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2013 DIGILAW 1345 (RAJ)

Bajrang Singh v. State of Rajasthan

2013-07-24

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred by the appellant Bajrang Singh against the judgment dated 29.11.1989 passed by the learned Judge, Anti Corruption Cases, Jodhpur in the Sessions Case No. 1/1986 whereby the appellant was convicted and sentenced as below: Under Section 420 I.P.C. 2 Year R.I. and to pay a fine of Rs. 2,000/ - and in default of payment of fine to further undergo three months' R.I. Under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act 2 Years' R.I. and to pay a find of Rs. 2,000/- and in default of payment of fine to further undergo three months' imprisonment. 2. Both the sentences were ordered to run concurrently. 3. Briefly stated the facts of the case are that the appellant was posted as Dy. Chairman, Gram Seva Sahakari Samiti Rohisa, Dist. Nagour. It is alleged that under the Antyoday Scheme a programme was initiated for providing mid term loans to the villagers for purchase of animals. Under the said scheme of the Government four persons viz. Banshi, Sohan, Masta Ram and Labu were sanctioned loan of Rs. 5,800/- each to purchase 30 sheep and a ram each. All these loanees were to purchase the cattle from two persons viz. Chhoga and Shanker Ram. The loan amount was to be paid directly to the sellers viz. Chhoga and Shanker Ram. It is further the case of the prosecution that the four purchasers viz. Banshi, Sohan, Masta Ram and Labu that or. ,5.5.1982 accompanied with the sellers Chhoga and Shanker Ram reached the Nagaur Central Co-operative Bank, Riyabadi. The sanctioned loan amount was paid directly to the sellers and they collected the amount of Rs. 5,800/- per purchaser from the bank officer concerned. It is the case of the prosecution that when Chhoga and Shanker came out of the bank after receiving the loan amount, at that time, the Dy. Chairman of the Gram Seva Sahakari Samiti, Rohisa i.e. the appellant Bajrang Singh was standing outside. He took the currency notes from the sellers Chhoga and Shanker on the pretext of counting the amount. Saying this. Ire took the amount of Rs. 11,600/- each from Chhoga and Shanker Ram under the pretext of counting the same, fraudulently retained a amount of Rs. 800/- per lane with him and handed back the remaining amount to Chhoga and Shanker. Saying this. Ire took the amount of Rs. 11,600/- each from Chhoga and Shanker Ram under the pretext of counting the same, fraudulently retained a amount of Rs. 800/- per lane with him and handed back the remaining amount to Chhoga and Shanker. It is further the case of the prosecution that when the loanees enquired from the accused as to why he had retained the amount, the accused told them that the amount had been taken for the purpose of depositing their share of the loan in the society and for paying the insurance amount. However, when the loanees demanded a receipt, they were told that the receipt would be prepared after reaching village Rohisa. As per the prosecution case neither the amount was returned nor the accused deposited the amount in their loan accounts as promised. It is further the case of the prosecution that as the accused dishonestly retained a sum of Rs. 800/- in the name of each of the loanees. Resultantly to compensate the deficit in the amount, the sellers deducted four heads from the total number of 30 cattle which was to be handed over to the loanees. The loanees kept on requesting the accused for returning back the amount but the accused paid no heed to their request. Ultimately, the loanees met the Collector Nagour who had come to Riyabadi in a camp and made a complaint to him in this regard, the District Collector directed initiation of an enquiry in this regard and ultimately the Anti Corruption Buieau was informed where an F.I.R. was registered on 24.4.1984. At the conclusion of the investigation, the An ti Corruption Bureau filed a charge-sheet against the appellant for the offence under Sections 420 and 161 I.P.C. read with Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947. Charges for these offences were framed by he earned trial Judge against the accused. The accused pleaded not guilty and claimed trial. The prosecution examined 13 witnesses in support of its case. A summary of the prosecution witnesses is narrated hereunder: PW-1 Babu Kha was a person who allegedly had also gone to the Bank on 22.5.1982 for Electing the loan sanctioned to him. He alleged that he was accompanied by Labu, Banshi, Sohan and another person of Harijan community who had been sanctioned a loan of Rs. 12,000/-. A summary of the prosecution witnesses is narrated hereunder: PW-1 Babu Kha was a person who allegedly had also gone to the Bank on 22.5.1982 for Electing the loan sanctioned to him. He alleged that he was accompanied by Labu, Banshi, Sohan and another person of Harijan community who had been sanctioned a loan of Rs. 12,000/-. Chhoga and Shanker the setters were directly paid the sanctioned amount. The appellant was standing outside the bank. He took the currency notes from Shanker and Chhoga on the pretext of