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2004 DIGILAW 212 (HP)

VASU DEV SHARMA v. STATE OF H. P.

2004-09-06

M.R.VERMA

body2004
JUDGEMENT M.R. Verma, Judge: - This appeal has been preferred by the accused-appellant (hereafter referred as the accused) against the judgment dated 1.8.1998 passed by the learned Special Judge, Solan, whereby the accused has been convicted under Sections 409 of the Indian Penal Code (hereafter referred as IPC) and Section 13(1) (C) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereafter referred to as the Act) and has been sentenced to undergo rigorous imprisonment for two years and fine Rs. 1,000/- and in default of payment of the fine to undergo imprisonment for four months under Section 409, IPC and rigorous imprisonment of two years and to pay fine of Rs. 1,000/- and in default to suffer imprisonment for four months under Section 13(2) of the Act. 2. Case of the prosecution in brief is that the accused was. posted as Assistant Development officer, H.P. Khadi and Gramudhyog Board, Solan Branch. He was entrusted with the duty of disbursement of loans to beneficiaries to whom it was sanctioned by the Board and to recover loan installments from the beneficiaries and remit the same to the Headquarters. On 20.1.1983 accused received a sum of Rs. 3,655.75p from Devinder Kumar (PW-11) on account of the loan and issued receipt in lieu thereof and made the entries in the Cash Book. On 30.8.1983 he received a sum of Rs. 1,188/- from Dal Singh on 27.5.1983. He further received bank draft in the sum of Rs. 3,000/- as loan installment from Harbhajan Singh (PW-1). The amounts so received by the accused were not remitted by him to the Headquarters of the Board. On completion of the investigation, a chargesheet under Section 409, 420, IPC and Section 5(2) of the Act was submitted against the accused by Inspector (Vigilance), Anti Corruption Zone, Solan. The learned Special Judge framed a charge of criminal breach of trust in respect of embezzlement of Rs. 6,500/- Rs. 1,188/=, Rs. 3,655.75p and Rs.3,000/= received from Dal Singh, Prem Dass, Devinder Kumar and Harbhajan Singh, respectively, under Section 409, IPC and also for criminal misconduct in respect of the said amounts and misappropriation thereof, under Section 13(1) (c) read with Section 13(2) of the Act. 3. To prove the charge against the accused, prosecution examined 16 witnesses. 6,500/- Rs. 1,188/=, Rs. 3,655.75p and Rs.3,000/= received from Dal Singh, Prem Dass, Devinder Kumar and Harbhajan Singh, respectively, under Section 409, IPC and also for criminal misconduct in respect of the said amounts and misappropriation thereof, under Section 13(1) (c) read with Section 13(2) of the Act. 3. To prove the charge against the accused, prosecution examined 16 witnesses. The accused was examined under Section 313, Cr.PC, wherein he admitted his posting as Assistant Development Officer at Solan during the period 1980-83 and also admitted that it was his duty to receive amounts from the loanees and to transmit the same to the Headquarters of the Board. He has further admitted that Cash Book Ext.P-1 was maintained by him and the certificate/entries therein are in his handwriting. However, the allegations about the misappropriation, embezzlement of the amount, as alleged by the prosecution, have been denied and it has been claimed that the prosecution witnesses are interested and he is innocent. He has pleaded ignorance about the taking of loan by Harbhajan Singh, Dal Singh, Prem Dass and Debinder Kumar and denied the receipts of the amounts/installments of loan from the aforesaid persons. The accused, however, did not lead any defence evidence. 4. On consideration of the evidence on record, the learned Special Judge convicted and sentenced the accused, as aforesaid. Hence, this appeal by the accused. 5. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the records. 6. It was contended by the learned counsel for the accused that there is no cogent and reliable evidence to prove that the amounts in question were received by the accused and further there is no evidence that he did not deposit the amounts received by him in the Headquarters of the Board. It was further contended that the Cash-book maintained in the Headquarter about individual loanee has been produced in the Headquarters and it is admitted by PW-11 that a sum of Rs. 3655.75p was paid to the accused by his brother but his brother has not been produced to prove that he actually paid the said amount to the accused. It was further contended that the Cash-book maintained in the Headquarter about individual loanee has been produced in the Headquarters and it is admitted by PW-11 that a sum of Rs. 3655.75p was paid to the accused by his brother but his brother has not been produced to prove that he actually paid the said amount to the accused. According to the learned counsel for the accused, the disputed receipts relied upon by the prosecution are not proved to be in the handwriting of the accused, therefore, the charge against the accused was not proved and he could not have been convicted and deserves to be acquitted. 