TMI Blog1976 (8) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... ial leave from this Court, and hence this appeal. After going through the judgments of the Courts below, we are constrained to observe that the High Court as well as the Trial Court have made a wholly wrong approach in apply ing the provisions of the Prevention of Corruption Act in the case of the appellant. Put briefly, the prosecution case was as follows: The appellant was the Additional District Magistrate, Cuttack from September 1964 to June 1966 and in that capaci ty he was in overall charge of the Nizarat and land acquisition sections of the Collectorate. Sayad Allamuddian Ahmed P.W. 8 was the District Land Acquisition Officer and one A. Ballav Pradhan P.W. 9 was the Nizarat Officer, whereas Prahalad Mahapatra P.W. 1 was the Nazir and Rajkishore Das P.W. 2 was the Assistant Nazir under P.W. 1 P.W. 3 Bhakta Charan Mohanti was the Land Acquisition Inspector. It appears that a number of lands had been acquired by the Government for certain public projects in various villages particularly Mauza Balichandrapur with which we are concerned in the present case. A huge compensation amount to be given to landowners had been deposited in the treasury for payment to them. It appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allaned under various sections of the Prevention of Corruption Act and ultimately convicted as indicated above. The case of the appellant was that he had no doubt withdrawn a sum of ₹ 10,000/ from the Nazir on January 9, 1965 but on his return from tour as he could not disburse the money to the villagers he had returned it to the Nazir at Cuttack on January 13, 1965. When, however, he again decided to go to the village with the Executive Engineer and others on January 20, 1965 he again directed the Nazir to pay him the amount for disbursement. He went to the village Balichandrapur and tried to persuade the villagers to accept the compensation amount so that the Government project may be started as soon as possible. The villagers wanted some other alignment to be made or the compensatioion to be increased, and the appellant persuaded them to accept part payment and assured them that he will try to get the amount increased. It was also the definite case of the appellant that in the meeting held in the secretariat on September 25, 1964, the appellant was expressly directed to proceed to the spot and persuade the villagers to accept the compensation money and it was in consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 10,000/ is concerned that is undoubtedly admitted by the appellant, and the only explanation given by him is that he had returned the money to the Nazir after his return from the village Balichandrapur and he had also directed the Nazir not to deposit the money in the treasury. If once the explanation of the accused is disbelieved, or proved to be absolutely false, then it is quite natural that he must be presumed to have retained the money with himself for a period of six months. Although the Onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it will be difficult. for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused. In Jaikrishnadas Manohar das Desai and Anr. v. State of Bombay([1960] 3 S.C.R. 319, 324.) this Court observed as follows: The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to prove his case by the standard of preponderance of probabilities as envisaged by s. 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established .the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court. This aspect of the matter is no longer resintegra but is concluded by several authorities of this Court. In Harbhajan Singh v. State of Punjab ([1965] 3 S.C.R. 235, 241) this Court observed as follows: But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but went to. the extent of mis placing the onus on.the accused to prove even the prosecution case by rejecting the admissions made by the prosecution witnesses and by not relying on the documents which were in power and possession of the prosecution itself on the speculative assumption that they were brought into existence by the accused through the aid of the officers. Further more, the Courts below have failed to consider that once the appellant gives a reasonable and probable explana tion, it is for the prosecution to prove affirmatively that the explanation is absolutely false. In a criminal trial, it is not at all obligatory on the accused to produce evi dence in support of his defence and for the purpose of proving his version he can rely on the admissions made by the prosecution witnesses or on the documents field by the prosecution. In these circumstances, the Court has to probe and consider the materials relied upon by the de fence instead of raising an adverse inference against the accused, for not producing evidence in support of his defence, because as we have already stated that the prosecution can not derive any strength or support from the weakness of the defence ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light on the subject and would have clinched the issue. The Secretary, Works Department, was a Government servant and it was not at all difficult for the prosecution to have examined him to settle the controversy on this matter. For the reasons best known to the prosecution, the Secretary, Works Department, was not at all examined and we have to decide this question on the basis of oral and documentary evidence produced by the prosecution. The Special Judge, instead of drawing an adverse inference against the prosecution, has placed the onus on the accused for not having summoned the Secretary, Works Department, as a witness in defence forgetting that it was part of the prosecution case itself that no decision to distribute the amount was taken in the meeting and therefore, the money was not taken for distribution to tenants in the village but was misappropriated. It was not for the defence to prove the prosecution case which formed the bulwark of the charge of misappropriation. Further more, the Secretary, Works Department, was a high Officer of the Government and he could have thrown a flood of light on this question. Now coming first to the oral evidence, P.W. 8 Sayad Allamud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The section confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of discretion. It is, however, well settled that the discretion must be judiciously and properly exercised in the interests of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances in which this Court sustained the order of the Court in allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence. In Dahyabhai Chaganbhai Thakker v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most mate rial point with the one which he gave before the i previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention. It may be rather difficult to lay down a rule of universal application as to when and in what circumstances the Court will be entitled to exercise its discretion under s. 154 of the Evidence Act and the matter will largely depend on the facts and circumstances of such case and on the satisfaction of the Court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. It seems to us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution itself and whose genuineness cannot be doubted. Exhibit 