STATE Vs. BANCHHANIDHI MEHAR

JUDGEMENT

(1.) THIS appeal is filed by the Government of Orissa against the acquittal of the respondent on appeal by the learned Sessions Judge, Sambalpur. The Respondent was convicted by the Munsif-Magistrate, 1st class. Bargarh under Section 4d8 of the Indian Penal Code find was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- in default to undergo rigorous imprisonment for one year more.

(2.) THE facts of the case are as follows: The respondent was the President and Ex-officio Treasurer of the Birujipali Yarn Distribution Cooperative society affiliated to the Central Co-operative Bank, Bargarh. The Society was registered in 1948. The prosecution case is that the respondent, in his capacity as the President and Ex-Officio Treasurer of the said Co-operative Society, misappropriated a sum of Rs. 1920-9-8. This was detected as a result of three audits conducted by P. Ws. 1, 3 and 4. P. W. 1 audited the accounts for the period between 15-12-48 to 30-6-50 and found the cash balance to be Rs. 2102-9-9 as can be seen from the audit report (Ext. 1 ). As the respondent was then absent, P. W. 1 could not verify the cash and it does not appear from the evidence that before the second audit this fact was ever verified by the department. P. W. 4 audited the accounts for the period between 1-7-50 to 30-6-51 and found the cash balance to be Rs, 1884-3-6 as per Ext. 6. He too could not verify, according to him, the cash as the respondent was absent. There seems to he no verification, before the third audit was made, by the department concerned. . The audit between 1-7-51 to 30-3-53 was conducted by P. W. 3 who found the cash balance to be Rs. 1920-0-8 as per Ext. 5. It is stated, at that time also the respondent was absent and the cash could not be verified. For three months the department deems to have slept over the matter and P. W. 3 again visited this Society on 9-6-53. It may be noted that between 30-3-53 to 9-6-53 there had been no transaction. The respondent who was found present on 9-6-53, it appears could not show the cash balance and according to the prosecution case, gave Ext. 4 confessing that he had spent the amount on his own account and praying therein that some time might be allowed to him to make good the loss to the Society. The prosecution also alleged that the Assistant Audit officer (P. \v. 2) again visited the Society on 27-7-53 and that before him also the respondent admitted the said misappropriation. P. W. 2 then seized the records of the Society for safe custody and submitted a report (Ext. 2) to the Assistant Registrar. On 9-8-53 the Assistant Re-gistrar submitted a report (Ext. 8) to the Sub Inspector (P. W. 5) of Bhatli P. S. to take action in the matter against the respondent specifying the amount defalcated to be Rs. 1820-0-8 which was later on corrected to be Rs. 1920-0-8. After investigation, P. W. 5 laid the charge-sheet.

(3.) THE respondent's contention before the Courts below was that the audit reports were defective inasmuch as several receipts and expenditures were not taken by the auditors into accounts that several papers from his custody were seized by the Co-operative officials and were not produced at the trial; and that his signature Ext. 4 was snatched from him under threat and coercion, the contents of the same having been filled up behind his back. He also stated that some of the customers had taken goods on credit and the amount due from them had not also been taken into consideration while arriving at the figures said to have been defalcated by him. He did not adduce any oral evidence in support of his contentions, but relied only on one document which is Ext. A in the case, a petition dated 28-7-53 to the Registrar, Co-operative Societies.