Jagdish Prasad Srivastava v. State Of Bihar — 1989 DIGILAW 127 (PAT)

Judgment 1. Both appeals arise out of the same judgment and have been heard together and so will be governed by this common order. 2. All the three appellants are railway employees and were posted at the relevant time i.e. April and May, 1971, at the Sindri Railway Station of the Eastern Railway. Appellant J.P. Srivastava was posted at that time as Yard Master in the Sindri Marshalling Yard, appellant A. Soreng was posted there as the Assistant Goods Clerk and the third appellant M.M. Chakravorty was posted as the Trains Clerk. The allegation against these appellants is that they in conspiracy with each other and also the firm styled as M/s. Sindri Traders cheated the railway administration by getting 77 wagons allotted to M/s. Sindri Traders on the basis of forged allotment for actually transporting coal under the cover of transporting Cinder Ash, and with a view to carrying out this design the three appellants issued forwarding notes and railway receipts and certificates and actively helped the so-called M/s. Sindri Traders to load and transport coal from Sindri to different destinations in the country under the cover of Cinder Ash. The investigation was carried out by the C.B.I. which chargesheeted the said firm also besides the three appellants but as M/s. Sindri Traders could not be traced out, the trial of the appellants was separated and on conclusion of the same they were convicted and sentenced by the impugned judgment. 3. Appellant Jagdish Prasad Srivastava has been convicted for offences under Secs. 420, 468, 477-A, Indian Penal Code, 1860 and also under S.5(2) read with S.5(1)(d) of the Prevention of Corruption Act and for each of these offences he has been sentenced to undergo R.I. for three years. Appellant A. Soreng has been convicted under Secs. 420, 477-A, 468/471, Indian Penal Code, 1860 and S.5(2) read with S.5(1)(d) of the Prevention of Corruption Act and he also has been sentenced to undergo R.I. for three years for each of these offences. Appellant M.M. Chakravorty has been convicted under Secs. 420, 468, 468/471, 477-A, Indian Penal Code, 1860 and S.5(2) read with S.5(1)(d) of the Prevention of Corruption Act and has been sentenced for each of these offences to R.I. for two years. The aforesaid sentences of all the three appellants have been ordered to run concurrently. Appellant M.M. Chakravorty has been convicted under Secs. 420, 468, 468/471, 477-A, Indian Penal Code, 1860 and S.5(2) read with S.5(1)(d) of the Prevention of Corruption Act and has been sentenced for each of these offences to R.I. for two years. The aforesaid sentences of all the three appellants have been ordered to run concurrently. Besides the above, all the three appellants have also been convicted for the offence of criminal conspiracy under S.120B, Indian Penal Code, 1860 read with S.420, Indian Penal Code, 1860 and S.5(2) read with S.6(1)(d) of the Prevention of Corruption Act but no separate sentence has been passed against them for the offence of conspiracy. It is not disputed that allotment of wagons for loading and transporting coal could be done by the Joint Director Transporting Coal, Eastern Railway, Calcutta and that the Divisional Office at Dhanbad (Sindri Station comes under this Divisional Office) was not competent to issue such authorisation. However, it is accepted that the Divisional Office was authorised and competent to issue letters for allotment of wagons for loading and transporting general merchandise goods and Cinder Ash comes within this category of goods. 4. The prosecution case is that J.P. Srivastava in conspiracy with the other accused persons manufactured; a forged and fabricated letter - Letter No. OA/5083/Policy PTI dated 24-4-1971 purporting to have been issued by the Divisional Superintendents Office (D.S. Office) Dhanbad for allotment of 77 wagons at the rate of 11 wagons per day in favour of M/s. Sindri Traders and on its basis M/s. Sindri Traders submitted forwarding notes for booking Cinder Ash from the Sindri Marshalling Yard on which false certificates showing that the booking was for Cinder Ash were given and on the basis of these forwarding notes containing the false and unauthorised certificates of accused J.P. Srivastava, accused A. Soreng issued various railway receipts (RR Nos. 106265 to 106283, 106289 to 106295 and 114902 to 114943) and accused M.M. Chakravorty also issued some railway receipts (RR Nos. 106248 date 10-5-71 and 106296 and 106297 dated 11-5-71) although as Trains clerk it was not the duty of Mr. Chakravorty to issue the RRs nor he had been authorised by anybody to do so. 106265 to 106283, 106289 to 106295 and 114902 to 114943) and accused M.M. Chakravorty also issued some railway receipts (RR Nos. 106248 date 10-5-71 and 106296 and 106297 dated 11-5-71) although as Trains clerk it was not the duty of Mr. Chakravorty to issue the RRs nor he had been authorised by anybody to do so. According to the prosecution case, actually coal was surreptitiously loaded in the 77 wagons under the cover of Cinder Ash and these loadings were done at the Bihar Super Phosphate Siding Sindri which is a private siding and for loading goods at the private siding prior consent of the Siding older as well as permission of the Chief Commercial Superintendent was essential but no such consent or permission had been obtained. The prosecution case is that the accused persons in conspiracy with each other got coal booked and transported in the 77 wagons from the Sindri Station to different destinations in the country and when the wagons reached the respective destinations and the booked material was unloaded, it was found to be coal or soft coke and not Cinder Ash. According to the prosecution, M/s. Sindry Traders was a fake firm, and the appellants in league with some traders had got the forged allotment letter issued in favour of this fake firm and on its basis participated in the surreptitious booking of coal from Sindri Railway Station to different places in the country under the cover of Cinder Ash. By such acts the appellants as well as the said firm M/s. Sindri Traders are alleged to have cheated the railway administration regarding the allotment of 77 wagons which could not have been done if the truth had been disclosed that coal was to be transported in these wagons. As indicated above, the appellants are also alleged to have forged and manufactured documents and acted unauthorisedly in violation of the rules for the purpose of pecuniary gain to themselves and to the persons purporting to act on behalf of M/s. Sindri Traders thereby making themselves liable for the offence under the Prevention of Corruption Act. Another allegation against J.P. Srivastava is that he in fact unauthorisedly went to deposit the railway registration fee Rs. 2555 on behalf of M/s. Sindri Traders and he himself receive the refund of Rs. 505 on behalf of M/s. Sindri Traders by making necessary endorsement on the money receipt. 5. Another allegation against J.P. Srivastava is that he in fact unauthorisedly went to deposit the railway registration fee Rs. 2555 on behalf of M/s. Sindri Traders and he himself receive the refund of Rs. 505 on behalf of M/s. Sindri Traders by making necessary endorsement on the money receipt. 5. All the three appellants pleaded not guilty and defence is that they have discharged their duty in a bona fide manner and were not aware that the letter for allotment of the wagons was a forged and fabricated document. There is, however, no challenge that the letter in question was a forged and fabricated document. In this context, it is worthwhile to note the statements of the accused persons under S.313, Cr. P.C. regarding their specific defence. Mr. J.P. Srivastava has stated that he was posted at that time as Assistant Wagon Movement Inspector but accepts that he was incharge of the work of yard master. He either denied or evaded to give clear answers to other allegation and matters appearing against him in the evidence, but when it was put to him that as per railway rules it was not his duty to issue loading certificates on the forwarding notes and deposit railway registration fee on behalf of the party and receive refund of the same, he stated that he issued certificates on the forwarding notes on demand by the Goods clerk. He made no answer regarding the question that he went beyond his duty in depositing the registration fee and receiving refund of the same on behalf of the party. Accused A. Soreng has accepted that at the relevant time he was functioning as the Assistant Goods clerk at the Bihar Super Phosphate Siding, Sindri Marshalling Yard, and he has also accepted that for loading coal, wagons could be allotted by the Joint Director Transportation Coal, Eastern Railway, Calcutta. He either denied or evaded to answer other allegations and matters appearing in the evidence against him, but he has accepted that Bihar State Super Phosphate Siding is a private siding. Accused M.M. Chakravorty has accepted that he was functioning as Trains Clerk at the Sindri Marshalling Yard during May, 1971. When the question was put to him that it was in evidence that the following note (Ext. 24 series) purporting to be signed by one M.P. Agrawal on behalf of M/s. Sindri Traders were filled up by him. Accused M.M. Chakravorty has accepted that he was functioning as Trains Clerk at the Sindri Marshalling Yard during May, 1971. When the question was put to him that it was in evidence that the following note (Ext. 24 series) purporting to be signed by one M.P. Agrawal on behalf of M/s. Sindri Traders were filled up by him. He also accepted that several railway receipts dated 10-5-1971 and 11-5-1971 had been issued by him although he was not authorised to do so but he said he did so as per order of the Yard Master in good faith for helping the goods Clerk. He denied the allegation rereading conspiracy and that he had done anything to cheat or to defraud the railway. 