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2011 DIGILAW 2276 (RAJ)

Girish Saini v. State of Rajasthan

2011-10-22

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—The accused-appellant has preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 10.8.2011 passed in Special Sessions Case No. 8/2000 by the Special Court (Printing & Stationery Embezzlement Cases) Jaipur whereby he has been convicted for offence under Section 409 IPC and for offence under Section 13(1)(c) read with Section 13 Prevention of Corruption Act (hereinafter to be referred as "the Act") and has been sentenced for rigorous imprisonment of two years and fine of Rs. 1,000/- and in default thereof to further undergo simple imprisonment for three months for offence under Section 409 IPC and rigorous imprisonment of two years and a fine of Rs. 1,000/- and default thereof to further undergo simple imprisonment for three months for offence under Sections 13(1)(c) read with Section 13(2) of the Act. Both the substantive sentences were ordered to run concurrently. 2. The brief relevant facts for the disposal of this disposal of this appeal are that the appellant was charge-sheeted for the above offences on the premise that when he has working as Store keeper in the office of Directorate (Treassury & Accounts) Rajasthan, Jaipur on 16.6.89, a demand letter No. 22923 dated 16.6.89 (Ex.P/1) was issued by the Deputy Director (Treassury) for supply of stationery by the Central Govt. Press, Jaipur and appellant was authorized and entrusted to receive and bring that material and invoice No. 447 dated 20.6.89 (Ex.P/2) was issued by the Central Paper Store of the Printing Press on the basis of that demand letter and the stationery mentioned in the invoice was supplied to the appellant but he neither deposited it in the Store of the Directorate (Treassury & Accounts) nor he made entry of that material in the stock register of the office. It was alleged that the appellant as a public servant by misusing his position as a Store Keeper misappropriated the stationery in question. In this regard, FIR No. 61/96 was registered in the office of Anti Corruption Bureau, Jaipur and after usual investigation charge sheet was filed against the appellant. In order to prove the charges the prosecution produced oral as well as documentary evidence whereas in his statement under Section 313 Cr.P.C., the appellant denied the allegation and evidence of the prosecution. The appellant also submitted his written statement, but inspite of affording opportunity defence evidence was not produced by him. In order to prove the charges the prosecution produced oral as well as documentary evidence whereas in his statement under Section 313 Cr.P.C., the appellant denied the allegation and evidence of the prosecution. The appellant also submitted his written statement, but inspite of affording opportunity defence evidence was not produced by him. 3. The learned trial after appreciating and evaluating the evidence available on record and hearing both the parties arrived at a conclusion that the stationery in question was entrusted to the appellant as a public servant and he misusing his position as a public servant misappropriated the same and converted it for his use. By arriving to that conclusion, the learned trial Court passed the impugned judgment and order as aforesaid. Hence, the instant appeal. 4. Assailing the impugned judgment, the learned counsel for the appellant has raised the following grounds : (i) The sanction for the prosecution of the appellant has not been properly granted by PW-2 Shri A.K. Gupta as it is an admitted fact that the stock register in which the entry regarding the material in question was to be made by the appellant was not produced before the sanctioning authority and in absence of that it cannot be said that all relevant record was placed before the sanctioning authority and he by properly applying his mind came to a conclusion that there is sufficient ground to grant sanction. (ii) For the offence under Section 409 IPC and Section 13(1)(c) read with Section 13(2) of the Act to be made out, mere entrustment of material in question to the appellant is not sufficient, but it was also necessary to prove that the appellant failed to deposit the material in Store and did not make entry about it in the stock register and misappropriated it but in the present case, the relevant stock register was not deliberately produced during trial but withheld from the Court, and in absence of it, misappropriation by the appellant cannot be said to be proved. In support of his submissions, the learned counsel for the appellant relied upon the cases of Rasul Mohammed Hanif Gulandai vs. The State of Maharashtra reported in 1972 Crl.L.J. 313, Gopal Lal vs. Nagulal & Ors. reported in 1998(1) WLC (Raj.) 679 = RLW 1997(3) Raj. In support of his submissions, the learned counsel for the appellant relied upon the cases of Rasul Mohammed Hanif Gulandai vs. The State of Maharashtra reported in 1972 Crl.L.J. 313, Gopal Lal vs. Nagulal & Ors. reported in 1998(1) WLC (Raj.) 679 = RLW 1997(3) Raj. 1884, Janeshwar Das Aggarwal vs. State of U.P. reported in 1981 Cr.L.R. (SC) 303, Vinod Kumar Agrawal vs. State of Rajasthan reported in 1998 RCC 491, State of Bihar vs. Shri Ram Singh reported in III (1996) CCR 233. 5. On the other hand, the learned Public Prosecutor by supporting the impugned judgment, submitted that there is no reason to convert the finding of conviction arrived at by the trial Court into a finding of acquittal. 6. