IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.212 of 2000 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Khageswar Sa ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. D.P. Dhal, Senior Advocate along with Mr. N.C. Mishra, Advocate For the Respondent : Mr. M.S. Rizvi Additional Standing Counsel (Vig.) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 07.05.2026 : Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal has been preferred by the sole appellant assailing the judgment of conviction and order of sentence dated 18.08.2000 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No.2 of 1991 whereby the appellant, Khageswar Sa, was found guilty of the offences punishable under Section 5(2) of the Prevention of Corruption Act and Section 409 of the Indian Penal Code. Pursuant to the said judgment, the learned trial Court sentenced the appellant to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/-, in default whereof to undergo further rigorous imprisonment for six months for the offence under Section 5(2) of the Prevention of Corruption Act. The appellant was further sentenced to undergo rigorous imprisonment for another period of three years and to pay a fine of Rs.1,000/-, in default whereof to undergo further rigorous imprisonment for three months for the offence under Section 409 of the Indian Penal Code, with a direction that both the substantive sentences shall run concurrently. It is pertinent to note that the co-accused, namely Kautuka Behera, was acquitted of all the charges by the learned trial Court. 2. Heard Mr. D.P. Dhal, learned Senior Counsel along with Mr. N.C. Mishra, learned Counsel appearing for the appellant and Mr. M.S. Rizvi, the learned Additional Standing Counsel, Vigilance appearing for the Respondent-State. 3. The prosecution case, as revealed in the F.I.R., is that during the course of a Vigilance Enquiry, it was ascertained that Khageswar Sa was serving as the Sarpanch and Kautuka Behera as the Secretary of Sardhapali Grampanchayat under Gaisilet Panchayat Samiti in the district of Sambalpur. The Sarpanch was entrusted with the responsibility of proper custody of records, documents, valuable securities and all properties of the Grampanchayat, whereas the Secretary was responsible for maintaining records and handling cash transactions etc. For management of the Grampanchayat funds, a Cash Book was maintained and excess cash was deposited in the joint Postal Savings Bank Account, the Anchalik Gramya Bank and the Central Co-operative Bank, Padampur, all such accounts being jointly operated by the Sarpanch and the Secretary. It is alleged that on 26.05.1987, both the Sarpanch and the Secretary withdrew a sum of Rs.5,000/- from the Postal Savings Bank Account and, thereafter, on 28.05.1987, withdrew another sum of Rs.15,000/- from the said Account No.1300220 for the purpose of depositing the same in the Co-operative Bank at Padampur. The said amount, along with the passbook, was allegedly retained by Khageswar Sa, the Sarpanch. It is further alleged that the Secretary did not obtain any receipt from the Sarpanch in respect of the said cash. Though the withdrawals were duly reflected in the Cash Book of the Grampanchayat, the amount was neither deposited in the Co- operative Bank at Padampur nor in any other bank and was allegedly misappropriated. Such misappropriation came to light during the audit conducted on 08.07.1987, wherein both the Sarpanch and the Secretary were held responsible. Subsequently, on 18.07.1987, the Secretary, Kautuka Behera, deposited the sum of Rs.20,000/- vide Receipt No.38 dated 18.07.1987 in the Panchayat fund, which was thereafter deposited in Anchalik Gramya Bank Account No.604. It was further revealed during enquiry that Bhikari Charan Bhoi, Peon of the Grampanchayat, had been directed by the accused- Sarpanch Khageswar Sa on 03.03.1987 to undertake fishing operations in Sardhapali Brunda Kata and, pursuant thereto, paid Rs.700/- towards the Grampanchayat fund. Out of the said amount, Bhikari Charan Bhoi allegedly paid Rs.500/- to the accused Sarpanch, who misappropriated the same without depositing it in any account of the Sardhapali Grampanchayat. Since the enquiry disclosed that both the accused persons, being public servants and custodians of the Panchayat fund, had allegedly misappropriated a total sum of Rs.20,500/-, Sri Sarbeswar Rout, the then Inspector of Vigilance, Bargarh Squad, lodged an F.I.R. before the Superintendent of Police (Vigilance), Sambalpur Division, Sambalpur on 01.12.1987. Pursuant thereto, the S.P. directed registration of a case under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 409 of the I.P.C., and accordingly Sambalpur Vigilance P.S. Case No.5 dated 01.12.1987 was registered. Investigation was taken up by Inspector of Vigilance, Sri Sarbeswar Rout, who examined the witnesses, seized relevant documents, arrested the accused persons and later released them on bail. Upon obtaining sanction for prosecution, charge-sheet was submitted against both the accused persons, whereupon they stood charged under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 409 read with Section 34 of the I.P.C. and faced trial accordingly. 4. In order to substantiate the charges against the accused persons, the prosecution examined as many as 17 witnesses and proved several documents. The accused persons, in support of their respective pleas, did not examine any witness in defence. 