6. The points to be determined in this appeal are whether the Charges against the appellants regarding conspiracy, forgery and fabrication, cheating and defrauding the railway administration and acting illegally and unauthorisedly and for unlawful gains public servants have been proved beyond reasonable doubt and whether the convictions recorded against them for the offences in question are sustainable. 7. The fact that the letter in question (letter No. OA/5083 policy/PTI dated 24-4-71) was not a genuine letter but forged and fabricated one has been established by the evidence of competent railway officers of the D.S. Office Dhanbad and some other officers who had held enquiry in the case. It may be noted that two copies of the letter in question are available on the record; one has been marked X and the other as X/1 for identification. The information about fraudulent loading of coal under the cover of Cinder Ash from the Super Phosphate Siding at Sindri appears to have leaked out and reached the higher authorities P.W. 58 was posted as the Vigilance Inspector, Eastern Railway at that time at Dhanbad. He has stated that in May, 1971 he had gone to the Sindri Marshelling Yard to enquire as to whether coal has been booked from there under the pretext of Cinder Ash. He has stated that in May, 1971 he had gone to the Sindri Marshelling Yard to enquire as to whether coal has been booked from there under the pretext of Cinder Ash. He has said that there he met the yard Master J.P. Srivastava who told him that 77 wagons of Cinder had been booked by him for up country destinations and on enquiry he produced one letter purporting to have been sent by the D.S. Officer, Dhanbad containing the order of allotment of the wagons P.W. 58 says that letter which had been produced before him by Srivastava on 27-5-71 and he (P.W. 58) then put his own endorsement and signature on the same (Ext. 5/6). It is this letter which has been marked X for identification. The witness has further stated that for verifying the genuineness of this letter (marked X) he had gone to the D.S. Office, Dhanbad and learnt that no such letter had been issued from there and that it was a forged document. He said that he made over the letter X to the allotment Superintendent Shri K.K. Biswas who submitted a report Ext. 8 P.W. 58 has further stated that in course of inquiry he had also met A. Soreng and took his statement. A. Soreng wrote out his statement Ext. 27 in presence of the witnesses and made it over to him. It is stated in this document (Ext. 27) that he A. Soreng has been working in the B.S.F. Siding since 1965 and during this period no Ash Cinder wagons were booked except 77 wagons booked for up country stations said to contain Cinder Ash and that he had received letter from the Yard Master Sindri Marshalling Yard for issuing the railway receipts. It appears that the coal Area Superintendent, Dhanbad Mr. A. Chaudhary got an inquiry done through his own agency. He directed the then Assistant Commercial Superintendent Dhanbad P.W. 12 to make an enquiry in this regard and also visit different places where the wagons had been dispatched. In this connection the Coal Area Superintendent wrote; a letter Ext. 5 to the concerned railway authorities at Delhi. A. Chaudhary got an inquiry done through his own agency. He directed the then Assistant Commercial Superintendent Dhanbad P.W. 12 to make an enquiry in this regard and also visit different places where the wagons had been dispatched. In this connection the Coal Area Superintendent wrote; a letter Ext. 5 to the concerned railway authorities at Delhi. Ferozpur and other places requesting them that the wagons which may have reached there may be detained and checked, and advice about the actual contents may be given to him and that necessary facilities for the enquiry in question may be given to the person who had been deputed for this purpose. P.W. 12 has said that he went to the Sindri Yard along with two other Officers on 19-5-1971 and they checked the records at the Super Phosphate Siding there and in course of checking it came to their knowledge that there was a letter purported to have been issued from the D.S. Officer, Dhanbad about allotment of 77 wagons at the rate of 11 wagons per day for booking and transporting Cinder. In course of this Checking P.W. 12 came across the letter marked X/1 at the Super Phosphate Siding at Sindri and took charge of the same. It will thus appear that at least two copies of the fake letter had been prepared and one of them was with the accused J.P. Srivastava which he produced before P.W. 58 and the latter seized it from him. The other copy had been sent to the Bihar Super Phosphate Siding and it is this copy marked X/1 which was seized from there by P.W. 12 in course of the enquiry. 8. It is not the defence case that the letter in question (X and X/1) was genuine and not a forged and manufactured document. It is, therefore, not necessary to deal at great length with the evidence on the point that the letter in question (X and X/1) are forged and fabricated documents. I will, however, deal with the evidence on this point briefly. I have already mentioned above that P.W. 12 also held enquiry in course of which he seized the copy of the said letter X/1 from the Super Phosphate Siding and on verification found it to be fake. P.W. 21 K.K. Biswas was the office Superintendent (Allotment) in 1971 in the Dhanbad Divisional Office. I have already mentioned above that P.W. 12 also held enquiry in course of which he seized the copy of the said letter X/1 from the Super Phosphate Siding and on verification found it to be fake. P.W. 21 K.K. Biswas was the office Superintendent (Allotment) in 1971 in the Dhanbad Divisional Office. He has stated that no order for allotment of any wagons to M/s. Sindri Traders had been received from the Joint Director Transport (Coal) nor any wagon had been allotted from D.S. Office in 1971 to M/s. Sindri Traders. He has also stated that no order for allotment of wagon had been sent from the D.S. Office in 1971 to J.P. Srivastava. He has also specifically stated that the letter in question was never issued from the D.S. Office and that the number given on this letter related to an old file which had been closed. It is thus clear that the number on letter had been given by the conspirator with reference to an old file so that apparently it may have the look of genuineness and the fraud could not be easily uncovered. He has also stated that the vigilance Inspector Eastern Railway had brought the letter with the endorsements on it to him and he after examining the relevant files had given his certificate (Ext. 81 indicating that no such letter had been issued from the D.S. Office. His evidence is fully supported by P.Ws. 11 and 14. P.W. 11 appears to have succeeded P.W. 21, P.W. 11 has said that he was the office Superintendent (Allotment) in February, 1972. He has also stated categorically that no wagon was allotted to Sindri Marshelling Yard or to the Super Phosphate Siding or to M/s. Sindri. Traders from the D. S. Office. On being shown the letter in question he stated that it has not been issued from the D.S. Office. He has further said that the loading of coal is done at the Colliery Siding and the Marshelling Yard or the super phosphate Siding are not loading stations for coal. The letter in question X/1 purports to have been issued under the signature of one Mr. Chatterjee. The evidence of P.W. 14 who was the Chief Clerk in the allotment section of the D.S. Office shows that three persons having their name title as "Chatterjee" had worked in the D.S. Office during the relevant period. The letter in question X/1 purports to have been issued under the signature of one Mr. Chatterjee. The evidence of P.W. 14 who was the Chief Clerk in the allotment section of the D.S. Office shows that three persons having their name title as "Chatterjee" had worked in the D.S. Office during the relevant period. They are A.N. Chatterjee head clerk since dead, K.K. Chatterjee and H.K. Chatterjee, P.W. 14 has asserted that he recognises the writings and signatures of all these three persons and has categorically stated that X/1 is not in the writings or signature of any of these three persons having their title as Chatterjee. It appears that in course of the trial a doubt was also expressed as to whether the signature on the letter was of one Mr. C. Chatterjee. However, P.W. 11 as well as P.W. 14 have clearly stated that no person bearing the name of C. Chatterjee had over worked in the D.S. Office. The evidence discussed above leaves no room for doubt that the letter in question X and X/1 and the signatures thereon are forged and fabricated and the letter had never been issued from the D.S. Office to any person at Sindri Railway station or at the Sindri Marshelling Yard. 9. The fact that the Bihar Super Phosphate Siding was a private siding and any loading of wagons and booking from there for any party other than the siding Holder could not be legally done without consent of the siding holder and approval from the Chief Commercial Superintendent has not been challenged by the defence and as indicated above, the accused. A Soreng has accepted this in his statement under S. 313 Code of Criminal Procedure. The fact that no consent of the siding holder namely the Bihar Super Phosphate Siding, nor prior approval of the Chief Commercial Superintendent had been obtained for loading and booking any wagons from the aforesaid siding is not disputed. The defence, however, is that the booking had not been done from this siding. 