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Himachal Pradesh High Court · body

2016 DIGILAW 1293 (HP)

Bhag Chand Soni v. State of H. P.

2016-07-07

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 31.12.2010, rendered by the learned Special Judge (Forest), Shimla, H.P., in Corruption Case No. 9-S/7 of 2009, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 409 and 420 IPC and Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the P.C. Act” for convenience sake) was convicted and sentenced to suffer imprisonment for three years and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo imprisonment for three months under Section 409 IPC. He was also sentenced to suffer imprisonment for three years and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo imprisonment for three months under Section 420 IPC. He was further sentenced to undergo imprisonment for three years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo imprisonment for three months under Section 13(2) of the P.C. Act. The sentences were ordered to run concurrently. 2. The case of the prosecution, in a nut shell, is that PW-3 Chet Ram obtained a loan of Rs. 50,000/- for running a karyana shop from H.P. Minorities Finance and Development Corporation, Shimla. He committed default. A notice was served upon him on 5.12.2007 asking him to deposit the amount in question. On 25.12.2007 accused Bhag Chand Jr. Assistant of the Corporation visited Chet Ram at his house and received a sum of Rs. 21,000/- and issued receipt thereof. On 6.11.2008, Chet Ram informed the Corporation that he has made payment to accused Bhag Chand. Pursuant to this complaint, the Dy. General Manager was assigned the job of inquiry. Notice was issued to accused Bhag Chand on 17.11.2008. Accused Bhag Chand through communication dated 26.11.2008 admitted to have received the money through his son and regretted the lapse. He also deposited Rs. 21,000/- in the Corporation’s account in the Axis Bank. The Dy. General Manager sent letter dated 22.11.2008 for registration of a case and FIR was registered at Police Station SV & ACB, Shimla. Various documents were taken into possession by the police. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The Dy. General Manager sent letter dated 22.11.2008 for registration of a case and FIR was registered at Police Station SV & ACB, Shimla. Various documents were taken into possession by the police. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as nine witnesses. The accused was also examined under Section 313 Cr.P.C. He admitted that he was charge-sheeted and departmental inquiry was conducted. He also admitted that he was responsible for stock and stores, furniture and fixtures, diary dispatch etc. He claimed that when he was deputed for election duty, he had handed over the charge to Sh. C.L.Sharma. He specifically denied to have received Rs. 21,000/- from Chet Ram and issuance of receipt to him. He submitted his reply on 26.11.2008 admitting his guilt. However, no defence evidence was led by the accused. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Peeyush Verma, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Parmod Thakur, Addl. Advocate General has supported the judgment of the learned trial Court dated 31.12.2010. 5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Anil Kumar Sharma, testified that he issued memo to accused Bhag Chand. The copy of memo is Ext. PW-1/A. Reply was submitted by accused Bhag Chand vide Ext. PW-2/B. He submitted the matter to the Managing Director. The Managing Director ordered suspension of the delinquent official and for investigation into the matter. Accused also filed letter dated 26.11.2008 vide Ext. PW-1/B. He sent letter dated 22.11.2008 for registration of case vide Ext. PW-1/C. In his cross-examination, he admitted that the accused remained on Vidhan Sabha duty from 6.11.2007 to 9.1.2008 and he was at Shimla. They had sent communication to Chet Ram on 5.12.2007 for default in his loan. The loan was to be re-paid in monthly installments. He denied the suggestion that accused deposited money with the department. He admitted that during election duty, the charge of the official is handed over to another official. 7. They had sent communication to Chet Ram on 5.12.2007 for default in his loan. The loan was to be re-paid in monthly installments. He denied the suggestion that accused deposited money with the department. He admitted that during election duty, the charge of the official is handed over to another official. 