THE STATE OF ORISSA Vs. GOPINATH DAS

JUDGEMENT

(1.) THIS appeal is against the order passed by the learned Additional Sessions Judge setting aside the order of conviction and sentence imposed on the Respondent by the learned Assistant Sessions Judge, Bhubaneswar under Sections 409 and 182 of the Indian Penal Code ('I.P.C.' for short) and acquitting him of the charges.

(2.) THE prosecution case may be recounted in brief. The Respondent took charge as accountant of the accounts section of the Orissa Secretariat at Bhubaneswar on 15 -1 -1962. On 30 -6 -1966 the accounts section was divided into two units named, Cash Unit No. 1 and Cash Unit No. 2. The Respondent continued as the accountant of cash units No. 1, whereas, P.W. 49 Golak Behari Patnaik took charge of cash unit No. 2 as its accountant. As the accountant, the Respondent was in sale charge of the cash entrusted to him, as well as, encashment and disbursement of cash in respect of twenty departments of the Secretariat on 1 -9 -1970 he remained in the accounts section till about 10 p.m. and feigned a story that two unknown culprits entered inside the cash room injured him by a sharp weapon and ran away with cash of Rs. 82,819/ - kept in seven packets. P.W. 14 Lalbehari Das was the drawing and disbursing officer of a cash unit No. 1. On getting the above information he arrived at the accounts section and through him the Respondent submitted a report (Ext. 88) to the Capital Police Station which was treated as F.I.R. and a case under Section 394, I.P.C. was registered. In course of investigation of the case, it came to light that the Respondent had spinned a story of robbery which was false. On verification of the accounts it further came to light that out of the total cash balance of Rs. 6,08,832.70 there was physical cash balance of Rs. 4,88,028.65 and so there was shortage of cash of Rs. 1,20,804.05. During investigation several amounts of cash advanced to different persons were recovered and so it was found' that there was a net shortage of cash of Rs. 1,11,903.09. After close of investigation charge -sheet was submitted against the Respondent for offences under Sections 409 and 182. I.P.C.

(3.) THE learned Assistant Sessions Judge held that the prosecution proved both the charges against the Respondent to the hilt. He rejected the Respondent's defence. He convicted him under Section 409, I.P.C. and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 25000/ -, in default, to undergo rigorous imprisonment for three months more. He also convicted him under Section 182, I.P.C. and sentenced him to undergo rigorous imprisonment for one month. The learned Additional Sessions Judge, however, came to a different conclusion. Although he accepted the finding of the trial court that the prosecution had established entrustment and shortage of cash, yet he accepted the plea of the Respondent in his defence and held that the explanation offered for the shortage of cash being reasonable and probable, the Respondent could not be convicted under Section 409, I.P.C. With regard to the offence under Section 182, I.P.C. he held that it was not legally established. Accordingly, he recorded an order of acquittal which has been assailed in this Court.