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Himachal Pradesh High Court · body

2012 DIGILAW 243 (HP)

Manohar Singh v. State of H. P.

2012-05-02

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, Judge. The appellant has laid challenged to his conviction passed by the learned trial Court in Corruption case No. 15-S/7 of 2006 decided on 23.09.2010 for the offence punishable under Section 409 Indian Penal Code and Section 13 (2) of the Prevention of Corruption Act, 1988, whereby he was sentenced to undergo simple imprisonment for a period of 5 years and to pay a fine of `30,000/- for the offence under Section 409 Indian Peal Code and 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes 3 years and fine of`20,000/- under Section 13 (2) of the Prevention of Corruption Act with the default clauses. 2. Heard and gone through the evidence on record. 3. Precisely, the case of the prosecution can be stated thus. On 14.6.1999 the appellant Manohar Singh hereinafter referred to as ‘the accused’ sent a complaint Ext. PW14/A to the Additional Director General of Police (Enforcement), Shimla alleging therein that he being the supervisor of the Store of the Shimla Development/SDA/ HP Nagar Vikas Pradhikaran, Shimla, during March, 1995 to March, 1996 was acting as per directions of the XEN., SDO and JE of the authority/ Pradhikaran. He further alleged that the Shimla Development authority used to purchase cement through Civil Supply Corporation from ACC Barmana. The payment whereof was made in advance. The cement so received was to be kept in the store against an entry in the GR book. As and when cement was required, it was to be issuedto the concerned person but during the year 1995-96, 15 trucks containing 2700 cement bags were purchased and loaded from Barmana valuing at ` 3,25,998/- but this was not received in the store. He gave the details of the trucks in his complaint along with GR numbers and alleged that the driver and conductor of the said trucks produced the GRs to him for its entry in the relevant register without the receipt of cement bags. Since he was reluctant to enter it, thus they threatened him with dire consequences andtold that they were directedby Shri V.K. Kashyap X-EN, Mangal Sen SDO, Anand Kapoor and D.K. Aggarwal JEs to make its entry done by the accused, failing they would make the complaint to them whereas the cement bags were unloaded by them somewhere else. Since he was reluctant to enter it, thus they threatened him with dire consequences andtold that they were directedby Shri V.K. Kashyap X-EN, Mangal Sen SDO, Anand Kapoor and D.K. Aggarwal JEs to make its entry done by the accused, failing they would make the complaint to them whereas the cement bags were unloaded by them somewhere else. Since he was a daily-wage worker, therefore, he succumbed to their threats and made the entries in the relevant register. Later he faced the allegationsof embezzlement qua the cement bags but when he told the higher authorities that he haddone in accordance with their directions, then a meeting was held bythe witnesses aforesaid and `50,000/-was deposited by Mangal Sen, two lacs by Shri V.K. kashyap, D.K. Aggarwal, Balbinder Gupta and balance of `75,998/- by Mangal Sen and Anand Kapoor through him under the pressure of Shri S.K. Aggrawal the then Chief Executive Officer. Thus he was made a scapegoat in the aforesaid episode. It was also alleged that the sub-standard material was used for the construction purpose. On this complaint FIR 13/99 was registered on 14.6.1999. (ii) During the course of the investigation PW2 Nek Chand produced file bearing No. HP& VP-AB (B) Cement shortage 97-Vol 1 pages 1 to 269 along with notingsfrom Sr. No. 1 to 181 and order vide which file along with all documents and note was handed over to the police vide letter Ext. PW2/E. (iii) Thereafter on 17.6.2007 police returned the file aforesaid after retaining the forwarding letters which were taken into possession vide memo Ext. PW2/D. Police also took into possession show-cause notice Ext. PW2/F-1 to Ext. PW2/F-5 along with GRs Ext. PW3/A-1 to Ext. PW3/A-15 which were taken into possession vide recovery memo Ext. PW3/B. (iv) During the investigation it also came to light that all the itemsreceived were in the name of Assistant Engineer Construction, HP Nagar Vikash Pradhikarn and the GRs were duly signed by the JE or by AE of the concerned Department. (v) Vide application Ext. PW2/A, accused represented to the Chief Administrative Officer of the Pradhikarn to allow him to deposit a sum of ` 3,28,700/- in seven installments and against this he deposited the amount of `50,000/- being the first installment and thereafter second installment was deposited by him to the tune of `2 lacs on 31.5.1997 vide Ext. (v) Vide application