ASHUTOSH ROY Vs. STATE

JUDGEMENT

(1.) CRIMINAL Revision No. 229 of 1957 arises out of the appellate judgment of the additional Sessions Judge of Balasore, maintaining the conviction of the petitioner ahutosh Rai (hereinafter referred to as the petitioner) under Section 409, I. P. C. , but reducing the sentence passed on him by a First Class Magistrate of Balasore, from two years' rigorous imprisonment to three months' simple imprisonment. The learned Magistrate further sentenced him to pay a fine of Rs. 1,000/-but the learned Sessions Judge enhanced it to Rs. 3000/ -. Criminal Revision No. 269 of 1957 was filed by the State of Orissa for enhancement of the sentence on the ground that the reduction of the sentence by the Additional Sessions Judge was not justified. These two revision petitions were heard together and will be disposed of in one judgment. In view of the notice for enhancement of the sentence, the petitioner was allowed to argue against his conviction also and the revision petitions were heard like a regular criminal appeal.

(2.) THE petitioner was one of the prominent Congress Workers of Balasore District since the year 1937. He went to jail during the 1942 movement and was for some time a member of the Balasore District Congress Committee. He was the Chairman of the Balasore Sadar Local Board from the 26th March 1946 to the 28th June 1952. During the said period, the Vice-Chairman of the Board was one Sri baidyanath Rout (P. W. 7) who was also a prominent worker of Balasore district and who also went to jail during the year 1942 movement. Sri Baidyanath Rout's evidence is to the effect that he considered himself to be the political chela of the petitioner and used to look up to him for advice and guidance. Another prominent Congressman of the District (who is also a practising lawyer)named Sri Satyanarayan Das (P. W. 1) was the Vice-Chairman of the District board of Balasore from 1947 till April 1952 and thereafter he became the chairman of the District Board. The said Sri Satyanarayan Das was also a member of the Education Committee of Balasore District Board. The petitioner was elected vice-Chairman of the District Board on the 25th April 1952 and continued in that office in addition to his duties as Chairman of the Sadar Local Board till the 28th of june 1952 when he handed over charge of his office as Chairman Sadar Local board to Sri Baidyanath Rout (P. W. 7 ). He continued thereafter as Vice-Chairman of the District Board till he was relieved of that office some time in November 1952. It was alleged that during his regime as Chairman Sadar Local Board, he drew large sums of money from the Treasury for the purpose of paying stipends to primary school teachers serving under the sadar Local Board, but committed criminal breach of trust in respect of a substantial portion of the same to the extent of about Rs. 38,119-13-0. In the charge it was mentioned that the said offencs was committed during the period 2nd November, 1951 to 28th June 1952. It was alleged that on the 28th June, 1952 when the petitioner handed over charge to his political chela Sri Baidyanath rout (P. W. 7) he did not hand over any cash. But with a view to allay the fears of P. W. 7 the petitioner was said to have sent him a letter on the 28th June 1952 (Ext. 43) in his own handwriting, admitting frankly that out of the total sums drawn from the local treasury a sum of about Rs. 34,000/- remained with him being the undisbursed balance of the stipends of the teachers and that he was solely responsible for the same. In view of that letter Sri baidyanath Rout (P. W. 7) thought that no risk was involved and did not report this fact to the Chairman of the District Board Sri Satyanarayan Das (P. W. 1) for some months. But both the petitioner and Sri Baidyanath Rout realised that unless the teachers were paid their stipends, there would be a general clamour and all the facts would come to light. Thereafter, at the suggestion of the petitioner made in his letter (Ext. 43) Sri baidyanath Rout adopted the practice of withdrawing large sums of money from the treasury for payment of current stipends to the teachers and utilising the same for payment of arrear stipends to them. With a view to conceal this fraud the teachers were persuaded not to give the dates while signing stamped receipts. Even if through mistake some of them had put the dates on the vouchers they were subsequently erased. P. W. 7, adopted this irregular practice in the hope that within a short time the petitioner would be able to refund to him the sum admitted to have been kept with him and that adjustments could be made subsequently. But it was alleged that notwithstanding the desparate efforts of the petitioner he was not able to raise that sum. In the meantime the irregularity came to the notice of the Chairman of the District Board Sri Satyanarayan Das (P. W. 1) who got the accounts of the Sadar Local Board audited by the Head Clerk of the District board Office, Sri Sailesh Chandra Das Mohapatra (P. W. 3 ). From that audit report 'ext. 7' dated the 16th October 1952 it appears that a sum of Rs. 34,432-6-0 remained unaccounted for. The Chairman of the District Board grew genuinely alarmed and immediately reported the matter to the District Magistrate and the Revenue Commissioner and also asked the Government auditors to audit the accounts of the Sadar Local board thoroughly. He then withdrew the powers of the petitioner and subsequently got him removed from his post as Vice-Chairman of the District Board. P. W. 7 baidyanath Rout was also asked to hand over charge to his successor. P. W. 1 then sent information to the Police on the 4th November 1952 (Ext. 25) charging (1) the petitioner (2) Sri Baidyanath Rout (P. W. 7) and (3) one Mohammad Noor khan Head Clerk of the Office of the Sadar Local Board (P. W. 8) with criminal breach of trust in respect of a sum of Rs. 34604-13-6 on the basis of which, after due investigation, charge sheet was submitted against the petitioner. The other two accused persons however figured as prominent prosecution witnesses.

(3.) THE defalcation of such a large sum was facilitated mainly because of the peculiar practice then adopted by the Sadar Local Board for paying the monthly stipends of the primary teachers within its jurisdiction. Under the rules, the monthly bills of these teachers are first prepared by the Sub-Inspector of Schools and the Assistant Sub-Inspector of Schools who are regular Government servants and submitted to the Local Board and then the Board's payment orders are issued by its Chairman. On the basis of these payment orders self-drawn cheques on the district Treasury were made for the sums due and cash was received by the chairman of the Local Board. There was no arrangement for keeping such large sums of money in safe custody in the office of the Sadar Local Board. The amount, therefore, remained with the chairman and during his tours in the sub-division he used to make payments personally to the teachers concerned and obtained their stamped receipts either on the bills themselves or on separate vouchers which were pasted on the bills at appropriate places. Though according to the rules there should be no delay between the date of receipt of cash from the treasury and the date of payment to the teachers, some delay was unavoidable because the Chairman's tours in the interior parts could not be arranged at a moment's notice. The result was that large sums remained in the hands of the Chairman and "thereby gave him a temptation to appropriate the same for his own use in the hope that he may be able to refund the same when necessary. Moreover with a view to conceal the delay in making payment to the teachers concerned, a systematic practice was adopted of asking the teachers not to put the dates while giving their stamped receipt and where such dates were given by inadvertence they were erased. Hence the Inspecting Authorities could not, by merely looking at the bills or the vouchers, know whether there was undue delay in making payments to the teachers. This practice was mainly responsible for the delay in detecting the misappropriation of such a large sum.