CRREV No.733 of 2001 IN THE HIGH COURT OF ORISSA AT CUTTACK CRREV No.733 of 2001 (In the matter of an application under Section 397 of the Code of Criminal Procedure, 1973) 1. M. Koteswar Rao (since dead) 2. Uma Moheswar Patnaik &. Petitioners -versus- State of Orissa &. Opposite Party For Petitioners : Ms. K. Patra, Amicus Curiae For Opposite Party : Mr. C.R. Swain, AGA CORAM: JUSTICE V. NARASINGH DATE OF HEARING : 19.03.2026 DATE OF JUDGMENT : 31.03.2026 V. Narasingh, J. Heard learned Amicus Curiae for the Petitioners and learned counsel for the State. 1. This Criminal Revision has been filed assailing the Judgment dated 20.10.2001 passed by the learned Adhoc Additional Sessions Judge, Jeypore in Criminal Appeal No.151 of 2001, affirming the order of conviction qua the Petitioners dated 25.02.1994 passed by the learned S.D.J.M., Koraput in G.R. Case CRREV No.733 of 2001 No.678 of 1985 (T.R. Case No.712 of 1988) under Sections 407 of Indian Penal Code, 1860 (hereinafter referred to as IPC) and imposing sentence for Petitioner No.1 (M. Koteswar Rao) to undergo R.I. for 3 months and to pay a fine of Rs.1,000/- (Rupees One Thousand only), in default to undergo R.I. for 2 months, and Petitioner No.2 (Uma Moheswar Patnaik) was directed to undergo R.I. for 3 years and to pay a fine of Rs.5,000/- (Rupees Five Thousand only), in default to undergo R.I. for a further period of 6 months. 2. The case of the prosecution is that both the accused-Petitioners were transport contractors and, in the year 1983, the Executive Engineer, P.W.D. (R&B), Koraput invited quotations from different transport contractors for lifting and carriage of 800 M.T. of cement from Cement Corporation of India, Akaltara in Madhya Pradesh. Some transport contractors, including the Petitioners, submitted their quotations. Since the quotations submitted by the Petitioners were found to be the lowest, agreements were executed with each of them for transportation of 200 M.T. of cement from the cement factory in Madhya Pradesh to the P.W.D. stores at Koraput. 3. It was alleged by the prosecution that the accused persons lifted the entire 1000 M.T. of cement CRREV No.733 of 2001 (500 M.T. each) but did not deliver the entire quantity at the P.W.D. stores at Koraput. It is the case of the prosecution that accused-Petitioner No.2 (Uma Moheswar Patnaik) delivered only 280 M.T. of cement out of 500 M.T., and accused-Petitioner No.1 (M. Koteswar Rao), who is since dead, delivered 463 M.T. of cement out of 500 M.T., and despite requests and reminders, the accused persons did not deliver the balance quantity of cement at the P.W.D. store, Koraput. Consequently, an FIR was lodged at Town Police Station, Koraput and after due investigation, the charge-sheet was submitted under Sections 407/420 of the IPC. 4. To drive home the charge, the prosecution examined 19 witnesses, and one witness was examined on behalf of the defence. Several documents were exhibited on behalf of the prosecution. Of the witnesses examined, P.Ws.11, 12, 13, and 18, who are officials of the factory, are of significance. 5. The plea of defence was one of complete denial and false implication. 6. Referring to the testimony of the said witnesses and the documents exhibited on behalf of the prosecution, the learned Trial Court, while acquitting the Petitioners of the charge under Section CRREV No.733 of 2001 420 of the IPC, found them guilty for the offence under Section 407 of the IPC and, taking into account that any leniency shown would amount to misplaced sympathy, directed Petitioner No.1 (M. Koteswar Rao), since deceased, to undergo R.I. for 3 months and to pay a fine of Rs.1,000/-, in default to undergo R.I. for 2 months, and Petitioner No.2 (Uma Moheswar Patnaik) to undergo R.I. for 3 years and to pay a fine of Rs.5,000/-, in default to undergo R.I. for a further period of 6 months. 7. On appeal being preferred, the learned Appellate Court, by judgment dated 20.10.2001 in Criminal Appeal No.151 of 2001, upon going through the evidence of the witnesses in the light of the exhibits on record, did not find any merit in the appeal, dismissed the same, and affirmed the conviction and sentence in respect of the Petitioners. 8. Considering that Petitioner No.1 (M. Koteswar Rao) has passed away about seven years back and since none on his behalf has come forward to pursue this revision, the same abates qua Petitioner No.1 (M. Koteswar Rao), and as such, the Criminal Revision is confined to Petitioner No.2 (Uma Moheswar Patnaik). 9. Learned Amicus Curiae for the Petitioners, upon going through the materials on record, submits that the appreciation of evidence on record by the CRREV No.733 of 2001 learned Trial Court as well as the Appellate Court is perverse and hence the matter merits interference by this Court in exercise of its revisional jurisdiction. Alternatively, it is prayed that, taking into account that the offence was committed more than three decades back, and Petitioner No.1 (M. Koteswar Rao) is since deceased, and there is no adverse report against Petitioner No.2 (Uma Moheswar Patnaik) during the currency of bail, Petitioner No.2 may be extended the benefit of the provisions of the Probation of Offenders Act, 1958 (hereinafter referred to as the <P.O. Act=), since it does not fall within the embargo as contained under Section 41 of the said Act. 1 Power of court to release certain offenders on probation of good conduct.4(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, CRREV No.733 of 2001 10. Learned counsel for the State on the other hand submits that there is no palpable perversity so as to warrant interference by this Court in exercise of its revisional jurisdiction. Hence, this Criminal Revision is liable to be rejected. 11. So far as the submission of learned Amicus Curiae for Petitioner No.2 regarding extension of the benefit of the P.O. Act is concerned, learned counsel for the State has no serious objection. 12. It is apt to note that, in the recent dictum of the Apex Court, the law has been set at rest qua the operation of the provisions of the P.O. Act, and reference in this regard may be respectfully made to the case of Chellammal and anr. V. State represented by the Inspector of Police, 2025 SCC OnLine SC 870, wherein the Apex Court has held in no uncertain terms that a duty is cast upon the Courts to extend the benefit of the P.O. Act where the case does not fall within the embargo contained under Section 4 thereof. 13. In the light of the law laid down by the Apex Court as aforesaid in the case of Chellammal (Supra), this Court is persuaded to hold that the abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. Page 7 of 7 CRREV No.733 of 2001 interest of justice would be subserved, keeping in view the lapse of time and the present age of Petitioner No.2, if the benefit of the P.O. Act is extended. Accordingly, this Court directs that Petitioner No.2 (Uma Moheswar Patnaik) be released on probation under Section 4 of the P.O. Act on conditions to be settled by the learned Trial Court. 14. The fees of the learned Amicus Curiae shall be as per the schedule adopted by the Legal Services Authority, High Court of Orissa for conducting criminal cases in this Court. Such fees shall be disbursed on being moved. 15. The Criminal Revision is accordingly disposed of. 16. Bail bonds are cancelled and sureties are discharged. (V. NARASINGH) Judge Orissa High Court, Cuttack, Dated the 31st March., 2026/Ayesha