accounts Clerk. It had also not been disputed that he was in charge of the sale of the pesticides and fertilizers. The case of the defence was that according to the prevalent practice, the aforesaid articles were being sold both on payment of cash and on credit and the deficit amount represented the sum for the articles sold on credit for which payments had not been made.

(2.) ON a consideration of the evidence of twelve witnesses examined for the prosecution, the learned trial Judge found that neither of the two charges had been brought home to the respondent.

(3.) THERE was, no doubt, the evidence of the Assistant Accounts Officer (P. W. 8) who had audited the accounts of the Attabira Panchayat Samiti about the shortage of cash, but it must be kept in mind that an audit report of an inconclusive character which notes down some statements of objections cannot, by itself, saddle any, person with criminal liability. See 1984 Cri. L. J. 1823 : 1984(1) O. L. R. 585 Okila Luha v. State. It was in evidence that a part of the alleged misappropriated amount had been recovered from the salaries of the respondent after the charge period. This would not further the case of the prosecution in respect of the charge of misappropriation in the absence of legal proof of the commission of the crimes. It could be that with a hope to escape from criminal culpability, a person would make good the loss although he had not been responsible for it. Conduct which destroys the presumption of innocence can alone be considered against an accused.