JANAM SINGH v. STATE OF H. P. — 1987 DIGILAW 10 (HP)

JUDGMENT R. S. Thakur, J —This order will dispose of two Criminal Appeals, separately filed by Janam Singh and Dharam Chand against a common order passed against them by Special Judge, Kangra at Dharamsala, convicting each of them under sections 409, 420, 467, 468, 471 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act (hereinafter referred to as the Act) and sentencing each of them to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 200 for each of the offence under section 409, 467 and 471 of the Indian Penal Code and section 5 (2) of the Act, and further sentencing them for a period of six months and to pay fire of Rs. 100) for each of the offences under sections 420 and 468, I. P. C. In default of payment of fire each one of the accused was directed to undergo further rigorous imprisonment for a period of one month under each count. All the substantive sentences under the aforesaid sections were, however, ordered to run concurrently. 2. The offences in question relate to the year 1973, At that time accused Janam Singh was Inspector Panchayat in Mehla Block of District Chamba. The other co-accused Dharam Chand at that time was the Secretary of two Panchayats Basodhan and Rathiar within the said Block Mehla. Raj Kumar Mahajan, was the Block Development Officer, Mehla. in the year 1967 the Government of Himachal Pradesh enunciated a Scheme to pay to the eligible persons belonging to Scheduled Castes and Scheduled Tribes subsidy amounts for repairing/constructing their houses and this Scheme was known as House Subsidy Scheme for Scheduled Castes/Tribes. For the purposes of implementing the Scheme in Mehla Block, an ad hoc construction Committee was constituted with the Block Development Officer, Mehla Block R. K. Mahajan as its Chairmaa and the accused Janam Singh, Panchayat Inspector, as its Secretary. A sum of Rs. For the purposes of implementing the Scheme in Mehla Block, an ad hoc construction Committee was constituted with the Block Development Officer, Mehla Block R. K. Mahajan as its Chairmaa and the accused Janam Singh, Panchayat Inspector, as its Secretary. A sum of Rs. 6,000 was allocated by the Government to the said Block for this purpose which amount was deposited in the Himachal Pradesh Co-operative Bank Ltd. Chamba in the name of the Block and the account with regard to this amount was to be operated under the joint name of the Chairman of the ad hoc Construction Committee and the Secretary, meaning thereby that no amount could be withdrawn out of the said amount unlees the cheque in this behalf was signed both by the Chairman R. K. Mahajan and the accused Janam Singh. The mode of disbursing this subsidy amount to the beneficiaries was that after the beneficiary had applied for such a subsidy and the case was found to be genuine after due verification, the Committee used to sanction particular amount to the beneficiary applicant and this amount usually used to be released in instalments from time to time after verifying the proper utilisation of the amount for the purpose the subsidy was meant for. The procedure of payment was that the cheque for the requisite amount used to be drawn in the name of the beneficiary issued to him under the joint signatures of the Chairman and the Secretary of the ad hoc Construction Committee and on the counter-foil of the cheque the signature or the thumb impression of the beneficiary concerned used to be obtained in token of receipt of the cheque and the beneficiary then used to draw this amount from the bank concerned. 3. One of such beneficiaries, namely, Bengali resident of village Basodhan, applied for such a subsidy and a sum of Rs. 750 was sanctioned in his favour for the repairs/construction of his house. The record then shows that a cheque for an amount of Rs. 600 purports to have been issued in his favour on October 8, 1973 vide cheque No. 169169 (Ex. PG/2/A) and then another cheque for Rs. 150 was again issued in his favour on November 12, 1973 vide cheque No. 169171 (Ex. PG/2/B). 4. Said Bengali however, made a complaint to the Deputy Commissioner, Chamba on April 5, 1975 (Ex. 600 purports to have been issued in his favour on October 8, 1973 vide cheque No. 169169 (Ex. PG/2/A) and then another cheque for Rs. 150 was again issued in his favour on November 12, 1973 vide cheque No. 169171 (Ex. PG/2/B). 4. Said Bengali however, made a complaint to the Deputy Commissioner, Chamba on April 5, 1975 (Ex. PC) that although an amount of Rs. 750 as subsidy was sanctioned in his favour in the year 1971 but he had not been paid even a pie and that he had come to know from the Welfare Officer, Chamba that this amount had been mis-appropriated by the Block Officials Mehla. Thereafter an enquiry was held and it was found that accused Janam Singh had mis-appropriated the amount of Rs. 600 and the balance amount of Rs. 150 was also mis-appropriated by the two accused Jaoam Singh and Dharam Chand. Two separate cases were then registered one against the accused Janam Singh and R. K. Mahajan under sections 409/420/467/468 and 471 read with section 120-B of the Indian Penal Code and section 5 (2) of the Act for the mis-appropriation of the amount of Rs. 600. Later on, however, it appears that charges were framed only against Janam Singh with regard to the embezzlement of amount of Rs. 600 and as regards the amount of Rs. 150 the charges for various offences mentioned above were framed against the two accused Janam Singh and Dhaiam Chand. It is also clear that Janam Singh was acquitted in the former case which was case No. 3/8 i and the two accused have sustained conviction for the instant one which is case No. 2/81 as stated earlier. 