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2013 DIGILAW 923 (MP)

Bhagwati Prasad Sharma v. State Of M. P.

2013-08-06

M.C.GARG, SHANTANU KEMKAR

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ORDER : SHANTANU KEMKAR, J. This appeal under section 374 of the Cr.P.C. is directed against the judgment dated 16-5-2001 passed by Special Judge (Prevention of Corruption Act), Shajapur in Special Case No. 03/1999 convicting the appellants as follows :- S. No. Name of the accused Conviction under section Sentences Sentences with default stipulation 1. Bhagwati Prasad Sharma s/o Motilal Sharma 409, IPC 403, IPC 120-B, IPC 13(1)(c) read with 13(2) PC Act, 1988 13(1)(d) read with section 13(2) PC Act, 1988 5 years RI and fine of Rs. 25,000/- 1 year RI 5 years RI 5 years RI and fine of Rs. 10,000/- 5 years RI and fine of Rs.. 10,000/- 1 year RI 1 year RI 1 year RI 2. Satish Singhal s/o Purshottam Das Singhal 120-B, IPC read with section 409, IPC 120-B read with section 403, IPC 5 years RI and fine of Rs. 25,000/- 1 year RI 1 year RI The jail sentences awarded to the appellants were directed to run concurrently. 2. The prosecution case in brief is that on 27-3-1998 an anonymous telephonic information was received at Police Station-Aagar to the effect that a truck bearing registration No. MP 09-D-8602 carrying unauthorised cement will be going from bus stand towards Ujjain. On the basis of this information, the police party rushed towards Ujjain road. On that road, near Co-operative petrol pump, the truck bearing registration No. MP 09-D-8602 was found going towards Ujjain. On being chased and intercepted, the truck driver stopped the truck, got out of it and fled away. On making search of the truck, 150 cement bags of brand Vikram Cement were found in it. The truck and cement were seized by the Police. During further investigation stock register, bill books and charge list were seized from the 'Tiller Project' of the irrigation department of the State Government. The statement of witnesses were recorded and after completion of the investigation charge-sheet was submitted by the Police before the Court. 3. The appellants abjured their guilt and alleged that they have been falsely implicated. During trial, prosecution examined as many as 12 witnesses whereas, in defence no evidence was led by the accused persons. The trial Court after considering the evidence on record held the appellants guilty of the offence as aforesaid. Feeling aggrieved the appellants have filed this appeal. 4. The appellants abjured their guilt and alleged that they have been falsely implicated. During trial, prosecution examined as many as 12 witnesses whereas, in defence no evidence was led by the accused persons. The trial Court after considering the evidence on record held the appellants guilty of the offence as aforesaid. Feeling aggrieved the appellants have filed this appeal. 4. Shri Jaisingh, learned Senior Counsel has argued that the appellant No. 1-Bhagwati Prasad Sharma was working as a Sub-Engineer in "Tillar Project". He was transferred from the said project and was relieved of the charge on 2-1-1998. In the circumstances, according to him, when on the date of alleged offence he was not posted at Tillar Dam Project, his implication and conviction for the offence committed much thereafter on 27-3-1998 is not justified. He has further argued that as per the prosecution's witness, Dilip Shinde (PW-2), Sub Divisional Officer of the said project at Aagar, it is clear that the cement was being stored at Central Store out of various stores and the Tools and Plant Store of which charge was not given by the appellant No. 1 till the date of the incident was not being used for storage of cement but was used for storage of other misc. non-consumable articles. In the circumstances, when charge of the central store where the cement was used to be stored was already handed over by the appellant No. 1 on 2-1-1998, he could not have been held guilty for the offence as alleged. He submits that Dilip Shinde, PW-2, in his deposition has categorically stated that in the department, they keep inward and outward stock register for cement and as per the record, there was no shortage of cement of the department in the godown. Drawing attention to the evidence of Govind Prasad Kala (PW-3), he has pointed out that as per his deposition there was no shortage of cement in the central store. Drawing attention to the evidence of Govind Prasad Kala (PW-3), he has pointed out that as per his deposition there was no shortage of cement in the central store. In the aforesaid circumstances, according to the learned Senior Counsel for the appellant, in the absence of any proof about the entrustment of cement to the appellant No. 1 and in the absence of there being any shortage of cement in the Godown and any allegation of the department that cement was found to be less in any of its Godown as per the stock register, the charge levelled against both the appellants cannot be said to be proved. He argued that when it was not proved by any cogent and reliable evidence that the cement seized from the truck was of the said project of the State Government and that there was any shortage of cement the appellants could not have been convicted merely on account of cements bags of Vikram cement were seized from a truck. 