Orissa High Court
Pruthwiraj Lenka vs State Of Odisha (Vigilance) on 30 May, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.355 of 2019
(In the matter of an appeal under Section 380 of Code of Criminal
Procedure, 1973)
Pruthwiraj Lenka ....... Appellant
-Versus-
State of Odisha (Vigilance) ....... Respondent
For the Appellant : Mr. P.K. Maharaj, Advocate
For the Respondent : Mr. Niranjan Maharana,
Additional Standing Counsel,
Vigilance Department
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing:03.01.2025 : Date of Judgment: 30.05.2025
S.S. Mishra, J. The appellant-Pruthwiraj Lenka has filed this appeal under
Section 380 of the Code of Criminal Procedure, 1973 to set aside the
judgment of conviction passed against him by the learned Special Judge
(Vigilance), Phulbani in G.R. Case No.74 of 2013 (v) (T.R. No.74 of
2013) /G.R. Case No.52/2011 (v) (T.R. No.08 of 2013 BAM) arising out
of Berhampur Vigilance P.S. Case No.52, dated 28.11.2011 vide
impugned judgment and order dated 16.05.2019 under section 477-A of
the Indian Penal Code and order of sentence to undergo rigorous
imprisonment for one year and to pay a fine of Rs.5,000/- (rupees five
thousand), in default, to undergo rigorous imprisonment for a further
period of three months.
2. The appellant was the Technical Consultant of K. Nuagaon Block,
Office of the D.P.C., D.P.E.P., S.S.A. in the district of Kandhamal. The
co-accused Basant Kumar Mohanty was the Headmaster of Asumadhi
Primary School (hereafter ‘the school’) for the period from 10.05.2002
to 28.02.2008, and co-accused Kantheswar Pradhan was the SEC-
President of the school for the period from 31.08.2004 to 02.04.2011.
The appellant along with the co-accused Basanta Kumar Mohanty and
Kantheswar Pradhan were charged under Section 13(1)(c) punishable
under Section 13(2) of the Prevention of Corruption Act, 1988
(hereinafter ‘1988 Act’) and Sections 409, 120-B, 201 of the Indian
Penal Code on the accusation that in between the year 2005 to 2007, they
dishonestly or fraudulently misappropriated or otherwise converted for
their own use Rs.75,798/- (rupees seventy five thousand seven hundred
Page 2 of 25
ninety eight) from the school account sanctioned for construction of one
additional classroom in the school and they committed criminal breach
of trust in respect of the property/amount so entrusted. The appellant was
charged additionally and separately for the offence under Section 477-A
of the Indian Penal Code on the further accusation that during the period
from 2005 to 2007, he wilfully with intention to defraud entered false
measurements in the Measurement Book No.144, which was received by
him on behalf of his employer D.P.C., S.S.S., Kandhamal and was under
his possession.
The learned Trial Court acquitted the co-accused Kantheswar
Pradhan of all the charges and he was set at liberty. The appellant and
the co-accused Basnata Kumar Mohanty were acquitted of the charges
under Sections 120-B and 201 of the Indian Penal Code. The appellant
was also acquitted of the charges under Section 409 of the Indian Penal
Code and Section 13(1)(c) punishable under Section 13(2) of the 1988
Act. The appellant was found guilty only for the offence under Section
477-A of the Indian Penal Code.
Page 3 of 25
3. The prosecution case, in short, is that pursuant to an allegation of
misappropriation of Government money in construction of one
additional classroom of the school under K. Nuagaon Block in the
district of Kandhamal, a vigilance enquiry was taken up by Santosh
Kumar Samantara (P.W.8), Inspector of Vigilance, Berhampur Division.
During enquiry, it was found that in the year 2004-05, for construction of
one additional classroom of the school, a sum of Rs.1,50,000/- was
approved by the D.P.C., D.P.E.P., Kandhamal. By that time, the co-
accused Basanta Kumar Mohanty was the Headmaster of the school as
well as Secretary of the School Education Committee (SEC) and co-
accused Kantheswar Pradhan was the President of the School Education
Committee. Both of them entered into an agreement with the D.P.C.,
D.P.E.P., Kandhamal to execute the construction work and accordingly,
work order letter no.470(A) dated 05.03.2005 (Ext.2/3) was issued in
their favour. A joint Savings Bank Account vide A/c. No.8032 was
opened in the name of the school at UCO Bank, Raikia Branch, in which
an amount of Rs.1,30,000/- was credited towards execution of the
aforesaid work. It was further found that both the co-accused President
Page 4 of 25
and Secretary withdrew Rs.1,30,000/- in between 15.04.2005 to
12.02.2007 from the D.P.E.P. fund and started construction of the work.
