FAKIRA NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appearing on behalf of the petitioner, Mr. Mishra has challenged as unreasonable and unfounded the concurrent findings' recorded by the trial and appellate Courts holding the petitioner to be guilty of the charge under S.409 of the Penal Code (for short, 'the Code') sentencing him to undergo rigorous imprisonment for a period of three months after accepting the case of the prosecution that on Oct. 21, 1972, while functioning as an Extra-Departmental Delivery Agent of the Baruan Post Office in the District of Cuttack, the petitioner received the postal insured cover (M. O. I) issued from the Gyakhana Club Post Office, New Delhi, containing Rs. 1,000/- in the shape of ten hundred rupee Government currency notes sent by P.W. 11 to his son (P.W. 1), but delivered M.O. I. to P.W. 1 without the currency notes inside it and the insured cover contained some pieces of white blank paper (M.O. II) thereby dishonestly misappropriating a sum of Rs. 1000/- and the further case of the prosecution that the top portion of M.O.I had cleanly been cut with fresh gum pasted on it. It has been submitted by Mr. Mishra that both the factum of entrustment and the factum of misappropriation are to be established by the prosecution in a case of this nature and the prosecution had failed to establish any of these two ingredients which would constitute, the offence punishable under S.409 of the Code. Mr. Indrajit Ray, the learned Additional Government Advocate, has fairly and candidly submitted that on the evidence on record, the case of entrustment of Rs. 1,000/- with the petitioner had not been established and no order of conviction can be sustained only on the basis of some suspicions and conjectures.

(2.) There was the evidence of P.W. 11 that he had put inside M.O. I ten hundred rupee Government currency notes and M.O. I had been insured for Rs. 1,000/-. It is not disputed at the Bar that the insured cover(M.O. I) had been received by the petitioner on Oct. 21, 1972 for delivery to P.W. 1. No inference of criminal misappropriation could reasonably be drawn against the petitioner, from the fact that instead of going straight to the village of P.W. 1, the petitioner went to his house, remained for some time and thereafter went for delivery of M.O. I. Both the courts had taken serious note that instead of delivering M.O. I to P.W. 1, the petitioner himself offered to open M.O. I in the presence of P.Ws. 1 to 3 and did open it and instead of currency notes, some pieces of white blank paper were found therein. As the evidence adduced from the side of the prosecution itself would show, this was not an unusual act on the part of the petitioner, as this was being done by him on some previous occasions. It would not be out of place to mention here that in his statement in the course of investigation, P.W. 1 had not spoken about it, but unfortunate as it might seem., the learned appellate Judge characterised it as an inconsequential omission although on the facts of the case and in the context, it would amount to a contradiction within the meaning of the Explanation to S.162 of the Cri. P.C.

(3.) There was no evidence that the petitioner had himself opened the top portion of M.O. I and had put gum thereon. It would be seen from the prosecution evidence itself that the seals were intact at the time of delivery of M.O.I by the petitioner to P.W. 1. If M.O. I weighed 17 grams at the time of its despatch, but weighed 14 grams at the time of delivery with M.O. II, no fault could be found solely with the petitioner and he could not be saddled with criminal responsibility in the absence of other cogent evidence pointing to his guilt. If there had been any dereliction of duty on the part of the petitioner in not going back to the post office immediately and reporting about it to the Post Master (P.W. 9), this negligence; if it could be so said, would not lead to a reasonable conclusion that this had deliberately been done by the petitioner as he had caused wrongful gain to himself and wrongful loss to P.W. 1 by misappropriating the contents of M.O.I. Conduct of an accused which destroys the presumption of his innocence can alone be considered against him. Negligence on the part of a person in the performance of his duties would not warrant a conclusion of his guilty mind.