JUDGMENT
A.S. Naidu, J.
1. The appellant who was working as Senior Clerk-cum-Cashier in Utkalmani Gopabandhu Institute of Engineering, Rourkela has impugned the judgment dated 27th January, 1996 passed by the learned Special Judge (Vig). Sambhalpur in T.R. Case No. 33 of 1989 convicting him under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Sections 409 and 477-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years on each count and directing the sentences to run concurrently.
2. Prosecution case in short is that the appellant was working as Senior Clerk-cum-Cashier in the Utkalmani Gopabandhu Institute of Engineering at Rourkela from 14-5-1986 to 5-1-1987. During that period he had been assigned the work of maintaining account books of the office and keeping, receiving and paying cash of the Institute. He falsified the accounts and committed misappropriation of funds of the Institute to a tune of Rs. 50,217.15. After detection thereof an FIR was lodged by the Inspector of Police (Vig), Rourkela. After investigation charge-sheet was submitted and the appellant faced trial.
3. The defence plea was one of complete denial of the charges. It was contended that due to heavy pressure of work, there were accidental omissions and wrong entries in the accounts books. The further plea of defence was that as and when the irregularity was detected, the appellant made good the shortage of cash of the Institute by depositing the same.
4. In order to bring home the charges, prosecution examined as many as nine witnesses. P.W. 1 was the Treasury Sarkar of the Institute, P.W. 2 was the Junior Accountant, P.Ws. 3 and 5 were the Accountants of the Sub-Treasury at Rourkela, P.W. 4 was the Branch Manager of the State Bank of India, Uditnagar at Rourkela, P.W. 6 was the Principal of the Institute, P.W. 7 was the Accountant of the Sub-Treasury at Rourkela, P.W. 8 was a Retired Accountant of the said Sub-Treasury and P.W. 9 was the Investigating Officer. Apart from the aforesaid oral evidence, prosecution also exhibited seven documents in support of its case.
The defence chose not to examine any witness or exhibit any document.
5. There is no dispute that the appellant was a public servant and was under the employment of the Utkalamani Gopabandhu Institute of Engineering at Rourkela. P.Ws. 2 and 6 have categorically deposed that the appellant being the Senior Clerk-cum-Ac-countant was entrusted with the work of receiving and paying cash of the Institute. He was also maintaining the cash registers of the Institute. They have stated that the appellant used to maintain the subsidiary cash books of the Institute and basing on the entries in the said subsidiary cash books, P.W. 2 was maintaining the general cash books, Ext. 4 series. On 14-5-1986 four bills bearing numbers 16, 17, 24 and 26 were prepared and an amount of Rs. 23,239.20 was drawn. After drawal of the said amount the cash balance would have been Rs. 2,47,966.81, but an entry for Rs. 2,37,966.81 had been made in the cash book. Thus there was a shortage of Rs. 10,000.00. This, according to the aforesaid witnesses, on detection was rectified.
6. The defalcation alleged in the present case, as would appear from the evidence of P.Ws. 2 and 6, was with regard to bill No. 120 of 1986-87 dated 1-9-1986 under which a payment of Rs. 75,922.70 was wrongly shown. On 5-1-1987, vide receipt No. 38, an amount of Rs. 10,217.15 was entered twice. While the matter stood thus, the appellant was transferred and P.W. 2 was directed to take over charge from the appellant. P.W. 2 deposed that he refused to take over charge as there was shortage of cash and the cash in hand did not tally with the cash book. Thereafter the appellant made good the shortage of cash of Rs. 10,217.15 by depositing the same as per Exts. 7 and 7/1. P.W. 2 further stated that another defalcation of Rs. 30,000.00 was also made on 12-6-1986, as would be evident from the challans marked Exts. 1 and 2. Actually an amount of Rs. 3,544.25 was deposited in the Treasury, but that amount was inflated as Rs. 33,544.25 in the cash book, as per Ext. 4/10. The said amount was, however, retained by the accused from 12-6-1986 to 28-1-1986 when the shortage of cash of Rs. 30,000.00 was again made good by the appellant vide Exts. 7/4 and 7/5 by depositing the same in Treasury. A number of other malfeasance and misfeasance as well as wrong entries in the cash books and falsification of accounts were alleged against the appellant.
7. The trial Court on scrutiny of the evidence held the appellant guilty and convicted him of the charges under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and under Sections 409 and 477-A of IPC.