counting the same and thereafter retained a sum of Rs. 800/- per loanee with him and returned the remaining amount lo Chhoga and Shanker. On enquiry the accused gave no satisfactory reply as to why he had retained the amount with him. The witness stated in his examination in chief itself that Bajrang Singh had collected the amount for repayment of loan. He further stated that Bajrang Singh did not give any receipt etc., for the amount retained. In the cross-examination the witness admitted that he did not know as to what was the exact amount of loan sanctioned to the four persons of Harijan community. He further admitted that no report regarding the alleged fraud was filed either by him or by anybody else despite the fact that he came to know about 10-15 days after the incident that the accused had cheated the loanees. PW-2 Bhanwarr Ram was another loane who had gone to the bank on the same day. He too gave a deposition similar to PW-1 Babu Khan. In his cross-examine lion he admitted that he did not file any report against the accused because the Harijans had already reported the matter to the police. PW-3 Banshi, PW-4 Sohan Singh, PW-5 Masta Ram were the three loanees out of the four who were allegedly cheated by the appellant. It may be mentioned her that the fourth loanee Labu reportedly expired and thus he could not be examined at the trial. They repeated the allegations set out in the F.I.R. PW-3 Banshi in answer to a Court question stated has he filed an application in the society mentioning therein that he had purchased 30 sheep and a ram. He further stated that he did not file any report with the police regarding the fraudulent retention of Rs. 800/- by the accused. They repeated the allegations set out in the F.I.R. PW-3 Banshi in answer to a Court question stated has he filed an application in the society mentioning therein that he had purchased 30 sheep and a ram. He further stated that he did not file any report with the police regarding the fraudulent retention of Rs. 800/- by the accused. PW-4 Sohan Singh in his cross-examination staled that Shanker and Chhoga were given Rs. 6,000/- per purchaser from the Bank. He denied the suggestion that he had attested an application mentioning that he had received 30 sheep and a ram against the sanctioned loan. PW-5 Masta Ram in his cross-examination stated that he received the total number of animals for which the loan was sanctioned but thereafter the sellers took back some cattle. It was admitted by the witness that at the time of handing over of the cattle, they were examined by the doctor. PW-6 Shanker was one of the two sellers of the cattle. He stated that he agreed to sell 30 sheep and a ram to Musta and another person @ Rs. 5,800/- per person. He went to the bank with the purchasers. When he came out of the bank, the bank manager retained a sum of Rs. 1,600/- from the total amount of Rs. 11,600/- which had been given to him. The witness alleged that because of the deficit in the amount, he deducted four cattle from the total number of cattle which was to be given to the two Harijans. Thereafter the Harijans paid Rs. 800/- and took the remaining four sheep as well. Thus, the witness has given a totally contradictory statement from what was deposed by the purchasers PW-3 Banshi, PW-4 Sohan and PW-5 Masta. In cross-examination the witness admitted that before the cattle were handed over, the doctor examined them. He further admitted that when he received the money from the bank, the animals were already in the possession of the purchasers. PW-7 Rama Kishan was the Manager (Vyavasthapak) of the Rohisa Gram Seva Sahakari Samiti. He proved the documents pertaining to the sanctioning of the loan to the four purchasers. He stated that no amount from the loan sanctioned by the bank could have been deducted by the manager. PW-7 Rama Kishan was the Manager (Vyavasthapak) of the Rohisa Gram Seva Sahakari Samiti. He proved the documents pertaining to the sanctioning of the loan to the four purchasers. He stated that no amount from the loan sanctioned by the bank could have been deducted by the manager. He also stated that as per the rules, the share amount and the insurance amount were to be deposited directly by the purchaser loanee. He alleged that despite the prevalent rules, a sum of Rs. 213/- was taken by the manager Bajrang Singh from the loanees and was deposited in the cash books. The deposit receipts Ex.P-2 to P-5 prepared by the appellant were proved by this witness. In his cross-examination, he admitted that the share money was not to be deducted form the loan amount but the insurance money was to be deducted from therein. PW-8 Heera Ram, Branch Manager, Nagaur Central Co-operative Bank, Nagaur at the relevant time. He alleged that he handed over the amount of Rs. 5,800/- each per loanee to the purchasers and proved the documents in this regard. He further stated that no deduction was to be made from the said amount. PW-9 Sampat Raj was a member of Rohisa Sahakari Samiti and proved loan sanction documents. He in his cross-examination admitted that neither the purchasers nor the sellers made any complaint regards the loan