Ext. PW2/A, accused represented to the Chief Administrative Officer of the Pradhikarn to allow him to deposit a sum of ` 3,28,700/- in seven installments and against this he deposited the amount of `50,000/- being the first installment and thereafter second installment was deposited by him to the tune of `2 lacs on 31.5.1997 vide Ext. PW2/B and the 3rd installment of `75998/- vide application Ext. PW2/C. At that time, he was store-keeper.These applications were also taken into possession by the police during investigation. (vi) In the year 1997, when the deficiency was detected and the inquiry was conducted, notice was issued to the accused.Simultaneously departmental inquiry was also conducted by Shri R.K. Nayar. During the course of the inquiry, accused gave in writing Ext.DE whereby he admitted his mistake qua deficiency found in the store and undertook to make the deficiency good. Even during the inquiry, the inquiry Officer, vide his report Ext. PW7/A held Mangal Sen, SDOand Anand Kapoor JE responsible for the negligence and they were visited with the penalty. During the investigation it also came to the notice that 2700 cement bags worth `3,25,998/-carried in 15 trucks in the year 1995-1996 were sent from Barmana to the Store through GR Ext. PW3/A-1 to Ext. PW3/A-15 which were received by accused Manohar Singh. Vide letters Ext. PW2/A to Ext. PW2/C aforesaid accused had deposited the said amount which was duly accounted for in the account of the Authority as per abstract of the account Ext. PW1/B to Ext. PW1/D. (vii) The police duringinvestigation of this case also took into possession muster roll through which the accused was engaged on daily-wages during the period aforesaid. (viii) The police also sent the letters Ext. PW2/A to Ext. P2/C to the forensic Science examination and also the GRs containing the signatures of the accused with specimen of writings Ext. PWA-1 to A20. The report of the hand writing expert is Ext. PW8/B and the reasons for the opinion is Ext. PW8/C. He opined it to be in the same hand. (ix) During the investigation, police also took into possession copies of the bin-cards and measurement book. 4. Thus, finding involvement of the accused, challan was presented the Court. He was accordingly charge sheeted under the aforesaid section. The accused pleaded not guilty and claimed trial. 5. PW8/C. He opined it to be in the same hand. (ix) During the investigation, police also took into possession copies of the bin-cards and measurement book. 4. Thus, finding involvement of the accused, challan was presented the Court. He was accordingly charge sheeted under the aforesaid section. The accused pleaded not guilty and claimed trial. 5. To prove its case, prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the complaint but admitted the signatures which, according to him, were obtained by the ADG(P). Rest of the circumstances found attendant upon him were denied by him. He also admitted his specimen hand writings and signatures obtained before the Executive Magistrate. Precisely his stand was that he was falsely implicated in the present case. 6. He also adduced the evidence in defence and examined DW1 Hari Ram Sharma who proved the muster-roll Ext. D-30 to D56. DW2 Shri Sandeep Sen Assistant Supervisor and DW3 Beli Ram Chauhan Supervisor who are of no avail to him and also examined himself as his own witness as DW4 after seeking permission of the Court. He stated that he was on daily-wage basis. He was asked by SDO Mangal Sen and JE Anand Kapor to sign the GR Book. It was his duty as Store supervisor to place the articles after counting in the store. Similarly, the articles were released from the Godown. Further, according to him there were two keys of the lock of godown. One remained with the SDO and one with JE. The Store was used to be opened in presence of either SDO or JE. He denied even the possession of the keys with him. He further stated that no physical verification of the Store was ever conducted. He alleged that he was made to sign the documents Ext. PW2/A,Ext. PW1/D-9, Ext. PW2/B, Ext. PW1/D-3 to D10 and Ext. PW2/C (PW1/D/11) under pressure by X-En V.K. Kashyap, SDO, Mangal Sen and JE Anand Kapoor and Contractor Balbinder Gupta and he did not deposit any amount with the department, as alleged. However, he admitted the initiation of the departmental inquiry against him.He denied his signatures on the GRs and also making of the complaint to the DGP. 7. PW2/C (PW1/D/11) under pressure by X-En V.K. Kashyap, SDO, Mangal Sen and JE Anand Kapoor and Contractor Balbinder Gupta and he did not deposit any amount with the department, as alleged. However, he admitted the initiation of the departmental inquiry against him.He denied his signatures on the GRs and also making of the complaint to the DGP. 7. The learned trial Court disbelieved the defence version of the accused and while relying upon the evidence of the prosecution, convicted and sentenced him, as aforesaid hence the present appeal. 