Kartikeswar Nayak Vs. State - Court Judgment

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. - 2. the facts of the case are well set out in the judgment, of both the courts below and therefore, it is not necessary to proliferate the same except to refer to certain salient features relevant for disposal of the revision. the prosecution in course of trial failed to lead any evidence to prove the relevant entries in the gram panchayat cash book.r.k. dash, j. 1. kartikeswar nayak, petitioner herein, was the branch post master of ratapat branch post office. he was prosecuted for offence under sections 409 and 468, ipc. the learned magistrate, first class, baramba, who tried the case held the petitioner guilty of both the offences and consequently convicted and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of rs. 2,000/-, in default to suffer further rigorous imprisonment for six months for the offence under section 409 and rigorous imprisonment for six months and to pay a fine of rs. 200/-, in default to suffer rigorous imprisonment for one month for the offence under section 468, ipc. both the sentences were ordered to run concurrently. against the order of conviction and sentence the petitioner appealed to the sessions judge. the learned second additional sessions judge, cuttack, who heard the appeal agreed with the findings and conclusion of the trial court as regards offences under section 409, ipc, but allowed the appeal and set aside the conviction of the petitioner recorded under section 462, ipc, it is against that judgment of the appellate court, the petitioner has filed the present revision.2. the facts of the case are well set out in the judgment, of both the courts below and therefore, it is not necessary to proliferate the same except to refer to certain salient features relevant for disposal of the revision.3. to bring home the charge of 'criminal breach of trust' punishable under section 409, ipc the prosecution is required to prove :(i) that a public servant was entrusted with property or with dominion over it; (ii) that being as entrusted, he dishonestly misappropriated or converted to his use that property or dishonestly used or disposed of that property in violation- (a) of any direction of law prescribing the mode in which such trust is discharged, or (b) any legal contract made touching the discharge of such trust. the word 'entrust' is not a term of law. it has different implications in different contexts. according to chambers english dictionary. 'entrust' means 'to give in trust: to commit as a trust: to charge trustingly'. in its most general significance it imports handing over possession for some purpose other than conferring proprietory right. the ownership of beneficial interest in the property fn respect of which offence of criminal breach of trust is alleged to have been committed must be with some person other than the accused and the fatter must hold it on account of some person or for his benefit.4. the next most essential ingredient for proof of criminal breach of trust is 'misappropriation with a dishonest intention'. breach of trust is not an offence if it is not associated with intention which is dishonest. word 'dishonestly' defined in section 24, ipc means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. so offence is complete when misappropriation or conversion of the property has been made dishonestly. even temporary misappropriation falls within the ambit of the offence.5. in the case in hand the prosecution in order to bring home the charge of temporary misappropriation under section 409. ipc mainly relied upon the ocular evidence of pws 1 and 11 coupled with certain documentary evidence, viz., cash book of the gram panchayat, ext, 35, pay-in-slips, exts. 14 to 18 relevant entries in savings bank journal, exts. 5 to 9 entries in the accounts book of the branch post office, exts. 22 to 27 and head post office ledger card. ext 21. it need be stated that the inspector of post office, pw 1 in his report to the police which was treated as fir had given in details the corresponding date of receipt and deposit of rs. 9,200/- in the savings bank account of the gram panchayat. as mentioned therein, there was delay ranging from 4 months to 11 months in making the deposit in the panchayat pass book. in support of what he has alleged in the said report pw 1 stated in his evidence that while conducting an inquiry into the allegation against the petitioner it came to light that the petitioner had not deposited the amount in the pass book on the day the same had been entrusted to him. there is no dispute that the aforementioned sum of the grama panchayat had been entrusted to the petitioner for deposit. the only question is whether the same had been made over to the petitioner on tie dates as shown in the gram panchayat cash book, ext. 35 or as pleaded by the petitioner, on the dates as find mention in the postal records, that is, pay-in-slips, savings bank journal, etc. the prosecution in course of trial failed to lead any evidence to prove the relevant entries in the gram panchayat cash book. even the secretary, pw 11 in his evidence did not give the details as to when he offered the cash to the petitioner. evidence is lacking that moneys had been entrusted to the petitioner much prior to the dates as shown in the postal records and that he temporarily misappropriated the same. pay-in-slips, exts. 14 to 18 proved on behalf of the prosecution revealed the date of deposit of the amount in the gram panchayat's savings bank account. these documents, bear the signatures of pw 11. true it is, pw 11 denied his signatures appearing therein, but on the other hand inspector of post offices, pw 1 in his chief-examination identified and proved those signatures to be of pw 11 marked exts. 12/1 to 18/1. if this important piece of evidence had been taken note of and considered by both the courts below, the ultimate conclusion would have been otherwise. added to that, there is another suspicious circumstance which goes a long wav to doubt the prosecution case. the petitioner, it was alleged, on receipt of the pass book for calculation of interest granted the receipt exts. 10 to pw 11 which bears the postal seal dated 16-11-1982. it may be mentioned that a sum of rs. 9,200/- had been entrusted to the petitioner in between 1981 and 1982 for deposit. if the fact of deposit had not been reflected in the pass book, pw 11 in whose custody the pass book was all along till it was submitted for calculation of the interest would have complained to the sarpanch as well as the postal authorities for taking legal action against the petitioner. that having not been done, the needle of suspicion points at pw 11 as to if he had entrusted the moneys on the dates as mentioned in the fir. all these facts and circumstances lead to an irresistible conclusion that there had been no temporary misappropriation of the moneys of the gram panchayat by the petitioner and only on suspicion both the courts below arrived at wrong conclusion finding him guilty of the charge.6. in the result, the revision is allowed and the conviction and sentence recorded against the petitioner are set aside.