Documentary evidence holds precedence over oral testimony; probation may be granted to first offenders after a substantial delay since the offence.

ORDER :

1. Heard learned counsel for the Parties.

2. This Appeal is directed against the judgment and order dated 09.08.1994 passed by the learned Special Judge, Jajpur in 2(a)CC Case No.2/4 of 1993 wherein both the Appellants namely Babaji Charan Rout and Rajendra Kumar Jajodia faced trial for having committed violation of the condition-5 and 8 of the License granted under the Orissa Kerosine Control Order and Clause-11 of the Orissa Control Order punishable U/s. 7 and 9 of the Essential Commodities Act, and found guilty in the offence U/s. 7 of Essential Commodities Act. They having been convicted there under sentenced to undergo R.I. for three months. The said two persons namely Babaji Charan Rout and Rajendra Kumar Jajodia are therefore, before this Court in Appeal.

3. The prosecution case as unfurled before the trial court in brief is that the accused Rajendra Kumar Jajodia is the proprietor of the firm namely M/s. Bhagabati Prasad Rajendra Kumar at Jajpur road whereas the accused Babaji Charan Rout is the agent of the said firm as wholesaler in Kerosene at Jajpur Road. The specific allegations of the prosecution is that in the month of January 1993, the Appellants have sent returns that 4000 liters of Kerosene was supplied to Manoranjan Satapahty, Sub-wholesaler, Kaliapani on 30.01.1993 but according to the return submitted by the sub- wholesaler Kaliapani, Manoranjan Satapahty and the Marketing Inspector, Sukinda Block no kerosene was supplied to them in the month of January, 1993. Therefore, they held to have submitted false return. The P.W. 2 namely Dhaneswar Nayak (Asst. Civil Supply Officer) seized the sales and stock register of the wholesaler, the return filed by the wholesaler, sub-wholesaler and the marketing inspector and other documents and on the basis of a report FIR was registered.

4. The plea of the defense is one of complete denial and false implication.

5. To substantiate its case while the prosecution examined three witnesses, the defense examined two witnesses in support of its case. The three witnesses examined by the prosecution are namely Ranjit Kumar Prusty, the Supply Supervisor (P.W.1), Dhaneswar Nayak, the Asst. Civil Supply Officer, Jajpur (P.W.2) and Sananda Prasad Sahu, A.C.S.O., Hindol (P.W.3). The two witnesses examined on behalf of the defence are Manoranjan Satapathy working as Sub-wholesaler of Kerosene at Kaliapani (D.W.1) and Shyam Singh Tanker driver (D.W.2).

6. Besides the oral evidence, the prosecution proved documentary evidence vide Exhibits.1 to 11/1. No documentary evidence, however, has been proved from the side of defence.

7. The learned trial court having believed the evidence brought through the witnesses both oral and documentary found the prosecution to have proved the case beyond all reasonable doubt holding the Appellant guilty of the offence charged.

8. The learned counsel for the Appellant submitted that the offences have not been made out against them as there is no violation of the terms of the license and the learned trial court ought to have acquitted the Appellants. She, however, submitted that the Appellants be considered by extending the reformative provision under the Probation of Offenders Act. According to the learned counsel the matter is of the year 1994 and almost thirty years have passed in the meantime. They have no criminal antecedents to their credit and are first offenders. She also submitted that the incident is nothing but the outcome of miscommunication as reveals from the defence evidence.

9. The learned counsel for State on the other hand supported the impugned judgment passed by the learned trial court and submitted that the documents are clear that the supplies have been received 0n 0