10. Though the accused persons deny that the booking was done at the B.S.F. Siding, there is overwhelming material on record to show that this booking was unauthorisedly done from the Bihar Super Phosphate Siding at Sindri Ext. The defence, however, is that the booking had not been done from this siding. 10. Though the accused persons deny that the booking was done at the B.S.F. Siding, there is overwhelming material on record to show that this booking was unauthorisedly done from the Bihar Super Phosphate Siding at Sindri Ext. 27 is the statement of accused A Soreng in his own writing which clearly indicates that he as the Assistant Goods Clerk had on the basis of the letter sent to him by the Yard Master, booked 77 wagons said to contain Cinder Ash for up country stations. It is further stated therein that when the C.T.I. Mr. Sen Gupta came to his shed Mr. Soreng sought his guidance as this case was the first of its nature whereupon the C.T.I. told him that he should allow the loading but take certificate for doing so from the Yard Master. This written statement of A. Soreng it itself sufficient to show that the loading of the wagons had been done at the B.S. Siding at Sindri had the loading been done anywhere else. Mr. Soreng would have definitely said so in his written statement Ext. 27. The fact that P.W. 12 in course of his enquiry was able to seize the letter from the records of the B.S.F. Siding in another proof of the fact that the booking of these wagons had been done from that siding P.W. 35 was the Inspector of Station Accounts at the relevant time at Dhanbad. He has stated that on 8-7-71 he had gone to the B.S.F. Siding Sindri to inspect the accounts and the documents were made available to him by the Assistant Goods Clerk A. Soreng. In course of his inspection he checked the money receipts (Ext. 14 series which were issued for booking goods from the siding. Exts. 14 to 14/5 are of the year 1968 while Exts. 14/6 to 14/15 were all issued during the month of May, 1971 in favour of M/s. Sindri Traders. These money receipts, also clearly show that the wagons purported to have been allotted to M/s. Sindri Traders had been booked and loaded at the B.S.F. Siding. Another relevant document is the statement of registration fee deposits of the B.S.F. Siding for May, 1971 Ext. 10/1 P.W. 35 has said that these registration fee deposits of the B.S.F. Siding for May, 1971 Ext. 10/1. Another relevant document is the statement of registration fee deposits of the B.S.F. Siding for May, 1971 Ext. 10/1 P.W. 35 has said that these registration fee deposits of the B.S.F. Siding for May, 1971 Ext. 10/1. P.W. 35 has said that these registration fee deposits are for the B.S.F. Siding and this document Ext. 10/1 shows that the deposits had been made in the name of M/s. Sindri Traders. Ext. 10 is the refund statement in respect of the deposits made and is a supplement to Ext. 10/1. Another important piece of evidence is the endorsement made by accused J.P. Srivastava himself on the letter X/1. The endorsement is as follows : deliver to AGC/BSF signed J.P. Srivastava 25/4" P.W. 16 who is a clerk of the yard office has said that this endorsement had been made by J.P. Srivastava and the entire document had been made over to him by Mr. J.P. Srivastava with the direction that it should be sent to the B.S.F. Siding and accordingly he (P.W. 16) made an endorsement (Ext. 5/2) on the back of the letter X/1 and sent this letter containing the endorsement of J.P. Srivastava (Ext. 5/1) to the B.S.F. Siding. Why would Mr. J.P. Srivastava direct the order for allotment to be sent to the B.S.F. Siding unless the wagons were to be booked and loaded at that siding ? There can be no doubt, therefore, that the 77 wagons in question were booked and loaded at the B.S.F. Siding Sindri and that this was done illegally and unauthorisedly because undisputedly neither any permission was sought from the siding holder nor approval was taken from the Commercial Superintendent. The fact that the booking had been done from siding gets further support from the railway receipts Ext. 3 series in which it is clearly mentioned that the wagons are coming from the B.S.F. Siding Sindri. Several of these railway receipts (Ext. 3 series were written by the Assistant Goods Clerk. A. Soreng who has himself admitted about the booking of the wagons (vide Ext. 27) and his writings of the railway receipts has also been examined by the expert P.W. 67. There is, therefore, no doubt that the 77 wagons in question were booked and loaded from the Bihar Super Phosphate Siding at Sindri. 11. A. Soreng who has himself admitted about the booking of the wagons (vide Ext. 27) and his writings of the railway receipts has also been examined by the expert P.W. 67. There is, therefore, no doubt that the 77 wagons in question were booked and loaded from the Bihar Super Phosphate Siding at Sindri. 11. The question now to be considered is what was the article actually dispatched in the wagons which were loaded at the B.S.F. Siding Sindri. No witness has spoken about seeing the loading of the article at the B.S.F. Siding Sindri. The accused J.P. Srivastava had of course given loading certificate Ext. 9 series to the effect that Cinder Ash had been loaded in the wagons in question. It is also the plea taken by the defence that the article loaded in the wagons was Cinder Ash and not coal. The evidence of the railway employees at the destination; stations who supervised the unloading of the goods in the wagon and also of some of the some of the private persons who took delivery of these goods coupled with the corresponding entries in the unloading registers of the destination stations concerned leave no room for doubt that the articles which had been dispatched in these wagons was not Cinder Ash but coal. The wagons had been sent to the different stations namely Amritsar, Ballabhaarh, Bhatinda, Batela, Palwal, Jakahan, Ludhiana, Tarantaran, Rohtak and Jalandhar etc. and the railway employees from these destination stations have clearly stated that though the R.R. showed that Cinder Ash had been booked but at the time of actual unloading the article contained in the wagon was found to be coal (slackcoal or hard coal or steam Coal) and corresponding entry was made in the unloading registers before making delivery of the article to the person producing the R.R. in question. In this connection the evidence of P.Ws. 7, 8, 9, 12, 13, 15, 17, 18, 19, 20, 22, 24, 25, 27, 28, 29, 33, 34, 36, 46, 48, 49, 52, 53, 54, and 57 is relevant. Their evidence clearly established that when the wagons in question reached destination stations, though he RRs described the goods as Cinder Ash. actually the material found at the time of unloading was found to be coal and accordingly necessary entries in the unloading registers had been made. Their evidence clearly established that when the wagons in question reached destination stations, though he RRs described the goods as Cinder Ash. actually the material found at the time of unloading was found to be coal and accordingly necessary entries in the unloading registers had been made. Some of these witnesses have also stated that if they found that some extra freight was to be realised they did so before the good were delivered. However, the important point is not whether any loss in freight was suffered but whether under the cover of Cinder Ash coal was frauduently booked in the wagon thereby deceiving the railway authorities. P.W. 27 who was posted at the relevant time as Goods Clerk at Tarantaran railway station stated that on 21-5-71 wagons were unloaded at the station and they were all found to contain slack coal although the RRs were for Cinder Ash and he had sent a report of this fact to the Station Master. Sindri as well as to the D.C.S. Farozpur. Some of the private persons who had taken delivery of consignments of some of the wagons have also given evidence that they took delivery of coal and not Cinder Ash. Their evidence not only established that the article