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2011 DIGILAW 546 (HP)

Rajinder Kumar v. State Of H. P.

2011-02-22

SURJIT SINGH

body2011
JUDGMENT : Surjit Singh, J. By this common judgment, two appeals, one filed by Kundan Lal and another by Rajinder Kumar are being disposed of, because both the appeals are directed against the same judgment, dated 1.4.2005, by which they have been convicted of offences, under Sections 409, 466, 467, 471, 120B IPC and Section 13(2) of Prevention of Corruption Act and sentenced as follows: (i) Rigorous imprisonment for four years and fine of Rs. 2000/-; in default of payment of fine, simple imprisonment for six months, in respect of offence, u/s 409 IPC; (ii) rigorous imprisonment for three years and fine of 1000/-; in default of payment of fine, simple imprisonment for three months, in respect of offence u/s 466 IPC; (iii) rigorous imprisonment for four years and fine of Rs. 2000/-; in default of payment of fine simple imprisonment for six months, in respect of offence u/s 467 IPC; (iv) rigorous imprisonment for one year and fine of Rs. 1000/-; in default of payment of fine, simple imprisonment for three months, in respect of offence u/s 471 IPC; (v) rigorous imprisonment for one year and fine of Rs. 1000/- ; in default of payment of fine, simple imprisonment for three months, in respect of offence, u/s 120B IPC and rigorous imprisonment for one year and fine of Rs. 1000/-; in default of payment of fine simple imprisonment for three months, in respect of offence, u/s 13(2) of Prevention of Corruption Act, 1988. 2. Case of the prosecution may be stated thus. A complaint was lodged with the vigilance people of Chamba that Appellant Rajinder Kumar, who had been Vice President of Panchayat Block Samiti, Mehla, during the years 1992 and 1993, was guilty of embezzling government funds, sanctioned for an irrigation scheme known as 'Manotha to Chaldi Kuhl'. Inquiry was conducted and it was found that not only Appellant Rajinder Kumar but also Appellant Kundan Lal, who was working as Superintendent in the office of B.D.O., Chamba, at the relevant time, had embezzled government funds to the tune of Rs. 11,961/-, by preparing a bogus muster-roll, showing employment of 18 labourers for the month of November, 1992 and had also not accounted for 20 bags of cement, issued for the construction of the said Kuhl. Case was formally registered vide FIR Ext. PXX. 11,961/-, by preparing a bogus muster-roll, showing employment of 18 labourers for the month of November, 1992 and had also not accounted for 20 bags of cement, issued for the construction of the said Kuhl. Case was formally registered vide FIR Ext. PXX. Investigation of the case revealed that 18 persons were shown to have been engaged as labourers for doing the work of the aforesaid Kuhl, in Muster Roll Ext. PW7/B (also Ext.P-2), by the two Appellants, though none of the persons, named in the said Muster Roll, had actually been engaged and a sum of Rs. 11,961/-, shown to have bene paid as labour charges, had been misappropriated. Persons named in the Muster Roll were examined during investigation. They denied having received the money or having put their signatures or thumb impressions against their names on the Muster Roll. Specimen signatures and thumb impressions of the persons, named as labourers in the Muster Roll, were taken and sent to Finger Print and Handwriting Experts. Fingerprints of 11 persons, named as labourers in the Muster Roll, were sent to Fingerprint Expert, who gave the opinion that fingerprints, being smudged, it was not possible to read and compare them with the specimen thumb impressions. 3. Handwriting Expert gave the opinion that the purported signatures of six persons on the Muster Roll, namely PW-18 Kansho Ram, PW-17 Joginer Kumar, PW-13 Dev Raj, PW-14 Bhinder Kumar, PW-2 Rattan Chand and one Pirtho, did not tally with their standard signatures and, so, their purported signatures on the Muster Roll, were not genuine. 4. Investigation further revealed that names of the labourers in the Muster Roll, in question, had been written by Appellant Rajinder Kumar. Kundan Lal, the other Appellant, was alleged to have initially made an endorsement on the Muster Roll that payment had been made by him, but subsequently he made addition by writing words "to the vice-chairman for further payment to the labourers". On account of this addition, investigation officer felt that Appellant Kundan Lal was privy to the embezzlement of the amount of money mentioned in Muster Roll Ext. PW7/B (also Ext.P-2). 5. As regards embezzlement of 20 bags of cement, investigation revealed that out of 80 bags issued only 60 bags of cement had been utilized in the construction of Kuhl and the rest of cement remained unaccounted. 6. PW7/B (also Ext.P-2). 5. As regards embezzlement of 20 bags of cement, investigation revealed that out of 80 bags issued only 60 bags of cement had been utilized in the construction of Kuhl and the rest of cement remained unaccounted. 6. Prosecution examined 32 witnesses, including 12 persons, whose names allegedly figured in the Muster Roll. Other witnesses are the Handwriting Expert, officials from the office of B.D.O and the Police officials who were associated in the investigation. 