8. Precisely, the case of the accused as setup in defence is thatPW5 V.K. Kashyap, PW13 Anand Kapoor and PW15 Mangal Sen had obtained his signatures under pressure on Ext. PW2/A to Ext. PW2/C whereby he admitted that 2700 cement bags were misappropriated by him and he admitted to deposit its value in 7equal installments and he deposited the installments at three different times, as stated above. These documents have been proved by PW2 ShriNek Chand from the record maintained in the office. Further, the GRs Ext. PW3/A-1 to Ext. PW3/A-15 were also proved to have been signed by him. The report of the hand writing expert is against him.PW13 Anand Kapoor and PW15 Mangal Sen were examined in the court, no such suggestion was ever put to either of them that they exerted pressure on the accused to sign the said documents. Even these witnesses were not put any suggestion in cross-examination by the accused that the amount was deposited by them through him. The accused has failed to avail himself the opportunity to put his essential and material case in cross-examination to these witnesses. By this it must flow that he believed that whatever statement they are giving is not disputed by accused at all. Further on the complaint Ext. PW14/A the accused has admitted his signatures and according to him he was compelled by the D.G.P. to sign the same but no motive has been attributed to him for doing so. As a matter of fact, the deficiency in the Store was noted in the year 1997 whereas the complaint was made in the year 1999. Within the period of these two years, accused did not raise any objection and no complaint was made against any of the officers/official of SDA/Pradhikaran nor he represented about the obtaining of his signatures on the GRs or Ext. PW2/A to Ext. Within the period of these two years, accused did not raise any objection and no complaint was made against any of the officers/official of SDA/Pradhikaran nor he represented about the obtaining of his signatures on the GRs or Ext. PW2/A to Ext. PW2/C either by V.K. kashyap or Anand Kapoor and there was also no whisper that he was made a scapegoat by any of them in this case. All these witnesses, including PW13 Anand Kapoor JE were examined during the trial and the accused did not make even a whisper in cross-examination to this effect. PW13 aforesaid was the immediate superior of the accused who had seen the accused writing and signing the documents and was conversant with his hand writings and signatures in the ordinary course of business. He has also proved the signatures and writing of the accused on various documents. 9. PW5 V.K. Kashyap was examined during the trial. Accused did not put defence to him in any manner. The document Ext. PW2/A to Ext. PW2/C and also the GRs Ext. PW3/A-1 to Ext. PW3/A-15 proves that 2700 cement bags were received by the accused in the Store which were not accounted for by him. Once the entrustment of the property is proved, it is incumbent upon the accused to count for it. If he fails to do it and has mis-appropriated, the offence of embezzlement stands proved against him. Further, his subsequent conduct by depositing the amount qua shortage of the cement aforesaid makes it abundantly clear that it was he, who embezzled the cement bags received by him. The accused at the relevant time was a public servant and was entrusted with the property as aforesaid but he misappropriated it. He had mis-conducted himself and acquired pecuniary gain for himself. His false implication is totally ruled out. 10. Therefore, in my considered opinion, for the reasons aforesaid, accused was rightly convicted for the offence punishable under Section 409 Indian Penal Code and Section 13 (2) of the Prevention of Corruption Act. 11. In so far as the sentence is concerned, accused has been proved to have remitted the misappropriated amount. Therefore, the substantive sentence imposed upon the accused is reduced to two years, without disturbing the fine with default clause under each of the Sections. Ordered accordingly. . 12. 11. In so far as the sentence is concerned, accused has been proved to have remitted the misappropriated amount. Therefore, the substantive sentence imposed upon the accused is reduced to two years, without disturbing the fine with default clause under each of the Sections. Ordered accordingly. . 12. The appellant shall surrender before the learned trial Court within 30 days from today, failing which, the learned trial Court shall take steps to execute the sentence in conformity with this judgment. The appeal stands disposed of with the aforesaid modification in sentence.