booked in these wagons under the cover of Cinder Ash was actually coal but also goes to show that there was actually a well laid plan under which these wagons "said to contain Cinder Ash" where booked but the party at the destination station fully knew that the wagons contained coal and as such took delivery of the goods from these wagons. P.W. 26 is a resident of Tarantaran doing brickiln business. He has stated that in May, 1971 he had come to Bhatinda for purchasing coal and there he purchased two railway receipts (Exts. 3/175 and 3/176) and from the wagons which were booked on the basis of these RRs actually slack coal was delivered to him through his agent Butta Rai at Tarantaran. He has stated clearly that he had read the railway receipts and found that it was for Cinder Ash and has asked the broker (Dalal) about it whereupon he was told that RRS for slackcoal were not being issued and that on the RR for Cinder Ash he will actually get slackcoal. He has stated clearly that he had read the railway receipts and found that it was for Cinder Ash and has asked the broker (Dalal) about it whereupon he was told that RRS for slackcoal were not being issued and that on the RR for Cinder Ash he will actually get slackcoal. P.W. 56 is another brickkiln owner of Rohtak and he has said that on the basis of two RRs (Ext. 3/125 and 3/171) he has taken delivery through his broker Nathu Ram Jain of slackcoal from two wagons after purchasing the RRs in question from the consignee. P.W. 55 is the broker Nathu Ram Jain who, besides taking delivery of goods from the two wagons on behalf of P.W. 56 had taken delivery also of wagons booked on the basis of RRs bearing Ext. Nos. 3/123, 2/22, 3/126 and 3/172. He has said that he has been working as broker since several years and in that capacity purchases railway receipts and takes delivery on behalf of other parties. His specific evidence is that the goods unloaded from the wagons were slackcoal and he had signed on the unloading register at the time of taking the delivery of the article. P.W. 31 is another man doing brickiln business at Bhatinda. He has stated that in May, 1971 he had purchased three wagons of slackcoal through three RRs which he received from the consignee and took delivery of slackcoal as per entries in the delivery registers Ext. 15/7, 15/9 P.W. 65 who has been working as broker and clearing agent at Batala has said that a brickiln owner Ratan Chand had made over six RRs to him on the basis of which he took delivery of coal from six wagons as per entries Exts. 15/19 to 15/21 in the delivery book of the station. The evidence of these public witnesses thus also clearly established that what dispatched in the wagons was not cinder Ash but coal and the party took delivery of coal at the destination stations. 15/19 to 15/21 in the delivery book of the station. The evidence of these public witnesses thus also clearly established that what dispatched in the wagons was not cinder Ash but coal and the party took delivery of coal at the destination stations. However, the evidence of these public witnesses goes to establish something further namely that under a well laid plan coal had been dispatched from the B.S.F. Siding Sindri under the cover of Cinder Ash and that the parties at the destination station purchased the RRs in question from the so-called consignee namely Sindri Traders on he understanding that the wagons contained coal and their hopes were not belied and they actually took delivery of coal from the wagons. This means that there was clear understanding between the person booking the article at the B.S.F. Siding and the persons who were to take delivery of the article at the destination station on the basis of the railway receipts which showed booking of Cinder Ash but the article which had been booked was actually coal. 12. I have already mentioned above that when suspicion arose that mischief was being being done and under the cover of Cinder Ash coal was actually being booked unauthorisedly from the B.S.F. Siding, the coal Area Superintendent, Dhanbad had directed some of his subordinates to go and hold enquiry and also had sent massages to different up country stations for checking the wagons and submitting report about the contents P.W. 10 was a clerk working in the office of Coal Area Superintendent at that time. He has said that he had gone with the letter from his office to the Divisional Operating Superintendent, Northern Railway, New Delhi and also visited Rohtak and Bhatinda railway stations and there on investigation it was found that in the wagons which had been booked from the B.S.F. Siding, Sindri actually coal was present and delivered. He submitted a note in this regard which is Ext. 6 P.W. 30, who was then posted as Transport Inspector Coal at Dhanbad, in course of enquiry was able to actually detect one of these wagons at Mugalsarai and one at Rohtak and on verification found that they were actually loaded with coal and not Cinder Ash and submitted his reports Ext. 6/3 and 6/4 to the Coal Area Superintendent, Eastern Railway, Dhanbad. 6/3 and 6/4 to the Coal Area Superintendent, Eastern Railway, Dhanbad. Thus the railway authorities were able to track down and hold actual verification in respect of two wagons in question and detect that coal had been booked under the cover of Cinder Ash from the B.S.F. Siding. It is nobodys case that the article which had been loaded at the B.S.F. Siding, Sindri was substituted by any other article on the way before the wagons reached their respective destination. What was delivered at the destination station was the article which had actually been booked at the starting station, namely B.S.F. Siding, Sindri. The evidence of the aforesaid witnesses and the relevant documents clearly establish that the wagons contained coal and it was this article which was delivered to the parties at the destination stations. This means that the article loaded at the B.S.F. Siding was actually coal under the cover of Cinder Ash. 13. An argument was advanced on behalf of the appellants that since none of them had received any specialised training they could not be expected to distinguish between Cinder Ash and coal if the party i.e. consignor had committed the fraud of actually loading coal in place of Cinder Ash. This argument has no substance. P.W. 12 has stated that Cinder Ash is actually the burnt portion of coal and is in the form of granules (Chura) which is whitish in colour and not in the form of solid pieces (Dhela) P.W. 10 who is a clerk working in the coal Superintendents office has stated that he would be able to separate slackcoal and hard coal from its mixture with Cinder Ash. In other words, even a lay man can distinguish between coal and Cinder Ash. There is, therefore, no substance in the plea that the appellants could not have distinguished Cinder Ash from Coal if the consignor by doing fraud had actually loaded coal in the wagons under the cover of Cinder Ash. This plea becomes more futile when it is considered in the context of the fact that the alleged consignor M/s. Sindri Traders (and also consignee in most of the RRs) and its alleged proprietor M.P. Agrawal are fake and not real. 14. In the present case, besides the three appellants M/s. Sindri Traders P.O. Sindri, Dhanbad was also shown as accused in the Charge-sheet. 14. In the present case, besides the three appellants M/s. Sindri Traders P.O. Sindri, Dhanbad was also shown as accused in the Charge-sheet. However, no address of the alleged firm could be found and prosecution was also unable to supply the name of any person connected with the firm and under these circumstances the order sheet dated 18-12-74 shows that the Court expugned the name of accused No. 1 i.e. M/s. Sindri Traders and dropped the proceedings against it. The I.O. who submitted the charge sheet has noted therein that the forwarding notes in respect of the wagons in question were signed by one M.P. Agrawal who was not traced out in course of investigation. It is thus clear that both M/s. Sindri Traders and M.P. Agrawal, who purported to Act on behalf of alleged firm and signed the forwarding notes, where fictitious entities and the whole drama was enacted in legue with these three appellants. The forwarding notes Ext. 24 series themselves indicate that the alleged firm M/s. Sindri Traders and the proprietor or its alleged agent M.P. Agrawal, were not real persons. In these forwarding notes in the column of consignor the name written is M/s. Sindri Traders and address given as "P.O. Sindri district Dhanbad" and in the column of consignee it is merely written Sindri Traders and in the column of particulars of the consignee merely the name of the destination station such as Amritsar, Ludhiana, Batala, Roorkee, Jalandhar etc. has been written. Thus proper and complete address of the consignor as well as consignee has not been mentioned in these forwarding notes. Again, at the place where the signature and address of the sender or his agent are required, the name written is "M.P. Agrawal" but absolutely no address has been mentioned. They have been proved by P.W. 3 who is posted as A.T.C. in the Sindri Marshalling yard since December, 1958. He