They constructed the building up to roof level and then stopped the work
since 2007. Thereafter, the co-accused Basanta Kumar Mohanty retired
from service on 29.02.2008 and the construction work remained as such.
In spite of repeated reminders of the D.P.C., D.P.E.P., Kandhamal, the
work did not proceed further. As per the direction of the D.P.C., the
present appellant measured the work done and valued it at Rs.59,642/-.
However, on the requisition of Enquiring Officer, when the building was
technically inspected on 26.11.2010, the technical inspection team
calculated the cost of the work done to be Rs.54,202/- and as such, it was
held that the appellant found to have made some false entries in the
measurement book (Ext.3) by showing inflated measurements. As the
technical inspection team calculated the value of the work done at
Rs.54,202/- against the sanctioned and received the amount by the
accused persons to the tune of Rs.1,30,000/-, the Enquiring Officer
(P.W.8) lodged an F.I.R. (Ext.15) on 28.11.2011 with the Superintendent
of Police, Vigilance, Berhampur alleging misappropriation of
Page 5 of 25
Rs.75,798/- (Rs.1,30,000-Rs.54,202) by the co-accused Basanta Kumar
Mohanty in connivance with the appellant, who allegedly intentionally
entered excess measurements in the measurement book by showing
excess work done value of Rs.5,440/- (Rs.59,642.00-Rs.54,202.00).
After the F.I.R. was lodged, investigation was taken up by P.W.8
as per the direction of the Superintendent of Police, Vigilance,
Berhampur, who in course of his investigation, examined the witnesses,
seized the case records for the work, measurement book, cheque issue
registers of the D.P.C., S.S.A., Kandhamal, Resolution Register, paid
vouchers of S.B. account vide no.8032 of UCO Bank, Raikia. He found
in course of his investigation that the accused persons have not submitted
the account register, register of procurement and utilization of materials,
and visitors’ book to the successor of the co-accused Basanta Kumar
Mohanty at D.P.C. Office in order to cause disappearance of evidence. It
was also found during course of investigation that neither the co-accused
Basanta Kumar Mohanty nor co-accused Kantheswar Pradhan produced
any documents in support of purchase of any material, utilization
register, cash book as per the terms and conditions of the agreement and
Page 6 of 25
all the accused persons in connivance with each other misappropriated a
sum of Rs.75,798/- sanctioned for construction of one additional
classroom of the school.
4. The learned trial Court in the impugned judgment has been pleased
to hold that the prosecution has failed to bring home the charges under
Sections 409/120-B of the Indian Penal Code and Section 13(1)(c)
punishable under Section 13(2) of the 1988 Act against the appellant as
there is no evidence on record to show that the appellant was in charge
of the project or in any manner had dominion over the Government
money sanctioned for construction of the building. It was further held
that there is nothing on record to prove that the accused persons caused
disappearance of evidence to screen them from the punishment and that
the I.O. has neither examined the successor of the co-accused Basanta
Kumar Mohanty nor it is in his evidence that despite he searched for the
registers and records, it was not made available at the school. It was
further held that in the year 2010, when the enquiry was conducted, the
co-accused Basanta Kumar Mohanty had already retired from his service
and hence, there was no scope on his part to cause disappearance of the
Page 7 of 25
records. Learned trial Court further observed that merely because the
letter (Ext.16) goes to show that the co-accused Basanta Kumar Mohanty
had not submitted the records to D.P.C., it cannot be said that the
accused persons had caused disappearance of the evidence to screen
themselves from punishment and accordingly, it was held that the
prosecution has failed to substantiate the charge under Section 201 of the
Indian Penal Code against all the accused persons.
