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Madhya Pradesh High Court · body

2009 DIGILAW 32 (MP)

RAMDAS DEVANGAN v. STATE OF MADHYA PRADESH

2009-01-07

A.K.SHRIVASTAVA, K.S.CHAUHAN

body2009
Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 18. 11. 1997 passed by learned 5th Additional sessions Judge and Special Judge (C. B. I.), Jabalpur in Special case No. 17/1988 convicting the appellant under Section 5 (1) (c)/5 (2) of Prevention of Corruption Act, 1947 (in short the Act) and under Section 409 IPC and thereby sentencing him to suffer imprisonment as mentioned in the impugned judgment, this appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 2. ) IN brief the case of prosecution is that appellant R. D. Devangan was functioning as Technical Assistant at Food corporation of India Depot, Seoni in the capacity of public servant during the year 1981 to 1983. During this period, he was required to purchase wheat under Price Support Scheme the Scheme)and Levy (in short from the cultivators/agencies at the cost of Rs. 130/- per quintal of wheat. The appellant was further required to pay Rs. 10/- per quintal as incentive price to the cultivators from whom wheat has been purchased and issue receipts/vouchers in this regard. The incentive price money is to the tune of rs. 57,000/- and this amount was entrusted to appellant through State Bank of India Branch, Seoni opened by the collector (Food), Seoni. ( 3. ) IT is the further case of prosecution that appellant was placed under suspension w. e. f. 28. 11. 1981. Despite he was suspended, he furnished the statement of accounts for the tune of Rs. 13,077/ -. After the appellant was suspended, one m. K. Chouksey was appointed for that purpose but during his tenure no purchase was made by him. According to the prosecution, one M. G. Tiwari, Assistant Manager (Quality control), F. C. I. Depot, Seoni issued memo to appellant on 11. 06. 1983 wanting for statement of accounts in respect of the Collectors account at State Bank of India, Branch Seoni and at the same time on 11. 06. 1983 itself forwarded the specimen signature letter to the Collector (Food), Seoni in favour of appellant while he was under suspension and his headquarter was at Sihora which is altogether a different place than that of Seoni. According to prosecution, appellant during period 11. 06. 1983 to January, 1984 withdrew rs. 06. 1983 itself forwarded the specimen signature letter to the Collector (Food), Seoni in favour of appellant while he was under suspension and his headquarter was at Sihora which is altogether a different place than that of Seoni. According to prosecution, appellant during period 11. 06. 1983 to January, 1984 withdrew rs. 40,777/- on the basis of cheques issued by him and by forging the signature of farmers on the rear side of the cheques obtained payment and instead of disbursing the same to the respective cultivators, societies/agents the entire amount was misappropriated by him. Thus, according to the prosecution, the appellant has committed the offence punishable under Section 409 IPC and under Section 5 (1) (c)/ 5 (2) of the Act. ( 4. ) AFTER the requisite sanction was obtained and investigation was over, a charge sheet was submitted before the learned special Judge who framed charges punishable under Section 409 IPC as well as under Section 5 (1) (c)/5 (2) of the Act. Needless to emphasize, appellant did not admit the charges and requested for the trial. ( 5. ) IN order to bring home the charges, prosecution examined as many as 7 witnesses and placed Ex. P-1 to Ex. P-35 the documents on record. The defence of the appellant is of false implication as well as that he did not issue any cheques, however, in support of his defence, he did not choose to examine any witness. ( 6. ) THE learned Special Judge on the basis of evidence placed on record came to hold that charges under Section 409 IPC as well as charges under Section 5 (1) (c)/5 (2) of the Act against appellant are proved and eventually convicted him and passed the sentence as mentioned in the impugned judgment. ( 7. ) IN this manner, the present appeal has been filed by the appellant assailing the impugned judgment of his conviction and order of sentence. ( 8. ) THE contention of Shri Narendra Nikhare, learned counsel for the appellant is that there is no evidence that appellant withdrew the amount of incentive and hence it is not proved that there was any entrustment of the money to him. Further he has contended that even if it is assumed that the money was entrusted to him, the prosecution was further obliged that the same was misappropriated by the appellant. ( 9. Further he has contended that even if it is assumed that the money was entrusted to him, the prosecution was further obliged that the same was misappropriated by the appellant. ( 9. ) THE contention of the learned counsel is that the best evidence to prove misappropriation is the evidence of the farmers to whom the payment of incentive was to be made but the prosecution has not examined even a single witness in this regard in order