5. On the other hand, learned counsel appearing for the respondent/State has supported the impugned judgment of conviction and has argued that the appellants have rightly been held guilty by the trial Court. 6. We have considered the submissions made by the learned counsel for the parties and perused the record and the impugned judgment. 7. Rajesh Rathore PW-1 has stated that he was engaged as labourer by the appellant No. 2 to load 150 cement bags in a truck from Tillar Godown. When they reached Tillar Godown, a Chowkidar opened the lock of the Godown. He then lifted the bags and kept them in the truck. He also deposed that in the godown except cement he did not find any other material or article. He was paid Rs. 150/- by the appellant No. 2 for lifting the cement bags. Dilip Shinde, PW-2, Sub Divisional Officer of the said project has stated that out of various stores, the cement was used to be stored at Central Store and in the Tools and Plant Store other non-consumable items are being stored. He stated that on 2-1-1998, the appellant No. 1 had given the charge of Central Store to Govind Prasad Kala. He had also stated that no shortage of cement was ever noticed in the official records. He stated that on 2-1-1998, the appellant No. 1 had given the charge of Central Store to Govind Prasad Kala. He had also stated that no shortage of cement was ever noticed in the official records. Govind Prasad Kala PW-3 has also deposed that the charge of the Central Store was already given to him by the appellant No. 1. He, however, stated that the charge of T & P Store was not given by the appellant No. 1 to him. Arvind Chhabra, PW-4, turned hostile and did not support the prosecution. Kailash Sharma, PW-5, has stated that he was working as a helper electrician in the said project. According to him, the appellant No. 1 gave him key of the Godown and after opening the same, 150 bags were loaded at Truck. At that time according to him both the appellants were present, whereas, Rajesh Rathore, PW-1 did not depose about presence of appellant No. 1. Other witnesses were examined by the trial Court regarding the truck being intercepted and stopped and about sanction of the prosecution. 8. Having regard to the aforesaid evidence, we find that Rajesh Rathore PW-1 had stated that in the Godown from where he lifted the cement, there was no other material except cement, whereas it has come on record that in T & P store of which the charge was not given by the appellant No. 1 till the date of incident, other non-consumable articles were being kept. Dinesh Shinde, PW-2, has categorically stated that on the date of incident, the charge of the central store where cement was used to be kept was already handed over by the appellant No. 1 to Govind Prasad Kala. It is also clear from his deposition that as per the stock register and records, there was no shortage of cement found. In the circumstances, in view of deposition of Dinesh Shinde as also of Govind Prasad Kala, we are of the view that when the appellant was not having charge of the store where cement used to be kept and when it has not been established by any cogent and reliable evidence that the appellant No. 1 had kept the cement in Tools and Plant Store and from there he misappropriated the same, it cannot be said that the appellant No. 1 is guilty of the offence. When there was no shortage of cement in the department, it cannot be held that the appellants are guilty of the offence as alleged. Merely because, the truck on being intercepted was found carrying 150 bags of cement having 'Marka' of Vikram Cement which was the brand of cement being used in the Tillar Project, it cannot be held that the cement which was seized by the police was the cement of the said project. 9. Having regard to the aforesaid, we are of the view that the impugned judgment of conviction of the appellants is not sustainable. The same deserves to be and is hereby set aside. The appellants are acquitted of the charges. They are on bail, their bail bonds shall stand discharged.