Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 278 (JK)

State v. A. K. Jain

2001-11-13

B.L.BHAT

body2001
1. This motion is aimed at revising the order of learned Special Judge, Anti-Corruption Kashmir; Srinagar recorded in a criminal case file No. 1 of 02-04-1996 titled as State vs. A.K. Jain and others so far as it relates to respondent/ accused No. 1. It stems out of those circumstance which are summarised as: 2. The Jammu and Kashmir Co-operative Supply and Marketing Federation Ltd. for short "the Federation" having its Head Office in Jammu and Regional Office in Srinagar Kashmir was established in the State of Jammu and Kashmir for the procurement and fair distribution of fertilizer and other essential items to the farmers and to the consumers in the State. It is in this connection there are always huge cash transactions in this federation. In the year 1990-91, A.K. Jain the respondent/accused No. 1 Showkat Hussain accused No. 2 and Bashir Ahmad, accused No. 3 were posted as Deputy General Manager, Senior Accountant-cum-Cashier and Junior Assistant Field Officer respectively in the Regional Office of the Federation in Srinagar. The respondent/accused No. 1 and the accused persons Showkat Hussain and Bashir Ahmad came to be charge sheeted before the Court of learned Special Judge, Anti-Corruption, Srinagar for offences punishable under Section 5 (2) of the J&K Prevention of Corruption Act, 2006 and for offences punishable under Sections 409, 467, 468, 201 and 120-B of the R.P.C. alleging therein, that accused No. 3 namely Bashir Ahmad received an amount of Rs. 542636.06 as sale proceeds of fertilizer against receipt Nos. 4029 to 4034, 4057 to 4066 from different Co-operative Marketing Societies; and accused No. 2 Showkat Hussain received an amount of Rs. 97200/- from the Marketing Society Natipora against cash receipt No. 2598 dated: 22-03-1991 of cash receipt book account for LPG Gas, that this total amount of Rs. 639836.86 received by the accused Nos. 2 and 3 was neither entered into cash book nor accounted for in the books of the Federation by the said accused persons who pursuant to the conspiracy with respondent/accused A.K. Jain mis-appropriated it as the respondent/accused signed the cash book without counter checking the cash receipts. It is further alleged that the cash book maintained after 29-06-1991 has been misplaced. 3. The learned Special Judge, who is a Sessions Judge, after hearing C.P.O. representing State and the learned defence counsel and on examination of the documents referred to in Section 173 of Cr. It is further alleged that the cash book maintained after 29-06-1991 has been misplaced. 3. The learned Special Judge, who is a Sessions Judge, after hearing C.P.O. representing State and the learned defence counsel and on examination of the documents referred to in Section 173 of Cr. P.C. by virtue of his order which is impugned in this revision came to discharge respondent/accused No. 1 after holding that the charge against him is groundless and came to frame charge against remaining accused for offences punishable under Sections 120-B, 409, 467, 468, 201 RPC and for offences punishable under Section 5(2) of the Prevention of Corruption Act, 2006. 4. The stand of Mr. Attar, learned AAG is that from the material on the file collected during the investigation of the case there is every ground to believe that the respondent/accused has committed the offences for which he stood chargesheeted by the Investigating Agency before the learned Special Judge, Anti-Corruption, Srinagar, therefore, the impugned order, so far as is relates to the respondent/accused suffers with illegality and impropriety and is liable to be set aside. 5. On the other hand Mr. B.A. Bashir, learned counsel for the respondent/accused contends that there is no material much less the legal evidence on the file to show that the respondent/accused has committed any offence. His further contention is that the facts as alleged also by the prosecution do not disclose any offence committed by the respondent/accused. 6. Considered the rival contentions of the learned counsel appearing for the parties. First of all, it is necessary to point out here that the Government of Jammu and Kashmir vide its Notification under Section 6 of the Criminal Law Amendment Act, 1958, "hereinafter referred to as the "Act" came to appoint one each Special Judge, of the rank of Sessions Judge for the twin provinces of the State of J&K for the trial of offence punishable under Section 161, 165 or 165-A of the Ranbir Penal Code or punishable under sub-Section (2) of the Section 5 of the Prevention of Corruption Act, 2006 and for any conspiracy or any attempt to commit or any abatement of said offence within Province of Jammu and Kashmir respectively. These Judges are respectively designated as Special Judge, Anticorruption, Jammu and Srinagar. These Judges are respectively designated as Special Judge, Anticorruption, Jammu and Srinagar. Under Section 7 of the Act, all cases as specified above have been made exclusively triable by the Special Judge, appointed under said Section 6 of the Act (by virtue of notification, with the power to try any offence other than offence specified above with which the accused may under the Code of Criminal Procedure, 1989, be charged at the same trial. In view of the this position of law, the Special Judge, Anti-Corruption has jurisdiction to try any offence other than offence specified in Section 6(1)(a) and (b) of the Act with which the accused may be charged under the Code of Criminal Procedure at the same trial. As indicated, the respondent/accused No. 1 along with other accused Nos. 2 and 3 came to be charge sheeted before the court of learned Special Judge, Anti-Corruption, Srinagar for offences punishable under Section 120-B, 468, 409, 201, 467 RPC and for the offence punishable under Section 5(2) of the Prevention of Corruption Act, 2006, by the Investigating Agency, therefore the procedure prescribed for the trial of cases is the procedure prescribed for the trial of warrant cases instituted on a police report provided under Section 251 -A of Code of Criminal Procedure, subject to the modifications contemplated under Section 7-A of the Prevention of Corruption Act, 2006. 