has stated that the forwarding notes Ext. 24 to 24/14 are in the writing of accused J.P. Srivastava while the remaining forwarding notes Ext. 24/15 to Ext. 24/76 are in the writing of accused M.M. Charkraborty. The writing have also been proved by the evidence of the handwriting expert P.W. 67 and his reports Exts. 36 series. Accused J.P. Srivastava evaded to give clear answer in respect of the forwarding notes but accepted that the loading certificates were issued by him. 24/15 to Ext. 24/76 are in the writing of accused M.M. Charkraborty. The writing have also been proved by the evidence of the handwriting expert P.W. 67 and his reports Exts. 36 series. Accused J.P. Srivastava evaded to give clear answer in respect of the forwarding notes but accepted that the loading certificates were issued by him. Accused M. Chakraborty, however in his statement under S.313 of the Code of Criminal Procedure accepted that the body portion of the forwarding notes in question had been filled by him. When the question was put to them that the person who signed as M.P. Agrawal on these forwarding notes was not being traced out as his complete address had not been given in the forwarding notes, accused J.P. Srivastava gave the following reply "I traced him but the C.B.I. did not arrest him. Still he is available at Dhanbad district Dhanbad". The reply of accused M.M. Chakraborty to the aforesaid question relating to M.P. Agrawal is that he does not know. The I.O. who submitted charge sheet has clearly mentioned therein that the so-called person who signed as M.P. Agrawal on the forwarding notes could not be traced out in course of investigation. It is, obvious, therefore, that accused J.P. Srivastava has made a false statement by saying that he had traced out M.P. Agrawal but the C.B.I. did not arrest him. It is also significant to note that while speaking about the whereabouts of M.P. Agrawal the accused J.P. Srivastava has merely stated that he is available at Dhanbad district Dhanbad; obviously Dhanbad is a big city and it would not be possible to trace out the alleged person on the basis only of such particulars about his address. I have already pointed out above that in the forwarding notes address of the consignor and the consignee namely M/s. Sindri Traders was mentioned in extremely vague manner. Indeed, so far as the consignees address is concerned, merely the name of destination city was mentioned and obviously this cannot be regarded as proper and full particulars to trace out the consignee. This is sufficient to show that M/s. Sindri Traders which figured as consignor and consignee is a fake firm and further that the person who signed as M.P. Agrawal proprietor or agent of the said firm is a fake person. This is sufficient to show that M/s. Sindri Traders which figured as consignor and consignee is a fake firm and further that the person who signed as M.P. Agrawal proprietor or agent of the said firm is a fake person. We have also the evidence of some witnesses which shows that the firm and the so-called sender (of the goods) are fictitious. P.W. 59 is the railway P.W. 1 and he has said that there is no firm as M/s. Sindri Traders, Sindri. He has said that his father has been in the transport business since 1969 and it is in this context that he has come to know about such firms dealing in coal and its transportation. P.W. 20 is the goods clerk of Bhatinda railway station and he has been working there since 1967. He has said that against RR No. 11492 (Ext. 3/184), the unloading of the wagons was done in his presence. The consignee was shown as M/s. Sindri Traders but the delivery was taken by one Manohar Lal Gupta. He has further stated that though the RR showed that the wagon contained Cinder, the actual article found in it at the time of unloading was coal and same was made over to the person who had come to take the delivery. He further stated in his evidence that there was no firm known as Sindri Traders at Bhatinda. We thus find that the evidence of witness also shows that either at the starting station i.e. Sindri (Dhanbad) or the destination station there was no firm known as M/s. Sindri Traders. It is thus established beyond doubt that the consignments of the 77 wagons were sent from Sindri Marshalling Yard and the consignments received at the destination stations in the name of a fake firm M/s. Sindri Traders on whose behalf a fake person signed on the forwarding notes giving out his name as M.P. Agrawal but mentioned no particulars at all about address. 15. From an analysis of the relevant oral and documentary evidence as indicated above, the following fats and circumstances emerge : 1. The alleged allotment letter (X and X/1) is a forged and fabricated document. It was never issued from the D.S. Officer, Dhanbad. 15. From an analysis of the relevant oral and documentary evidence as indicated above, the following fats and circumstances emerge : 1. The alleged allotment letter (X and X/1) is a forged and fabricated document. It was never issued from the D.S. Officer, Dhanbad. At least two copies of the same were prepared and one was seized from the possession of the accused J.P. Srivastava and the other, which had been forwarded by J.P. Srivastava to accused Soreng, was seized from the records of the B.S.F. Sindri Marshalling Yard under charge of accused A. Soreng. 2. The alleged "allotment" of 77 wagons was in the name of a fake firm M/s. Sindri Traders which figured as both consignor and consignee. The person purporting to act as the proprietor or agent of the consignor under the name of M.P. Agrawal is also a fake person. The full particulars and address of the alleged firm and its alleged proprietor or agent M.P. Agrawal are wanting in all the documents (the forwarding notes, the deposit of registration fee and its refund railway receipts etc.) to which the accused persons were parties i.e. they had dealt with the documents and also written them out. 3. The Article actually loaded in the wagons was coal (either of one variety or the other) and not Cinder Ash and false entries regarding the articles booked and loaded in 77 wagons i.e. Ext. 3 series Ext. 24 series. Ext. 9 series and Ext. 10 and 10/1 were made by the accused persons. 4. The position being clear that wagons for coal could be allotted only under the authority of the Joint Director Transport, Calcutta and further that loading of coal was not to be done at the Marshalling Yard, Sindri but at the colleiry Siding, the accused persons acted concertedly to make available 77 wagons and also allowed coal to be loaded in these wagons at the B.S.F. Siding, Sindri and dispatched from there under the cover of Cinder Ash. 5. The B.S.F. Siding, could not be used by any private party without the consent of the siding holder namely the Bihar Phosphate Sindri and permission of the Commercial Superintendent. 5. The B.S.F. Siding, could not be used by any private party without the consent of the siding holder namely the Bihar Phosphate Sindri and permission of the Commercial Superintendent. There was no consent nor any permission for use of the B.S.F. Siding, Sindri for the so-called firm M/s. Sindri Traders but in spite of it the accused persons allowed the wagons to be loaded and dispatched from the B.S.F. Marshalling Yard. 6. Besides the above illegal and unauthorised acts, all the three accused persons went out of their way to do certain acts which they are not authorised to do or which was not part of their duty. The yard Master was not authorised to give any direction to the Assistant Goods Clerk either to load or unload wagons yet this was done by J.P. Srivastava by sending the letter X/1 to ACC/BSF (Ext. 5/1). It was not the duty of the Yard Master to fill up forwarding notes, deposit registration fee and obtain its refund (Ext. 10 and 10/1), give loading certificate (Ext. 9 series), but accused J.P. Srivastava did all this. Though it was not his duty to prepare RRs accused M.M. Chakraborty in his statement u/s. 313 of the Code of Criminal Procedure has stated that he filled up several railway receipts (Ext. 3 series) as per the order of the Yard Master (i.e. Srivastava) for helping the Goods Clerk. Accused A.P. Soreng knew that Cinder Ash could not be booked from the B.S.F. Siding and that this had not been done ever since 1965, yet he allowed the booking to be done (Ext. 27) and issued RRs on basis of forwarding notes Ext. 24 Series which did not contain full and proper particulars of the consignor, consignee and the sender. Accused A.P. Soreng unauthorisedly received registration fee for the wagons from accused J.P. Srivastava instead of from the party and also refunded the same to J.P. Srivastava instead of doing so to the alleged party, Further, the registration fee so received was not entered in the cash book and the summary book as required under the rules. The accused M.M. Chakraborty went out of his way to prepare forwarding notes Ext. The accused M.M. Chakraborty went out of his way to prepare forwarding notes Ext. 24 series and railway receipts although it was not part of his duty nor he was authorised to do so and this he did knowing full well that the particulars of the consignor and the consignee were not fully and properly entered on the documents in question. 