to demonstrate that the amount was not paid to the farmers. ( 10. ) ON the other hand, Shri Jayant Neekhra, learned counsel for the respondent/c. B. I. has submitted that there is a clear cut finding of learned trial Court that the amount was withdrawn by the appellant and hence the entrustment of the money to him has been proved and if that is the position, in view of the decision of Supreme Court State of H. P. v. Karanvir, AIR 2006 SC 2211 , it was for the appellant to prove that he did not misappropriate the money. ( 11. ) HAVING heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. ( 12. ) THE prosecution has not filed the charge sheet under the pretext that appellant cheated by issuing forged cheques etc. According to the case of prosecution, the appellant has misappropriated the money entrusted to him, and thereby he has committed the offence under Section 409 IPC by misusing the power and hence he has also committed the offence under Section 5 (1) (c)/5 (2) of the Act. The learned special Judge has only framed charges punishable under section 409 IPC and under Section 5 (1) (c)/5 (2) of the Act and no other charges have been framed. Thus, when the case of prosecution itself is of Section 409 IPC and that of under section 5 (1) (c)/5 (2) of the Act, we are unable to accept the argument of learned counsel for the respondent/c. B. I. that by making forge signatures of the farmers the appellant withdrew the amount through cheques. ( 13. ) IN order to constitute the offence under Section 409 IPC two elements should be proved, firstly there should be entrustment of the property and secondly the misappropriation of the entrusted property. ( 13. ) IN order to constitute the offence under Section 409 IPC two elements should be proved, firstly there should be entrustment of the property and secondly the misappropriation of the entrusted property. According to us, both these elements should co-exist at one point of time and if any one is lacking, according to us, the offence under section 409 IPC is not made out. ( 14. ) MUCH has been argued by Shri Nikhare, learned counsel for the appellant that there is no iota of evidence in order to prove that there was any entrustment of the money to appellant and he ever withdrew the amount of incentive. Further it has been contended that merely on the basis of the report of handwriting expert, which is only corroborative piece of evidence, it is difficult to hold that any amount was withdrawn from the bank in order to disburse the same to the farmers. Even if, we side track the argument of the learned counsel for the appellant and assume that the amount was withdrawn by him, in absence of any evidence that he misappropriated the same, it is difficult to hold that charge under Section 409 IPC is proved. If the said amount was withdrawn by the appellant, the prosecution should have examined those farmers for whom the amount was withdrawn that the amount which they were required to receive in fact were not received by them. Thus the factum of misappropriation of money is not at all proved since there is no evidence of the prosecution in this regard. According to us, the prosecution was obliged to discharge initial burden then only onus would have been shifted on the shoulders of the accused/appellant. Since the initial burden has not been proved by the prosecution, the appellant was not obliged to adduce evidence in rebuttal. The decision of Supreme Court karanvir (supra) placed reliance by learned counsel for the respondent/c. B. I. is not applicable in the present case because in the said case the accused of said case admitted that he was having money and the same was deposited by him in two installments. Thus, the above said decision is distinguishable on the facts itself. In the present case, there is no admission of appellant that he ever misappropriated the money. Thus, the above said decision is distinguishable on the facts itself. In the present case, there is no admission of appellant that he ever misappropriated the money. The Supreme Court in Janeshwar Das Aggarwal v. State of U. P. AIR 1981 SC 1646 has categorically held that even if the factum of entrustment is proved the prosecution is further obliged to prove that accused has misappropriated the money. ( 15. ) WE have already held hereinabove that the best evidence would have been to examine the farmers. Since the prosecution has failed to examine any farmer to prove that they had not received any money, according to us, it can not be said that appellant has misappropriated the money. ( 16. ) THUS, according to us, the finding arrived at by the learned special Judge is erroneous and contrary to the law. The charge under Section 409 IPC is not proved, according to us the charge under Section 5 (1) (c)/5 (2) which is having nexus with the Section 409 IPC is also can not be said to have been proved. ( 17. ) 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 appellant is acquitted from all the charges. He is on bail. His bail bonds are discharged. The amount of fine, if deposited be refunded to him.