amount not having been paid to them. PW-10 Mangendan was the Extension Officer of the Panchayat Samiti, Riyabadi. He made an enquiry in the matter on the letter sent by Collector, Nagaur and filed the report Ex.P-27 with the conclusion that the accused had illegally retained a sum of Rs. 800/- per head from the loan amount disbursed to the four loanees. In his cross-examination the witness admitted that Bajrang Singh had deposited a sum of Rs. 213/- on behalf of each of the purchasers and the receipts thereof were also prepared by him. PW-11 Chhoga Ram was the second vendor. In his examination in chief stated that he sold 30 sheep and a ram each to Sohan and Banshi. He received Rs. 11,600/- from Bank for selling the cattle. He denied that any money was illegally retained by the accused and was declared hostile. PW-12 Sri Krishan Mathur was the Addl. Registrar Rajasthan Cooperative Societies, Jaipur and proved the sanction accorded for prosecuting the appellant. He received Rs. 11,600/- from Bank for selling the cattle. He denied that any money was illegally retained by the accused and was declared hostile. PW-12 Sri Krishan Mathur was the Addl. Registrar Rajasthan Cooperative Societies, Jaipur and proved the sanction accorded for prosecuting the appellant. - PW-13 Nisar Ahmed was the Dy. S.P. posted at Anti Corruption Bureau, Nagaur. He is alleged to have received the enquiry report on the basis whereof he registered the F.I.R. No. 93/1984, conducted investigation and proposed a charge-sheet against the appellant. He stated that the charge-sheet was thereafter filed by Dhanpat Singh, Dy. S.P. The witness in his cross-examination admitted that he did not receive any complainant that any of the had received a lesser number of sheep or ram than what w as sanctioned to each of them. 4. At the final stage of the case, the prosecution moved an application under Section 216 of the Cr.P.C. tor amendment in the charges. The said application was rejected by the learned trial Judge by his judgment dated 29.11.1989 and simultaneously he proceeded to convict and sentence the appellant as above. Hence, this appeal. 5. Learned counsel for the appellant vehemently contended that the appellant has been falsely implicated in this case. He referred to the loan documents Ex.P-10, P-11, P-12 and P-13 prepared in the names of four loanees and urged that in the said documents which were verified by the witness Sampat Raj and bear the thumb impressions of the loanees, it has been clearly mentioned that each loanee received 30 sheep and a ram. Learned counsel submitted that in view of the documentary evidence, the allegation of the prosecution that the loanees were provided with a lesser number of cattle because of illegal retention of money by the accused becomes absolutely false. He further referred to the animal Health Checkup Reports Ex.P-15, P-16, P-17 and P-18 and urged that as per these Health Checkup Reports, 30 sheep and a ram were checked by the doctor for every Report and were' tagged on 16.5.1982. Thereafter the possession of the cattle was handed over to the purchasers at the D.R.D.O. Nagau . Learned counsel thus contended that the documentary evidence clearly she was that the loanees had received the sanctioned number of cattle in a healthy condition. Thereafter the possession of the cattle was handed over to the purchasers at the D.R.D.O. Nagau . Learned counsel thus contended that the documentary evidence clearly she was that the loanees had received the sanctioned number of cattle in a healthy condition. He further referred to the purchase reports Ex.P-19, P-20, P-21 and 1-22 and urged that these purchase reports bear the thumb impression of the sellers and the connotation in the purchase reports amply prove that the seller verified that he sold 30 sheep and a ram each to Sohan (vide Ex.P-19), Banshi (vide Ex.P-20), Masta (vide Ex.P-21) and Labu (vide Ex.P-22). Learned counsel thus urged that the whole case as set up by the prosecution in this matter is absolutely false and that each of the four purchasers received the total number of the sanctioned cattle in a healthy condition from the sellers Chhoga and Shanker. The seller received the total sanctioned amount of Rs. 5,800/- per loanee against the sale and executed receipt Ex.P-19, P-20, P-21 and P-22 in this regard. The Medical Officer examined the health of the cattle and tagged them certifying that the cattle were complete in number. The 1 lealth Examination Report bears the thumb impression of the sellers as well as the purchasers. Learned counsel thus submits that the whole story of the prosecution that the accused fraudulently retained a sum of Rs. 800/- each from the loan amount sanctioned to the purchasers and thereby caused wrongful loss of four sheep per head lo them is absolutely false. He urged that no F.I.R. Or complaint was filed by the aggrieved persons for the alleged fraudulent retention of the amount by the accused for almost five months. He urged that as a matter of fact the share/part money of Rs. 213/- which was to be deposited by the seller in his loan account was deducted by the appellant from the sanctioned amount