The learned trial Court, however, held that the appellant was
employed as a Technical Consultant under K. Nuagaon Block and he
was issued with M.B. No.144 marked as Ext.3 which was of the D.P.C.,
S.S.A., Kandhamal and he being employed to enter measurement in the
measurement book on behalf of the D.P.C., S.S.A., Kandhamal under
whom he was employed, made false entries of inflated measurement by
showing excess work done value of Rs.5,440/- wilfully with an intent to
defraud the Government. It was further held that the prosecution had
proved all the essential ingredients of the offence under Section 477-A of
the Indian Penal Code against the appellant and accordingly, the learned
trial Court found him guilty of such charge. Since the appellant was
Page 8 of 25
found to have resigned from his service, when the charge sheet was
submitted, it was held that no sanction was required to launch
prosecution against him.
5. Mr. Maharaj, learned counsel for the appellant has submitted that
the principal accused namely, the Secretary and the President of the
School, have been acquitted by the learned trial Court. However, on the
basis of the same set of evidence, the learned trial Court went on to
convict the appellant for the alleged offence punishable under Section
477-A of the IPC. The learned trial Court, in the same breathe has also
arrived at a conclusion that the appellant is not found guilty either for the
offence punishable under Section 409 or 120-B of the IPC or under
Section 13(1)(c) r/w Section 13(1)(2) of the P.C. Act, 1988. He further
submitted that the principal accused Secretary and the President of the
School, in their statement recorded under Section 313 of the Cr. P.C.
have admitted that they have withdrawn the entire amount without
executing the work and the said amount apparently has been
misappropriated by them. They have also admitted that they did not
refund the unutilised fund, despite the same admitted version, the learned
Page 9 of 25
trial Court has acquitted them and without there being any credible
material on record convicted the appellant for the offence punishable
under Section 477-A of the IPC.
It is further contended that the role of the appellant as alleged by
the prosecution was that he only made the measurement (estimate) on
28.04.2010 vide Ext.3. On the basis of the measurement of the actual
work done, which was found to be inaccurate. The measurement was
done after three years from the real construction was carried out. The
said measurement was placed before the Senior Technical Consultant,
which was verified, checked and also approved. It is further argued by
Mr. Maharaj, learned counsel that as per the guideline, a community
mobilization-cum-volunteer work was the responsibility of the President
and Secretary-cum-Headmaster. Hence, the present appellant is no way
liable for any cash related matter. Hence, no misappropriation could be
attributed to the appellant.
6. Mr. Maharana, learned Additional Standing Counsel appearing on
behalf of the opposite party-Vigilance Department, on the other hand,
contended that the conviction recorded by the learned trial Court is
Page 10 of 25
justified and on the basis of the overwhelming evidence brought on
record by the prosecution. Mr. Maharana, learned Additional Standing
Counsel has filed the written note of submission on 10.02.2025 apart
from his oral argument, he has urged the following issues/points.
(a). He has submitted that the co-accused Basanta Mohanty in his
statement under section 313 Cr.P.C., as against question nos. 5, 6, 7, 8, 9
and 11 has admitted the fact of withdrawal of the aforesaid fund and
non-execution of the work by him. In his deposition in paragraphs 3 and
4 he has deposed to the following effect:
“3. I was handling the money received towards
construction of additional classroom. I constructed
the additional classroom up to roof level without
constructing the rook. The remaining unutilized
Rs.65,000/- was with me. I do not remember the
date when I withdrew the money. I had not
withdrawn the money in the year 2005. (The witness
however admitted the withdrawal slips on being
confronted to him by the Special P.P.).
4. I have not stated about the offering of unutilized
money to the tune of Rs.65,000/-before the BRC and
DPC, as I was not given an opportunity to explain
the same before the Vigilance. I had not intimated in
writing to any higher authority to receive the
unutilized of Rs.65,000/-nor about the stack of
materials like cement, rod, sand etc.”
Page 11 of 25
(b). The Co-accused Basanta Kumar Mohanty had failed to
produce any document in support of purchase of any materials,
utilization register, cash book as per the terms and conditions of the
agreement and thereby misappropriated a sum of Rs.75,798/- (i.,e.,
Rs.1,30,000.00 -Rs.54,202.00) sanctioned in his favour towards
construction of an additional class room of the school, as revealed from
the charge-sheet.
(c). PW 1, i.e., Senior Technical Consultant in paragraphs 6 and
7 of his evidence has deposed to the following effect:-
“6. Though I visited the site, but I have never check
measure or test measured the work.
7. It is a fact that in the Agreement there is a clause
that all the money will be handled by the Secretary
Headmaster.”