7. All the three accused in their statements under S.313 of the Code of Criminal Procedure have made the false statement that actually Cinder Ash was loaded in the wagons and not coal. They have also made the false statement that the booking and loading of these wagons was not done at the Bihar Super Phosphate Siding. Accused J.P. Srivastava has made another false statement to the effect that he had traced out the person, who signed as M.P. Agrawal on the forwarding notes but the C.B.I. did not arrest him. As already mentioned above, it has been clearly stated in the chargesheet that no such person could be trued out in course of investigation. If J.P. Srivastava had traced out the alleged person named M.P. Agrawal or supplied his full particulars, there is no reason why the I.O. would not have apprehended him and made him figure as accused. The above facts and circumstances clearly indicated (sic) accused persons had acted in concert with each (sic) thorised and illegal acts and to cover (sic) so made false statements. An argument (sic) accused persons that ordinarily (sic) in the wagons is done by (sic) the description of the goods in the forwarding notes. It has been pointed out that in the forwarding notes Ext. 24, series the consignments have been described as "said to contain Cinder Ash" and, therefore, the accused persons acted on that basis in preparing railway receipts and other documents for those wagons. Had the accused persons really been unaware of what actually had been loaded in these 77 wagons and dispatched from the B.S.F. Siding Sindri, perhaps this plea would have had some substance, but the conduct and statements of the accused persons themselves clearly show that they were fully aware of what article was actually loaded in these wagons and despatched from the Sindri Marshalling Yard. A. Soreng in his statement u/s. 313 of the Code of Criminal Procedure has made the positive statement that Cinder Ash was loaded in the wagons. A. Soreng in his statement u/s. 313 of the Code of Criminal Procedure has made the positive statement that Cinder Ash was loaded in the wagons. Again, accused J.P. Srivastava in his advice notes Ext. 9 series has clearly written that the wagons had been loaded with Cinder; he does not write therein that the wagons were loaded with goods "said to contain Cinder Ash" P.W. 2 has specifically stated that on his asking J.P. Srivastava had told him that he had got the loading done on the basis of the written order. Thus the statement of both these accused persons is positive to the effect that Cinder Ash had been loaded in these wagons and this statement is false because it has been established beyond doubt that coal and not Cinder Ash had been loaded and despatched. The falsity becomes all the more glaring because the forwarding notes had not been filled up by the party but by the accused persons themselves i.e. J.P. Srivastava (Ext. 24 to 24/14) and M.M. Chakravorty (Ext. 24/15 to Exts 24/76) and they gave a false description of the consignment by writing therein "said to contain Cinder Ash". Again, it has been established that the M/s. Sindri Traders, described as consignor and consignee and its so-called representative M.P. Agrawal are fake entities still the accused persons prepared the various documents namely the forwarding notes Ext. 24 series loading certificates Ext. 9 series, railway receipts Ext. 3 series, entries of deposit of registration fee and its refund Ext. 10 series etc. in the name of and on behalf of these fake entities. Again, it has been established that the booking of the wagons had been done from the B.S.F. Siding but the accused persons have falsely stated that it was not booked from there. Accused A Soreng made entry falsely in the name of M/s. Sindri Traders regarding deposit of registration fee and its refund (Exts. 10 and 10/2) and he did not even made any entry of the deposit in the cash register but under S.313 of the Criminal P.C. he made the false statement that he had made the entry. 16. It was argued on behalf of the accused persons that having received the letter of allotment (Ext. 10 and 10/2) and he did not even made any entry of the deposit in the cash register but under S.313 of the Criminal P.C. he made the false statement that he had made the entry. 16. It was argued on behalf of the accused persons that having received the letter of allotment (Ext. X and X/1) they took it to be genuine and in compliance of it allotted the wagons and allowed it to be loaded and so they had acted in a bona fide manner. It has been established that no such letter was issued from the D.S. Office and that there is no such person named as C. Chatterjee whose signature the letter bears. One copy of the letter was seized from the possession of the accused J.P. Srivastava and the other from the office of the goods clerk amongst documents in his custody. It is they alone who could explain how the fake letter came in their possession. No such explanation is forthcoming. On the other hand, they indulged in unauthorised and illegal acts by preparing the forwarding notes, issuing railway receipts, depositing registration fee and taking its refund with false entries etc. In the face of these facts, the plea of the accused persons that they had acted in a bona fide manner treating the letter of allotment (Ext. X and X/1) as genuine has absolutely no substance. The facts and circumstances of the case and the evidence on record, leave no room for doubt that the accused person had entered into a conspiracy and acted in concert with each other under a well laid plan and in execution of this plan 77 wagons were allotted in the name of a fake firm and its fake representative and thereby coal was loaded and dispatched to different places in the up country by violating established rules and procedure. The illegal acts and offences indulged in by these accused persons were the result of the conspiracy and the plan hatched by them. 17. It has now to be examined how far the charges framed against the accused persons have been established and to what extent their conviction is sustainable. 18. I will first take up the charge u/s. 420 of the Indian Penal Code which has been framed against all the three accused persons. 17. It has now to be examined how far the charges framed against the accused persons have been established and to what extent their conviction is sustainable. 18. I will first take up the charge u/s. 420 of the Indian Penal Code which has been framed against all the three accused persons. In this connection it was argued that there is nothing definite to show that the railway suffered any loss in freight because the railway employees of the destination stations have stated that if any shortage of freight was discovered, it was realised at the time of delivery of the goods. There may not have been any loss as regards the freight but the position that by fraudulent allotment of wagons coal under the cover of Cinder Ash was booked, loaded and despatched, and delivered at the destination stations. The initial deception was practiced on the railway administration (i.e. Union of India) by making allotment of wagons under the cover of fabricated letter Exts. X and X/1). Again the railway administration at the destination stations was subjected to deception as its employees at those stations were led to believe that the RRs were genuine documents with proper consignor and consignee and on that assumption they made delivery of the goods in normal course to the person who produced RRs. Had they not been so deceived it is obvious they would not have delivered the goods to the persons who produced the RRs. It has now to be seen as to whether such deception actually caused or was likely to cause any loss or harm to the railway administration. It has been argued on behalf of the State that even if no monetary loss towards freight charges may have been caused, there can be no doubt that the allotment of wagons for transporting coal in a fraudulent manner by violating the normal rules and procedure and by transporting the coal under the cover of Cinder Ash would adversely affect the goodwill and reputation of the railway administration as a whole. Indeed, such a racket appears to have been going on during that period and this is borne out the facts of an unreported judgment of this Court in Criminal Appls. Nos. 156 and 185 of 1980 disposed of on 8-10-1985 which has been cited by the appellants in support of their defence; that case had ended in acquittal. Indeed, such a racket appears to have been going on during that period and this is borne out the facts of an unreported judgment of this Court in Criminal Appls. Nos. 156 and 185 of 1980 disposed of on 8-10-1985 which has been cited by the appellants in support of their defence; that case had ended in acquittal. In that case a fraudulent allotment of twenty wagons had been made and under the cover of loading Anthracite Coal (general marchandise), actually slack steam coal were loaded at Tetulmari Station under Dhanbad Division. There could be no doubt that due to such fraudulent incidents in which fraudulent allotment of wagons was made