5. The learned Counsel for the two accused have argued that offences in question have not been proved by the prosecution against the accused beyond all reasonable doubt. It has also been argued on behalf of the accused Janam Singh that the learned trial Court has wrongly read the evidence of handwriting expert in the instant case which was actually on the record of the other case, namely, case No. 3/81 in which this accused has been acquitted. It has also been argued on behalf of the accused Janam Singh that the learned trial Court has wrongly read the evidence of handwriting expert in the instant case which was actually on the record of the other case, namely, case No. 3/81 in which this accused has been acquitted. It has further been argued that in any case since the entire amount was deposited in the bank subsequently it was at the most a case of temporary embezzlement and, therefore, a lenient view ought to have taken while sentencing the accused. 6. Thus the first question that arises 5s whether the different offences stated above have been proved against the accused Janam Singh beyond all reasonable doubt. Now so far as the offences under sections 409 and 471 of the Indian Penal Cede and section 5 (2) of the Act are concerned, I feel that they stand proved against the accused Janam Singh beyond doubt. It is an admitted fact that the accused Janam Singh in the year 1973 was the Secretary of the Ad hoc Construction Committee Mehla Block of which R. K. Mahajan Block Development Officer was the Chairman. It is also on record that Bengali had been sanctioned a sum of Rs. 750 as subsidy for the construction/repairs of his house. The amount of Rs. 6,000 was credited in the account of this Ad hoc Construction Committee Mehla Block for the purposes of distributing subsidy to the eligible persons on December 20, 1967 by the Government. This account was being operated jointly by the accused Janam SiDgh and R. K, Mahajan as Secretary and Chairman respectively of the Ad hoc Construction Committee. The accused in the capacity of Secretary used to maintain the relevant record with regard to these disbursements. The Register Ex. PG/1 contains the names of different beneficiaries and it has been shown at page 10 thereof vide Ex. PG/l-A that said Bengali had been sanctioned a sura of Rs. 750 in the form of subsidy. Then the cheque, in original Ex. PD, dated November 12, 1973 shows that it was drawn in the hand of the accused Janam Singh in favour of accused Dharam Chand for a sum of Rs. PG/l-A that said Bengali had been sanctioned a sura of Rs. 750 in the form of subsidy. Then the cheque, in original Ex. PD, dated November 12, 1973 shows that it was drawn in the hand of the accused Janam Singh in favour of accused Dharam Chand for a sum of Rs. 150 and it clearly shows that it was to be drawn out of the current account standing in the name of Ad hoc Construction Committee, Mehla, that is, C. A. No. 10 and the number of the cheque is 169171. The counter-foil of this cheque on the cheque book Ex. PG/2 which is Ex. FG/2/B, however, shows that this cheque had ben drawn in the name of Bengali. The accused has admitted that both these writing on the cheque Ex. PD as well as on counter-foil Ex, PG/ /B are in his own hand and thus it is clear that this act on the part of the accused Janam Singh falls within the mischief of section 471 of the Indian Penal Code as already stated. It has been proved on the record that the mode of disbursing this subsidy amount was by issuing cheque in the names of the beneficiary whose signature/thumb mark was then obtained on the counterfoils). In the instant case, however, the counter-foil Ex. PG/2/B shows as if the cheque has been issued in favour of Bengali himself whereas the cheque has actually been issued in favour of the co-accused Dharam Chand who as a result thereof encashed the cheque and signed at the back of it in token of having received the amount of Rs. 150. It is thus clear that the accused has used this forged document Ex. PG/2/B as genuine by showing as if the connected cheque had been issued in favour of Bengali whereas he knew that the cheque had actually been issued in favour of Dharam Chand. Then there is another important document, the certified copy whereof is Ex. PH/2 which has been written by the accused to the Block Development Officer, Mehla Block on May 16, 1975 wherein he has clearly admitted that although a sum of Rs. Then there is another important document, the certified copy whereof is Ex. PH/2 which has been written by the accused to the Block Development Officer, Mehla Block on May 16, 1975 wherein he has clearly admitted that although a sum of Rs. 750 was sanctioned as subsidy ia favour of Bengali, but no payment could be made to said Bengali as said Bengali did not execute any agreement or bond nor he presented himself before the Block Development Officer, Mehla to receive the payment and that the amount was still lying in the name of Chairman Ad hoc Construction Committee Mehla in the Himachal Pradesh State Co-operative Bank Ltd. Then there is pay-in-slip Ex. PD, dated May 15, 1975, in Case No. 3/8!, whereby an amount of Rs. 750 purports to have been deposited in the Himachal Pradesh Co-operative Bank Ltd. in the name of the Chairman Ad hoc Construction Committee Mehla. The name of the depositor has been mentioned as Rajinder Kumar. The opinion of the handwriting expert is that this has been scribed by none-else but by the accused Janam Singh himself. It is thus apparent