A. Pasayat, J.
1. Legality of conviction for commission of offences punishable under Section 5(1)(c) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (in short, 'the Act') and under Section 409 of the Indian Penal Code, 1860 (in short. 'IPC'), and sentences of rigorous imprisonment of three years on each count, imposed is the subject-matter of challenge in this appeal by appellant Karunakar Pradhan (hereinafter referred to as 'the accused'), who was found guilty by the learned Special Judge (Vigilance), Sambalpur and sentenced as aforesaid.
2. Accusations which led to the trial and conviction of the accused essentially are as follows : Forest Department of the State collects Kendu leaves, and after processing and bundling, those are stored in the Central Godown. Thereafter they are handed over to the Orissa Forest Corporation (in short, 'the Corporation') which takes care of the same and puts them to auction. 115/5 lots were stored in Srirampur Central Godown out of which the case at hand relates to Lot No. S-114/5. The said stock was handed over to the Corporation on 10-12-1980, and in auction held in 1981 one Rasiklal Company became the highest bidder. When the agent of the said company (PW 4) went to take delivery, it was found that there was shortage of 82 bags of Kendu leaves. One lot consisted of 100 bags, and each bag contained 12 bundles. The shortage occurred during the period from 30-4-1981 to 6-5-1981 when the appellant-accused and one Haladhar Mahanta (Watchman) were in charge of Srirampur Central Godown, and as such there was misappropriation of stock valued at nearly Rs. 40, 000/-. This, according to the prosecution, constituted offences punishable under Section 5 (1) (c) read with Section 5 (2) of the Act, and Section 409, IPC.
3. Accused pleaded innocence. Additionally it was submitted that the Range Officer of Gurusalal Range was in charge of the Godown and accused's place of posting was at a distance of 10 k. ms. from Srirampur. He was occasionally maintaining the registers being directed by the Range Officer, and due to negligence of the then Range Officer, the stocks were lost and damaged, and he was falsely implicated at the instance of the aforesaid Range Officer.
4. Thirteen witnesses were examined to further the prosecution case, PW 1 was the Range Officer, Gurusalal, PW 2 was the Supervisor of Pallahada Kendu Leaves Division, PW 4 was the agent of Rasiklal Company, PW 5 was the Assistant Conservator of Forests, Pallahada Kendu Leaves Division, PW 6 was the Divisional Manager of the Corporation, PW 7 was the Assistant Accounts Officer of the Corporation, PW 8 was the Range Officer, Gurusalal Kendu Leaves Range, PW 9 was the Clerk of the Sub-Divisional Forest Office, PW 10 was the Supervisor, Kendu Leaves, Pallahada, PW 11 was the Assistant Conservator of Forests posted as Sub-divisional Officer, Kendu Leaves, PW 1? was the Investigating Officer and PW 13 was the sanctioning authority.
The accused examine himself as DW 1 to prove his in nocence.
5. The learned trial Judge recorded the following conclusions to hold the accused guilty:
(i) In view of the evidence of prosecution witnesses and the registers maintained in the office, it was clear that the accused was in charge of Srirampur Central Godown.
(ii) The accused could not successfully account for the short- tage out of Lot No. S-114/5 of which he was in charge.
(iii) Since the co-accused was not public servant he was not made liable.
6. In support of the appeal it was submitted that there was no misappropriation or any shortage as alleged, and in any event nothing has been established. With reference to the evidence of PW 2 it was submitted that on 7-4-19St when he visited Srirampur Godown and found there were only 100 bags of Kendu leaves relating to Lot No. S-114/5, and there was no other Kendu leaf bag. PW 5 stated that he visited the Godown and physically verified the stock, he found shortage in the total stock. Some loose bundles were found lying in the godown and some leaves were affected by white-ants. According to his assessment, about 40 bags were damaged by white-ants, and in the case lot there were 31 bags 9 bundles of Kendu leaves. His report has been marked as Ext. 16. According to PW 5, during his physical verification, he found 18 bags out of 100 bags available in Lot No. S-114/5, and found shortage of 82 bag. in the said lot. He found 4 bags and 117 bundles of 1980 crop lying in the Store Room near the kitchen. Six bundles were kept in Central Godown. Except Lot No. S-114/5. all other lots had already been lifted by the time of his physical verification.