and the same was deposited in the respective loan accounts vide receipts Ex.P-6, P-7, P-8 and P-9. Learned counsel urged that these receipts were prep..red on 25.5.1982 by which time there was no complaint whatsoever against the accused for having illegally or fraudulently retained any amount. Learned counsel submits that the bona fides of the accused are apparent from the fact that he duly deposited the loanee's share of Rs. Learned counsel urged that these receipts were prep..red on 25.5.1982 by which time there was no complaint whatsoever against the accused for having illegally or fraudulently retained any amount. Learned counsel submits that the bona fides of the accused are apparent from the fact that he duly deposited the loanee's share of Rs. 213/- against the loan amount in the society and executed receipts for the same. He urged that the grievance raised in the complaint made to Collector (which was the basis of the F.I.R.) that users, were deprived of four sheep each owing to the fraudulent retention by the appellant is absolutely false in view of the documentary evidence available on record. Thus, he urged that the conviction of the appellant as recorder by the learned trial Court deserves to be set aside and the appeal filed by the appellant deserves to be accepted. 6. Learned Public Prosecutor on the other hand, vehemently opposed the submissions of the counsel for the Slant. He submitted that the appellant has virtually; admitted that he took sun, of Rs. 213/- from loan amount sanctioned to the four purchasers. He urged is amply proved by the receipts EXP-6, P-7, P-8 and P-9 which were prepared by none other than the appellant. Thus, the learned Public Prosecutor urged that the story of the prosecution has been duly corroborated by the documentary evidence and the admitted defence theory and as such the learned trial Court has committed no error in convicting the appellant for the aforesaid offences. 7. Heard and considered the arguments advanced at the bar. Perused the impugned judgment and the record. 8. The whole story of the prosecution in this case is based on oral allegations. This Court has to keep in mind the fact that the oral allegations regarding the alleged illegal and fraudulent retention of money by the accused were for the first time agitated after more than five months of the alleged act. There is a claim and counter claim regarding the legality of the action of retention of the amount which was allegedly deduced fraudulently by the accused from the loan amount handed over to the sellers Chhoga and Shanker. Whilst Chhoga and the three purchasers Masta Ram, Shanker and Banshi alleged that the accused had retained Rs. 2,800/-. There is a claim and counter claim regarding the legality of the action of retention of the amount which was allegedly deduced fraudulently by the accused from the loan amount handed over to the sellers Chhoga and Shanker. Whilst Chhoga and the three purchasers Masta Ram, Shanker and Banshi alleged that the accused had retained Rs. 2,800/-. On the other hand the accused attempted to prove by the receipts Ex.P-6, P-7, P-8 and P-9 that the amount retained was only Rs. 213/- which was duly deposited in the accounts of the purchasers toward their contribution in the sanctioned man. The significant fact which is to be considered is as to whether or not the purchasers received the sanctioned number of the cattle against the sanctioned loan amount. It is dearly recorded in the Health Checkup Reports Ex.P-15, P-16, P-17 and P-18 and the Sale and Purchase Reports Ex.P-19, P-20, P-21 and P-22, that 30 sheep and a ram were duly tagged and handed over to the purchasers. The purchasers have come out with a case that when the cattle were being handed over to them, the sellers retained four cattle each to compensate the deficit amount which was allegedly retained by the accused. Had this been the case then there was no occasion for the totally sanctioned number of cattle to have been tagged at that point of time. The Health Examination Reports Ex.P-15, P-16, P-17 and P-18 which were prepared on 16.5.1982 record that 30 sheep and a ram were tagged and numbered on that very day in the name of each of the purchasers. If at all the accused had retained a part of loan amount and if the purchasers were being deprived of the four cattle, then they would immediately have informed the Medical Officer who checked the health of the cattle and attested the documents Ex.P-15, P-16, P-17 and P-18. The Medical Officer was a most material witness but has not been examined by tire prosecution. The sale purchase reports Ex.P-19, P-20, P-21 and P-22 are prosecution's relied upon documents establish the fact that 30 sheep and one ram were handed over to each of the respective purchasers by the seller. The prosecution has proved these documents but no witness who signed and attested the documents was examined for the reasons best known to it. The sale purchase reports Ex.P-19, P-20, P-21 and P-22 are prosecution's relied upon documents establish the fact that 30 sheep and one ram were handed over to each of the respective purchasers by the seller. The prosecution has