and coal was transported under the cover of articles of general merchandise, the railway administration was bound to fall into disrepute. The conclusion, therefore, is inescapable that the fraudulent and illegal acts of the accused persons resulted in causing deception on the railway administration as a result of which the wagons loaded with coal and dispatched under the cover of Cinder Ash were able to complete their journey from Sindri to the destination stations without interception and verification on midway stations and further the goods were delivered at the destination station on the understanding that the booking was genuine and the RRs were reliable documents and this could not have been accomplished but for the deception arising out of the fraudulent acts of the accused persons. The unauthorised and illegal allotment of wagons to fake persons and booking and transportation of coal under the cover of article of general merchandise and its delivery to different persons at the destination station turned into a racket and the persons who purchased the RRs from the fake consignee knew full well that although the description of the goods in the RRs was something else, they would actually be taking delivery of Coal. Can there be any doubt that such transactions would put the railway administration to disrepute if damage to its reputation had not already occurred ? Hence, even if there was no loss in freight charges fraudulent acts of the accused persons clearly amounted to cheating, as on account of the deception practiced by them the reputation of the railway administration, if not already damaged, was bound to suffer such harm. The charge under S.420 of the Indian Penal Code, therefore, stands fully substantiated against all the three appellants. 19. The charge under S.420 of the Indian Penal Code, therefore, stands fully substantiated against all the three appellants. 19. I will now take up the charges relating to forgery and making of and using of false documents. Accused J.P. Srivastava has been charged under S.468 of the Indian Penal Code on the ground that he had forged and prepared false documents namely the forwarding notes intending thereby that it shall be used for the purpose of cheating the railway administration and he has also been charged under S.477A of the Indian Penal Code on the ground that being an employee of the railway he wilfully and with intent to defraud, falsified the railway records namely the forwarding notes which were in his custody on behalf of his employer namely railway administration; the facts discussed above establish both the charges against him beyond doubt. The charge under S.468/471 of the Indian Penal Code against the accused A.P. Soreng is based on the allegation that he himself prepared some forged RRs. and further fraudulently and dishonestly used as genuine certain documents namely forwarding notes and the RRs prepared by M.M. Chakraborty which he knew or had reason to believe that they were forged documents, and the charge under S.477A against him is based on the allegation that being an employee he for the purpose of cheating the railway administration and its officials and with intent to defraud, falsified the railway records namely the different RRs which he had prepared; the facts and circumstances discussed above establish both these charges beyond doubt against him. The charge under S.468 of the Indian Penal Code against accused M.M. Chakraborty is based on the allegation that under some of the railway receipts (prepared by him) he forged the signature of the Goods Clerk. A. Soreng intending that it shall be used for the purpose of deceiving the railway; he has also been charged under S.477A of the Indian Penal Code, on the allegation that being an employee of the railway he wilfully and with intent to defraud made false entries in the forwarding notes and RRs. The facts and circumstances discussed above clearly establish three charges against him. Accused Chakraborty no doubt prepared some false documents (Forwarding notes RRs) but he made them over to the other accused and there is nothing specific to show that he himself used them in any way. The facts and circumstances discussed above clearly establish three charges against him. Accused Chakraborty no doubt prepared some false documents (Forwarding notes RRs) but he made them over to the other accused and there is nothing specific to show that he himself used them in any way. In view of this the charge u/s. 468/471 of the Indian Penal Code cannot be said to have been proved beyond doubt against him. It is thus found that the charges relating to forgery and preparation and use of false documents framed against the appellants, except the charge under S.468/471 against Mr. Chakravorty, have been proved beyond reasonable doubt and they have rightly been convicted for these offences. 20. I will now consider the charge framed against the accused persons under the Prevention of Corruption Act. Undoubtedly, each of the appellants being a railway employees is a public servant. The charge under S.5(1)(d) read with S.5(2) of the Prevention of Corruption Act framed against each of them states that by corrupt and illegal means or by otherwise abusing his position as a public servant, obtained pecuniary advantage either for himself or for others by dishonestly getting 77 wagons of coal dispatched in the name of Cinder Ash as per different RRs. It was urged on behalf of the appellants that there is no specific evidence to show that any bribe was paid to any of the them or that they obtained any pecuniary benefit by any other means and hence this charge cannot be sustained. True it is that there is no direct evidence on the point that the so called M/s. Sindri Traders or its proprietor or agent or anybody else paid any sum to any of the accused persons. However, the overwhelming circumstantial evidence is such as to lead to the one and only conclusion that each of the accused persons indulged in various acts of cheating and forgery and thereby managed to get coal loaded and dispatched in 77 wagons under the over of Cinder Ash, for obtaining pecuniary advantage for themselves and that the entire operation was carried out by them in concert with each other. Why would they do all this and thereby take the risk of jeopardizing their service careers and facing criminal prosecution if not for pecuniary advantage ? Why would they do all this and thereby take the risk of jeopardizing their service careers and facing criminal prosecution if not for pecuniary advantage ? Further, the evidence on record has established that the amount of registration fee for the 77 wagons had not in fact been entered in the cash register and the inevitable conclusion is that the accused persons, who were in concert with each other, had misappropriated this amount and thereby obtained pecuniary advantage for themselves. I, therefore, find that the charge framed against each of the accused persons under the Prevention of Corruption Act has also been proved beyond reasonable doubt and they have, therefore, rightly been convicted for same. 21. The charge of conspiracy u/s. 120B was framed against all the three appellants and they have also been convicted for the same. From what has been discussed above, there is no doubt that in carrying out the entire operation of getting the wagons allotted under a forged and fabricated letter, unauthorisedly loading these wagons at the B.S.F. Siding, Preparing forged and fabricated documents relating to the booking and dispatch of the article (Exts. 3, 24, 9 series and 10 and 10/1 etc.) and all these being done in the name of a fake consignor and consignee all the three accused persons had acted in concert with each other and were hands in glove in executing a well laid out plan. There can be no doubt, therefore, that the three appellants and hatched a conspiracy and in accordance with the same carried out the entire operation. I, therefore, find that the charge under S.120B has also been established beyond reasonable doubt against each of the appellants and they have rightly been convicted for the same. 22. There appears to be no legal lacuna in the prosecution of any of the appellants and necessary sanction for their prosecution for the offences in question had been duly given by the competent authority vide Ext. 2 series. No point in this regard was raised at the time of hearing of the appeal. 23. As already mentioned above, the appellants in support of their defence cited the judgment of this Court in Criminal Appeals Nos. 156 and 185 of 1980 disposed of on 8-10-1985. In that case the accused persons were given benefit of doubt and acquitted. No point in this regard was raised at the time of hearing of the appeal. 