8. Mr. Panda, learned counsel for the appellant, tried to raise several infirmities in the prosecution of the appellant. According to him, prosecution was not sure as to the exact; amount of defalcation, inasmuch as the amount varied from stage to stage and the charges were defective. He submitted that though the prosecution case was that the appellant had deposited a sum of Rs. 30,000.00 to make good the shortage, the evidence led by the prosecution reveals that there was misappropriation of Rs. 40,217.15 and the charge framed against the appellant shows that there was a misappropriation of Rs. 50,217.15. Relying on a decision of the Allahabad High Court in the case of Gaya Prasad v. State of U. P., 1993 Cri LJ 2425, Mr. Panda submitted that as the charge itself was defective, conviction thereunder is liable to be set aside. Mr. Panda also forcefully urged that the entrustment of the amount to the appellant having not been proved, no conviction for misappropriation of any amount can be made. Relying on the decision of this Court in the case of Rabindra Kumar Mahalik v. State of Orissa, (1989) 68 Cut LT 29 : (1989 Cri LJ 2020), he also submitted that temporary retention of some money cannot form the basis of a conviction.
9. Mr. Das, learned counsel for the Vigilance Department, at the other hand submitted that the Court below has considered all the materials, has analysed the evidence, both oral and documentary, and has arrived at the right conclusion. The order of conviction and sentence is therefore just and proper and should not be interfered with by this Court.
10. After hearing the learned counsel for both sides, being the final Court of facts, I once again meticulously went through the evidence, both oral and documentary. So far as entrustment of cash the evidence of P.W. 2 who was a Junior Accountant in the Institute at the relevant time. This witness has clearly stated that from 2-4-1986 to 29-4-1986 the appellant was in charge of writing the cash books. This witness has clearly stated the manner in which wrong entries were made in the cash books. He also categorically stated in Court that after the falsification and misappropriation of funds was detected, the appellant deposited a sum of Rs. 10,217.15 vide Exts. 7 and 7/1, and also Rs. 30,000.00; as per Exts. 7/4 and 7/5. From the evidence of P.Ws. 2 and 6 it is clear that the appellant, after detection of misappropriation, deposited a sum of Rs. 40,217.15 into the office cash. In other words, the appellant admitted the said defalcation by him. The evidence further reveals that in his capacity as Cashier the appellant was maintaining the accounts and was handling cash. P.W. 6 in his deposition clearly stated that the appellant was the custodian of cash and the accounts books of the Institute. The challans Exts. 1 and 2 dated 12-6-1986 filed up by the appellant reveal that an amount of Rs. 3,554.25 was deposited in the Treasury but the entry made on 12-6-1986 in the rough cash book Ext. 5 reflects that amount as Rs. 33,554.25. The handwriting of the appellant was proved by P.W. 2 who was acquainted with the same. Ext. 10 is the report of the Accountant-General. It clearly reveals that the entry, vide Ext. P/1, was .manipulated to read as Rs. 33,544.25 instead of Rs. 3554.25.
11. Whatever may be the evidence adduced by the prosecution, one thing is not disputed that the appellant without any demur deposited a sum of Rs. 10,217.15, vide Exts. 7 and 7/1, and also a sum of Rs. 30,000.00 vide Exts. 7/4 and 7/5 and the said Act of the appellant fortifies the case of the prosecution that the appellant had inflated the amounts in the cash books and had misappropriated cash, might be for temporary periods. The plea of the appellant that the aforesaid amounts were found short due to wrong entries in the cash books cannot be believed. Depositing the misappropriated amount by the appellant fully substantiated the case of the prosecution that he had misappropriated the same. The technical pleas raised by the learned counsel for the appellant at this stage would therefore not stand in the way of the prosecution.
12. After analysing the evidence and going through the other materials on record and after giving my conscious thought, I find that the trial Court has not committed any illegality. There is also no error apparent on the face of the record. The subsequent: action of the appellant in depositing the amount found short in office cash justifies the allegation of misappropriation made against him. But then, taking a lenient view as the incident occurred in the year 1986 and the appellant made good the shortage of cash when detected, while not interfering with the order of his conviction, I feel that ends of justice and equity will be better served if the appellant is sentenced to undergo rigorous imprisonment for one year on each count instead of three years.
13. Accordingly, I confirm the order of conviction of the appellant passed by the trial Court under Sections 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act and under Sections 409 and 477-A of the Indian Penal Code, but modify the sentence imposed against him from rigorous imprisonment for three years to rigorous imprisonment for one year on each count with direction that the sentences shall run concurrently.
The Criminal Appeal is thus disposed of.