It is submitted that the accused cannot be held to be responsible for the damages as the Kendu leaves were collected by the Forest Department and were delivered to the Corporation, which put the same to auction and was required to take care. On 10-12-1980, the Kendu leaves were delivered to the Corporation. Presence of the accused at the time of turning was not necessary as it was done by the employees of Corporation after delivery. The Manager of the Corporation used to carry out the turning. The accused was not in charge of the work and occasionally he was told to maintain registers being directed by the Range Officer (PW 8). The condition of the Godown, as stated by PWs 4 and 8, was such that there was every chance of damage by white-ants. It was a kutcha Godown having thatched roof, no boundary wall and the doors were of bamboo sticks. Further, in the absence of requisite sanction the proceeding was misconceived. It is, therefore, submitted that the prosecution has failed to establish its case.
The learned counsel for State on the other hand submitted that the conviction is in order as the ingredients necessary to constitute the offences alleged have been clearly established and no sanction was necessary.
7. Scope and ambit of offences under Section 5 (1) (c) of the Act and Section 409, IPC need to be noted. By virtue of Section 26 of the General Clauses Act. it becomes incumbent on the prosecuting agency either to prosecute the public servant under the general law or under the special law. Section 6 of the Act which provides for sanction mentions Sections 161 and 165. IPC. but does not mention Section 409, IPC specifically. This shows that it was not the intention of the Legislature to insist on sanction against public servants under Section 409. It is true that sanction was required by Section 5 for offences under Section 5 (2) which include an offence defined in Section 5 (1) (c). which is exactly the same as offence under Section 409. Even so, if the option is in the prosecutor under Section 26 of the General Clauses Act. to prosecute under either enactment, it is not open to the Court to insist that the prosecution must be under the enactment which requires sanction and that it will not proceed to try the case under an enactment which does not require sanction. The position is now made crystal clear by the amendment of Section 5 of the Act which not only says that the provisions of Section 5 shall be in addition to, and not in derogation of, any other law, but goes on further to say that nothing contained herein shall exempt any public servant from any proceeding which might, apart from Section 5, be. instituted against him. This clearly means that if it was possible to institute any proceeding against a public servant without sanction for an act, which was an offence under any other law the fact that the act was made an offence under Section 5 would not exempt the public servant from being prosecuted under that law. It is, therefore, open to the prosecutor to prosecute a public servant under Section 409, IPC, without sanction from the State, and. the Court cannot insist that the prosecution must be under Section 5 (1) (c) of the Act, with the sanction of the State. Because of the substitution of a new Sub-Section (4) in the place of the old one by the amending Act 59 of 1952, it is clear that in the case of public servant the Act of 1952 does not exclude the operation of Section 409, IPC so that the prosecution can elect to charge the accused either under Section 409, IPC or under Section 5(1)(c)of the Act. Hence, trial of a public servant before a Special Judge under Section 409. IPC would be valid.
The fact that certain special provisions of law are applicable to the trial of one offence but not to the trial of the other does not in any way reduce the field of operation of Section 235(2) of the Code of Criminal Procedure. 1973 (in short, 'the Code'). Thus, a joint trial under Section 5 of the Act, and under Section 409, I PC is legal.
8. In Om Prakash Gupta v. State of U. P. : AIR 1957 SC 458, it was held by the apex Court that the two sections, namely, Section 405, IPC and Section 5 (1) (c) of the Act are not identical in essence, import and content and that they are distinct and separate. There are three points of difference between Section 405, IPC and Section 5 (1) (c) of the Act. The dishonest misappropriation contemplated in Section 405, IPC is different, whereas that under Section 5 (1) (c) is either dishonest misappropriation or fraudulent misappropriation. The latter section is much wider in amplitude than the former. Section 405, IPC uses the expression ' in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied'. There is no such expression in Section b (1) (c) of the Act. It is clear that whereas under Section 405, IPC there are three essential ingredients to constitute the offence, each one of them being separate and distinct, in Section 5 (1) (c) there are only two. The words 'dominion' and 'entrustment' connote two different things. The word 'dominion' is not there in Section 5 (1) (c). The word 'fraudulently' is not present in Section 405, and in Section 5 (1)(c) the gist of the offence can also be made out if the offender allows any person so to do, i.e., allows any person to derogate from the law as contemplated in the earlier portion of the section. The meaning put on the word 'allows' would certainly be different from 'dishonest misappropriation' by the offender himself. Same view was reiterated by the apex Court in State of M. P. v . Veereswara Rao Agnihotri : AIR 1957 SC 592. In Om Prakash Gupta's case (supra) the apex Court held that the Act being a temporary measure, the Legislature would not have intended in the normal course of things that a temporary statute like the one in question should supersede an enactment of antiquity, even if the matter : covered the same field, and that under Section 6(a) of the General Clauses Act, if by efflux of time the period of a temporary statute which had repealed an earlier statute expires, there would not be a revival of the earlier by the expiry of the temporary statute. The language used by the Legislature in Section 5 (4) of the Act clearly negatived any suggestion that the Legislature intended to repeal the provisions of Section 409, IPC.
