KHAGESWAR vs STATE

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

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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

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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.

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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

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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:

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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

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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

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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 accи sed-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

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of time, is presently more than 75 years old. Placing reliance upon the
1
Abdul Hamid v. State of Orissa
decision of this Court in , 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

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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

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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

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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
Digitally Signed The High Court of Orissa, Cuttack.
nd
Signed by: ASHOK KUMAR JAGADEB
Dated the 22 Day of May 2026/ Ashok

MOHAPATRA
Reason: Authentication
Location: High Court of Orissa
Date: 25-May-2026 19:03:40
Signature Not Verified

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