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law. 7. My findings with reasons on each of the grounds raised by the appellant are as below : (i) In order to prove the sanction granted by the competent authority, the prosecution produced P.W.2 Shri A.K. Gupta, Director (Treassury & Accounts) Rajasthan, Jaipur and he has proved the sanction Ex.P/5. The appellant has not disputed that at the relevant time P.W.2-Shri A.K. Gupta was posted as Director (Treassury & Accounts), Rajasthan, Jaipur and he was the competent authority within the meaning of Section 19 of the Act to grant sanction by the reason that under the relevant service rules he was competent to appoint and remove the appellant from his service. Shri Gupta in his examination-in-chief has stated that after perusing the investigation papers, demand letter, invoice, FSL report and statements of witnesses etc. using his discretion and applying his mind he granted sanction for the prosecution of the appellant. In his cross-examination, the witness has admitted that when sanction was granted by him stock register of the year 1989-90 was not placed before him. The witness expressed ignorance about the fact whether entry regarding the stationery in question was made or not in the stock register of the year 1989-90 by the reason that stock register was not placed before him. The witness expressed ignorance about the fact whether entry regarding the stationery in question was made or not in the stock register of the year 1989-90 by the reason that stock register was not placed before him. It is thus, clear that although the stock register of the relevant period was not placed before the witness at the time the sanction was granted by him and by that reason he could not take into consideration the entries of the stock register but other relevant documents including the evidence collected during investigation were placed before him. Section 19 of the Act provides that no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act alleged to have been committed by a public servant, except with the previous sanction of the authority competent to remove him from his office. It also provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, on the ground of the absence of, or any error, omission or irregularity in, the sanction required unless in the opinion of the court, a failure of justice has, infact, been occasioned thereby. The provision further provides that in determining whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. It is thus, clear that cognizance of an offence punishable under the provisions of the Act cannot be taken in the absence of previous sanction by a competent authority, but it is also clear that merely by any error, omission or irregularity in the grant of sanction, a finding, sentence or order passed by the trial court cannot be reversed or altered by the appellate Court unless the appellate Court comes to a conclusion that the error, omission or irregularity committed in granting sanction has occasioned a failure of justice. In a case whether failure of justice has occasioned or not, it is a question of fact and it is for the accused to satisfy the court that by the reason of error, omission or irregularity in the sanction, a failure of justice, infact, has been occasioned. Hon'ble Supreme Court in a recent case of Ashok Tshering Bhatia vs. State of Sikkim reported in 2011 Crl.L.J. 1770, has held that "in the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the PC Act, 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot said that an invalid police report is the foundation of jurisdiction of the Court to take cognizance." In the present case, after investigation charge-sheet was submitted before the trial Court on 31.3.2000 and cognizance was taken on the same day. Thereafter, on 1.5.2000 arguments regarding framing of charges were heard and it was ordered that charges under Section 409 IPC and Section 13(1)(c) read with Section 13(2) of the Act may be framed against the appellant. Thereafter, the trial began and the prosecution produced oral as well as documentary evidence. It is an admitted fact that order of taking cognizance and framing of charges was not challenged by the appellant. From the evidence available on record it is clear that although the stock register of the year 1989-90 was not placed before the sanctioning authority, but the oral and documentary evidence collected during investigation was placed before him and he after perusing the material and applying his mind granted sanction. The present is not such a case in which the sanction is totally absent. The present is not such a case in which the sanction is totally absent. At the most it can be said that a relevant document was not perused by the sanctioning authority, but it is also clear that evidence collected during investigation was placed before him and it has come in the evidence that the relevant stock register was seized by the investigating officer and seizure memo was prepared by him. It has also come in the evidence that during audit it was revealed that the stationery relating to demand letter Ex.P/1 and Invoice Ex.P/2 was received by the appellant, but it was neither deposited in the store nor relevant entries were made in the stock register. The audit report was also the part of the evidence collected during investigation, therefore, even if the relevant stock register was not produced before the sanctioning authority, other evidence showing that the stationery was not deposited in the store and entries were not made in the stock register was before the sanctioning authority. In the light of these facts, it cannot be said that the sanctioning authority without proper perusal of relevant record and without applying his mind mechanically granted sanction. In fact in the present case, no such error, omission or irregularity can be said to have been committed in granting sanction resulting in failure of justice. The learned