The court's decision emphasized the importance of proving entrustment and misappropriation of funds under Section 409 of I.P.C., and the discretion to modify sentences based on circumstances such as the accused's age and the time elapsed since the occurrence.

JUDGMENT :

Sashikanta Mishra, J.

The Petitioner was convicted for the offence under Section 409 of I.P.C. by the learned J.M.F.C., Digapahandi vide judgment dated 10th November, 1994 in G.R. Case No.57/1990 (T.R. No.439/1991) and was sentenced to R.I. for two years and to pay fine of Rs.3000/-, in default, to undergo further R.I. for six months. The said judgment of conviction and sentence passed by the trial court was confirmed in appeal by the learned Second Addl. Sessions Judge, Berhampur in Criminal Appeal No.11/1996 as per the judgment passed on 2nd April, 1997. Challenging the aforementioned judgments, the Petitioner has filed the present Revision.

2. The facts of the case are that the Petitioner was the Sarpanch of Podamari Grama Panchayat during the year 1989 and pursuant to Government Notification dated 22nd December, 1989 the Sarpanchs were asked to hand over charge to VLW. Accordingly, by order dated 26th December, 1989 issued by the BDO, Sanakhemundi, the Petitioner was directed to hand over charge to the VLW which he did on 4th January, 1990, but he failed to hand over the cash balance of Rs.31,392/-drawn by him in Jawahar Rojagar Yojana (JRY) which was kept in his personal custody. As such, the BDO, Sanakhemundi lodged F.I.R. before Pattapur P.S. on the basis of which P.S. Case No.23/1990 was registered under Section 409 of I.P.C. and investigation was taken up. In course of investigation GRY account of Podamari Grama Panchayat for the year 1989-90 was audited by the Departmental Auditor who found that cash of Rs.31,392/-was kept with the Petitioner which he failed to produce during the audit nor could he submit the vouchers and as such, held that the Petitioner had misappropriated the funds. Upon completion of investigation charge sheet was submitted. While taking the plea of denial the accused took the specific plea that the amount in question was received by the Secretary of Grama Panchayat and that vouchers for the amount had been submitted, which was utilized for development work. He further claimed that he had never been asked by the Auditor during audit and that all the vouchers are kept with the Secretary.

Prosecution, in order to prove its case examined seven witnesses and also proved the documents marked Exhibits 1 to 7. The accused examined four witnesses from his side and exhibited four documents marked Exts.A to E. After analyzing the evidence on record in detail the trial court held that entrustment of the amount in question was clearly established and, therefore, the onus was on the defence to duly account for the amount entrusted to him. In analyzing the evidence of the prosecution witnesses as also the witnesses examined by the defence including the Government examiner of questioned documents (handwriting expert), the trial court held that the so called vouchers produced by the defence vide Exts.A to E were fabricated for the purpose of the case and, therefore, rejected the defence plea that the amount in question had been duly utilized for the purpose it was drawn. On such basis the trial court held that the charge under Section 409 of I.P.C. was proved and accordingly, convicted the accused-Petitioner and sentenced him as aforesaid.

The Petitioner carried the matter in appeal. The lower appellate court independently scanned the evidence on record meticulously and held that entrustment of the amount in question was clearly proved, which the accused had failed to account for. It was further held that rejection of the evidence of the handwriting expert by the trial court was justified. As such the order of conviction and sentence passed by the trial court was confirmed.

3. Heard Mr. S.D.Das, learned Senior counsel for the Petitioner and Mr. P. Tripathy, learned Addl. Standing Counsel for the State.

4. Assailing the impugned judgment learned Senior counsel has contended that the evidence of P.Ws.2, 3 and 4 to the effect that money was given in advance to D.Ws.2, 3 and other contractors for purchase of bui