BISWANATH DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) BY the judgment and order dated 5. 2. 2007 passed by learned c. J. M. , Jagatsinghpur in G. R. Case No. 120 of 1996 (Trial No. 42 of 2001), the petitioner was convicted under Section 409 of the indian Penal Code (for short the 'i. P. C. ') and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000 (Rupees five thousand), in default to undergo rigorous imprisonment for four months. In Criminal Appeal no. 3 of 2007 preferred by the petitioner, while upholding the petitioner's conviction under Section 409 of the I. P. C. , the learned additional Sessions Judge, Jagatsinghpur modified the sentence directing the petitioner to rigorous imprisonment for two years and pay a fine of Rs. 4,000 (Rupees four thousand), in default to undergo rigorous imprisonment for three months. Being aggrieved, the petitioner has preferred this revision.

(2.) THE petitioner was working as a postman of Nalibar Sub-Post Office. Case was registered by the Officer-in-charge of Tirtol police Station and investigation was taken up by S. I. of Police PW13 on presentation of F. I. R. Ext. 1 by informant PW2; the Postal sub-Divisional Inspector, Kujanga. It was alleged that the petitioner forged the signatures of the payees and misappropriated (i) Rs. 1,000 payable to Natabar Das PW6 on. 9. 11. 1991 under Money Order No. 359 issued on 4. 11. 1991, (ii) Rs. 1,000 payable to kanduri Parida on 24. 12. 1991 under Money order No. 2822 issued on 18. 12. 1991, (iii)Rs. 1,000 payable to Babuli Samal PW1 on 24. 9. 1991 under Money Order No. 1391 issued on 20. 9. 1991, (iv) Rs. 100 payable to santilata Rout PW8 on 27. 12. 1991 under money Order No. 2964 issued on 21. 12. 1991 and (v) Rs. 200 payable to Purusottam mohanty PW7 on 4. 10. 1991 under Money order No. 2380 issued on 27. 9. 1. 991. Oil completion pf investigation, charge-sheet was submitted against commission of offences under Sections 409 and 468 of the I. P. C. Defence plea was complete denial of the allegations. In order to substantiate the charge, prosecution examined thirteen witnesses and also relied upon documents marked Ext. 1 to 14. PWs1, 2, 6, 7, 8 and 13 have already been introduced, PW12 was the postmaster of the concerned Sub-Post Office during the period of alleged occurrence. PW5 happens to be PW8's son and PW9 happens to be PW7's son. PW3 was the Postmaster during the period between 1993 and 1995. PW4, who was working as a Postal assistant of the office of Superintendent of Post offices, Cuttack, and PW10, who was working as an Inspector of Post Office, Keonjhar, were witnesses to seizures. PW11, who was working as Assistant Superintendent of post (Out-door), Cuttack South Division, cuttack, was also a witness to seizure. He also took zima of documents seized under seizure list Ext. 2. It appears that as PWs 5 to 9 did not support the allegations, they were subjected to cross-examination by the prosecution. Learned trial court acquitted the petitioner of the charge under Section 468 of the I. P. C. Also, learned trial court appears to have held that allegations in respect of misappropriation of amounts payable under Money Order Nos. 2822 and 1391 were not proved. However, relying upon the evidence of PWs 5, 6, 7, 8, 9 and 12, the petitioner was found guilty of commission of offence under Section 409 of the I. P. C. in respect of money payable under the other three Money Orders.

(3.) LEARNED counsel for the petitioner submitted that evidence adduced by the prosecution falls far short of proof beyond reasonable doubt to establish that the petitioner misappropriated any amount payable to PWs 6, 7 and 8. Referring to evidence of pws5 to 9, it was also submitted that pay-ees of Money Orders admit to have received the money payable to them. Prosecution has not led any evidence to indicate that the petitioner misappropriated or kept with him any such amount for any period with dishonest intention. On the basis of such submissions, it was argued that the conviction of the petitioner is based solely on surnlises drawn mainly from the evidence of hostile witnesses and of PW12 without any evidence on record to indicate either misappropriation or dishonest intention on the part of the petitioner.