9. A comparison of ingredients of Section 405, IPC, and Section 5 (1) (c) and (d) of the Act would be appropriate.
Section 405, IPC Section 5(1) (c) and (d)
1. Entrusting any person with (c) dishonestly or fraudulently
property or with any domi- misappropriating or other-
nion over property wise converting for his own
use any property entrusted
2. The person entrusted. to him, or under his control
(a) dishonestly misappropria- as a public servant or allo-
ting or converting to his wing any atner person to
own use that property; do so
(b dishonestly using or dispo- (d) If he by corrupt or illegal
sing of that property or means or by otherwise
wilfully suffering any other abusing his position as a
person to do so in viola- public servant, obtains for
tion himself or for any other
person any valuable thing
or pecuniary advantage.
(i) of any direction of law
prescribing the mode in
which such trust is to be
discharged, or
(ii) of any legal contract made
touching the discharge of
such trust.
'Dishonestly' as defined in Section 24, IPC connotes the doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person, and Section 25 defines 'fraudulently' as doing a thing with intent to defraud but not otherwise. It is, therefore, clear that Section 5 (1) (c) is wider in ambit than Section 405, IPC. The definition of crime under Section 5 (1) (c) contains expressly a proposition as to a state of mind. The definition states that the act, i. e., misappropriation or conversion or allowing any other person so to do, must have been done'dishonestly' or 'fraudulently'. Every ingredient of the offence is stated in the definition itself. So the guilty mind would be the dishonest mind or the fraudulent mind.
10. On the question whether accused was in charge of the godown, and there was entrustment, reference to evidence of PWs 1, 2, 3, 5 and 8 is necessary. PW 8 stated that there was specific order placing accused in charge of Srirampur Godown But the same was not brought on record. PW 5 stated that he cannot say if anything WAS given is writing to the accused that he would remain in charge of Srirampur Godown. He also stated that he was unable to say if any verbal instruction was given in that regard. PW 3 has stated that responsibility of Kendu Leaves Officers are regulated by Orissa Kendu Leaves Manual, 1973 (in short, 'the Manual'). Evidence of PWs 4 and 5 shows that the accused was forester whose office was at Gurusalal, which is at a distance of 10 k. ms. from Srirampur Godown. PW 5, the Assistant Conservator fixed the responsibility on the accused and the Corporation. His evidence is also to the effect that turning of leaves used to be done by the employees of the Corporation after delivery before lifting. The Subdivisional Manager of the Corporation used to carry out the turning. Presence of accused was not necessary at the time of performing the job of turning by the employees of the Corporation. Foresters (the accused is one) perform duties as prescribed under Rule 3 of the Manual. It is not explained by prosecution how accused came to the picture, after stock was handed over to Corporation. Evidence of PWs 1, 4 and 5 shows noticeable contradiction as to place of posting of accused. PW 1 has stated that accused was in charge of Srirampur Godown and not of Gurusalal. To revelse effect is the version of PWs 4 and 5.
11. The analysis of the evidence of witnesses and consideration of determinative question whether the accused was in charge of the Godown and whether there was entrustment shows absence of any definite material about entrustment, and that being so the ingredients necessary to attract application of Section 5 (1) (c) of the Act and Section 409, IPC, are absent and cannot be said to have been established. These vital ingredients go to the root of the accused, and since the prosecution fails to lay any foundation on these vital aspects for its accusations, it becomes vulnerable and the conviction cannot be maintained, and consequentially the sentence is set aside.
The appeal is allowed. The bail bonds are discharged.