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Madhya Pradesh High Court · body

2009 DIGILAW 1266 (MP)

Bal Mukund Ahirwar v. State of M. P.

2009-11-12

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
JUDGMENT A.K. Shrivastava, J. 1. The judgment passed in this is appeal shall also govern the disposal of connected Criminal Appeal No. 404/2002 (Yagya Dull Nigam v. Special Police Establishment, Lok Ayukt, Bhopal). 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 27.8.2002 passed by the learned Special Judge and First Additional Sessions Judge, Gwalior, in Special Case No. 15/1996 convicting Appellants for the charges punishable under Section 409, IPC and Sections 13(1)(c), 13(2) of the Prevention of Corruption Act, 1988 (in short the "Act") and thereby sentencing them to suffer imprisonment of two years RI and fine Rs. 1,000/- (on both the counts), in default further imprisonment of three months RI with a further stipulation that both the sentences shall run concurrently, the Appellants have filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 3. In brief the case of prosecution is that on the National Highway A.B. Road, Public Works Department, Sub-Division Morena, was required to carry out the necessary construction to strengthen the road in between milestone 81 to 83 and 87 to 89 (total 4 Kms.). The work order No. 1497 Gwalior dated 29.3.1988 was placed to contractor Radheshyam Bhakar and Company by the Executive Engineer, PWD. The raw material to construct the road was to be prepared at the hot-mix plant at Kuleth. 100 drums of bitumen vide indent No. 10/19.4.1990 were issued from the Rest I louse of Satanwada district Shivpuri. These drums of bitumen were carried by one Laxminarayan Sharma, who is the power of attorney holder of the contractor Radheshyam Bhakar and Company. On 25.4.1990, 50 drums of bitumen were brought by truck No. MPG-7817 and similarly on 26.4.1990, 50 drums of bitumen were brought in the same truck. 4. It is the further case of prosecution that Sub-Engineer B.M. Ahirwar-Appellant directed to bung 100 drums of bitumen from Noorabad Rest I louse. On 8.4.1990, 50 drums and on 9.4.1990, 35 drums, total 85 drums of bitumen, were brought by said Laxminarayan Sharma. Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02) was serving on the post of Sub-Divisional Officer in Public Works Department, Appellant Bahnukund Ahirwar and Haresh Goyal (acquitted co-accused) were serving on the post of Sub-Engineer and accused R.S. Sisodiya (died during trial) was serving on the post of Store Keeper at the relevant point of time. Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02) was serving on the post of Sub-Divisional Officer in Public Works Department, Appellant Bahnukund Ahirwar and Haresh Goyal (acquitted co-accused) were serving on the post of Sub-Engineer and accused R.S. Sisodiya (died during trial) was serving on the post of Store Keeper at the relevant point of time. An entry of the bitumen drums, which were brought from Shivpuri was made in the Inward Register on 28.4.1990 by Store Keeper Incharge R.S. Sisodiya (who had died during the trial) and the relevant entry to issue the said bitumen was shown in the issue register. There is an endorsement in the issue register regarding receiving of the bitumen by the contractor which was certified by Sub-Divisional Officer Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02). But, indeed on 26.4.1990 only 22 drums of bitumen were received in Kuleth Hot Mix Plant. Similarly, only 35 drums of bitumen were sent to the plant which were picked up from Noorabad Rest House. Hence, according to the prosecution, in total 128 drums of the bitumen were misappropriated by the contractor and the above said officers. 5. One Jagdish Narayan, President, Mohalla Sudhar Samiti, Hajira, Gwalior submitted a complaint, Ex.D-1, against the Executive Engineer, Narendra Kumar Mandloi (not arrayed as an accused) and Store Keeper R.S. Sisodiya (died during trial) as well as against some other persons. The Lok Ayukt persons on enquiry found that 128 drums of bitumen have been misappropriated, as a result of which 'Dehati Nalishi' Ex.P-38 was registered and on the basis of which FIR was also registered against the present Appellants and Store Keeper R.S. Sisodiya (who had died during the trial), as well as against Sub-Engineer Haresh Goyal, who has been acquitted by the learned trial Court from the charges punishable under Section 409, IPC and Sections 13(1)(c) and 13(2) of the Act. 6. After the investigation was over, a charge-sheet was submitted before the learned Special Judge on 18.9.1996. The learned Special Judge framed the charges under Section 409, IPC as well as under Sections 13(1)(c) and 13(2) of the Act, which all the accused persons (including the Appellants) denied and requested for the trial. 7. The prosecution in order to prove the charges examined as many as 16 witnesses and placed Ex.P-1 to P-43 the documents on record. 8. 7. The prosecution in order to prove the charges examined as many as 16 witnesses and placed Ex.P-1 to P-43 the documents on record. 8. The defence of Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02) is that in accordance to the terms of the contract, the contractor was found to be liable and the Department has already realized the cost of the bitumen from the contractor. 9. The defence of acquitted co-accused Haresh Goyal is that he had no concern with the drums of bitumen, which were kept in Noorabad Rest House because the only duty assigned to him was to supervise the Rest House and at the hot-mix plant his duty was to test the sample. The duty entrusted to him does not include to handover the bitumen drums. However, according to him, he informed the Department when the contractor brought lesser number of the bitumen drums. 