IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.85 of 1994 (In the matter of an application under Section 374 (2) of the Criminal Procedure Code, 1973) Kanhu Charan Das ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Pranay Kumar Maharaj, Amicus Curiae For the Respondent : Mr. M.S. Rizvi, Additional Standing Counsel for Vigilance Department CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.04.2026 : Date of Judgment: 16.04.2026 S.S. Mishra, J. The sole appellant has filed the present Criminal Appeal assailing the judgment of conviction and order of sentence dated 18.02.1994 passed by the learned Special Judge, Bhubaneswar in T.R. No.16 of 1988 (arising out of Cuttack Vigilance P.S. Case No.11/82), whereby the learned Trial Court has convicted the appellant for the offences punishable under Section 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act p. 2 and also under Sections 409 and 467 of the IPC and sentenced him to undergo rigorous R.I. for one year and to pay a fine of Rs.5,000/-, in default, to undergo R.I. for three months for the offence under Section 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. The appellant has also been sentenced to undergo R.I. for three months for the offence under Section 467 of the Indian Penal Code. No separate sentence has been passed for the offence under Section 409 of the Indian Penal Code. 2. The present appeal is pending since 1994. When the matter was taken up for hearing repeatedly, none appeared for the appellant. Therefore, on 02.09.2025, this Court appointed Mr. Pranay Kumar Maharaj as Amicus Curiae to assist the Court in the matter. 3. Heard Mr. Pranay Kumar Maharaj, learned Amicus Curiae appearing for the appellant and Mr. M.S. Rizvi, the learned Additional Standing Counsel appearing for the Respondent-State (Vigilance Department). 4. The prosecution case is that in the year 1980, the accused- appellant was working as an Upper Division Clerk in the Block Office of Dhamanagar. One Shyamasundar Sahu, who was attached to Dhamanagar Block as Co-operative Extension Officer, was in p. 3 charge of the Block Development Officer, Dhamanagar Block from 23.07.1980 to 08.10.1980. During the years 1979 and 1980, rice and wheat were brought to the Block for supply of the same to the contractors under the Scheme of State of Orissa “Food for work”. As per the order of the Block Development Officer, Dhamanagar, the accused took charge of the stock of wheat and rice from Mr. P.C. Hati, V.L.W. attached to that Block on 03.06.1980. The accused took charge of 128 quintals and 77 kg. of wheat. On the same day, i.e., on 03.06.1980, the accused took charge of 706 quintals of rice from Mr. P.C. Hati. Both Mr. Hati and accused made necessary endorsement by putting their signatures in the Register of grains maintained in the Block Office showing giving charge of the aforesaid quantity of rice and wheat by Mr. P.C. Hati to the accused on 03.06.1980. Subsequently, in the month of September, 1980, the Block Development Officer came to know that the accused had not supplied rice to the concerned contractors, though necessary orders were passed for supply of rice to them for the work executed by them on the written complaint of three contractors, namely, Baistnab Charan Sahu (P.W.1), Bipin Behari Mohanty (P.W.6) and Subash Chandra Naik. So, the B.D.O. directed for physical verification of the stock. Page 4 of 16 Accordingly on 20.09.1980, physical verification of the stock of the grain was made in presence of the accused, N.C. Das, Sub-Assistant Engineer and Sekh Abdul Sutar (P.W.4), Head Clerk of the Block Office and during physical verification, it was found that there were 634 bags of rice and 13-1/2 bags of wheat available in the stock. After the physical verification, necessary endorsement was made in the Stock Register and the accused Kanhu Charan Das, Sub-Assistant Engineer and Sekh Abdul Satar, Head Clerk put their signatures showing their presence at the time of physical verification. Subsequently on 23.09.1980, accused gave charge of the stock of rice and wheat to Harihar Nayak (P.W.5), who was working as an Upper Division Clerk in the Block Office of Dhamanagar. 5. After investigation, charge sheet was filed. The Court below framed charges, to which the accused pleaded not guilty and claimed for trial. The plea of the defence is that he has not committed any offence. The aforementioned allegations were investigated by the Vigilance Department and filed the charge sheet for the alleged commission of the offences punishable under Sections 5(1)(c), 5 (1)(d) read with Section 5(2) of the Prevention of Corruption Act, p. 5 1947 and Sections 409 and 467 of the Indian Penal Code. The charges were framed by the learned trial Court to which the accused pleaded not guilty, rather claimed trial. The accused-appellant although took a plea of complete denial, but in his statement recorded under Section 313 of the Cr. P.C., he has admitted that he had received 706 quintals of rice and 120 quintals and 77 kgs. of wheat from Mr. P.C. Hati- P.W.8 on 03.06.1980. He further stated that on 23.09.1980, he had handed over the charge of 621 quintals and 80 kgs. of rice as against the book balance of 693 quintals, 32 kgs. and 70 gms. and 13 quintals 50 kgs. of wheat as against 13 quintals 77 kgs. of wheat as per the book balance. Therefore, the appellant indeed had admitted that there was a shortage of 71 quintals, 52 kgs. and 700 gms. of rice and 27 kgs. of wheat on the date he handed over the charge of the stock to P.W.5. 