7. Before approaching to the facts of the case the scope of Section 251(2)(3) of the Code of Criminal Procedure may be appreciated. It reads as under:- (2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. It reads as under:- (2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) If upon such documents being considered, such examination, if any being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is Competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.� Upon the joint study of these "Sub-Sections" it is clear that before any order under these Sub-Sections may be recorded by the Court, it is required to consider all the documents referred to in Section 173 of Cr. P.C. to examine the accused if it is considered necessary and to give the prosecution and the accused an opportunity of being heard. If upon doing all this the Magistrate/Special Judge acting under Section 251-A of Cr. P.C. finds charge against the accused groundless, he will discharge the accused. All that what the court is required to do at this stage is to find out whether there is a reasonable foundation for framing a charge. In other words, the Court has to think itself as to whether on the statements, circumstances and the other documents and relevant extracts referred to in Section 173 Cr. P.C. if accepted make out a prima facie case for which charge could be framed, it will proceed with the case. But where said materials at the time of framing of charge are such that if unrebutted make out no case whatsoever, the accused will be discharged. The Court acting under these Sub-Sections of Section251 of Cr. P.C. has to apply its judicial mind for considering as to whether or not there is any ground to believe that the accused has committed the offence for which he is charge sheeted before it by the Investigating Agency. The Court cannot automatically frame the charge because the prosecution wants it. P.C. has to apply its judicial mind for considering as to whether or not there is any ground to believe that the accused has committed the offence for which he is charge sheeted before it by the Investigating Agency. The Court cannot automatically frame the charge because the prosecution wants it. Framing of charge for an offence against an accused without any material against him on the file affects his liberty. In this behalf reliance is placed on the authoritative pronouncement of the Apex Court in case Century Spinning and Manufacturing Company Ltd. VS. State of Maharashtra, reported as AIR 1972 SC 545 rightly relied by the court below. 8. Keeping this law in mind let us examine the case of the prosecution so far it relates to the respondent/accused. The respondent/accused is admittedly roped in the case with the aid of Section 120-B RPC, he is alleged to have in the capacity of Dy. General Manager of the Regional Office of the Federation in Srinagar entered into criminal conspiracy with the accused Nos. 2 and 3 who were then the Senior Account-ant-cum-Cashier and Junior Asstt./Field Officer respectively of the Regional Office in swindling the Federation of an amount of Rs. 6,39,836.86 by not making counter check of the cash receipt books of the Federation operated upon by the accused Nos. 2 and 3 at the time of signing the cash book maintained in the Regional office because the cash receipt numbers of the misappropriated amount were not shown in the cash book. 9. Section 120-A of RPC defines, criminal conspiracy and section 120-B of the RPC provides for its punishment. The essentials of the criminal conspiracy as contemplated under said section 120-A are that: (1) there should be an agreement between two or more persons who are alleged to conspire and (2) that the agreement should be (i) for doing an illegal act or (ii) for doing by illegal means an act which may not itself be illegal. Thus to constitute an offence of criminal conspiracy there must be an agreement between two or more persons to do an act which is illegal from its very inception or which is done by illegal means. In the latter case, there must be some act done by one or more persons of the parties to the agreement to affect the object thereof that is there must be an overt act. In the latter case, there must be some act done by one or more persons of the parties to the agreement to affect the object thereof that is there must be an overt act. The gist of the offence of conspiracy is an agreement to break the law that is to say to commit an offence. This gist of offence of conspiracy lies not in doing the act of affecting the purpose for which the conspiracy is formed nor attempting to do any of the acts nor in inducing others to do them, but in the forming of scheme or agreement between the parties. When there is no conspiracy or meeting of minds of two or more persons to commit an unlawful act there is no conspiracy. .The conspiracy is an inference from circumstances as there cannot always be direct evidence about it, it can be inferred even from the circumstances giving rise to the conclusive inference of the agreement between two or more persons to break the law. 10. Having regard to this law, as indicated that the act attributed