5. The learned trial Court, upon a comprehensive evaluation of the oral and documentary evidence adduced by the prosecution, came to hold that the prosecution had successfully established the charges against the present appellant beyond all reasonable doubt. The learned trial Court found that the accused-Sarpanch and the accused-Secretary had jointly withdrawn a sum of Rs.20,000/- from the Postal Savings Bank Account of the Grampanchayat without any Panchayat resolution authorizing such withdrawal and that the accused-Sarpanch had thereafter taken custody of the said amount from the accused- Secretary under a written acknowledgment on the pretext of depositing the same in the Central Co-operative Bank for facilitating agricultural loans to cultivators. The trial Court further observed that although the withdrawals had been duly entered in the Cash Book, the amount was never deposited in the Bank and the misappropriation came to light during audit. The learned trial Court also relied upon the evidence indicating that the accused-Secretary had consistently intimated the authorities that the accused-Sarpanch had taken away the money along with the passbook for deposit in the Bank and that, under threat of adverse action and loss of employment, the accused- Secretary subsequently arranged and redeposited the amount in the Panchayat account. The learned Court below further found that the accused-Sarpanch had also received Rs.500/- from P.W.2, Bhikari Charan Bhoi, towards grant of fishing rights from the Panchayat tank but failed to credit the same to the Panchayat fund, thereby dishonestly misappropriating public money amounting to Rs.20,500/-. While arriving at such conclusion, the learned Court below observed as follows: “13. After exploring and assessing the aforementioned evidence on record both oral and documentary, what very clearly emerges in that without any resolution in the Panchayat the accused-Sarpanch Khageswar Sa and the accused- Secretary Kautuka Behera of Sardhapali G.P withdrew on 26.5.87 Rs. 5000/- and on 28.5.87 Rs.15,000 from the jointly operated postal pass Book account of the Panchayat. It is there in the evidence that the accused- Sarpanch, proposed to his subordinate the accused-Secretary that the said money after withdrawal be deposited in the central- co-operative Bank so as to facilitate easy borrowing by the cultivators. On 28.5.87 accused- Sarpanch Khageswar Sa took away the money from the accused- Secretary and granted a receipt stating that he was taking the money from the secretary to deposit it in the Co-operative Bank. Only the fact of withdrawal of the cash from the joint Postal Account of the Panchayat was reflected in the cash book but the amount was not credited. Thereafter the amount was not deposited in the co-operative Bank by the Sarpanch and the fact came to the knowledge of the higher officials and audit was conducted by the Auditor from the office of the district Panchayat officer, Sambalpur, and the accused-Sarpanch in spite of notice to him did not attend to the audit and it is only the accused- Secretary who attended the audit and explained to the Auditor about the circumstances under which the amount of Rs. 20,000/- was withdrawn and how it was taken away by the accused Sarpanch for depositing the same executing Ext. A, and he produced the same before the Auditor, This Ext. A was also seized by the I.O. about which there is evidence and this fact of seizure of Ext. Aand production at the first instance of the time of submission of chargesheet on 6.2.91 is corroborated from the fact that this document Ext. A was seen by the C. J. M before whom the charge sheet was placed, on 6.2.91 There is evidence on record and conclusive proof to that effect through almost all the P.Ws. examined on the score that the accused- Secretary had intimated them and had intimated through a written report Ext. 8 that the accused Sarpanch had taken away the money along with the pass book for depositing the amount of Rs.20,000/- in the Bank. There is also documentary evidence Ext. 9 about which I have discussed showing that the accused- Sarpanch Khageswar Sa was in possession of the Pass Book of the Panchayat opened in the Bolangir Anchalik Gramya Bank which was seized from him showing that the pass Book was taken by him and was not with the accused-Secretary which gives corroboration to the fact that he had taken it from the accused Secretary and money was not deposited in the Co-operative Bank or anywhere in the account of the panchayat by the accused-Sarpanch. There is also credible evidence on record to show that being threatened by the Sarpanch of action resulting in loss of employment the accused- Secretary has deposited the amount of Rs. 20,000/- is the account of the Panchayat in the Bolangir Anchalik Gramya Bank, Padampur on 18/20.7.87. The next item of evidence led by the prosecution on record is that this accused-Sarpanch had received Rs. 500/- from p.w. 2, Peon of the Panchayat Sri Bhikari charan Bhoi towards giving him fishing right from the Brunda Bandha and executed a receipt in favour of the said Bhikari charan Bhoi vide Ext.1 which was also produced at the time of audit. This amount received by the accused- Sarpanch was not at all deposited in the Panchayat fund and was retained by him. XXXX XXXX XXXX 15. As regards the accused-Sarpanch, the evidence is prodigious to conclusively prove that he had an intention of misappropriating the public fund i.e. the Panchayat fund being the Sarpanch and a public servant and with that intention he has proposed withdrawal of Rs.20,000/- which was withdrawn by him and the co-accused Secretary from the Postal Pass Book of the Panchayat and he took it away from the Secretary along with the Bank Pass Book for depositing the same which he never did. There is evidence that instead of depositing the money himself which he had taken and which the accused-Secretary made him over in good faith, he went on threatening the