7. On the other hand, the learned Deputy Advocate General while supporting the reasoning and conclusions of the trial court contended that the loanee who had paid the installments of the loans in cash/draft had fully supported the prosecution version and in view of their evidence, it is proved that the loanees have paid the concerned installments to the accused debut the same were not remitted by him to the Headquarters of the Board as required and failed to account for such installments, therefore,, in view of the evidence on record the charge against the accused is fully proved and the impugned conviction and sentence do not call for any interference. 8. It may be pointed out at the very outset that to prove a charge Section 409, IPC it is incumbent on the prosecution to establish: (i) that the accused was either a public servant, a banker, a merchant, a factor or a broker or an attorney or an agent, (ii) That as such he was entrusted with the property in question or with dominion over it, and (iii) That he committed criminal breach of trust in respect of such property. 9. A public servant etc, will be guilty of criminal breach of trust if he dishonestly misappropriates or converts to his own use the property entrusted to him or dishonestly uses or disposes of such property in violation of any direction of law or contract whether express or implead regarding the discharge of the trust or willfully suffers any other person to do so. Therefore, these ingredients constituting "criminal breach of trust" are required to be proved by the prosecution to prove that the property entrusted to the accused has been misappropriated by him. 10. Therefore, these ingredients constituting "criminal breach of trust" are required to be proved by the prosecution to prove that the property entrusted to the accused has been misappropriated by him. 10. To prove the criminal misconduct under Section 13 of the Prevention of Corruption Act, 1983 by an accused in respect of the property entrusted to him, the prosecution has to prove that the accused dishonestly or fraudulently misappropriated or converted for his own use any property entrusted to him or under his control as a public servant or allowed any other person to do so or that he by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantage. It is well settle that the offences punishable under Section 409, IPC and Section 13 of the Prevention of Corruption Act are district and separate. 11. In the case in hand, the accusations against the accused are of having received four installments of the loan from the loanees which he was duty bound as a public servant to remit to the Headquarters of Khadi Board at Shimla but had failed to so remit the amount and misappropriated the same. 12.lt is not is dispute that during the period 1980-83 the accused was posted as Assistant Development Officer, HP. Village Khadi Board at Solan and, thus, was a public servant. It is also not in dispute that as Assistant Development Officer it was tie duty of the accused to collect and receive the loan installments when due from the various loanees of the Board. It is also not in dispute that it was the duty of the accused to transmit the collected / received loan installments / repayments received by him to the Headquarters of the Board at Shimla. Further it is not in dispute that in lie discharge of his officials duties as a public servant the accused used to maintain the Cass-Book Ext.P-1 at Solan and certificate dated 8.4.1982 and the entries at pages 25 and 28 of the said cash-book are made and signed by him. Further it is not in dispute that it was the duty of the accused to make entry in respect of the receipt of loan installments in the Cash-Book on the day of receipt and then remit it to the Headquarters at Shimla. Further it is not in dispute that it was the duty of the accused to make entry in respect of the receipt of loan installments in the Cash-Book on the day of receipt and then remit it to the Headquarters at Shimla. These facts are admitted by the accused himself fin answer to the question Nos. 2, 13, 14 and 15 put to him in his statement under Section 313 of the Code of Criminal Procedure. 13. It is in view of the aforesaid legal requirements of proof and the admitted facts that the rival submissions made for the parties have to be appreciated. 