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1977 Supreme(Ori) 81
ORISSA HIGH COURT
K. B. PANDA, J.
UDAY NARAYAN PANDA
VERSUS
STATE
Criminal Revn. No. 63 of 1977,
Decided on : 7 -11 -1977.
In a prosecution for criminal misappropriation under S.406, I. P. C., the prosecution is not required to establish the manner in which the accused misappropriated the property.
Headnote:
CRIMINAL LAW - S.406, I. P. C. - Entrustment - Proof - Manner of misappropriation - Not necessary for prosecution to establish.
Fact of the Case:
The petitioner, a Secretary of a Co-operative Society, was convicted under S.406, I. P. C. for misappropriating Rs. 1,814.15 from the Society's cash. The prosecution alleged that the petitioner failed to hand over the cash to his successor, while the petitioner claimed that he had handed it over to the President of the Society.
Finding of the Court:
The court found that the petitioner was the custodian of the cash and that he had not made it over to the President. The court also found that the prosecution had proved entrustment and that it was not necessary for the prosecution to establish the manner of misappropriation.
Issues: 1. Whether the petitioner was the custodian of the cash. 2. Whether the prosecution had proved entrustment. 3. Whether the prosecution was required to establish the manner of misappropriation.
Ratio Decidendi: 1. The court held that the petitioner was the custodian of the cash based on the evidence that he was responsible for keeping the accounts and making entries in the Cash Book. 2. The court held that the prosecution had proved entrustment based on the evidence that the petitioner had admitted to receiving the cash and that he had failed to make it over to his successor. 3. The court held that the prosecution was not required to establish the manner of misappropriation, as it was sufficient to prove that the petitioner had dishonestly misappropriated the property.
Final Decision: The court dismissed the appeal and upheld the conviction and sentence of the petitioner.
JUDGEMENT
Order:- The petitioner has been convicted under S.406, I. P. C. and has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for another four months by the S.D. J. M. Karanjia which has been confirmed in appeal.
2. The prosecution case in brief is thus. The petitioner admittedly worked as the Secretary of the Karanjia Co-operative Circle Government Employees Co-operative Society from 14-9-1974 to 25-9-1974, i. e.. for ten days. He made over charge to his successor one Sri A. R. Mohapatra (P. W. 4) on 25-9-1974 by virtue of a resolution of the Board of Directors dated 23-9-1974 as it was found that the petitioner was a member of two of the Societies which is against rule. It was alleged by the prosecution that the petitioner made over charge of his office to P. W. 4 excepting cash in hand amounting to Rs. 1,814.15 p. Being asked to make over the cash to P. W. 4 the petitioner stated that he had done so to the President (P. W. 5) the informant. The petitioner repeated this before P. W. 5 but that not being a fact, P. W. 5 lodged information (Ext. 12) at Karanjia P. S.about the misappropriation of the amount by the petitioner on 26-9-1974. Consequently P. W. 7 the Officer-in-Charge of Karanjia P. S.registered a case under S.406, I. P. C. and finally charge-sheeted the petitioner resulting in his conviction as aforesaid.
3. The petitioner in his statement admitted that he was Secretary of the Society during the period in question. But asserted that the sum of Rupees 1,8.1.4.15 p. was not with him, but with the President who according to the rules is the custodian of the cash. He however admits under Ext. 6 series that the entries in the Cash Book of the Society between 15-9-74 and 25-9-74 have been made by him and that he had taken charge of the cash of those days.
4. The prosecution examined 7 witnesses and the defence one. P. W. 1 is the Vice-President of the Society, P.W. 2 is the witness to the seizure of the documents, P. W. 3 is a Member-Director of the Society, P. W. 4 is the successor of the accused, P. W. 5 is the President of the Society, P. W. 6 is the Secretary at the time of trial and P. W. 7 is the Investigating Officer.
D. W. 1 is a temporary peon of the Society.
5. On an assessment of the oral and documentary evidence the learned Court below came to the finding that whatever may be the rules, the cash was being handled by the Secretary and not by the President. The alleged defalcated cash of Rs. 1,814.15 p. was similarly with the Secretary which he had not made over to the President and that it is he who has misappropriated the amount and so convicted him.
6. It was contended on behalf of the petitioner that under law the accused petitioner was not supposed to be the custodian of the casjn (See R. 41 of the Orissa Co-operative Societies Rules, 1965) that the prosecution has failed to prove entrustment, and that the entries in the Cash Book rather show that P. W. 5 was the custodian of the cash and not the petitioner.
7. The pith of the argument centred round R. 41 of the Orissa Co-operative Societies Rules which provides thus:
"41. Officer who will maintain Account Books etc. The Committee shall specify which of the officers of the society shall:-
(a) keep books of accounts:
(b) keep custody of cash and stores;
(c) keep other books and registers and
(d) prepare returns and statements.
Provided that person charged with keeping of accounts shall not be in charge of cash except under a special or general order of the Registrar."
Relying on this it was strenuously argued that the Secretary was keeping accounts and therefore without any special order of the Registrar he was not put in charge of the cash. The presumption, therefore, is that it was not the Secretary who was in charge of the cash. That presumption has not been rebutted. Whatever might be the rules, the facts of a particular case have to be looked into. In the instant case for t