(d). PW 6-Assistant Engineer has deposed in favour of the
prosecution in paragraphs 7, 8 and 9 to the following effect:-
“7. I have taken the measurement both from outer
wall and inner wall. There was step foundation laid
at the work site. I cannot say the depth of digging
earth in course of my inspection. As per M.B. I have
mentioned the thickness of the iron rods inserted
during foundation. I have not mentioned the
transportation costs of the materials. I have not gone
through the guidelines of the Sarva Sikhya AviyanPage 12 of 25
before conducting inspection. I cannot say, if the
royalties are not deducted in the work of Sarva
Sikhya Aviyan and there is a fixed royalty deducted
at the time of final bill.
8. I ascertained the valuation of the work done after
deducting royalty and also the cost of empty cement
bags.
9. It is not a fact that I have not visited the work site
and prepared Ext.13 in my office mechanically.”
(e). PW 8-Investigation Officer has deposed in paragraphs 12,
13, 14, 15, 16, 27, 28, 29, 31, 32, 33 and 36 of his evidence to the
following effect, which corroborates the case of the prosecution against
the appellant and the co-accused Basanta Kumar Mohanty.
“12. I received Letter No.697, dtd. 07.09.2012 from
D.P.C., SSA, Kandhamal that the Headmaster Sri
Mohanty has not submitted any documents like
Vouchers of construction materials, Register of
procurement and utilization and also cashbook of
construction of additional classroom. This is the
Letter marked Ext. 16.
13. As the Headmaster already retired and Pruthviraj
Lenka resigned from the service by the time I filed
charge sheet, I have not obtained any sanction for
prosecution.
14. The T.C. Pruthviral Lenka has mentioned in the
M.B. that the work done was for Rs.59,642/-, which
was not true as per the Technical Inspection Report.
15. I have not received any complaint regarding non-
payment of labour charges. The Work order issuedPage 13 of 25
in the name of the Headmaster and the Secretary-
Headmaster of the School. It is a fact that in the
Agreement there is mention that the money will be
handled by the Headmaster.
16. It is not a fact that the real work done status has
been mentioned in the M.B. The signature of the
Technical Consultant is not found in any withdrawal
form. It is not a fact that the money were withdrawal
as per the Resolution of the VEC in all and every
transaction. It is not a fact that the Technical
Inspection Report has been prepared basing on the
estimate and not on the field position.
27. On verification of M.B. No. 144, Page No. 1 to
12 written by Sri Pruthviraj Lenka, Technical
Consultant, Office of the DPC, DPEP/SSA,
Kandhamal, Phulbani, it is found that some false
entries have been made by him. During technical
inspection it is found that Sri Lenka has made excess
measurement of Rs.5,440/- as he mentioned the
valuation of the work done as Rs.59,642/- and the
Technical Inspection Team measured the work done
at Rs.54,202/-.It is the Joint Memorandum submitted
by the Technical Team which is already marked as
Ext. 13/2 and Ext. 13/6 is my signature thereon.
28. The Technical Inspection of the work site was
conducted on 26.10.2010. I have lodged the report
(FIR) on 28.11.2011. I am the Investigating Officer
of this case.
29. It is a fact that the M.B. No.144 (Ext.3) contains
signature of the Senior Technical Consultant Pramod
Dash at Page No. 12 with an endorsement “checked
and verified”. I was present during the Technical
Inspection of the work site.
31. I cannot say the exact depth of the foundation
dug during inspection.
Page 14 of 25
32. No sample of earth, cement or concrete has been
taken during the inspection.
33. I cannot say if only fixed royalty is deducted
during preparation of final bill in connection with
the work executed under Sarva Sikhya Aviyan.
36. It is not a fact that the successor of accused
Basanta Mohanty namely Sunita Pradhan has not
taken charge from him despite his repeated request
and I have not intentionally examined Sunita
Pradhan to implicate the accused Basanta Mohany in
this case.”
7. Mr. Maharana, learned counsel further submitted that even if co-
accused Basanta Kumar Mohanty has withdrawn the money towards
the work in the year 2007 to the tune of Rs.1,30,000/- and has only
executed the work to the tune of Rs.54,202/ as per Ext. 13, however,
the appellant has done the estimate of the executed work showing Rs.
59,642/- (vide Ext.3), thereby, shown excess estimation to the tune of
Rs. 5,440/-. Therefore, learned trial court has rightly found him guilty
under section 477A of the IPC (for utilizing the forged document as
genuine).
