RABINARAYAN LENKA Vs. REPUBLIC OF INDIA

JUDGEMENT

(1.) THIS application under Section 482 Cr.P.C. is directed against the order dated 3.3.2006 passed by the Special Judge, CBI, Bhubaneswar in T.R. No.12 of 2003 framing charge for commission of offences under Sections 120 -B/409/467/477 -A of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.

(2.) THE background of the case is that there was misappropriation of Rs.4,91,155/ - during the financial year 2001 -02 in Dhenkanal Head Post Office at Dhenkanal. One Prasanna Kumar Tripathy at the relevant point of time was working as Counter Assistant and the petitioner was working as Deputy Post Master. Out of the total amount alleged to be misappropriated Rs.2,01,155/ - was from 101 R.D. Deposits during the said financial year. The mater was investigated into by the C.B.I. and on completion of investigation charge -sheet was submitted against the petitioner and Prasanna Kumar Tripathy. The case of the petitioner is that P. K. Tripathy was working as Counter Assistant and he was directly involved in receiving deposits and discharge of the matured value to the investors. The petitioner was working as Deputy Post Master and he was only supervising discharge of money to the investors apart from other supervisory works. One Nityananda Lenka was working as Post Master and he was supervising the entire money transaction including receipts and discharge of money from the depositors and investors. According to the petitioner being in no way connected with receipts and discharge of money the trial Court committed an error by framing charge against him along with P. K. Tripathy. Shri Pradhan, learned counsel appearing for the petitioner referred to certain paragraphs of the charge -sheet and submitted that even if the statements made in the charge -sheet are accepted to be corrected, no iota of material can be found involving the petitioner in the transactions. In one of the paragraphs of the charge -sheet it is stated that the investigation reveals that P.K. Tripathy while functioning as SBC -II Counter Assistant misappropriated a sum of Rs.2,01,155/ - from 101 R.D. deposits during the year 2001 -02. Said P. K. Tripathy practically received pass books, deposit money and pay -in -slip from the depositors on different dates at the counter. He also made necessary entries of deposits in the pass books, authenticated the entry with date, stamp impression of Dhenkanal Head Post Office apart from his own initial. Sri Tripathy also returned the pass book to the depositors at the counter but did not return the pay -in -slip to the depositors. He also did not reflect transactions in his hand to hand receipt book and also did not prepare the R.D. lot for the day and there was no mention of deposits in any of the postal record and therefore Sri Tripathy misappropriated the amount without knowledge of the Deputy Post Master and other staff. In another paragraph of the charge -sheet it is stated that Sri Tripathy while discharging K.V.Ps did not follow the procedure as envisaged in the Post Office savings Bank Manual Vol.II and at the time of second discharge he did not produce the K.V.Ps before the Deputy Post master for obtaining pay order for the second time and making endorsement on the applications on the K.V.Ps. for the second time by the Deputy Post Master. Instead, he prepared second discharge list/journal on his own accord and debited the second discharge value of 21 KVPs to the tune of Rs.2,90,000/ - from Government by abusing his official position. Referring to the aforesaid two statement made in the charge -sheet Sri Pradhan submitted that the manner in which the transactions take place, the petitioner has nothing to do any such transaction and therefore on both the counts of misappropriation Sri P. K. Tripathy has been found to be involved by the C.B.I. during investigation and no role has been played by the petitioner. Shri S. K. Padhi, learned Senior Counsel appearing for the CBI, on the other hand, submitted that so far as misappropriation from R. D. account holders is concerned, the trial Court has already deleted the name of the petitioner form the charge -sheet. But so far as misappropriation of Rs.2,90,000/ - by way of discharge of 21 KVPS twice are concerned, the trial Court framed charge against the petitioner having found his involvement in the transaction.

(3.) LEARNED counsel appearing for the petitioner relied on a decision of the Apex Court in the case of L. Chandraiah v. State of A.P. and another, reported in 2004 (22) OCR 95 and submitted that even if the petitioner is found to be negligent in verifying documents, offence under Section 409 of the Penal Code will not be attracted. In the aforesaid reported case the petitioner therein had been convicted for commission of offence under Sections 409/467/471 of the Penal Code read with Section 5(1)(c)(d) and Section 5(2) of the Prevention of Corruption Act. The law is well settled that at the time of framing of charge the Court is only required to see whether there is prima facie evidence to frame charge or not. At that stage the Court is not required to analysis the evidence to find out as to whether on the existing material available from the case diary, the case will ultimately end in conviction or acquittal. The aforesaid decision of the Apex Court is distinguishable in view of the fact that the Court considered the appeal after conviction and not at the stage of framing of charge. Reliance was also placed on a decision of the Apex Court in the case of Rosan Lal Raina v. State of Jammu & Kashmir, reported in AIR 1983 SC 631 and another decision of this Court in the case of Bansidhar Swain v. State, reported in 1993 Cri.L.J. 830. Law laid down in the said two cases is that in absence of allegation regarding entrustment of funds, question of misappropriation will not arise and the offence under Section 409 of the Penal Code is not made out. For the sake of repetition it is again reiterated that this Court in this application under Section 482 Cr.P.C. is called upon to examine the legality of the order framing charge against the petitioner. At the stage of framing of charge as stated earlier the Court is only required to see existence of a prima facie case. Therefore, the question raised by the learned counsel for the petitioner can only be gone into after evidence is adduced before the Court and not at the stage of framing of charge. I am, therefore, of the view that the petitioner may have a good case to agitate but this is not the stage where the same can be looked into and decided.