that although this amount of Rs. 150 was withdrawn in the year 1973, it was deposited only in May, 1975 in the name of the Chairman. Ad hoc Construction Committee, Mehla Block and immediately thereafter on the next day he has claimed in his letter Ex. PH/2 that the entire amount was still lying in the Himachal Pradesh State Co-operative Bank Ltd., Chamba, in the name of the Chairman Ad hoc Construction Committee. Obviously, it was the accused Janam Singh who had manipulated the receipt of this entire amount and had committed defalcation of atleast the amount in question, that is Rs. 150 and deposited it only after he found that the noose was closing up round his neck. There is thus no escape from the conclusion that the accused Janam Singh being a public servant had committed criminal breach of trust in respect of this amount and, therefore, the offence under section 409 of the Indian Penal Code and section 5 (c) of the Act are squarely brought home to him. 7. There is no substance in the contention of the learned Counsel for the accused Janam Singh that the lower Court has wrongly relied on the report of the handwriting expert. 7. There is no substance in the contention of the learned Counsel for the accused Janam Singh that the lower Court has wrongly relied on the report of the handwriting expert. In fact both the cases mentioned above were being tried side by side as in reality they were inter-connected and based upon the same documents, Therefore, this is a hyper technical objection which cannot be countenanced at this stage. Further it may be noted that the accused Janam Singh has himself admitted all the inculpating circumstances appearing on the record against him and has categorically stated in answer to question No. 22 that he had done all this under the orders of the Block Development Officer, R. K. Mahajan, who then received the entire amount of the disputed cheques and deposited that amount in the concerned account and falsely implicated him for doing so. Thus I hold that the accused Janam Singh has been rightly found guilty for the offences under sections 409 and 471 of the Indian Penal Code and section 5 (2) of the Act. The offences, in my opinion, however, under sections 467, 468 and 420 of the Indian Penal Code do not seem to have been made out as the accused did not forge any valuable security. The cheque in question was issued in favour of Dharam Chand which he could do as Secretary of the Ad hoc Construction Committee when it contained the signature of both R. K.. Mahajan and himself and it cannot bs termed and forgery of a valuable security within the ambit of section 467 of the Indian Penal Code. It is only its counter-foil which was forged by him and used it as genuine and as such the offence falls under section 471, I. P. C. only and also the forgery was not for the purpose of cheating as envisaged by the provision of section 468, I. P. C. Since the amount belonged to the Government over which he alongwith the Chairman of the Ad hoc Construction Committee had a joint dominion and as such it cannot be said that the amount in question belonged to Bengali and he was cheated by forging this document. The accused Janam Singh is, therefore, acquitted of the offences under sections 467, 468 and 420 of the Indian Penal Cede. 8. The accused Janam Singh is, therefore, acquitted of the offences under sections 467, 468 and 420 of the Indian Penal Cede. 8. It may be stated at this stage that the charge under section 120-B of the Indian Penal Code in this case against the two accused has not been proved at all. There is no evidence at all factual oi circumstantial that there was any pre-concert or agreement to commit the offences in question. They were individual acts of the accused Janam Singh f t which he has been found guilty for the offences under sections 409 and 471 of the Indian Penal Code and section 5 (2) of the Act. 9. The only part which co-accused Dharam Chand played in this entire episode was that he encashed the cheque Ex. PD, the accused Janam Singh had drawn in his favour and which accused Dharam Chand encashed and received the payment of the cheque amount to the tune of Rs. 150. He has admitted this and has further asserted that he did so at the instance of accused Janam Singh and that after encashment, he handed over this amount to the accused Janam Singh as desired by him. 10. The lower Court has not accepted this on the ground that the accused Dharam Chand did not lead any evidence to prove this payment to, the accused Janam Singh and that he being Secretary of Panchayat ought to have known that such a cheque could, net be issued in his favour. I do not think that this was sufficient to convict the accused Dharam Chand. Admittedly the accused Dharam Chand at the relevant time was merely a Panchayat Secretary and had nothing whatsoever to do with the payment of such subsidy nor could be justifiably be impressed with the knowledge of the procedure that was being followed qua the payment thereof to the beneficiaries. He has also claimed that he did not know English. Under these circumstances, possibility cannot be ruled out that this accused Dharam Chand was used by the main accused Janam Singh as a mere tool to misappropriate the amount for himself after getting it encashed through Dharam Chand. After all sight cannot be lost of the fact that accused Dharam Chand was a subordinate of this accused Janam Singh. Under these circumstances, possibility cannot be ruled out that this accused Dharam Chand was used by the main accused Janam Singh as a mere tool to misappropriate the amount for himself after getting it encashed through Dharam Chand. After all sight cannot be lost of the fact that accused Dharam Chand was a subordinate of this accused Janam Singh. Further the accused Janam Singh has himself admitted that the entire amount of Rs, 750 sanctioned in favour of Bengali after encashment was not paid to Bengali but was with him and later on deposited again in the Bank in the name of the Chairman Ad hoc Construction Committee, Mehla. 