8. Mr. Maharana, learned counsel submitted that misappropriation
of public fund without execution of work is well established against the
Page 15 of 25
co-accused Basanta Kumar Mohanty and the present appellant, being
the public servant, knowing fully well has prepared inflated
measurement report, which is utilized for official purpose in
determination of the quantity of misappropriation amount, and for that
the present appellant is liable under section 477A of the IPC.
9. I have carefully gone through the material placed before me along
with the appeal memo, record obtained from the learned trial Court as
well as the written note of submission. The appellant has been convicted
for the offence punishable under Section 477-A of the IPC, which deals
with the falsification of the account. The ingredients of the offence under
Section 477-A of the IPC are as follows:
“(i) The person coming within its purview must be a clerk, officer,
or servant or acting in the capacity of a clerk, officer, or servant
(ii) He must willfully and with intent to defraud-
(a) destroy, alter, mutilate, or falsify any book, paper, writing,
valuable security, or account which belongs to, or is in possession
of, his employer; or has been received by him for or on behalf of
his employer; or
(b) make or abet the making of any false entry in, or omit or alter
or abet the omission or alteration of any material particular from
or in, any such book, paper, writing, valuable security, or account.
Page 16 of 25
‘Willfully’ means that the act is done deliberately and intentionally,
not by accident or inadvertency, so that the mind of the person who
does the act goes with it. The term ‘with intent to defraud’ means
either an intention to deceive and by means of deceit to obtain an
advantage or an intention that injury should befall some person or
persons. Advantage which is intended must relate to some future
occurrence or, in other words, must be of a prospective nature.
Making false entries in the measurement book in order to conceal
fraudulent or bogus acts, falls within the purview of section 477-A
of I.P.C. If an accused makes fictitious entries in the measurement
book though in fact he had not measured up the work with intent
that the contractor’s bill might be passed without actual
measurement, his act amounts to a ‘fraudulent falsification of
account’. It is necessary to show not merely false entries in the
books of accounts, but that such false entries were made with intent
to defraud. Even if the intention with which the false entries were
made was to conceal a fraudulent or dishonest act previously
committed, the intention will be to defraud. Making a false
document with a view to enable the persons who committed
misappropriation to retain the wrongful gain which they had
secured also amounts to the commission of a fraud and the act
brings the case under this section.”
The prime ingredient to bring home the charge of the offence under
Section 477-A is the “willfull and fraudulent intent” to defraud the
exchequer by wrongfully making entries in the books. In the facts
scenario of the present case, the trial Court appears to have gone wrong
in tracing the ill-intent of the appellant to cause defraud the exchequer.
10. The learned trial Court while considering the role played by the
petitioner in paragraph 16 of the impugned judgment has been pleased to
hold that M.B. No.144 marked as Ext.3 was issued to the petitioner by
Page 17 of 25
the Financial Consultant, SSA, Kandhamal to enter the measurement of
the work done. The petitioner measured the work done for Rs.59,642/-.
The entries made by the petitioner and his signature in the measurement
book were proved by P.W.1. On the other hand, P.W.6, Asst. Engineer at
K. Nuagaon Block who along with others technically inspected the
additional class room building work and prepared the technical
inspection report (Ext.13) and the map with findings (Ext.13/1) stated in
his evidence that the final measurement of the work done came to
Rs.54,202/-. Thus, the work done value as measured by the petitioner as
per Ext.3 did not tally with the work done value as assessed by P.W.6 in
Ext.13. The learned trial Court analyzed the evidence of P.W.6 carefully
and found that the plinth bent thickness has been given as 6″ instead of
4″ in M.B. No.144 Page No.05, R.R. stone masonry third footing height
has been given as 2′ instead of 1′ 6″ actual in M.B. No.144, page No.04
and Leveling Course with C.C.124 has not been done, but given in item
no.07 of M.B. No.144, page no.07 by the petitioner. The learned trial
Court accepted the evidence of P.W.6 coupled with the map with
findings recorded in Ext.13/1 and held that the petitioner has made false
Page 18 of 25
entries in the M.B. Since the work done value ascertained by the
petitioner is for Rs.59,642/- against the actual work done value of
Rs.54,202/- as opined by the Technical Inspection Team and mentioned
in Ext.13, the learned trial Court found that the petitioner had shown
excess work done value of Rs.5440/-. If the work done value entered by
the petitioner in M.B. was accepted, there would be loss of Rs.5440/- to
the Govt./State Exchequer. The learned trial Court held that the wrong
committed by the petitioner cannot be said to be unintentional and result
of miscalculation, rather appears to be willful and intentional. Therefore,
it was held that with an intent to defraud the Govt., the petitioner made
false entries in the M.B. which was received by him on behalf of
DPC/SSA, Kandhamal, under whom he was employed as Technical
Consultant.