10. The defence of Appellant Balmukund Ahirwar is that it was the duty of the contractor to keep the bitumen in his custody and to submit the account after completion of the work to the Department. Further defence of Appellant is that after issuing and entrusting the bitumen to the contractor, the Department is not liable for its misappropriation. He has also taken the defence that when he came to know about the shortcoming of the bitumen drums, he along with acquitted co-accused Haresh Goyal on 12.4.1990 submitted a written complaint to Sub-Divisional Officer Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02). 11. The learned Special Judge after scanning the evidence of the witnesses came to hold that so far as the misappropriation of 50 drums of bitumen issued from Noorabad Rest House is concerned, that has not been found to be proved (see para 35 of the impugned judgment of the Special Judge). However, according to the learned Special Judge, misappropriation of 78 drums of bitumen issued from Satanwada to Kuleth where hot-mix plant was established, has been found to be proved against the Appellants, eventually, learned Special Judge convicted the Appellants of both the appeals under Section 409, IPC as well as under Section 13(1)(c) and 13(2) of the Act. The learned Special Judge further came to hold that these charges are not proved against Sub-Engineer Haresh Goyal, as a result of which acquitted him by the impugned judgment. 12. The learned Special Judge further came to hold that these charges are not proved against Sub-Engineer Haresh Goyal, as a result of which acquitted him by the impugned judgment. 12. In this manner, the present appeals have been filed by the Appellants assailing the judgment of their conviction and order of sentence. 13. Shri V.K. Saxena, learned senior counsel with Shri R.K. Sharma, Advocate has submitted that if the contract Ex.D-2 is taken into consideration in proper perspective by putting emphasis to clause 10, which deals with the supply of materials, it would reveal that the contractor was authorised to receive the bitumen 80/100 drums and because it has been admitted by Laxminarayan Sharma (PW6) that he had received 100 bitumen drums which were issued to him, therefore, the liability of Appellant Balmukund Ahirwar is exonerated and once it is borne out from the testimony of Laxminarayan Sharma (PW6) that the drums of bitumen were entrusted to him, the Appellant cannot be convicted under Section 409, IPC and consequently he cannot also be made liable for committing the offence under Sections 13(1)(c)/13(2) of the Act. By inviting our attention to the testimony of Executive Engineer Narendra Kumar Mandloi (PW1) it has been contended that this witness who executed the contract, Ex.D-2, has also categorically admitted that in the enquiry he found that 100 drums of bitumen were entrusted to the contractor and if that would be the position, learned Special Judge erred in convicting the Appellant. On these premised submissions it has been argued by learned senior counsel that by allowing this appeal the judgment of conviction and order of sentence passed by learned Special Judge be set aside and Appellant be acquitted from all the charges. 14. Shri Atul Gupta and Shri Sanjay Nigam, learned Counsel appearing for Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02) have adopted the arguments of learned senior counsel Shri Saxena. 15. 14. Shri Atul Gupta and Shri Sanjay Nigam, learned Counsel appearing for Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02) have adopted the arguments of learned senior counsel Shri Saxena. 15. Combating the aforesaid submissions of learned Counsel for the Appellant, it has been vehemently contended by Shri Suryavanshi, learned Counsel appearing for the Special Police Establishment, that if an accused is charged under Section 409, IPC, it is very difficult to place direct evidence and if it is proved from the circumstances placed on record, merely because from direct evidence the factum of entrustment is not proved, a clean chit cannot be given to the accused persons and they can be convicted under this section. To buttress his submission learned Counsel has placed heavy reliance on the decision of Supreme Court in Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay AIR 1960 SC 889 . Learned Counsel for the Respondent further submits that the Appellants exceeded from their duty by entrusting the bitumen drums to the contractor because this task of shitting the bitumen was to be discharged by the Department itself. Having not done so, these Appellants have deviated from their duly with an ulterior motive to misappropriate the bitumen drums and there was a conspiracy between these Appellants and the contractor. On these premised submissions, it has been contended by learned Counsel for the Respondent that looking to the reasonings assigned by the learned Special Judge for no rhyme or reason the Appellants should be acquitted and hence it has been prayed that this appeal sans substance and be dismissed. 16. Having heard the learned Counsel for the parties, we are of the considered view that this appeal as well as connected Criminal Appeal No. 404/2002 (Yagya Dutt Nigam v. Special Police Establishment) deserve to be allowed. 