14. According to the prosecution Dhal Singh (PW-2), Prem Dass (PW-5), Devinder Kumar (PW-11) and Harbhajan Singh (PW-1) were sanctioned loans by J the Board, respectively, in the sum of s. 11,500/-=, Rs. 3,600/-, Rs. 4,000/= and Rs. 17,875/=. out of the sanctioned amount of loan in favour of PW-2, he received a sum I of Rs. 5,000/= initially. The remainder amount of loan Rs. 6,500/= was drawn from I the bank under his signatures but it was taken by the accused on the pretext that the E date of loan had expired so the amount was required to be sent back to the I Headquarters of the Board. Therefore, PW-2 handed over the amount of Rs. 6,500/= so drawn to the accused against receipt Ex. PB. PW-5 paid a sum of Rs. 1,188/- to I the accused on account of the repayment of the loan given to him by the Board vide I receipt Ext PD. PW-11 deposited installment of Rs. 3,655.75p on account of the I repayment of the loan with the accused for which he initially issued a Katcha receipt I but later regular receipt Ext. PC was issued, PW-1 on 24.12.1992 remitted Rs. 3,000/- to the accused on his official address through a bank draft and postal j acknowledgement thereof Ext. P.A. At a later stage when PW-1 met the accused I and demanded receipt of payment of Rs. 3,000/-= as per the draft but the accused I put him off saying that the postal acknowledgement was sufficient about payment. 3,000/- to the accused on his official address through a bank draft and postal j acknowledgement thereof Ext. P.A. At a later stage when PW-1 met the accused I and demanded receipt of payment of Rs. 3,000/-= as per the draft but the accused I put him off saying that the postal acknowledgement was sufficient about payment. It I is further case of the prosecution that the accused despite having received the I aforesaid amounts from the said loanees never remitted them to the Headquarters I of the Board as was required of him in the discharge of his official duties. 15. PW-1, PW-2, PW-5 and PW-11 have fully and firmly supported the aforesaid version of the prosecution regarding their having deposited the respective j amounts with the accused vide aforesaid receipts and postal acknowledgement None of these witnesses is in any manner shown interested in making false statements against the accused and thereby implicate him in a false charge of 1 misappropriation and misconduct. Their statement are duly supported by the contents of the receipts Exts. PB, PC and PD, entry Ext. PW-16/C in Ext. P-1 and the postal acknowledgement Ext. PA showing that the registered envelope with which this acknowledgement was attached was duly received in the office of the accused. Ext. PW-16/C is the entry in Ext. P-1 about receipt of Rs. 3000/- from PW-1 and Ext. P-1 was admittedly maintained by the accused. 16. The accused has denied his having written and signed receipts Exts. PB, PC and PD. However, the prosecution, apart from the statements of PW-2, PW-5 and PW-11, has led other cogent and reliable evidence to prove that these receipts and entry Ext. PW-16/C in Ext. P-1 are in the handwriting of the accused and the said receipts are signed by him. Raj Thakur (DW-3), Chander Prakash Pal (PW-6) and Uma Chauhan (PW-8) all of whom are employees of the Board and have specifically claimed to be acquainted with the handwriting and signatures of the accused correspondence etc. from him have stated that receipts Exts. PB, PC and PD are signed by the accused and PW-8 has further claimed that these receipts are in the hand of the accused. All these witnesses have further stated that Q-6 (Ext.PW-16/C) is in the handwriting of the accused. from him have stated that receipts Exts. PB, PC and PD are signed by the accused and PW-8 has further claimed that these receipts are in the hand of the accused. All these witnesses have further stated that Q-6 (Ext.PW-16/C) is in the handwriting of the accused. Since these witnesses were admittedly co-employees of the accused in the same Board, therefore, their statements cannot be brushed aside. Moreso when it is not the case of the accused that they are for any reason, like enmity, grudge or the like, interested in falsely implicating the accused in the case. 17. The opinion Ext.PW-16/A given by J.K. Jamwal (PW-16), 3 Government Expert, lends full credence and corroboration to the statements of the aforesaid witnesses that the aforesaid receipts and entry are in the handwriting of the accused and the receipts aforesaid are signed by the him. PW-16 has given this opinion after comparing admitted writings Ext.PW-6/B and 6/C and the specimen writings Exts.PW-7/1 to PW-7/11 of the accused with receipts Exts. PB, PC, PD and entry ExtPW-16/C. 18. In view of the above evidence, it is fully and firmly proved that the accused received the loan installments / repayments from PW-1, PW-2, PW-5 and PW-11 vide postal acknowledgement Ext. PA and entry Ext. PW-16/C in Ext, P-1 and the