6. The prosecution, in order to establish its case, examined 10 witnesses and exhibited about 53 documents. P.W.1-Baistnab Charan Sahu was a contractor and was entrusted with renovation of Tikira Nala of Radhaballavpur Grama Panchayat. P.W.2- Shyamasundar Saho was working as a Co-operative Extension Officer at Dhamanagar Block and he was in charge of Block Development p. 6 Officer, Dhamanagar from 23.7.1980 to 08.10.1980. P.W.3- Chaturbhuja Sahu was the Auditor. P.W.4- Sekh Abdul Satar was working as Head Clerk in Dhamanagar Block Office from April, 1980 to March, 1983. P.W.5- Harihar Nayak was working as Upper Division Clerk in Dhamanagar Block Office from 1977 to 1984. P.W.6- Bipin Bihari Mohanty was the contractor during the relevant period. P.W.7-Prakash Chandra Kanungo was working as Establishment Officer in the Collectorate of Balasore, when Sri S.R. Patnaik was the Collector. P.W.8-Purna Chandra Hati was working as V.L.W. His evidence discloses that he gave charge to the accused on 03.06.1980 of the stock of rice and wheat on weighment. P.W.9- Ajit Kumar Das was the Government Examiner of the questioned documents. P.W.10- Purna Chandra Sahu was the Officer-in-Charge of Cuttack Vigilance Police Station on 06.03.1982 and on that day, Sri Niranjan Bal was working as Inspector, Vigilance, Special Squad, Balasore, who took charge of the investigation in this case. 7. The learned trial Court, by meticulous analysis of the evidence brought on record by the prosecution, came to the conclusion that the entire charge brought against the appellant by the prosecution stood proved beyond all reasonable doubt. Accordingly, the appellant was p. 7 convicted for those charges and has been sentenced on each count. The appellant is aggrieved by the said judgment of conviction and order of sentence and has filed the present appeal. 8. The case against the appellant was initiated on the basis of the complaint filed by the contractors those who were the beneficiaries of the scheme. The contractors, inter alia, complained that despite their entitlement of the wheat and rice for in-return distribution to the labourers and workmen, the appellant has not disbursed the stock to them. P.Ws.1 and 6 were the contractors. They in unequivocal terms have deposed before the Court that they were working as contractors under Dhamanagar Block entrusted in different contract assignments. Both of them have exhibited the documents, namely, the work order, contract etc. to substantiate their version. They further deposed that after completion of their contractual assignments, the work was estimated, measured and checked by the Block Development Officer. However, after completion of the work, their entitled stock of rice and wheat was not disbursed. P.W.6 very categorically deposed in his testimony that he was to get 22 quintals of rice towards execution of the work out of which he only received 7 quintals and 15 quintals of rice were not given to him by the accused. The complaint of P.Ws.1, p. 8 6 and other contractors became the base to initiate the criminal prosecution against the appellant. 9. P.Ws.4 and 5 were examined by the prosecution to establish the entrustment of the stock of rice and wheat to the appellant. P.W.4 deposed that he was posted as Head Clerk in the Dhamanagar Block Office from April, 1980 to May, 1983. The appellant took charge of the stock of wheat on 03.06.1980 vide Ext.11 and took charge of the rice on the same day vide Ext.11/4 from P.W.8- Mr. P.C. Hati. On 20.09.1980, the B.D.O. physically verified the stock of wheat and rice where he was present. He further deposed that on 23.09.1980, P.W.5 took charge from the appellant and on that day, the book balance of the rice vide Ext.11/19, the stock of the rice was 693-32 kgs. and the book balance stock of the wheat. However, when P.W.8 took the charge of the stock physically, there was only stock of Q. 621.80 kgs. or rice. Similarly, the book balance of the stock of wheat was showing to be Q.13.77 kgs., but while P.W.8 took the charge from the appellant, the stock was only Q.13-50 kgs. of wheat. Both the registers showing book balance and the charge taking memo were also exhibited by the said witness. Similarly, P.W.5 was working as Senior Clerk in the Office of B.D.O., Dhamanagar from 1977 to 1984. Page 9 of 16 He has also deposed that there was a huge difference between the book balance of the stock found from the physical verification. 10. P.W.7, who was working as Establishment Officer in the Collectorate of Balasore, was examined by the prosecution to prove the sanction granted by the Collector to prosecute the appellant. He deposed that the Investigating Officer of the case placed all the papers and documents before him connected with the case, which was placed by him before the Collector. The Collector, after going through all the papers, accorded the sanction, which is Ext.25. He identified the signature of the Collector in the sanction order. 