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2004 DIGILAW 169 (JK)

State v. R. C. Puri

2004-05-28

S.K.GUPTA

body2004
This revision is directed against the order dated 19.2.1997, propounded by learned Special Judge, Anti-Corruption Jammu, whereby accused have been discharged of offences under Section 5 (2) of the J&K Prevention of Corruption Act read with Section 120-B RPC. Allegations against the accused, enumerated from record and depicted in narration, are that in the month of Feb,1991, 40 kanals of land for establishment of an enclosure at Mangla Mata was taken under Jawahar Rozgar Yojna and 23,500 plants were shown in record to have been planted by the accused. Record further revealed that out of 23,500 plants the accused had purchased 10,000 plants from Social Forestry, Sunderbani, at a price of Rs. 0.10 per plant against receipt and remaining 13,500 plants were obtained free of cost from Block Nursery, Nowshera. As many as 1250 labourers were shown to have been engaged for plantation of these plants at a wage of Rs. 18/- per day. The labourers were also shown to have been distributed rice at the rate of Rs. 2.19 per Kg. and, in this manner, the total amount spent was shown to be Rs. 22,500/- besides cost of plants at Rs. 1000/-, purchased against proper receipt from Social Forestry, Sunderbani. However, the spot verification by Range Officer Lamberi Forest Range on 24.2.1994 and the report submitted revealed that only 11,500 plants were found to have been planted which include 1500 pits without plants. Therefore, accusations against the accused are that an amount of Rs. 23,500/- was shown to be due on account of cost of plants purchased from Government Social Forestry, the rice distributed amongst the labourers and wages paid to them, against which Rs. 23,200/- were passed and drawn from the Treasury by the accused. According to the prosecution, the planting cost of the plants has been assessed at Rs. 11,500/- including Rs. 1000/- as cost of 10,000 plants purchased from Social Forestry and, in this manner, the accused were stated to have misappropriated and embezzled an amount of Rs. 11,720/-. After collecting material and on conclusion of investigation, the Vigilance Organization presented the challan against the accused to stand trial under Section 5 (2) P.C. Act in the court of learned Special Judge, Anti -Corruption, Jammu. 11,720/-. After collecting material and on conclusion of investigation, the Vigilance Organization presented the challan against the accused to stand trial under Section 5 (2) P.C. Act in the court of learned Special Judge, Anti -Corruption, Jammu. The trial court, after hearing the parties and considering the material assembled during investigation and placed before the court, found the charge groundless and, accordingly, discharged the accused vide his order dated 19.2.1997, which came to be challenged by the State through this revision petition. Heard learned counsel for the parties and perused the record meticulously. Mr. B.S.Salathia, learned AAG, vehemently urged at the outset that the trial court has not considered the material and discharged the accused in a hush-hush manner. He has further submitted that the payment in respect of wages of the labour, as stated to have been made to Tara Chand, Pawan Kumar and Madan Lal, does not figure in the Muster sheets and that, this is a sufficient evidence to show that Muster Sheets prepared are fictitious and the entries made therein are not genuine. That the actual area of Mangla Mata enclosure is not more than 15 kanals, as per the report of the Patwari and the plants, when got checked by the Range Officer, show that 11,500 plants were found to have been planted, including 1500 Pits without plants. The expenditure, when calculated, comes to Rs. 11,500/- as against the Bill drawn for Rs. 23,220/- and is, thus, a clear case of embezzlement of Rs. 11,720/-. It is not disputed that an amount of Rs. 23,220/- was drawn by the accused from the Treasury for making payment towards the cost of the rice distributed among labour and their wages paid for 1250 days at the rate of Rs. 18/- per day. This is borne out from the record and the muster sheets. It is further revealed from record that during investigation, 16 labourers, out of number of labourers, were examined by the Investigating Officer. None of these workers have stated before the Investigating Officer that he has not been duly paid for the work done. The witnesses also admitted the signatures and thumb impressions on the muster sheets. It is further revealed from record that during investigation, 16 labourers, out of number of labourers, were examined by the Investigating Officer. None of these workers have stated before the Investigating Officer that he has not been duly paid for the work done. The witnesses also admitted the signatures and thumb impressions on the muster sheets. It is further borne out from