proved these documents but no witness who signed and attested the documents was examined for the reasons best known to it. As the prosecution has withheld the most material witnesses who prepared these documents, there cannot be any reason to discard the defence theory that the complete number of cattle was handed over to the loanees. Therefore, this Court is of the opinion that as against the oral allegations of the loanees complainants, there exit is documents on record which establish beyond any manner of doubt that of the purchasers were given the possession of the exact number of cattle or which the loan had been sanctioned to them. It however, is the accused own case that he took a sum of Rs. 2 213/- from each loanee and deposited the same in the loan accounts against their share money. As per the relevant provisions which were referred by some of the departmental witnesses, this deduction was not required where the purchasers were Harijans. Thus, the accused might have committed a department error in taking Rs. 2 213/- from the loanees and executing the receipts Ex.P-6, P-7, P-8 and P-9 for the same. However, the mere wrongful deduction of the amount and the execution of the receipts by the accused against the provisions of the rules would not make his act culpable so as to make him liable for the offences of cheating and criminal misconduct. At best it can be held to be a department irregularity and nothing beyond that. The bona fides of the accused are established from the fact that he deposited the amount of Rs. 2 213/- each in the respective loan accounts by preparing the receipts Ex.P-6, P-7, P-8 and P-9 in the name of purchasers on 25.5.1982 within a short period of time. By that time the purchasers had not made any complaint regarding illegal retention of the amount or regarding them having been fraudulently deprived of the cattle. 2 213/- each in the respective loan accounts by preparing the receipts Ex.P-6, P-7, P-8 and P-9 in the name of purchasers on 25.5.1982 within a short period of time. By that time the purchasers had not made any complaint regarding illegal retention of the amount or regarding them having been fraudulently deprived of the cattle. It appears that the purchasers who were illiterate persons were instigated by somebody bearing a grudge against the accused to file the complaint for oblique motives by taking advantage of the receipts which were prepared by the accused. The highly belated, complaint which was filed before the collector clearly reflects that the same was filed for oblique purposes. 9. There is another important aspects regarding the applicability of the provisions of law for which the appellant was convicted which also has to be examined in the matter. The appellant has been convicted for the offences of cheating under Section 420 I.P.C. and for having committed criminal misconduct under the Prevention of Corruption Act. The relevant provisions i.e. Section 420 I.P.C. and Sections 5(1 )(d) and 5(2) of the Prevention of Corruption Act are quoted hereunder for easy reference: Section 420. Curating and dishonestly inducing delivery of property. - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be line to fine. "5(1) A public servant is said to commit the offence of criminal misconduct: xxxx (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains or attempts to obtain for himself or for any other person any valuable thing or pecuniary advantage, or xxxx" 10. On the aspect as to whether the accused cheated the victims it may be noted that this Court has already held that the victims received the complete number of cattle against the loan sanctioned to them. Thus there is no material on the record to hold that the appellant acted fraudulently and caused any wrongful loss to the victims or the Government or to any one else. Thus there is no material on the record to hold that the appellant acted fraudulently and caused any wrongful loss to the victims or the Government or to any one else. Further, as has already been discussed above, the appellant received a sum of Rs. 2213/- from the loanees and deposited the same against their loan account, therefore, the prosecution has failed to prove that the appellant by abusing his possession as a public servant by corrupt or illegal means, obtained or attempted to obtain for himself or for any other person any valuable thing or pecuniary advantage. Therefore, he cannot be held guilty of having committed criminal misconduct as defined under Section 5(1)(d) of the Prevention of Corruption Act. 11. As a result of the above discussion, the conviction of the appellant for the offences under Section 20 I.P.C. and Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947 as recorded by the trial Court by the impugned judgment is liable to be set aside and the appellant deserves to be acquitted of all the charges by giving him the benefit of doubt. The appeal thus deserves to be accepted. 12. Accordingly, the appeal is allowed. The conviction of the appellant as recorded by the trial Court is set aside. The appellant is on bail. He need not surrender. His bail bonds are discharged.Appeal allowed. *******