17. In the present case the charge under Section 409, IPC has been framed against the Appellants as well as against the acquitted co-accused Haresh Goyal. If this charge is found to be proved, then only with the aid of Section 13(1)(c)/13(2) of the Act these Appellants can be made liable for committing the offence under the Act. 17. In the present case the charge under Section 409, IPC has been framed against the Appellants as well as against the acquitted co-accused Haresh Goyal. If this charge is found to be proved, then only with the aid of Section 13(1)(c)/13(2) of the Act these Appellants can be made liable for committing the offence under the Act. In order to arrest Section 409, IPC the prosecution is obliged to prove that: (i) the accused must be a public servant; (ii) he must have been entrusted, in such capacity, with property; and (iii) he must have committed breach of trust in respect of such property. According to us, these are the three strong pillars on which the roof of the offence under Section 409, IPC rests and according to us, if any of the ingredients is missing, the roof will collapse which would mean that the charge is not proved, We may further add that if "entrustment" to the accused is proved, it is for the accused to explain that how he has not misappropriated the property. The word "entrust" when used with respect to the particular article it would mean that article has been physically transferred to the accused and if by discharging his official duty the accused has entrusted the drums of bitumen to the contractor, according to us, no criminal liability under Section 409, IPC or under the Act can be fasten on the Appellants. 18. If the above said principles are tested on the touch stone and anvil of the present factual scenario and the evidence placed on record, we find that according to Laxminarayan Sharma (PW6), 100 bitumen drums were entrusted and handed over to him from Shivpuri by Store Incharge R.S. Sisodiya (who had died during the trial). Necessary endorsement was also made on the indent Ex.P-29, which bears the signature acknowledging the receipt of bitumen drums. At this juncture, it would be apposite to put emphasis on the condition No. 10 of the contract embodied in Ex.D-2 and we would like to quote clause 10.1 and 10.2, which reads thus: 10.1 The bitumen 80/100 required for the work shall be supplied free of cost by the department to the contractor in Bulk packed at the site and place as specified in clause 6.1 of the NIT. However, the contractor will be paid for the finished items of works at the rates which will be excluding the cost of bitumen as per his tender. 10.2 The bitumen 80/100 will be issued on Indent and Invoice to the contractor against his acknowledgement and it will remain in his custody till its use on work or return to PWD Store. If these two clauses of the work contract which is an admitted document, arc read in juxtaposition to the statement of Laxminarayan Sharma (PW6), we find that Laxminarayan Sharma was legally authorised under the contract to receive the bitumen drums. Needless to say, this Laxminarayan Sharma is the power of attorney holder of contractor Radheshyam Bhakar and Company and is not mere stranger. The prosecution has never challenged the authority and authorisation of this witness as power of attorney holder to uplift the bitumen drums. Since this statement has been given by this witness in his examination-in-charge that 100 drums of bitumen were entrusted to him, according to us, since this witness was not declared hostile, therefore, the prosecution is bound by his evidence. In this context we may profitably place reliance on the decision of the Supreme Court in Raja Ram v. State of Rajasthan 2005 SCC 1050, para 9, which reads thus: 9. But the testimony of PW8 Dr. Sukhdev Singh, who is Anr. neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW5 making the deceased believe that unless she puts the blame on the Appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial Court to seek permission of the Court to hear (sic declare) PW8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW8's testimony can be sidelined. 19. Now, as it is, the evidence of PW8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW8's testimony can be sidelined. 19. On going through the evidence of Habib Khan (PW10), who is Chowkidar of PWD and who during the relevant period was serving as Chowkidar in Hot Mix Plant where the drums of bitumen were brought, in para 10 of his statement he has admitted that on being made complaint by him about the deficit of the drums of bitumen, Appellant Balmukund Ahirwar and acquitterd accused Haresh Goyal immediately came to the Hot Mix Plant and they also counted the drums and found them to be short, as a result of which they also scolded Anr. Chowkidar Balveer (PW3). Hence, from the evidence of this witness also we find that the requisite number of the bitumen drums were not brought to the site of the Hot Mix Plant though they were entrusted to Laxminarayan Sharma, the power of attorney holder of the contractor. 