counsel for the appellant failed to show any reason so as to come to a conclusion that failure of justice has occasioned only by the reason that the sanctioning authority granted sanction without perusing the stock register. In the present case, after taking cognizance and framing of charge, the trial commenced and after hearing the appellant, judgment of conviction was passed by the trial Court. In the light of the well settled legal position the contention raised on behalf of the appellant being devoid of merit, is liable to be rejected. In the present case, after taking cognizance and framing of charge, the trial commenced and after hearing the appellant, judgment of conviction was passed by the trial Court. In the light of the well settled legal position the contention raised on behalf of the appellant being devoid of merit, is liable to be rejected. (ii) It has not been disputed by the appellant that at the relevant time he was posted as LDC and was in charge of store keeper in the office of Directorate (Treassury & Accounts) Rajasthan, Jaipur and by the demand letter No. 22923 dated 16.6.89 (Ex.P/1) he was authorized to receive and obtained stationery material mentioned in the letter from the Government Press, Jaipur and in this regard invoice No. 447 dated 20.6.89 (Ex.P/2) was issued by the Government Press and the material in question was supplied to him and it was his duty to deposit that material in the store and to make entries in the stock register maintained and kept by the department. The prosecution case is that although the appellant received the material in question, but he failed to deposit the same in the store and to make entries in the stock register whereas the defence of the appellant is that after receiving the material in question he deposited the same in the store and also made relevant entries in the stock register of the year 1989-90, but when the office was shifted in the year 1994 from one place to another that stock register misplaced and lost and when in 1995 audit was made that register was not available and in absence of that register the audit party made a report that the required entries were not made by the appellant in the stock register and thereafter on the basis of audit report FIR was lodged. It is also the case of the appellant that although subsequently that register was found, but it was deliberately not produced during trial and withheld from the Court and if that register would have been produced before the Court, it could have been proved that relevant entries were made by the appellant in it. It is also the case of the appellant that although subsequently that register was found, but it was deliberately not produced during trial and withheld from the Court and if that register would have been produced before the Court, it could have been proved that relevant entries were made by the appellant in it. Although from the evidence available on record, it appears that a register maintained in the office of the concerned department was misplaced when the office was shifted from one place to another, but it cannot be said that it was the same register in which entries regarding the material received by the appellant vide Invoice Ex.P/2 were to be made or required to be made. From the evidence it is revealed that during audit the stock register of the relevant time i.e. upto December 1989 was inspected by the audit party, but entries regarding Ex.P/2 were not found in that register and in absence of that, the audit party came to a finding that entries were not made. During investigation the relevant stock register was seized and it was exhibited as Article-I. From the evidence available on record it is clear that it was the duty of the appellant to make entries regarding the material in question in the stock register Article-I. There is no evidence on record so as to hold that in the department two separate stock registers were kept and maintained and the entries relating to Invoice Ex.P/2 were to be made in stock register other than the Article-I. It appears that the appellant has tried to take undue benefit of the fact that a register maintained by the department was misplaced during shifting by alleging that the relevant entries were made by him in that register. It is pertinent to note that during trial, the appellant filed an application on 15.5.2000 praying therein that the register relating to outer Treasury is available in the department in which relevant entries were made by the appellant and that stock register may be called from the department. Reply to that application was filed on behalf of the department and it was alleged that the stock register mentioned in the application is available with the department, but in that register entries regarding the material received by the appellant vide Invoice Ex.P/2 have not been made. Reply to that application was filed on behalf of the department and it was alleged that the stock register mentioned in the application is available with the department, but in that register entries regarding the material received by the appellant vide Invoice Ex.P/2 have not been made. It was also mentioned in the reply that whenever the Court would order, that register would be made available to the Court. Thereafter, the appellant did not further pursue his application. In my view when no further prayer was made by the appellant for the production of that register, it may be inferred that the appellant was satisfied with the reply of the department that in that register the relevant entries are not available. Thus, it is clear that the appellant even after receiving the material, neither deposited it in the store nor made relevant entries in the stock register kept and maintained for that purpose. Section 