23. As already mentioned above, the appellants in support of their defence cited the judgment of this Court in Criminal Appeals Nos. 156 and 185 of 1980 disposed of on 8-10-1985. In that case the accused persons were given benefit of doubt and acquitted. It was held in that case that the accused persons were not in a position to differentiate anthracite coal from slack steam coal and hence they may have allowed the loading it bona fide manner. Further in that case there is no finding that the consignor and the consignee are fake persons. Thus the facts of that case are quite different from the facts of the present case. In the present case, it has been held that there can be no scope for mistaking coal for cinder ash and hence the misdescription or misdeclaration in the forwarding notes, loading certificates and railway receipts was knowingly done. Again, in the present case it has been established that the so-called consignor and consignee and the person who signed on the forwarding notes as M.P. Agrawal are fake entities and all the accused persons fully knew of it. Hence the decision cited by the appellants has no application to the present case. 24 Before I close, I consider it necessary to mention about a glaring lacuna in the rules framed by the Railway administration in respect of loading and transportation of goods. In course of hearing of the appeals, a question arose as to whether there are any rules or instructions of the railway which place specific responsibility on any railway staff regarding booking and loading of the goods and whether in case of misdescription of the loaded article the responsibility for the same could be fixed on such a railway employee. For this purpose, the learned lawyer Mr. A.B. Ojha, for the Railway was asked to assist the court Amicus Curie and Mr. Ojha produced certain General Rules relating to the realisation of tariff and fright charges and stated that there does not appear to be any specific rule placing responsibility on any particular railway employee for actually checking what particular article is loaded in the wagon and foe ensuring that the article loaded is actually the same for which the allotment of the wagons has been secured. He stated that he even consulted the Railway administration in this matter and pointed out that the only relevant rules in this regard are Rules 126, 127, and 128 in the chapter of General Rules (Goods Tariff No. 30 Part-I Volume 1). Rule 126 provides that if on arrival at destination it is found that goods have been improperly described and a lower rate than that correctly applicable has been obtained, charges at double the prescribed rate will be levied and the false description can even lead to criminal prosecution. The primary object of this rule appears to be that the railway does not suffer loss in freight charges due to misdescription of the goods. Rule 127 relates to non liability of railway in case of false declaration. These rules, therefore, have no bearing on the point of fixing responsibility on any particular railway employee for misdescription of the goods actually loaded in the wagons. Rule 128 lays down certain conditions under which goods are loaded and unloaded. Clause 1 of the Rule reads as follows : "Conditions under which goods are loaded and unloaded by the railway :- 1. All goods other than those provided for in the exceptions named in clause (2) below and such other goods as may, from time to time, be notified are loaded and unloaded by the Railway". In the clause of exceptions it is stated that the loading and unloading of goods as mentioned in the list indicated therein are all to be done by the consignor and the consignee. The list contains goods consigned loose or in bulk, offensive goods, goods chargeable at special rates, vehicles and heavy machinery and heavy articles etc. It will thus appear that where special means have to be employed for the loading and unloading purposes, or where the goods are offensive in nature and entail some risk, the responsibility for the loading and unloading is placed on the consignor and the consignee but the loading and unloading of other goods which fall into the normal category are done by the railway. This merely means that the railway will provide its man power and machinery for loading or unloading of the goods indicated in clause 1 of this rule. This merely means that the railway will provide its man power and machinery for loading or unloading of the goods indicated in clause 1 of this rule. The rule does not lay down any responsibility for checking exactly what article is loaded and whether the article being loaded conforms to the description of the article for which the allotment of the wagons has been made and for which the forwarding notes and RR receipts have been prepared. In other words, there appears to be no rule placing specific responsibility on any particular railway employee for ensuring that the goods loaded in the wagons are the same in respect of which allotment of wagons had been made and the forwarding notes and RRs prepared. The learned lawyer Mr. Ojha submitted that the rules were prepared long back, and their main object is to ensure that the railway does not suffer any loss in tariff and freight charges, or on account of damage, deterioration or destruction of the goods in course of transit resulting from misdescription or any other negligence of the consignor. That may be valid so far as the above objective is concerned. But it is obvious that there is a serious lacuna in the rules which has been demonstrated by the present case. There appears to be no rule requiring that a particular railway staff will check and verify what article is actually loaded in the wagons and in case a misdeclared article is loaded and despatched he will be held responsible for the same. In the present set up, this may lead to very dangerous and starting consequences. Suppose for a moment that some wagons are validly allotted to a party in accordance with rules and procedure for carrying a particular article, for example crockery or other glass material. The party puts sealed packages in the wagons which are shown as containing "glass materials" but in fact explosive substance, or illegal arms and ammunition are actually kept in those packages and booked and despatched without any checking and verification and also delivered at the destination station. The rules do not appear to provide any remedy for checking such offensive and illegal acts. Rule 106(2) no doubt states that the owner and/or sender is liable to prosecution and conviction for any false declaration. The rules do not appear to provide any remedy for checking such offensive and illegal acts. Rule 106(2) no doubt states that the owner and/or sender is liable to prosecution and conviction for any false declaration. But such prosecution will take place only if per chance there is discovery of the false declaration. What is pertinent is that there is no rule requiring checking and verification of the booked article at the starting station and also at the destination station where open delivery may not be taken, nor there appears to be any rule placing responsibility on any railway staff for ensuring that the goods that are loaded conform to the nature and description given in the forwarding notes and the RRs. In my opinion, it appears necessary particularly in the present set up, that there must be specific rules requiring verification of the goods which are actually loaded in the allotted wagons and responsibility for ensuring that the correct article is loaded in the wagons must be placed on a particular railway staff. It is expected that the Railway administration will give due thought and attention to this matter and take necessary steps in this regard. 25. After having considered the relevant evidence on record and the facts and circumstances of the case, I have come to the conclusion, as indicated above, that the charges framed against each of the appellants, except the charge under Secs. 468/471 of the Indian Penal Code against Mr. Chakraborty, have been substantiated beyond reasonable doubt and they have rightly been convicted for the offences in question. Accused Chakravorty is of course acquitted of the charge under, Secs. 468, 471 of the Indian Penal Code, 1860 . It was submitted on behalf of the appellants that they have suffered harassment and mental agony due to the long pendency of the case and have also been in custody for some time and hence they should not now be made to suffer further imprisonment. That may be true to some extent, but considering the nature of the crime, which appears to have developed into a racket, it would not be proper to reduce the sentence in the manner suggested by the defence. That may be true to some extent, but considering the nature of the crime, which appears to have developed into a racket, it would not be proper to reduce the sentence in the manner suggested by the defence. It may be noted that though convictions under different sections have been recorded, the sentences have been ordered to run concurrently, and in effect the period of imprisonment of accused J.P. Srivastava and A. Soreng amounts to three years and for M.M. Chakraborty it amounts to two years. Further, the period they have been in custody during the pendency of the case will be sent off from the sentence awarded to them. I, therefore, do not consider it proper or expedient to reduce the sentence awarded to any of the appellants. The appeal is accordingly dismissed. Subject to the only modification that the conviction and sentence of appellant M.M. Chakraborty under Secs. 468, 471 Indian Penal Code, 1860 is set aside.