2 which is a note by this witness dated January 9, 1965 long before an inquiry started against the accused contains categorically a statement which runs as follows: In the last meeting held in the Secretariat the Secretary, Works Department suggested that the A.D.M. and the Executive Engineer (R B) should .try to persuade the villagers and make payment of the compensation. This note further shows that the appellant proposed to pay a visit to the area along with the Executive Engineer and he had suggested that the A.D.M. should take an amount of ₹ 10,000/ for disbursement if the villagers agreed to receive compensation. This document, according to P.W. 1, the Nazir, who is the star witness of the prosecution, was received by him as far back as January 9, 1965 along with Ext. 1 the order of the appellant directing the Nazir to pay him ₹ 10,000/. It would be impossible to suggest that as early as January 9, 1965 the witness Sayad Allamuddin Ahmed P.W. 8 was fabricating this document regarding an event which had taken three or four months ago without any rhyme or reason. Thus Ext. 2 fully corrobora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.D.M. to the village Balichandrapur on January 9, 1965 was not in connection with the payment of com pensation to the villagers as no such decision was taken in the meeting. The next question that arises is whether the appellant had actually taken the money for disbursement to the village Balichandrapur. On this point also oral and documentary evidence led by the prosecution clearly proves the version given by the appellant. To begin with, P.W. 7 who was an Executive Engineer at the relevant. time has categorically stated that he had accompanied the appellant to village Balichandrapur and the appellant did try to persuade the tenants to receive the compensation but they refused to accept the same. In this connection the witness deposed as follows: The accused thereafter enquired from the parties as to on what terms they were willing to give up possession of their lands which had already been selected for acquisition. The parties stated that if they were paid compensation at the rate of ₹ 200/ per gunth, they would part with their lands. The accused stated that he did not have sanction for payment of ₹ 200/ per gunth and could not pay them off hand, but if the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination. Indeed if suck a discretion is freely exercised, then the accused will suffer serious prejudice and will be deprived of taking advantage of any damaging admission made by the prosecution witnesses, merely because the prosecution is allowed to cross examine them by declaring them hostile. Such a course of action would have serious repercussion on the fairness of the trial. After going through the evidence of P.Ws. 6 and 7 we see absolutely no reason to distrust their evidence. So far as P.W. 7 is concerned he is a very high officer being an Executive Engineer at the relevant time and in no way subordinate to the appellant. He has admitted in his cross examination by the prosecution that even his confidential reports are not written by the accused. There is also nothing to show that he was in any way interested in the accused or was his great friend and supporter. In these circumstances, he had no reason to make a false statement that the accused had visited the village and persuaded the tenants to accept the compensation. The evidence of the villager P.W. 6 Udayanath Parida who is an independent wit ness also proves that the accused had taken the money to the village ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the documents, if the tenants had agreed to accept the money and if the money was actually disbursed to them. As the proposal suggested by the appellant did not materialise, there was no occasion for mentioning these facts in those documents. As we have already indicated, it was not for the accused but for the prosecution to prove, before raising an adverse inference against the accused, that the visit of the appellant to Balichandrapur was merely a hoax. On the materials placed before us, not only the prosecution has miserably failed to prove this fact, but the explanation given by the accused appears to be not only probable but proved by the accused, even applying the standard of benefit of doubt. For these reasons, therefore, we do not agree with the finding of the Courts below that the accused did not take the money with him to Balichandrapur or made any attempt to distribute it to the tenants but has misappropriated and retained it dishonestly. We might mention here that P.W. 3 Bhakta Charan Mohanti is another Witness who has supported the case of the ac cused. But as the witness has made inconsistent statements which sometimes go to support the prosecution and someti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y enquiry from the Nazir regarding this as the balance amount as shown in the cash Book was the same in the cash sheet. The accused had told me that the Nazir had kept the amount of ₹ 10,000/ outside the cash as per his instructions. It is, therefore, clear from the admission made by this witness that the case of the accused t,hat he had given money to the Nazir is fully supported by him because he has referred to the statement made to him by the appellant as far back as March 1965 when there was absolutely no dispute, no inquiry and no allegation of misappropriation against the appellant. Much was made by the learned counsel for the 131104SCI/76 State out of the fact that the accused had directed the Nazir to keep the amount outside the cash which betrayed the falsity of his explanation. A careful study of the circum stances in which the accused was placed would show that the accused was very much anxious to disburse the payments to the villagers, he had tried to persuade them to accept the money, but the villagers wanted more compensation and he had already taken steps to move the Government for increasing the amount of compensation to ₹ 200/ per gunth. In these c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.W. 1 right from January 9, 1965 he should have at least approached him and should have drawn the attention of the appellant to the fact that the money paid to him for the purpose of disbursement had not so far been deposited with him. No such thing was done by the Nazir. It was suggested by the prosecution that as the appellant was in charge of the Treasury, the Nazir did not think it proper to interrogate him. It was, however, not a question of inter rogation. It was only a question of a subordinate officer pointing out some thing of very great importance to a superior officer which a superior officer would never misunderstand. In view of these circumstances, therefore, we are not in a position to place implicit reliance on P.W. 1. There is yet another very important document which has been brought on record by the appellant which is Ext. A dated December 8, 1965. This is a statement by P.W. 3 which to a very great extent supports the case of the accused, but as we do not propose to rely on the evidence of P.W. 3, we would exclude this document from consideration. Another document Ext. H is a statement of the Accountant Ghansham Das which appears at p. 215 of the Paper Book ..... X X X X Extracts X X X X X X X X Extracts X X X X
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