For convenience of the ready reference, paragraph-16 of the
impugned judgment of the learned trial Court is reproduced hereunder:
“16. Now on consideration of the role played by the accused
Prithwiraj Lenka, it is seen that the M.B. No.144 marked vide Ext.3
was issued to him by the Financial Consultant, SSA, Kandhamal to
enter the measurement of the work done. It is evident from the oral
evidence of P.W.1 that the M.B. was maintained by P.R. Lenka andPage 19 of 25
he measured the work done for Rs.59,642//. He also proved the
entries in the M.B. (Ext.3/1) and also signature of P.R. Lenka in it.
Furthermore, it is deposed by the 1.0. (P.W.8) that the Technical
Consultant Prithwiraj Lenka has mentioned in the M.B. that the
work done was for Rs.59,642/- and it was not true as per the
Technical Inspection Report. P.W.6 Jnanada Prasad Sahu, who
prepared the Technical Inspection Report (Ext.13) and the Map
with findings (Ext.13/1) stated in his evidence that the final
measurement of the work done came to Rs.54,202/-. This Court
also perused the M.B. marked vide Ext.3 and found that accused
P.R. Lenka has measured the work done and ascertained the work
done value at Rs.59,642/-, which does not tally with the work done
value mentioned at Ext.13. The defence raised on behalf of the
accused P.R. Lenka is that the measurement entered by him was
check measured by Senior Technical Consultant of DPEP,
Kandhamal, who has also put his signature on the M.B. having
found the entire measurement correct. Therefore, he cannot be held
liable for making any false entries in the M.B. It is no doubt true
that the M.B. marked vide Ext.3 reveals that the measurements
entered in the M.B. are check measured by Sr. Technical
Consultant and in course of cross-examination, P.W.6 also
admitted that the Senior Technical Consultant use to put his
signature on the M.B. as a token of check measurement, if the
measurement are recorded properly in the work done. He also
admitted that the Ext.3, the measurement book, bears the
signatures of the Senior Technical Consultant. But on the other
hand, P.W.6 during his further examination in chief on alteration
of charges stated that the plinth bent thickness has been given as 6″
Instead of 4″ In M.B. No.144 Page No.05, R.R. Stone Masonry
Third Footing Height has been given as 2′ Instead of 1″6″ actual In
M.B. No.144, Page No.04 and Leveling Course with C.C. 124 has
not been done, but given in Item No.07 of M.Β. No.144, Page No.07
by the Technical Consultant P.R. Lenka. I also perused Ext.13/1,
the map with findings and found that those inflated measurement
recorded in the M.B. by accused Prithwiraj Lenka has been noted
specifically therein. Even though the M.B. found to have been
check measured by the Senior Technical Consultant, in view of the
specific findings recorded in Ext.13/1 regarding the inflated
measurement recorded by accused Prithwiraj Lenka, this Court is
not able to accept the defence plea to the effect that correct entries
has been made in the M.B. showing correct work done value.
Page 20 of 25
Rather, Ext.13/1 is found specific in pointing out the inflated
measurement and corroborated by oral evidence of P.W.6.
Therefore, this Court accepted the evidence of P.W.6 coupled with
the map with findings recorded in Ext. 13/1 and held that accused
Prithwiraj Lenka has made false entries in the M.B. Since the work
done value ascertained by P.R. Lenka is for Rs.59,642/- against the
actual work done value of Rs.54,202/- as opined by the Technical
Inspection Team and mentioned in the Ext.13, this Court found that
accused Prithwiraj Lenka has made excess work done value of
Rs.5440/-. If the work done value entered by P.R. Lenka in M.B.
was accepted, there would be loss of Rs.5440/- to the Govt./ State
Exchequer. The wrong committed by accused P.R. Lenka cannot be
said to be unintentional and result of miscalculation, rather
appears to be willful and intentional. Therefore, it is held with an
intent to defraud the Govt., the accused P.R. Lenka has made false
entries in the M.B., which has been received by him on behalf of
DPC/SSA, Kandhamal, under whom he was employed as T.C.”