7. Appellants denied having embezzled any amount of money. Appellant Rajinder Kumar took the plea that work had been executed through Kansho and Punnu Ram Mates and they had made payments to all the labourers, named in the Muster Roll. Appellant Kundan Lal stated that he did make the addition of words "to the vice-chairman for payment to the labourers" in the endorsement stealithly, but this was done immediately after recording endorsement "payment made by me". He pleaded that he retired from service in the year 1994, while inquiry was conducted in the year 1995 and the second part of the endorsement was already there, when the inquiry commenced. It was pleaded that if he had committed any hanky-panky, endorsement would have been made subsequent to the inquiry. 8. Trial Court found both the Appellants guilty and sentenced them, as aforesaid. 9. I have perused the evidence and heard learned Counsel for the Appellants as also the learned Deputy Advocate General. 10. As already noticed, Fingerprint Expert has not expressed any opinion as to the genuineness of thumb impressions of the labourers, whose names appear on the Muster Roll. Out of 18 labourers, named in the Muster Roll, there are purported thumb impressions of 12. As regards the remaining six labourers, Muster Roll bears their purported signatures. They are PW-2 Rattan Chand, PW-14 Bhinder Kumar, PW-13 Dev Raj, PW-17 Joginder Kumar, PW-18 Kanso Ram, one Pirtho and one Mohinder. According to the prosecution, the person named as Mohinder is Bhinder Kumar examined PW-14. PW-18 Kansho Ram and PW-13 Dev Raj testified that they had received the money and put their signatures Q12 and Q15, respectively, on the Muster Roll. Thus, they have contradicted the opinion of the Handwriting Expert to the extent of their purported signatures. Pirtho has not been examined. 11. PW-18 Kansho Ram and PW-13 Dev Raj testified that they had received the money and put their signatures Q12 and Q15, respectively, on the Muster Roll. Thus, they have contradicted the opinion of the Handwriting Expert to the extent of their purported signatures. Pirtho has not been examined. 11. PW-17 Joginder Kumar and PW-2 Rattan Chand stated that they did work on the project of construction of Kuhl, but denied having received the money or having put their signatures in token of receipt of money. Handwriting Expert has opined that their standard signatures do not tally with their purported signatures on Muster Roll Ext. PW7/B (also Ext.P-2). 12. PW-17 Joginder Kumar does not appear to be the person, who is named in the Muster Roll. Reason is that he got his residence recorded in village Bhadarwah and age 27 years on 19.9.2003, when in the witness box, but in the Muster Roll, which was prepared in November, 1992, Joginder Kumar is recorded as resident of village Mahantan and his age is recorded as 24 years. Had this Joginder, named in the Muster Roll, been the same person as PW-17, age of PW-17 should have been 35 years, when he was in the witness box on 19.9.2003, but the witness got his age recorded as 27 years in the Court. 13. As regards PW-14 Bhinder Kumar, in the Muster Roll, there is no person by this name. There is one Mohinder named in the Muster Roll. Bhinder Kumar did not say that he is also known by the name of Mohinder nor is there any other evidence suggesting so. 14. So far as PW-2 Rattan Chand is concerned, he admitted that he worked as labourer. He stated that when his wages were not paid, he complained to the B.D.O., who told him that the wages had already been paid through Kansho Ram. Kansho Ram examined as PW-18 has stated that all the labourers had been paid their wages in his presence. Testimony of Kansho Ram to this effect is substantiated by the fact that there is an endorsement by him on the Muster Roll Ext. PW7/B (also Ext.P-2) that payment had been made to the labourers, in his presence. Kansho Ram examined as PW-18 has stated that all the labourers had been paid their wages in his presence. Testimony of Kansho Ram to this effect is substantiated by the fact that there is an endorsement by him on the Muster Roll Ext. PW7/B (also Ext.P-2) that payment had been made to the labourers, in his presence. Now, if the payment had not been made as alleged by the prosecution and there is an endorsement by PW-18 Kansho Ram that payment had been made, he (PW-18 Kanshso Ram) should not have been listed as a witness, but arrayed as an accused. The fact that he is not an accused, but a witness, lends corroboration to the fact testified by him, which is corroborated by his endorsement on the Muster Roll, as aforesaid. 15. In any case, PW-2 Rattan Chand himself testified that he was told by the B.D.O that payment had been made through Kansho Ram. Thus, the testimony of PW-17 Joginder Kumar, PW-14 Bhinder Kumar and PW-2 Rattan Chand does not advance the case of prosecution. Therefore, the charge regarding embezzlement of labour charges to the tune of Rs. 11961/- remains un-substantiated. 16. As regards misappropriation of 20 bags of cement, there is absolutely no evidence in support of the allegation. There is no evidence of entrustment of 80 bags of cement to Rajinder Kumar Appellant. Though PW-24 Meet Kumar, J.E. did say in the examination-in-chief that he had purchased 80 bags of cement with the money made available to him by the BDO and those bags were handed over to Appellant Rajinder Kumar, in the cross-examination he stated that he had no personal knowledge as who delivered those 80 bags and to whom. 17. In view of the above stated position, both the appeals are allowed. Judgment of the trial Court, convicting and sentencing the Appellants is set aside and both the Appellants are acquitted.