receipts Exts. PB, PC and PD. t 19. The next questions which requires determination is as to whether this amount was remitted by the accused as in duty bound to the Headquarters of the Board or not. As per the evidence of PW-3, as and when any default was committed by the loanee in the repayment of the loan/installment thereof it was her duty to serve such defaulter (s) with demand notice. It is further in her evidence that she had issued demand notices to PW-11, PW-2, PW-1 and PW-5. However, in their reply they intimated that the loan installments had been sent to A.D.O. Khadi Board, Solan, i.e. the accused who was posted as such at the relevant time. They further produced photocopies of the receipts of depositing the amount. She has further stated that certain matters came to the notice of the Khadi Board wherein the installments were not transmitted to the Headquarters of the Board. They further produced photocopies of the receipts of depositing the amount. She has further stated that certain matters came to the notice of the Khadi Board wherein the installments were not transmitted to the Headquarters of the Board. On detection of the embezzlement, a Departmental Enquiry against the accused was initiated and the enquiry report is Ext.PW-6/A whereby it was found that the accused had received the said amounts from PW-2, PW-5, PW-11 and PW-1 but failed to remit the same to the Headquarters and was found to have embezzled such amounts. Though she accused has suggested to the loanees PWs that he had never received the amounts from them but such suggestions have been denied by the relevant witnesses. However, contrary to this suggestion, the accused suggested to PW-3 that the amounts received by him were deposited by him in the Headquarter. Thus the accused by putting contradictory suggestions to the material witnesses, has contradicted his own stand in defence that he did not receive any amount from PW-1, PW-2, PW-5 and PW-11. PW-3 whose duty it was to serve the defaulter loanees with demand notices has denied that such amount was ever deposited by the accused with the Board. The evidence, thus, leads to the conclusion that the amounts received by the accused from PW-1, PW-2, PW-5 and PW-11, were never remitted by him to the Headquarters of the Board nor it is his case in his statement under Section 313 of the Code of Criminal Procedure that the amounts which were proved to have been received by him from PW-1, PW-2, PW-5 and PW-11 were remitted or deposited by him with the Board. 20. To establish a charge of criminal Breach of trust or misconduct, the prosecution is not required to prove mode conversion, misappropriation or misapplication by the accused of the property/money entrusted to him or over which he has the domain, where the accused is unable to account for or render an explanation for his failure to account, an inference of misappropriation with dishonest intent can readily be made. In cases of criminal breach of trust, the failure to account for the money proved to have been received by the accused is a strong circumstance against the accused and if after it is proved that the money was entrusted to the accused but either is not with the accused in his official capacity or has not been remitted to or deposited by him in the concerned quarter/account the irresistible conclusion will be that the accused misappropriated the amount received by him. 21. In view of the evidence discussed herein above, it is established that the accused in his capacity as a public servant received the loan installments/repayments from PW-1, PW-2, PW-5 and PW-11 which he was duty bound to remit to the Headquarters of the Board at Shimla which he never did. Therefore, the conclusions arrived at by the learned trial Judge after appreciating the evidence on record cannot be faulted with and the impugned conviction and sentence recorded on the basis of such conclusions dc not call for interference. 22. It was contended by the learned counsel for the accused that the accused is no more in service though having a family to support, therefore, a lenient view in the matter of sentence may be taken. Keeping in view the nature of the offences committed by the accused the learned trial Judge has already taken a lenient view in the matter and no further leniency in the matter is called for. 23. As a result, this appeal merits dismissal and is accordingly dismissed. 24. The Accused shall surrender to his bail bonds and appear before the trial court on 8.10.2004 and in the event of failure of the accused to so appear the trial court will issue necessary process to secure the presence of the accused and when the accused appears or is brought before the trial court, it will commit him to the prison to serve out the sentence of imprisonment imposed on him.-