405 IPC provides that whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust." In the present case it was the duty of the appellant to deposit the stationery in question in the store and also to make required entries in the relevant register kept for that purpose, but he failed to do so. It is well settled that it is not for the prosecution to prove that in what manner the property entrusted to the accused was misappropriated or converted or disposed of by him. The prosecution is obliged to prove that some property was entrusted to the accused and he misappropriated it. Section 409 IPC provides that whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant commits criminal breach of trust in respect of that property, shall be punished in the manner provided in that Section. Section 409 IPC provides that whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant commits criminal breach of trust in respect of that property, shall be punished in the manner provided in that Section. In the present case, it is an admitted fact that at the relevant time the appellant was a public servant being in charge of store in the department concerned. Therefore, the act of the appellant comes within the purview of Section 13(1)(c) of the Act also. The learned trial Court on consideration of the evidence available on record has come to a finding which in the light of aforesaid discussion can not in any way be said to be perverse or incorrect. So far as the judgments relied upon by the appellant are concerned, in my view being based on different set of facts, they are not in any way helpful to the appellant. The facts of the case of Rasul Mohammed Hanif Gulandai vs. The State of Maharashtra (supra) appears to be that the document, on the basis of which charge was leveled against the accused, was not produced during trial and in absence of that, it was held that the accused could not be convicted for the offence for which charge was leveled against him. In the present case, the relevant stock register was seized and produced during trial as Article-1. In the case of Gopal Lal vs. Nagulal & Ors. (supra) adverse inference was drawn by the reason that the relevant receipt was not produced. In the case of Janeshwar Das Aggarwal vs. State of U.P. (supra), it was held by the Apex Court that for offence to be made out under Section 409 IPC factum of entrustment and misappropriation are to be proved and presumption for misappropriation cannot be drawn when shortage is not explained. No dispute can be made with this legal requirement, but in the present case it is an admitted fact that the stationery material in question was entrusted to the appellant whereas the prosecution has been able to prove that the appellant misappropriated it by the reason that it was not deposited in the store and relevant entries were also not made in the stock register. In the case of Vinod Kumar Agarwal vs. State of Rajasthan (supra) the accused was acquitted by the reason that no other evidence except the evidence of expert was produced to prove the charge whereas the expert's evidence being an opinion only is very weak evidence and in absence of corroborative evidence conviction cannot be based on such evidence. In the present case, it is not a disputed fact that the appellant was authorized to obtain the stationery in question and infact he received it. In the case of State of Bihar vs. Shri Ram Singh (supra), the accused was acquitted by the reason that the prosecution failed to prove that the property in dispute was misappropriated by him. It appears that in that case relevant documents were not produced during trial and in absence of that, misappropriation was held not to be proved. In the present case, oral as well as documentary evidence has been produced to show that the material in question was not deposited and required entries were not made in the register kept for that purpose. 8. To assail the judgment of conviction no such other submissions were made on behalf of the appellant requiring consideration and decision by this Court. The contentions made on behalf of the appellant are of no substance and merit and are liable to be rejected. The result is that the judgment of conviction passed by the trial Court does not require any interference and the appeal to that extent is liable to be dismissed. 9. In so far as the order of sentence is concerned, taking into consideration the large scale increase in corruption in public life from top to bottom and more particularly to the fact that the appellant being a public servant misappropriated stationery article which was supplied for office purpose, the punishment awarded by the trial Court cannot be said to be excessive. There is no reason for interfering with the same. Accordingly, even on that score no relief can be granted to the appellant. 10. Consequently, by affirming the maintaining the judgment and order dated 10.8.2011 passed by the trial Court in Special Sessions Case No. 8/2000, the appeal stands dismissed. There is no reason for interfering with the same. Accordingly, even on that score no relief can be granted to the appellant. 10. Consequently, by affirming the maintaining the judgment and order dated 10.8.2011 passed by the trial Court in Special Sessions Case No. 8/2000, the appeal stands dismissed. The appellant is directed to surrender before the trial Court on or before 9.11.2011 failing which his bail bonds will stand forfeited and an appropriate action shall be taken by the trial Court for securing the attendance of the appellant and taking such other action as is permissible in law to ensure that the appellant undergoes the sentence awarded to him. The record of the trial Court along with a copy of this judgment may be sent back forthwith.