accused-Secretary to deposit the amount or else face action and loose the job. Beside his acceptance of Rs.500/- giving the Panchayat tank (Brunda Bandh) to P.w.2 Bhikari Charan Bhoi under receipt Ext.1 (not Panchayat receipt in form) executed by him and the amount not being credited to Panchayat fund shows his further malafide in misappropriating the public money. The charge of commission of misconduct as Sarpanch of Sarahdpali Panchayat and a public servant and his misappropriation of the amount of Rs. 20,500/- which is nothing but public money of the Sardhapali Panchayat proves both the charges against this accused-Sarpanch beyond all reasonable doubts, and for that I hold him guilty both u/s 5(2) of the Prevention of Corruption Act, 1947 and u/s 409 of the I.P.C. and convict him thereunder. Since I have found the accиsed-Secretary Kautuka Behera not guilty of the charges levelled against him, I acquit him u/s 248(1) of the Cr.P.C. and set him at liberty.” In view of the aforesaid findings and conclusion recorded by the learned trial Court, while the co-accused Kautuka Behera was acquitted of all the charges, the present appellant has been convicted for the offences punishable under Section 5(2) of the Prevention of Corruption Act, 1947 and Section 409 of the Indian Penal Code. Being aggrieved with the said judgment of conviction and order of sentence, the present appeal has been preferred by the appellant. 6. Learned Senior Counsel, Mr. Dhal, appearing for the appellant, confined his submissions principally to the question of quantum of sentence without entering into the merits of the conviction. It was submitted that the alleged occurrence pertains to the year 1987 and that the appellant, who was about 30 years of age at the relevant point of time, is presently more than 75 years old. Placing reliance upon the decision of this Court in Abdul Hamid v. State of Orissa1, learned Senior Counsel contended that in a similar case involving an aged convict under the Prevention of Corruption Act, this Court had extended the benefit of the proviso to Section 5(2) of the unamended Prevention of Corruption Act, 1947, which empowers the Court to impose a sentence below the prescribed minimum period upon recording special reasons in writing. The relevant observations of this Court in the said decision are reproduced herein below: “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 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: 1 CRA No.150 of 1992 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.” It was further contended that, having regard to the advanced age of the appellant, a lenient view may also be taken while imposing sentence for the offence punishable under Section 409 of the Indian Penal Code. It was submitted that the appellant has already undergone considerable mental agony and hardship during the pendency of the proceedings, and therefore, the ends of justice would be adequately met by awarding a reduced sentence. 7. Therefore, considering the submissions advanced by the learned Senior Counsel and having regard to the fact that the occurrence relates back to the year 1987 and the appellant, who was aged about 30 years at the time of the incident, is now more than 75 years of age, this Court finds considerable 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 5(2) of the un-amended Act was extended by reducing the sentence below the statutory minimum upon recording special reasons. 8. This Court further takes note of the fact that the appellant has faced the ordeal of criminal prosecution for an extraordinarily long period. The incident in question pertains to the year 1987 and the appellant has remained under the shadow of criminal proceedings for nearly four decades. By now, much water has flown under the bridge. Regard being had to the advanced age of the appellant, the long lapse of time since the occurrence and the absence of any material indicating criminal antecedents, this Court is of the considered opinion that the question of sentence deserves to be approached from a reformative rather than a purely punitive perspective. 9. Accordingly, while maintaining the conviction recorded against the appellant, the sentence imposed by the learned Trial Court for the offence under Section 5(2) of the Prevention of Corruption Act is modified in exercise of the powers conferred under the proviso to Section 5(2) of the un-amended Prevention of Corruption Act, 1947. Having regard to the advanced age of the appellant and the considerable lapse of time since the date of occurrence, this Court deems it just and proper to sentence the appellant to undergo rigorous imprisonment for one week and to pay a fine of Rs.5,000/- (Rupees Five Thousand) for the offence under Section 5(2) of the Prevention of Corruption Act, and in default of payment of fine, to further undergo simple imprisonment for a period of two days. 10. The conviction of the appellant under Section 409 of the Indian Penal Code is also upheld. However, considering the mitigating circumstances, the sentence imposed for the said offence is reduced to simple imprisonment for one month. Further, in order to ensure that the punitive element of the sentence is not rendered illusory, this Court deems it appropriate to impose a fine of Rs.25,000/- (Rupees twenty-five Thousand), and in default of payment of fine, the appellant shall further undergo simple imprisonment for five days. The substantive sentences shall run concurrently, and the period of detention already undergone, if any, shall be set off in accordance with law. 11. Accordingly, the Criminal Appeal is partly allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 22nd Day of May 2026/ Ashok MOHAPATRA