11. The findings recorded by the learned trial Court as reproduced
above create a serious doubt in view of the evidence of the material
witnesses and the other documents placed on record. It is an admitted
case on record that in the year 2007, the alleged misutilization of funds
meant for construction of additional room took place at the behest of the
Secretary-cum-Headmaster and the President of the School management
during the period from 2005 to 2007. The principal accused demitted the
Office on superannuation on 29.02.2008. The alleged construction
remained unfinished. Nothing has been brought on record as to when the
successor of the co-accused Basanta Kumar Mohanty had joined.
Page 21 of 25
However, it appears that on the requisition of the Enquiring Officer,
when the building was technically inspected on 26.11.2010, the alleged
miscalculation done by the appellant came to light. The appellant has
estimated the finished work to be Rs.59,642/- whereas it is alleged that
the real work estimated to have been done was Rs.54,202/-. Therefore,
there was a difference in value of the work to the tune of Rs.5,440/-.
12. The prosecution has alleged that the excess measurement was
deliberately done by the present appellant so as to defraud and cause loss
to the exchequer. This was done in connivance with the other accused
persons. Surprisingly, the appellant has been acquitted of the charges for
the offence punishable under Section 120-B of the IPC. It is also
admitted on record that the prosecution has also failed to bring on record
any document worth the name of the evidence to connect the present
appellant with the co-accused person. The measurement was done after
three years of the alleged construction of the work. The minor deviation
in the measurement may be an error of the judgment on the part of the
appellant. Hence, no mens rea could be attributed to the appellant.
Page 22 of 25
13. It is not the case of the prosecution that the appellant has derived
any financial or other advantage from the impugned conduct of alleged
excess measurement. The prosecution also alleged that out of the total
amount of Rs.1,30,000/-, which was admittedly withdrawn by the co-
accused person, the amount equivalent to the unfinished work, which
came to be Rs.73,798/- has not been returned back by those accused
persons. The learned trial Court has also ignored the statements of the
co-accused persons recorded under Section 313 of the Cr. P.C. If the
entire evidence including the oral and documentary are taken into
consideration, it clearly illuminates that the appellant had no deliberate
intention or wilfully carried out the measurement work so as to cause
loss to the exchequer or to defraud. Moreover, the measurement carried
out by the appellant was placed before his superior officer namely Senior
Technical Consultant, who has checked, verified and approved the same.
The variation in the calculation is only Rs.5,444/-, which could be an
aberration, but cannot be said to be intentional or deliberate.
14. Hence, the learned trial Court has gone wrong in convicting the
appellant for the offence punishable under Section 477-A of the IPC
Page 23 of 25
while acquitting him from all the charges for the offence punishable
under Section 409/120-B/201 of the IPC r/w Section 13(1)(c) r/w
Section 13(2) of the P.C. Act.
15. Therefore, I am of the view that the judgment of conviction and
the order of sentence passed by the learned trial Court are not
sustainable, when the appellant was found not guilty of the offence
punishable under Section 120-B of the IPC and the other offences. The
alleged act of deceit to obtain an advantage, which might relate to some
future occurrence or in other words, might be prospective in nature is not
at all possible in the fact scenario of this case. Therefore, the appellant
could safely be acquitted by the application of the doctrine of
preponderance of probability as convincing and cogent materials are
lacking to indicate that wrong entries in the measurement book were
made with the intent to falsify the account for defrauding.
16. Hence, the impugned judgment of conviction and the order of
sentence dated 16th May, 2019 passed by the learned Special Judge
(Vigilance), Phulbani in G.R. Case No.74 of 2013 (v) (TR No.74 of
2013)/G.R. Case No.52/2011 (v) (TR No.08 of 2013 BAM) arising out
Page 24 of 25
of Berhampur Vigilance P.S. Case No.52, dated 28.11.2011 is set aside.
The appellant is acquitted of the charge under Section 477-A of the IPC
and the bail bond stands discharged.
17. The CRLA is allowed and disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 30th of May, 2025/Subhasis Mohanty
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY Page 25 of 25
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 18-Jun-2025 17:51:36