7. PW-2 Farid Khan testified that he was working as Clerk in the office of H.P. Minorities Finance and Development Corporation, Shimla. Accused Bhag Chand had handed over to him the receipt-book bearing No. 0003901 to 0004000 vide Ext. P-1. Page No. 1 of the receipt No. 0003903 was missing. He handed over this receipt book to Atma Ram Bhardwaj, Sr. Assistant. Bhardwaj had kept this in his custody. The police had seized the documents mentioned in memo Ext. PW-2/A during investigation. In his cross-examination, he deposed that the accused was the custodian of the record and the receipt book remained with him. When accused was suspended, then this receipt book Ext. P-1 was handed over to him. He had received Ext. P-1 at the order of the Managing Director. He made endorsement Ext. PW-2/B. Similarly, on one copy of receipt No. 0003903, he also made endorsement Ext. PW-2/C on 20.11.2008. 8. PW-3 Chet Ram deposed that the loan was obtained by him in the year 2003, amounting to Rs. 50,000/-. It was to be returned in quarterly installments. A sum of Rs. 30,800/- was outstanding for repayment. Accused had visited his house imploring him to make the payment otherwise there would be a case against him. He had paid him Rs. 21,000/-. The accused issued receipt on 25.12.2007 vide Ext. PW- 3/A. He handed over the receipt Ext. PW-3/A to the police vide memo Ext. PW-3/B. He made complaint to the Managing Director regarding deposit of Rs. 21,000/-. Since the proceedings were initiated against him through Collector, he received notice dated 5.12.2007. In his cross-examination, he deposed that the department had obtained cheques from him. The department used to present cheque issued by him and the amount used to be realized from his account. Many cheques bounced. He has deposited the amount after receipt of the notice. After issuance of notice, cheques were not presented. Accused had come to his house on 25.12.2007. 9. PW-5 A.K.Gupta, deposed that he was posted as Managing Director of H.P. Minorities Finance and Development Corporation, Shimla since September, 2009. Many cheques bounced. He has deposited the amount after receipt of the notice. After issuance of notice, cheques were not presented. Accused had come to his house on 25.12.2007. 9. PW-5 A.K.Gupta, deposed that he was posted as Managing Director of H.P. Minorities Finance and Development Corporation, Shimla since September, 2009. He had accorded prosecution sanction under Section 19 of the P.C. Act, for prosecuting accused Bhag Chand. He had gone through the inquiry report conducted by State Vigilance and thereafter he consulted the record available in his office. The sanction letter is Ext. PW-5/A. 10. PW-6 Atma Ram deposed that the Corporation advances loan and finances to minority and disabled persons for setting up of their units. On 1.8.2002, a sum of Rs. 50,000/- was advanced as loan to Chet Ram. On receipt of complaint, the matter was dealt in the office. As per record, only photo copy of complaint dated 6.12.2008 was received and it was dealt with by DGM. A sum of Rs. 21,000/- was deposited after a lapse of 11 months. The amount was deposited by accused Bhag Chand in the Axis Bank. The copy of counter foil of pay-in-slip dated 26.11.2008 is Ext. PW-6/A. The entry of deposit of Rs. 21,000/- paid in cash is at page 148 vide Ext. PW-6/B. Accused had given in writing a letter dated 26.11.2008 vide Ext. PW-1/B. The department had also initiated departmental inquiry against the accused vide Ext. PW-6/D-1. The order of inquiry is Ext. PW-6/D-2 to Ext. PW-6/D-4. The order of suspension is Ext. PW-6/D-5. He admitted in his cross-examination that from counter foil Ext. PW-6/A, it cannot be inferred that the amount in question was deposited by accused Bhag Chand. Volunteered that from the writing it appears that it has been deposited by him. He denied the suggestion that he could not say that during Vidhan Sabha accused remained at Shimla throughout. 11. PW-9 Insp. Karam Chand deposed that he conducted the investigation in the case. He had seized on 20.5.2009, the documents as per memo Ext. PW-2/A. He also seized the original receipt in possession of Chet Ram through memo Ext. PW-3/B on 21.7.2009 at Banjar. The receipt is Ext. PW-3/A. Specimen signatures of accused were obtained before the Judicial Magistrate vide Ext. PW-6/D-13 to PW-6/D-42. The documents were sent to FSL and report Ext. PW-9/A was obtained. 12. It is evident from Ext. PW-2/A. He also seized the original receipt in possession of Chet Ram through memo Ext. PW-3/B on 21.7.2009 at Banjar. The receipt is Ext. PW-3/A. Specimen signatures of accused were obtained before the Judicial Magistrate vide Ext. PW-6/D-13 to PW-6/D-42. The documents were sent to FSL and report Ext. PW-9/A was obtained. 