20. The picture would become more clear if we put our emphasis to the statement of Executive Engineer Narendra Kumar Mandloi (PW1), paras 45 and 46 as well as para 47, in which he has specifically admitted that on the basis of his instructions 100 drums of bitumen were entrusted to the contractor to carry the same at the hot-mix plant by his (contractor's) own vehicle. Further he has admitted that these drums were entrusted by Store Keeper R.S. Sisodiya to the contractor, who had received the same and he also acknowledged its acceptance but according to this witness', these drums were not found at the site. According to us, if the impugned bitumen drums, in exercise of their duty the Appellants have entrusted to the contractor, according to us, since the ball had already gone in the court of the contractor, hence he has to explain why these drums of bitumen did not reach at the site and therefore, no liability can be fastened on the Appellants. At this juncture, it would be germane to mention, as it is an admitted fact that a departmental enquiry was conducted against the contractor in which he was found to be liable for committing the wrong and the cost of the bitumen was also recovered from him. 21. At this juncture, it would be germane to mention, as it is an admitted fact that a departmental enquiry was conducted against the contractor in which he was found to be liable for committing the wrong and the cost of the bitumen was also recovered from him. 21. Thus, according to us, since the property in dispute, which is 78 bitumen drums, was entrusted to Laxminarayan Sharma, who is the power of attorney holder of the contractor, according to us, these two Appellants cannot at all be made liable either under Section 409, IPC or under Section 13(1)(c)/13(2) of the Act. 22. Apart from what we have held herein above, we may further add that the conviction of the Appellant as well as Yagya Dutt Nigam (Appellant of connected Criminal Appeal No. 404/02) inter alia is also based on the Indent Ex.P-29. On scanning this document we find that specifically issuance of 100 drums of bitumen to Laxminarayan Sharma has been mentioned by Store Keeper R.S. Sisodiya and this has also been so admitted by Laxminarayan Sharma (PW6) in his exomination-in-chief that Ex.P-29 consists of his acknowledgment of receiving the said bitumen. Hence, it is not only crystal clear but is also luminously clear that under the authority of contract Ex.D-2, 100 drums of bitumen were entrusted to Laxminarayan Sharma. At the cost of repetition, we may again say here that this Laxminarayan Sharma is not a stranger but is a power of attorney holder of contractor Radheshyam Bhakar and Company and hence in legal terminology his status would be that of an agent of Radheshyam Bhakar and Company and for all practical purposes under the law it would be deemed that 100 drums of bitumen were delivered to contractor Radheshyam Bhakar and Company. 23. Much light has been thrown on the word "entrust" in Corpus Juris Secumdum, Volume 48, at page 754, which reads thus: Intrust or entrust. To commit something to Anr. with a certain confidence regarding his care, use, or disposal of it; to confer a trust upon; to deliver to Anr. something in trust; to commit to Anr. with confidence in his fidelity; to confide to the care of; to deliver in trust. Intrusted or entrusted. Deposited. To commit something to Anr. with a certain confidence regarding his care, use, or disposal of it; to confer a trust upon; to deliver to Anr. something in trust; to commit to Anr. with confidence in his fidelity; to confide to the care of; to deliver in trust. Intrusted or entrusted. Deposited. The term implies something more than mere possession; it implies a privity between the owner or person having the right of disposing of the goods and him in whose favour a lien is claimed. It will also be profitable to put emphasis on this word "entrusted" and its explanation given in Advanced Law Lexicon by P. Ranunatha Aiyar, 3rd Edition Reprint 2007, page 1613 which reads thus: Entrusted. The expression 'entrusted' in Section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. At page 1614 the word "Entrustment" has been highlighted in the same book which reads thus: Entrustment. The expression 'Entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to Anr. , continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. The 'Entrustment' results from what the person handing over money or property is made to think, understand, and believe about the purpose for which he hands over money or property to a public servant. If this takes place because of and due to the exercise of the official authority the requirements of Section 409, IPC (45 of 1860) are satisfied. 24. The decision of Jaikrishnadas Manohardus Desai (supra), placed reliance by Shri Suryavanshi, learned Counsel for the Respondent, is not applicable in the present case for the simple reason that in that case the accused were having domain over the property. However, in the present case under the agreement Ex.D-2 if 100 drums of bitumen were entrusted to Laxminarayan Sharma, it cannot be said that thereafter the Appellants were having any domain over the bitumen. However, in the present case under the agreement Ex.D-2 if 100 drums of bitumen were entrusted to Laxminarayan Sharma, it cannot be said that thereafter the Appellants were having any domain over the bitumen. It would be condign to mention here that the case of prosecution is not based upon any conspiracy nor any charge under Section 120B of IPC was framed against the accused persons. Hence, according to us, the Appellants of both the appeals are not liable from any angle. 25. For the reasons stated hereinabove, we are of the view that looking to overall documentary and oral evidence placed on record, the learned Special Judge has erred in convicting the Appellant of this appeal as well as Yagya Dutt Nigain (Appellant of connected Criminal Appeal No. 404/02) for the charges punishable under Section 409, IPC and Sections 13(1)(c)/13(2) of the Act. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by the learned Special Judge is hereby set aside and the Appellant of this appeal as well as Yagya Dutt Nigain (Appellant of connected Criminal Appeal No. 404/02) are hereby acquitted from all the charges. They are on bail, their bail bonds are discharged. The amount of fine, if deposited, be refunded to them.