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State of Orissa Vs. Shyamsundar Rath and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberGovernment Appeal No. 49 of 1979
Judge
Reported in1984(II)OLR677
ActsIndian Penal Code (IPC), 1860 - Sections 409
AppellantState of Orissa
RespondentShyamsundar Rath and anr.
Appellant AdvocateN.C. Panigrahi, Addl. Govt. Adv.
Respondent AdvocateG. Bohidar, ; S.K. Mund, ; G.N. Mohapatra and ; U.C. Mohanty for Respondent No. 1 and ; M. Patel, Adv. for Respondent No. 2
DispositionAppeal dismissed
Cases ReferredDadarao v. State of Moharastra
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....was based on the entries made in books of accounts audited by him. there had been no independent evidence of entrustment of any moneys with any of the respondents. as has been held by this court in 1984(1) o. l. r. 585, okila luha v. state of orissa referring to and relying on the principles laid down by the supreme court in air 1974 s. c. 388, dadarao v. state of moharastra, entries in the books of account, though relevant, shall not alone be sufficient evidence to charge any person with criminal misappropriation and mere entries unsupported by any other oral evidence cannot prove entrustment. in a case of this nature, the prosecution must prove the factum of entrustment and the factum of misappropriation. no order of conviction can be based merely on the basis of an audit report of.....
Judgment:

B.K. Behera, J.

1. This appeal has been directed against the order of acquittal recorded by the learned Subdivisional Judicial Magistrate, Sundargarh, in which the respondents had figured as the accused persons being charged under Section 409 of the Indian Penal Code for misappropriation of Rs. 22,520.97 paise between 1.7.1974 and 31.1.1976 while Shyamsundar Rath, the respondent No. 1, was functioning as the Administrator and Dileswar Singh, the respondent No. 2, was functioning as the Secretary of the Kundukela Service Co-operative Society in the district of Sundargarh. The plea of the defence was one of denial. The prosecution had examined three witnesses to establish its case. The respondents had examined two witnessess in their defence. On a consideration of the evidence, the trial Court held that the charge had not been brought home to the respondents.

2. Upon hearing Mr. N. C. Panigrahi, the learned Additional Government Advocate and the learned counsel for the respondents, I find that of the three witnesses examined for the prosecution, the evidence of the Investigating Officer (P. W. 2) and that P. W. 3, the Zone Officer of the Sundargarh Central Co-operative Bank, was of no avail to the prosecution. The only other evidence was that of the Auditor (P. W. 1) who had audited the accounts of the Co-operative Society. His evidence was based on the entries made in books of accounts audited by him. There had been no independent evidence of entrustment of any moneys with any of the respondents. As has been held by this Court in 1984(1) O. L. R. 585, Okila Luha v. State of Orissa referring to and relying on the principles laid down by the Supreme Court in AIR 1974 S. C. 388, Dadarao v. State of Moharastra, entries in the books of account, though relevant, shall not alone be sufficient evidence to charge any person with criminal misappropriation and mere entries unsupported by any other oral evidence cannot prove entrustment. In a case of this nature, the prosecution must prove the factum of entrustment and the factum of misappropriation. No order of conviction can be based merely on the basis of an audit report of an inconclusive character. The order of acquittal has correctly been recorded.

3. The appeal fails and is dismissed.


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