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2000 DIGILAW 883 (PAT)

Sidheshwar Dubey v. State Of Bihar

2000-07-18

B.N.SINGH

body2000
Judgment B.N.Singh "Neelam", J. 1. This criminal appeal is so preferred by Sidheshwar Dubey against the Judgment of conviction and sentence so passed by the Special Judge, Vigilance, Patna, in Special Case No. 1/1975/12/1983 dated 17th of June. 1989 by virtue of which the sole accused-appellant stands convicted under Sec. 409 of the Indian Penal Code read with Secs. 5(1)(c) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for six months on each count. The sentences are directed to run concurrently. 2. The prosecution case, in short, is that Barahampur Mela for the year 1972-73 was so settled by the Block Development Officer, Barahampur, for Rs. 10,500.00 to one Vishwanath Singh and, in consequence thereof, on 30.3.1972 a sum of Rs. 6,000.00 was so deposited by the settlement-holder for which the money receipt was so granted by the present accused-appellant being the Karamchari of that Halka. The second and the last instalment of the balance amount, i.e., Rs. 4,500.00 , as per the prosecution case, is again deposited by the settlement-holder Vishwanath Singh for which also the money receipt was so granted by the present accused-appellant to him but, as per the prosecution case, the present accused-appellant being the Karamchari (a public servant) who held the amount of Rs. 4,500.00 so paid to him on 31.3.1972 by the settlement-holder and the said amount is said to have been deposited by him on 12.9.1972 and, thus, the direct charge is of embezzlement of Rs. 4,500.00 from 31.3.1972 to 12.9.1972 and for this temporary embezzlement he has been charged under Sec. 409 of the I.P.C. and under Sections (5), (2) read with Section 5(1), (C) of the Prevention of Corruption Act. 3. After trial the learned Court below, i.e., Special Judge, Vigilance, has come to the conclusion with regard to the prosecution establishing the charge so framed against the sole accused-appellant and he stood convicted and sentenced thereunder, as detailed above, which need not be repeated. It is against this Judgment of conviction and sentence so passed that this criminal appeal is so preferred. 4. On behalf of the accused-appellant the learned Counsel appearing has submitted that the impugned Judgment of conviction is bad in law as well as on facts. The case of the accused-appellant from the very beginning is that though the cash receipt for receiving Rs. 4. On behalf of the accused-appellant the learned Counsel appearing has submitted that the impugned Judgment of conviction is bad in law as well as on facts. The case of the accused-appellant from the very beginning is that though the cash receipt for receiving Rs. 4,500.00 was so granted by the accused-appellant but that was so granted at the instance of the B.D.O. and the present accused-appellant being directly under him had no option but to grant such receipt and the said amount was also being handed over to the B.D.O. which was withheld by him till 12.9.1972 and when it was so released, immediately the same was so deposited in the Block Nazarat and, therefore, the accused-appellant had rather committed no offence. The defence story so put would have rather been relied upon by the learned Court below submitted in the background of the facts and circumstances of the present case. The money receipts are admitted to be granted by the accused-appellant maked as Exhibits 8 & 8/1 but with regard to withholding the money of the second instalment that was never so done by him rather it was so withheld by the B.D.O. and it is in that light, that when initially the prosecution was launched at the instance of the Dy. S.P., Vigilance, the name of the B.D.O. concerned also finds place in the accuseds column along with the present accused-appellant but, surprisingly enough, in course of investigation the B.D.O. was not sent up rather he was shown as witness and in course of trial he was so tendered on behalf of the prosecution and because of being tendered the defence side also did not like to cross-examine him. It is also emphatically argued that the most competent witness could have been Vishwanath Singh, the settlement holder himself, as to say on the point as to whom Rs. 4,500.00 was so paid on 31.3.1972, but Vishwanath Singh has also not been examined in course of Trial. All other points so taken as good grounds for interfering with the Judgment of conviction and sentence under challenge are pressed into service. 4,500.00 was so paid on 31.3.1972, but Vishwanath Singh has also not been examined in course of Trial. All other points so taken as good grounds for interfering with the Judgment of conviction and sentence under challenge are pressed into service. Lastly, it is also submitted that the accused-appellant by now has retired and the alleged date of occurrence is of as per 1972, as such 28 years have elapsed from the date of the alleged occurrence and all through the accused-appellant has been suffering from the pangs of this litigation and, in that circumstance, an alternative argument is also advanced that, in case, the accused-appellant is found guilty of committing the offences for which he stands now convicted, at least, the substantive sentence so awarded be set aside holding that the period undergone by him would serve purpose and meet the ends of justice. 