11. In the present case, the Investigating Officer could not be examined, as by the time the evidence was recorded, it appears that he had already expired. 12. Mr. Pranay Kumar Maharaj, learned Amicus Curiae pointed out that the prosecution could not prove the entrustment part of it, as the entrustment was only made in the paper. There was no physical measurement carried out while handing over the stock. Further, he submitted that the go-down in charge, who was a natural witness, was deliberately withheld to be examined by the prosecution. Mr. Maharaj, learned Amicus Curiae further submitted that though P.Ws.1 p. 10 and 6 the contractors were examined, but the vital aspect of the prosecution version missed as the signatures of these contractors appearing in the receipt of the stock was not even verified scientifically. Once the contractors have denied their signatures in the receipt, it was obligatory on the part of the prosecution to examine their signatures scientifically so as to ascertain as to whether the stocks were received by them from the appellant or not. 13. Per contra, Mr. M.S. Rizvi, learned Additional Standing Counsel appearing for the Vigilance Department has vehemently argued his case by taking this Court to the evidence of all the witnesses. He submitted that this is a case where no loophole could be pointed out from the record. The prosecution has exceptionally done well to bring the material on record to establish the case against the appellant. Reading of the prosecution evidence and the admission by the accused in his statement recorded under Section 313 of the Cr. P.C. would definitely justify the impugned Judgement of conviction recorded against the appellant. 14. I have taken into consideration the arguments advanced by learned counsel for both the parties and have carefully and meticulously gone through the material brought on record by the p. 11 prosecution and the defence. The prosecution has successfully proved on record the entrustment part through the evidences of P.Ws.4 and 5. The shortfall of the stock is also established by the prosecution through the evidences of P.Ws.1, 3, 4, 5, 6 and 8. The shortfall of the stock which is apparent from the exhibit namely the stock register and physical verification is further fortified from the admission by the appellant in his statement recorded under Section 313 of the Cr. P.C. 15. The Investigating Officer of the case has not been examined in the present case. However, the defence could not highlight or illustrated any prejudice that has caused to him by not examining the I.O. of the case. The sanction granted by the competent authority is also proved on record through P.W.8 without any dent. 16. In view of the overwhelming evidence on record, the findings recorded by the learned trial Court, which is reflecting in paragraphs- 15, 16 and 17 of the impugned judgment finds in consonance with the material on record. Paragraphs-15, 16 and 17 reads thus: “15. Thus, from the evidence adduced on behalf of the prosecution it is proved beyond any doubt that the accused was entrusted with 706 quintals of rice on 3-6-80 and he (accused) has also admitted this entrustment to him. Prosecution has been able to prove beyond reasonable doubt that there was shortage of 71 quintals, 52 kg. and 700 grams of rice. When the accused was entrusted with 706 quintals of rice on 3-6-80 and on the day he handed over charge of the stock of rice it was found that there was shortage of more than 71 quintals of p. 12 rice, the onus lies on the accused to account for satisfactorily about the shortage of more than 71 quintals of rice. Unfortunately, no witness is examined on behalf of the accused to account for shortage of more than 71 quintals of rice and when the accused has failed to satisfactorily account for as to what happened to more than 71 quintals of rice it can be presumed safely that it is the accused, who had misappropriated the said rice or converted the same for his own use. It is proved beyond reasonable doubt that while working as an Upper Division Clerk in Dhamanagar Block Office, accused was entrusted with the boiled rice and he could not account for the shortage of more than 71 quintals of rice. 16. Though the learned counsel appearing for the accused has submitted at the time of argument that accused in good faith took charge of the stock of rice and wheat without weighment, but this submission cannot be accepted in face of the evidence of P.W.8- Purna Chandra Hati, who has specifically stated that he handed over charge of the rice on weighment. Accused in his own hand has written to have received charge of 706 quintals of rice from P.W.8 in Ext.11. Accused has also admitted about the shortage of about more than 71 quintals of rice during the period he was in charge of the stock of rice and wheat. Therefore, from the evidence, oral and documentary, adduced on behalf of the prosecution and taking into consideration the admission of the accused in writing in Ext.11 and also in his statement recorded under section 313, Cr.P.C. it is proved beyond reasonable doubt that accused as a public servant misappropriated more than 71 quintals of rice and the value of that rice is more than Rs.14,000/- and as such he is liable for conviction under Sec. 5(1)(c) and 5(1)(d) read with Sec. 5(2) of the Prevention of Corruption Act and also under Sec. 409 of the Indian Penal Code. 17. 