12. It is evident from Ext. PW-1/B written by the accused to the Managing Director on 26.11.2008 that he has admitted that money was paid by the loanee to his son. His son did not tell this fact to him because of fear. He was informed of this fact on 23.11.2008 by his son who was called by him to Shimla. Since he was the custodian of receipt books and receipt No. 003903 dated 22.12.2007 was written by him in good faith and on assurance that the money will be paid soon. He has regretted the lapse and has admitted the deposit of Rs. 21,000/- in Corporation’s account No. 2776 on 26.11.2008 with Axis Bank. He has also enclosed the receipt. He has prayed that lenient view be taken. 13. The accused has also sent communication to the Managing Director on 26.11.2008 vide Ext. PW-2/B. He has admitted that the complainant has taken receipt through his son. It is not the case of the accused that PW-3 Chet Ram has taken away receipt Ext. PW-3/A forcibly from accused Bhag Chand. Even, according to the contents of Exts. PW- 1/B and PW-2/B the son of accused had received the money on behalf of the accused and receipt Ext. PW-3/A was issued by the accused. It has also come on record that only receipt Ext. PW-3/A was found missing from the entire receipt book. 14. According to the contents of Forensic Science Report Ext. PW- 9/A, the writings marked Q-1 were written by one and the same person whose specimen handwritings were marked as S-1 to S-10 and A-1 to A- 4. The specimen handwritings of accused Bhag Chand marked as S-1 to S-10 and A-1 to A-4 are Ext. PW-6/D-13 to D-22. It is duly proved by the prosecution that the receipt Ext. PW-3/A was written by accused in his own hand writing. It has come in report Ext. PW-9/A that receipt Ext. PW-3/A was from receipt book Ext. P-1. The specimen handwritings of accused Bhag Chand marked as S-1 to S-10 and A-1 to A-4 are Ext. PW-6/D-13 to D-22. It is duly proved by the prosecution that the receipt Ext. PW-3/A was written by accused in his own hand writing. It has come in report Ext. PW-9/A that receipt Ext. PW-3/A was from receipt book Ext. P-1. In case the accused had remained on election duty between 6.11.2007 to 9.1.2008, there is no possibility of the receipt book with him. His son has received the payment and the accused has issued the receipt. He has admitted in Ext. PW-1/B that his son has received the money. Ext. PW-1/B and Ext. PW- 2/B were in the handwriting of the accused. These documents were sent by the accused pursuant to notice issued to him by the Management. He has also admitted that he has deposited Rs. 21,000/- in the Corporation’s Account in the Axis Bank. The official witnesses were well conversant with the handwriting of the accused, he being their colleague. The fact of the matter is that the author of Ext. PW-3/A was none else than the accused. 15. PW-3 Chet Ram has categorically deposed that the accused had visited his house and received Rs. 21,000/- and issued receipt Ext. PW-3/A. The accused has not led any evidence to prove that on the relevant date he was at Shimla. Rather accused Bhag Chand has admitted in Ext. PW-1/B that he has written the receipt. This fact is duly corroborated by report Ext. PW-9/A. PW-2 Farid Khan has obtained receipt book Ext. P-1 on the basis of orders passed by the Managing Director. 16. Mr. Peeyush Verma, Advocate, for the accused has vehemently argued that there is delay in lodging the FIR. However, the fact of the matter is that the complaint was received on 6.11.2008 and the misappropriation came to the notice of the Department. Thereafter, prompt action was taken against the accused. It is reiterated that the accused has admitted his guilt and has also paid a sum of Rs. 21,000/- to the Corporation through Bank. This amount was tendered by the accused himself. 17. PW-6 Atma Ram has deposed that the writing Ext. PW-6/A was of the accused. The accused has also admitted, as noticed hereinabove, that as per the contents of Ext. PW-1/B, he has deposited the amount in question. 21,000/- to the Corporation through Bank. This amount was tendered by the accused himself. 17. PW-6 Atma Ram has deposed that the writing Ext. PW-6/A was of the accused. The accused has also admitted, as noticed hereinabove, that as per the contents of Ext. PW-1/B, he has deposited the amount in question. Once he has received the amount from Chet Ram on 25.12.2007, he was supposed to deposit the same in the Corporation. However, the default was detected in November, 2008 and accused deposited the amount in question only on 26.11.2008. Thus, the prosecution has proved the case against accused Bhag Chand under Sections 409, 420 IPC and Section 13(2) of the Prevention of Corruption Act, 1988. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court dated 31.12.2010. 18. Accordingly, there is no merit in this appeal, the same is dismissed.