5. The learned Special public Prosecutor appearing on behalf of the Vigilance has submitted that the money receipt relating to the payment so made on 31.3.1972 relating to Barahampur Mela was granted by the accused-appellant which is also admitted by him and which is also marked as Ext. 8/1 and leaving aside the other grounds it is in itself sufficient as to hold the accused-appellant guilty of committing the offences for which he stood charged there was misappropriation of the Government money to the tune of Rs. 4,500.00 from the date of deposit, i.e., 31.3.1972 by the settlement-holder to the date of deposit of the same by the accused-appellant on 12.9.1972 in the Block Nazarat and on no account the accused-appellant can escape the guilt. 4,500.00 from the date of deposit, i.e., 31.3.1972 by the settlement-holder to the date of deposit of the same by the accused-appellant on 12.9.1972 in the Block Nazarat and on no account the accused-appellant can escape the guilt. In normal course, it is for the Nazir as to receive such amount realised after open bid being paid by the settlement-holder but if the same was received by the accused-appellant, it was incumbent on his part as to deposit and hand over the same all at once without upholding the amount, in the Block Nazarat which has not been done and the story so put forward just to save his skin that the said amount was paid to the B.D.O. is not believable because the accused-appellant in no way was expected to part with the amount received by him to any person and, if so, when the B.D.O. was produced by the prosecution, as one of the witnesses though tendered, the defence side was at liberty as to cross-examine him on this point which has also not been so done in course of trial. As regards Vishwanath Singh, the settlement-holder, not being produced as witness, the learned Special Public Prosecutor, Vigilance, has referred to the order-sheet of the learned Court below showing that by that time, the trial commences, Vishwanath Singh had expired which is so detailed in the order-sheet and, that being the position, there was no question of examining a dead man. Out of the witnesses so examined, it has also been pointed out that it finds full corroboration with that of the prosecution story which will be so apparent by going through the oral and documentary evidence. Attention is also drawn to the evidence of the material prosecution witnesses examined and it is pointed out that P.W. 1, Sidhnath Sharma, who was Lower Division Assistant at that time in Barahampur Block and P.W. 2, Abdul Shami, who was also posted in that block at the relevant time have fully supported the prosecution case with regard to the receipt of the amount 4,500.00 by the accused-appellant in the capacity of his being Karamchari at that time relating to the settlement of the Barahampur Mela being settled in the name of Vishwanath Singh (since deceased). P.W. 3 is tendered. P.W. 3 is tendered. P.W. 4, Ram Chhabila Singh is a Vigilance Officer launching the prosecution after obtaining sanction P.W. 5 happens to be the head assistant at the relevant time in Barahampura Block who has also supported the prosecution case and has well stood the test of cross-examination. P.W. 6 is declared hostile. P.W. 9 is a formal witness. P.W. 8 has proved the sanction order. P.W. 9 is tendered. This witness happens to be the B.D.O. the relevant time. There is no cross-examination from the defence side to him. P.W. 10 is also tendered. P.W. 11 is a formal witness. P.W. 12 also happens to be assistant in the said block at the relevant time who has also supported the prosecution case. P.W. 13 is a scribe, who is a formal witness and has proved Exts. 8 & 8/1. P.W. 14 is the Investigasting Officer of this case. Lastly on behalf of the respondent it, is pointed out that taking into consideration the totality of the evidence available, the impugned Judgment of conviction and sentence so passed do not require any interference. 6. After hearing both side lawyers also taking into consideration the facts discussed above and by going through the oral and documentary evidence available on the record, I find that there is much of substance in the argument so advanced by the learned Special Public Prosecutor appearing on behalf of the department of Vigilance that in course of trial the prosecution had succeeded to bring home the charges so levelled against the accused-appellant. The money receipt is so granted by the accused-appellant. The B.D.O. when so produced had also not been cross-examined on the point of the money so received by him and after the receipt of money which is admitted by the accused-appellant on 31.3.1972, the accused-appellant was in no way expected as to hand over the money to the B.D.O. directly and if he was so pressurised to do so, it was so open to him as to raise the matter in writing to the higher authorities at that very moment which is not so done and, thus, the Judgment of conviction so passed against the sole accused-appellant stands affirmed. 7. 7. As regards the substantive sentence so imposed against the sole accused-appellant, keeping in mind, particularly, that by now about 28 long years have rolled up from the date of occurrence to this date, it will meet the ends of justice if the substantive sentence so passed is set aside as the period undergone by him in course of investigation and trial behind the bars is directed to serve the purpose and meet the ends of justice. Taking that view, the substantive sentence so imposed directing him to undergo R.I. for six months on each counts and the sentence so imposed as to run concurrently stands set aside. The period undergone by him in such circumstance would serve the purpose and meet the ends of justice, as detailed above. 8. With the above direction and modification relating to the sentence so imposed so made this criminal appeal stands dismissed.