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2003 DIGILAW 14 (PNJ)

Dilbagh Singh v. State Of Punjab

2003-01-08

S.S.NIJJAR

body2003
Judgment 1. The petitioner has been convicted under Section 409, IPC for having embezzled Panchayat funds in the sum of Rs. 20,154.81 paise and sentenced to R.I. for one year with a fine of Rs. 2000.00 and in default of fine to undergo further R.I. for one year by the Judicial Magistrate, Hoshiarpur on 21-5-1988. In appeal, the conviction and sentence have been upheld by the Additional Sessions Judge, Hoshiarpur by judgment dated 18-3-1989 in Crl. Appeal No. 18 of 3-6-88/14 of 3-8-1988. 2. In brief, the prosecution case is that the records of the Gram Panchayat of Village Soona were checked by Shangara Singh Sohal, B.D.P.O. on 5-10-1983. The audit of the accounts was also conducted by the Examiner, Local Funds Account, Punjab. It was detected that the revision petitioner had embezzled a sum of Rs. 20,154.81 paise of the Panchayat funds. The matter was reported to the Police. On the basis of the written complaint, FIR No. 26 was registered on 20-2-1984. Certain records were taken into possession by A.S.I. Mohinder Singh and Constable Kartar Singh. 3. The prosecution in support of its case examined Ram Sarup Bali P.W. 1, Hardial Singh, Assistant Examiner, Punjab P.W. 2, Gurcharan Dass P.W. 3, ASI Amar Singh P.W. 4, Shangara Singh Sohal P.W. 5, Harbans Lal, Panchayat Auditor P.W. 6, Joginder Pal, Panchayat Secretary P.W. 7, Babu Lal, Under Secretary to Govt. Punjab P.W. 8 and ASI Mohinder Singh P.W. 9. In his statement under Section 313, Cr. P.C., the revision petitioner denied the allegations of the prosecution. He claimed that he had been falsely implicated by Joginder Pal P.W. 7 who was the Secretary of the Gram Panchayat during the relevant period, after a lapse of 8 years. He stated that the entries Exs. P1 and P2 which are crucial for the prosecution case, were signed by the Secretary. He further pleaded that he was not associated with the Audit Inspection which was the basis of his prosecution. In defence he examined Avtar Singh D.W. 1, Gurnam Singh D.W. 3 and he appeared himself as his own witness as D.W. 2. 4. None is present on behalf of the petitioner. I have, however, examined the record with the assistance of the learned Additional Advocate General, Punjab. 5. Both the Courts below have convicted the petitioner on the basis of the testimony of P.W. 6 and P.W. 7. 4. None is present on behalf of the petitioner. I have, however, examined the record with the assistance of the learned Additional Advocate General, Punjab. 5. Both the Courts below have convicted the petitioner on the basis of the testimony of P.W. 6 and P.W. 7. A perusal of the statements made by these two witnesses, however, shows that both were unreliable witnesses. Both the Courts below have brushed aside the discrepancies in the evidence of the prosecution. ASI Mohinder Singh had taken the record of the Panchayat into possession. In cross-examination, he stated that he had made no efforts for ascertaining about the genuineness and correctness of the documents which were taken into possession by him. He had no time to ascertain the fact regarding variations of dates and over-writings during investigation as he had been transferred. He denied any knowledge of the fact that initially, the case was being registered against the Secretary P.W. 7. He also denied the allegation that the Secretary in connivance with the BDPO got the case registered against the petitioner. P.W. 6 candidly admitted in the cross-examination that the cash-book should have been signed by the accused-Sarpanch, petitioner. He further admitted that Ex. PW. 5/C showing the amount of Rs. 19,854.81 paise alleged to have been embezzled is not signed by the petitioner. He has emphasised that it is essential that Ex. PW. 5/C be signed by the petitioner. He further admitted that Rs. 6323.93 paise is shown to be expenditure in cash, but has not been sanctioned by the Panchayat. The same has also not been added in the expenditure total. Though there are entries to that effect vide Ex. PW. 5/D in the register Ex. P1. Rs. 4000.00 alleged to have been spent on utensils and shamiana has also not been incorporated in register Ex. P2. He also admitted that the petitioner was not joined at the time the Audit Inspection was conducted. In cross-examination, the Secretary made some telling disclosures. He stated that the petitioner had relinquished the charge of the Gram Panchayat on 5-3-1978 and at that time he was the Secretary of the Gram Panchayat. He admitted that Hari Singh was appointed as Acting Sarpanch. At that time resolution was passed and photostat copy of which was produced as Ex. D1. He stated that the petitioner had relinquished the charge of the Gram Panchayat on 5-3-1978 and at that time he was the Secretary of the Gram Panchayat. He admitted that Hari Singh was appointed as Acting Sarpanch. At that time resolution was passed and photostat copy of which was produced as Ex. D1. He admitted to be correct that there is no mention about the alleged embezzlement by the accused in Ex. D1. He further admitted that according to the muster-roll which was in his possession, the petitioner had spent a sum of Rs. 22406.10 paise from August 197 2/03/1977. He also admitted to be correct that the certificates which show the number of pages had not been signed by the petitioner. He also admitted that date and designation of the Gram Panchayat is in different ink. He further admitted that page No. 4 of Ex. P2 is signed by the petitioner, but does not bear the seal of the Panchayat. In fact, even according to him from page No. 2 to page No. 10, there are no signatures of the accused on Ex. P2. He also admitted that there is no date under the seal and signature of the accused on all pages signed by the petitioner. There is neither any seal nor any date nor any stamp of the Gram Panchayat from pages 21 to 26. He even admitted that there is no signature of the accused on the bottom of each page. He accepts the fact that the register was being maintained by him being the Secretary of the Gram Panchayat. He also accepted that there is cutting on page 2 on the income side from 31-2-75 to 31-2-77. The cuttings are not initiated by the Secretary. He further admitted that there is no seal of the Gram Panchayat or signature of the petitioner at any page in Ex. P1. He even admitted that the petitioner had constructed a school building during his tenure. He also admitted that the petitioner had spent about Rs. 1.00 lac on the construction of the school building, tubewell and streets. He further admitted that the Secretary had given notes in Ex. P2 that some of the expenditure receipts were not duly passed and those could not be entered in the expenditure list. He also admitted that the petitioner knows Urdu only and not Punjabi. 1.00 lac on the construction of the school building, tubewell and streets. He further admitted that the Secretary had given notes in Ex. P2 that some of the expenditure receipts were not duly passed and those could not be entered in the expenditure list. He also admitted that the petitioner knows Urdu only and not Punjabi. He admitted that he had remained Secretary for five years of the Panchayat when the petitioner was the Sarpanch. 6. Both the Courts below have totally disregarded the candid admissions made by P.W. 7 and wrongly relied on the wholly untrustworthy evidence of the other prosecution witnesses. Both the Courts below have also disregarded the defence evidence put forward by the petitioner. The embezzlement is said to have occurred from August 197 2/03/1977. The audit was not conducted till 1983. The prosecution witnesses which produced the record in Court are not even certain about the genuineness of the records. Cuttings and over-writings in the records had been admitted by the star witness, the Secretary PW. 7. In such circumstances, it would be wholly unsatisfactory to hold that the prosecution has proved the case against the revision petitioner beyond reasonable doubt. 7. Consequently, the revision petition is allowed. The conviction and sentence recorded by the judgment dated 21-5-1988 passed by Judicial Magistrate 1st Class, Hoshiarpur and by the judgment of the Additional Sessions Judge, Hoshiarpur dated 18-3-1989 are hereby set aside. The petitioner is acquitted of the charges levelled against him.