Order on Board

28.11.202 3

1. This Criminal Revision has been preferred against the judgment of conviction and order of sentence dated 08.04.2010 passed by the 1st Additional Sessions Judge, Mahasamund in Criminal Appeal No.13/2009 whereby, the judgment dated 28.01.2009 passed by the JMFC, Pithoura, District Mahasamund in Criminal Case No.10/2009 has been affirmed in which, the Applicant was convicted under Section 409 IPC and sentenced to undergo RI for 2 years with fine of Rs.1,000/- with usual default stipulation.

2. Prosecution case in brief is that Complainant Jagho Nayak (PW-1), Co-ordinator, Block Development, Strot Kendra has lodged a written complaint (Ex.P-1) at PS Pithoura on 04.03.2008 whereby, it has been reported that the Applicant was posted as Sikshakarmi Grade-2 at Girls’ Higher Secondary School, village Chhirbara and was ex-officio Secretary at janbaaghidari Development Committee of the said School which was operated by the Secretary and Treasurer Anita Kujur (PW-4) and according to the said Committee, for any withdrawal, a proposal has to be passed with due approval of the said Committee. It is alleged that the Applicant, in the name of construction work, made an excess withdrawal of Rs.75,000/- and an amount of Rs.50,000/- which was given to the said Committee for Teaching and Learning Instrument (for short ‘T & L Instrument’) i.e. total Rs.1,25,000/- has also been withdrawn and misappropriated by him based on which, FIR (Ex.P-22) was registered on 05.03.2008 by the ASI Jeevanlal Sahu (PW-7). During investigation, the valuation report (Ex.P-19) of the construction work of the School was obtained from Sub-Engineer GL Barik (PW-8) and the Applicant has also given a letter to Co-ordinator Jagho Nayak (PW-1) vide Ex.P-4 through which, he has admitted that he has withdrawn money to the tune of Rs.1,25,000/- and prays time to make deposit of the said amount. Along with the written complaint (Ex.P-1), necessary documents have also been filed for lodging of the FIR. Statements of the witnesses were recorded. After completion of investigation, charge sheet has been filed. During trial, the Applicant abjured the guilt and claimed to be tried. In order to prove its case, the prosecution has examined as many as 8 witnesses and the Applicant, in his statement recorded under Section 313 Cr.P.C, stated that he has been falsely implicated and has not adduced any defence witness.

3. After evaluating the evidence, both the Courts below found the Applicant guilty for the offence under Section 420 IPC for embezzlement of money to the tune of Rs.1,25,000/- which was withdrawn by him from T & L Instrument for the sake of construction of the building work and sentenced him as mentioned above. Hence this Revision.

4. Learned Counsel for the Applicant submits that both the Courts below have not appreciated the evidence in its proper perspective and prior to lodging of the FIR, no actual evaluation has been done for the construction work and the charge was framed for the defalcation of amount of the building fund of Rs.5,17,000/-, which has been allotted to janbhagidhari samiti and therefore, it has been alleged that the Applicant has embezzled money of Rs.1,25,000/-. He further submits that there was no charge for embezzlement of money from the T & L Instrument and therefore, conviction of the Applicant for the embezzlement of fund of T & L Instrument is not established. He further submits that no actual valuation of the cost of the building material which has been purchased and used for construction of the school building was done and even the valuation report (Ex.P-19) was made by Sub-Engineer GL Barik (PW-8) on 09.06.2008 i.e. after registration of the FIR on 05.03.2008 and on the date of registering of the offence, there was no material with regard to the said embezzlement. He further submits that valuation report (Ex.P-19) was issued on the basis of of the standard norms of the Department and there is variance in the market rate