17. As regards to charge under Sec. 467 of the Indian Penal Code, the prosecution has also been able to prove that accused had made a false entry vide Ext.11/23 in the Register of Stock of Rice and wheat by showing disbursement of eight quintals of rice to Baistnab Charan Sahu (P.W.1) by forging the signature of Baistnab Charan Sahu and accused has also admitted that he had not supplied rice to the aforesaid contractors though he had shown in the Register to have disbursed the same in his explanation (Exts. 15, 16 and 17) submitted to P.W.2 after getting a letter (Ext.14) from P.W.2. Therefore, I am of the view that prosecution has also been able to prove beyond p. 13 reasonable doubt that the accused committed the act of forgery by making false entries in the Stock and Issue Register (Ext.11) while working as a public servant in Dhamanagar Block Office in between 30-6-80 and 23-9-80.” 17. I find no reason to disagree with the findings recorded by the learned trial Court in view of the unimpeachable evidence brought on record by the prosecution through the ocular as well as documentary evidence. Hence, no interference is called for. 18. At this stage, Mr. Maharaj, learned Amicus Curiae, submitted that the incident dates back to the year 1980. At that time, the appellant was aged about 47 years and, as such, he is now more than 80 years old. Placing reliance on the judgment of this Court in Abdul Hamid v. State of Orissa1, he contended that in a similar case involving an aged offender under the Prevention of Corruption Act, this Court had extended the benefit of the proviso to Section 5(2) of the un-amended Prevention of Corruption Act, 1988. The said proviso empowers the sentencing Court to reduce the sentence below the prescribed minimum period of one year upon recording special reasons. In the said decision, it was held thus: “15. Regard being had to the fact that the appellant is more than 80 years of age, I am inclined to accept the submission made by Ms. Dei, learned Amicus Curiae. The proviso to 1 CRA No.150 of 1992 p. 14 Section 5(2) of the un-amended Prevention of Corruption Act, 1988 empowers the sentencing Court to reduce the sentence below the minimum sentence of one year by recording sufficient reasons. The provision reads as under:- "5. Criminal misconduct in discharge of official duty- (1) A public servant is said to commit the offence of criminal misconduct:- (a) XXX XXX XXX (b) XXX XXX XXX (c) XXX XXX XXX (d) XXX XXX XXX (e) XXX XXX XXX (2) Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year.” 16. Accordingly, while confirming the conviction recorded against appellant, the sentence awarded by the learned trial Court for the reasons stated above is liable to be varied. Sentence order passed by the trial Court is accordingly modified and the appellant is sentenced to undergo R.I. of one week with a fine of Rs.5,000/-, in default of making the payment, the appellant shall undergo further R.I. for two days.” 19. Therefore, considering the submission advanced by the learned Amicus Curiae and having regard to the fact that the occurrence relates back to the year 1980 and the appellant, who was aged about 47 years at the time of the incident, has now more than 80 years of age, this Court finds force in the plea for reduction of sentence. This Court also takes note of the ratio laid down in Abdul Hamid (supra) wherein, in similar circumstances involving an aged convict under the Prevention of Corruption Act, the benefit of the proviso to Section p. 15 5(2) of the un-amended Act was extended by reducing the sentence below the statutory minimum upon recording special reasons. Thus, while maintaining the conviction recorded against the appellant, the sentence imposed by the learned trial Court is modified in exercise of the power under the proviso to Section 5(2) of the un- amended Prevention of Corruption Act, 1988. In view of the advanced age of the appellant and the long lapse of time since the occurrence, this Court deems it just and proper to sentence the appellant to undergo rigorous imprisonment for a period of one week and to pay a fine of Rs.1,000/- (One Thousand Rupees). In default of payment of fine, the appellant shall undergo further rigorous imprisonment for a period of three days. No separate sentence is awarded on the count of the conviction U/s.409 and 467 of Indian Penal Code. 20. Accordingly, the Criminal Appeal is partly allowed. 21. This Court acknowledges the effective and meaningful assistance rendered by Mr. Pranay Kumar Maharaj, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an p. 16 honorarium of Rs.7,500/- (Rupees seven thousand five hundred) to be paid as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 16th Day of April 2026/ Subhasis Mohanty Designation: Personal Assistant Location: High Court of Orissa, Cuttack. Date: 28-Apr-2026 09:16:27