11. Thus there could be two situations in this matter, one that the accused Dharam Chand at the time of issuance of this cheque for Rs. 150 in his favour knew that this was being done by the two accused in further once of common intention of them both to embezzle the amount or secondly the accused Dharam Chand was completely ignorant of this and he innocently accepted the cheque and handed over the amount of Rs. 150 after the cheque was encashed by him to the accused Janam Singh as desired by the latter. It is an established law that where such two situations are in existence one adverse and the other favourable to the accused, the one favourable to the accused should be accepted by the court and such an accused is entitled to benefit of doubt on this score. In the instant case, however, there are strong indications on record that the accused Dharam Chand had paid back the amount to accused Janam Singh since the latter had admitted in writing vide Ex. PH/2 that the amount of Rs. 750 (inclusive of the amount of Rs. 150) remained with him unpaid to the beneficiary and bad to be deposited again in the bank on May 15, 1975. In view of these facts and circumstances no offence appears to have been proved against the accused Dharam Chand and he is, therefore, liable to acquittal. 12. 750 (inclusive of the amount of Rs. 150) remained with him unpaid to the beneficiary and bad to be deposited again in the bank on May 15, 1975. In view of these facts and circumstances no offence appears to have been proved against the accused Dharam Chand and he is, therefore, liable to acquittal. 12. In view of the above discussion, the appeal of the accused Janam Singh is partly accepted inasmuch as he is acquitted of the offences under sections 420, 467 and 468 of the Indian Penal Code but his conviction and sentence shall remain intact as imposed by the lower Court under sections 409 and 471 of the Indian Penal Code and section 5 (2) of the Act qua which his revision petition is dismissed. His bail bonds stand cancelled and he should surrender to his bail bonds forthwith to serve out the sentence. As regards the co-accused Dharam Chand his appeal is accepted and the order of conviction and sentence passed against him vide order, dated February 23, 1985 is set arise and he is acquitted of all the offences. His bail bonds stand discharged and fine if realised from him be refunded to him forthwith. The case property be dealt with as ordered by the lower Court. 13. Before parting with these appeals this Court cannot help observing that the conduct of R. K. Mahajan, Block Development Officer and Chair man of the Ad hoc Construction Committee, Mehla Block in this whole episode has been such as to render him liable for strict action at the hands of the authorities concerned. It is clear that as Chairman of the Ad hoc Construction Committee it was his duty to keep in check the activities of the accused Janam Singh who was the Secretary of the said Committee so that the latter did not hive the chance to indulge in such illegal acts of omission and commission and the benefits of subsidy Scheme reached the right quarters. Said R. K. Mahajan however, miserably failed to perform his duty in this behalf and gave an undue latitude to the accused Janam Singh in this behalf which afforded him an opportunity to indulge into these illegal acts and thus to deprive the poor beneficiaries cf this Scheme which was laudable in its aims and objectives. Said R. K. Mahajan however, miserably failed to perform his duty in this behalf and gave an undue latitude to the accused Janam Singh in this behalf which afforded him an opportunity to indulge into these illegal acts and thus to deprive the poor beneficiaries cf this Scheme which was laudable in its aims and objectives. In fact taking over all view of the statement of this R. K. Mahajan in the witness-box, it would be safe to conclude that he has come out as a thoroughly discredited person and as such unfit to be retained in. He was put a specific question in cross-examination that he had temporarily embezzeled an amount of Rs. 12,000 for a period of almost one year while he was Block Development Officer at Tissa and deposited it only after there was an audit objection in this behalf to which his reply was that he did not remember meaning thereby that he was not in a position to deny such a serious allegation against him. Then there was another such question that as Block Development Officer Pangi he had withdrawn an amount of Rs. 7,000 from the Government funds to purchase nines but did not do so nor he deposited the said amount bac<< m the Government treasury to which also his reply was that he did not remember He however, admitted that he was suspended for this act in the years 1983 In view of these facts and circumstances it is strongly felt that if this man is still in service atleast a departmental enquiry must be held against him and if these allegations against him are proved he deserves to be severely dealt with in accordance with law. Let a copy of this judgment be sent to the Chief Secretary, Government of Himachal Pradesh, for necessary action in this behalf. Order accordingly.