Decided on January 16,1978

The State Of Orissa Appellant
Maheswar Mohanty And Anr. Respondents


K.B. Panda, J. - (1.) MAHESWAR Mohanty the Nazir (Respondent No. 1) was charged under Section 5(2) of the Prevention of Corruption Act read with Section 5(1)(c) of the said Act and under Section 477 A. Indian Penal Code while Suryanarayan Patnaik the head Clerk (Respondent No. 2) was charged under the above sections read with Section 109, Indian Penal Code but were finally acquitted occasioning this appeal by the State of Orissa.
(2.) THE prosecution case was thus: Respondent No. 1 was working as Nazir in the office of the Subdivisional Officer, Bhanjanagar till 27 -5 -1970 when he made over charge to Parsuram Patnaik (P.W. 3). Similarly, Respondent No. 2 Suryanarayan was the Head Clerk of that office from 18 -6 -1969 till 4 -12 -1970. Respondent No. 1 as Nazir was in charge of handling the office cash. He was maintaining Accounts Register including the General Cash Book (Ext. 7/2) and the Subsidiary Register VI relating to development grants (Ext. 8). As Head Clerk, Respondent No. 2 had to check and initial the entries in the Accounts Register every day. It is alleged by the prosecution that out of the development grants, the Nazir disbursed on the whole an amount totalling Rs. 14,367/ - but he fraudulently and dishonestly showed the total disbursement to be Rs. 35,267.00/ - in the Subsidiary Register (Ext. 8) as per Ext. 8/1. He carried this inflated total to the General Cash Book of the same day as per Ext. 8/3 which the other Respondent as Head Clerk initialled. P.W. 10 the Nizarat Officer (who succeeded the Nizarat Officer during whose time the embezzlement was made) who has also responsible for the F.D.R. grant, made a cash analysis of the amounts allotted to the subdivision and detected the shortage of Rs. 20,900/ - from the actual cash. He reported this fact to P.W. 9, the then Subdivisional Officer. There was a further detailed verification which showed that really an amount of Rs. 20,900/ - had been misappropriated. Accordingly P.W. 9 lodged F.I.R. (Ext. 20) in which these two Respondents a long with the then Nizarat Officer Jadumani Samantaray were shown as accused. But, however, finally, sanction for prosecution was obtained as against these two Respondents and they ' were charge -sheeted by P.W. 11, the Investigating Officer under the above sections resulting in their acquittal as aforesaid. The plea of Respondent No. 1 was that he was merely keeping the Register while the actual cash was being handled by the Nizarat Officer. The entries in the General Cash Book and in the Subsidiary Cash Book were being made on the direction of the Nizarat Officer. So far as Respondent No. 2 is concerned, his case is that he merely initialled the Cash Book which was being maintained by Respondent No. 1 at the instance of the Nizarat Officer.
(3.) THE prosecution examined 11 witnesses of whom the material witnesses are P.W. 3 the successor of accused No. 1 P.W. 9, the Subdivisional Officer during whose time the alleged misappropriation took place; P.W. 10 the successor of the Nizarat Officer Jadumani Samantaray during whose time the alleged misappropriation took place and P.W. 11, the Investigating Officer.;

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