the record that the payments for Krishan Lal, Amar Nath and Dewan Chand, whose names figure in the muster sheets and who have worked as labour, were made to Tara Chand, Pawan Kumar and Madan Lal, against proper receipt, whose names do not figure in the muster sheets. The contention of Mr. Salathia could be said to have some weight and substance had the Investigating Officer examined Krishan Lal, Amar Nath and Dewan Chand, to ascertain as to whether they have received the payment which is stated to have been made through Tara Chand, Pawan Kumar and Madan Lal. This has not been done by the Investigating Officer to verify the correctness of the entries in the muster sheet and as such the muster sheets could not be said to be fictitious and entries contained therein not genuine. Another limb of argument put across by Mr. Salathia is that as per record maintained by the accused, as many as 23,500 plants in all are stated to have been planted in the year 1990 but the verification on spot by Range Officer revealed that only 11,500 plants could be located which also included 1500 pits found without plants. So, according to him the actual expenditure was made only of Rs. 11,500 against 23,220/- which was drawn after passing the bill and thereby sufficiently proving the misappropriation of balance amount of Rs. 11,700/-. The plants, according to the prosecution, were planted in the month of Feb., 1990 whereas the spot inspection and verification was carried out by the Range Officer in the year 1994, exactly after four years. It is unthinkable and also impracticable to say that how many plants survived, how many developed and how much was the mortality after the saplings were planted, during a period of four years. Mr. Salathia, learned AAG, admitted that after plantation nobody was employed to look after and take care of the maintenance of the plants. The growth and grooming of the plants was left up to the nature. Mr. Salathia, learned AAG, admitted that after plantation nobody was employed to look after and take care of the maintenance of the plants. The growth and grooming of the plants was left up to the nature. In such circumstances, it was not practicable for the Range Officer, notwithstanding the long experience he may have to his credit as a Forest Officer, to find out after a span of four years as to how many saplings were planted, how many survived and how many developed and to what extent was their mortality. If the submission made by Mr. Salathia, for argument sake, is assumed to be correct that only 11,500 plants were located existing in the enclosure by the Range Officer, even then the case of misappropriation and criminal conspiracy is not made out prima facie against the accused. The prosecution did not dispute that Rs. 1000/- was paid as cost of the plants purchased from Government Social Forestry and Rs. 22,500/- paid to labourers on account of their wages and price of rice. If this is the position, how it could be said that an amount of Rs. 11,720/- has been misappropriated by the accused. In view of the clear admission by the prosecution, which remained unrefuted by Mr. Salathia during arguments, that payment of Rs. 22,500/- has been made to the labour which is clear from the muster sheets, the prosecution cannot be said to have succeeded to carve out a prima facie case, on the basis of material/evidence, of criminal conspiracy and misappropriation of the Government money by the accused, to frame charge under Section 5 (2)(1) P.C. Act against the accused. It is advantageous to point out that the criterion to frame the charge is "whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need to be inquired into." However, it is neither possible nor advantageous to enumerate all circumstances to show as to when the accused can or cannot be discharged. But the standard of tests which have to be applied in the end of the case is not to be exactly applied in the case at the stage of framing charge under Section 268 Cr.P.C. Therefore, the prosecution case suffers from inherent infirmities. But the standard of tests which have to be applied in the end of the case is not to be exactly applied in the case at the stage of framing charge under Section 268 Cr.P.C. Therefore, the prosecution case suffers from inherent infirmities. Taking conspectus of all the facts and circumstances discussed above, I do not find any ground to assume that the accused have committed the offence so as to frame the charge and hold the trial, which otherwise would be a sheer wastage of time and exercise in futility. The order, propounded by the trial court in discharging the accused for want of sufficient grounds to proceed and frame charge, in my view does not suffer from any infirmity, legal or factual, inviting interference by this Court. In the result, the revision petition possessing no merit is hereby dismissed. Record shall be remitted back to the trial court forthwith.