to the accused in the case by the prosecution is that the respondent/ accused failed to check the cash receipt books at the time of signing of the cash book because the cash receipts numbers the amount of which has been misappropriated were not reflected in this cash book. In this behalf it is pointed out that during the course of the investigation of the case by the Vigilance Organization Kashmir expert financial opinion of an expert, the Chief Accounts Officer of the Vigilance Organization was obtained, the same is placed on the file by the prosecution itself and is at running page No. 29 of the file. This expert in his report under the Head lapses and individual liabilities has opined that: (i). A system when same person is both Cashier-cum-Accountant is not permissible under the provisions of the Code because it lacks internal check and it becomes difficult for the supervisory officer to detect the embezzlement if any done by the Cashier; (ii) C Rs Book has not been put to the D.G.M. for its checking by the Cashier/ Accountant; (iii) Cash book has not been got signed by the Cashier/Sr. Accountant by the DGM in full. Accountant by the DGM in full. There are only few pages signed by the D.G.M. (iv) There is no indication that the money so kept by the Cashier/Sr. Accountant has ever been deposited or brought to accounts in the cash book at later stage. From the above it is clear that the Cashier/Accountant has intentionally kept the amount out of Cash Book and by virtue of the cash book and by virtue of his being Cashier and Senior Accountant embezzlement could not be internally detected by the officer.� From this financial opinion of the expert who is none-else but the Chief Accounts Officer of the Investigating Agency, that is to say, Vigilance Organisation Kashmir, it is manifest that the non-checking of the cash receipt books with respect to the receipt numbers of the alleged embezzlement amount of Rs. 6,39,836.86 or their non-reflecting in the Cash Book for the year 1990-91 or not bring the said amount to Accounts cannot be attributed to the respondent/accused who was then the Deputy General Manager of the Regional Office as the same appears to have been kept at back by the accused No. 2 namely Showkat Hussain who was then working both as Senior Accountant and cashier in this office. In the capacity of cashier and Senior Accountant it was the duty of the said accused to maintain the cash book and the cash receipt books in operation and to reflect all the necessary entries in the cash book before getting the same attested by the Supervisory Officer. The non-reflection of the Receipt numbers of the alleged embezzlement/ mis-appropriated amount or not bringing the said amount to account in the cash book on the part of the accused- Showkat Hussain has made it difficult and even impossible for the Supervisory Officer of the office, the respondent/accused to detect the alleged embezzlement/mis-appropriations as it is opined by the Expert who as indicated is none else but the Chief Accounts Officer of the Investigating Agency that when a person is both cashier and Accountant, it lacks internal check and becomes difficult for the Supervisory Officer to detect the embezzlement if any done by the cashier. The expert has further in his report while examining the lapses and individual liabilities opined that the G.Rs Book have not been put to the D.G.M. for its checking by its cashier. The expert has further in his report while examining the lapses and individual liabilities opined that the G.Rs Book have not been put to the D.G.M. for its checking by its cashier. All this goes to show that there is no material on the file to show or even to suggest that the respondent/accused has ever entered into agreement with the remaining accused to mis-appropriate the amount allegedly received by them. Merely that the respondent/accused was the Supervisory Officer of the Regional Office of the Federation can not make him criminally liable for the act of remaining accused in the vicarious sense in absence of any material on the file to suggest that he entered into agreement with them to mis-appropriate the alleged amount of Federation. Besides this, the observation of the court below in the impugned order that in the year 1991, the condition prevalent in the valley were stiff as a result of which normal "official function was not possible is based on facts. It is a matter of common knowledge that during the year 1990-91 the entire Valley was turbulent because of the eruption of militancy which resulted into migration of seizable number of population from the State and in turn effect the working in the Government, Semi Government Offices of the Valley adversely as a result of which the Supervisory Officers were not able to exercise full and complete control over their offices. 11. Therefore, in view of the afore discussed facts and circumstances, the finding of learned court below that the charge against the respondents/accused No. 1 is groundless, is based on facts because there is no material whatsoever, to show or even to infer that the respondent/accused could be one of the conspirators of having entered into conspiracy much less the criminal conspiracy with the remaining accused to mis-appropriate/embezzle the amount of Rs. 6,39,836.86 allegedly received by them in discharge of their official duties. Viewed thus, the impugned order so far as it relates to the respondent/accused is a reasoned order, it does not suffer with any irregularity or impropriety. 12. In the result, the revision petition fails and is accordingly dismissed. The trial court file be returned forthwith alongwith a copy of this order for disposal in accordance with law.