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2016 DIGILAW 1331 (ALL)

STATE OF U. P. v. MOTI LAL SRIVASTAVA

2016-04-11

RAMESH SINHA, VINOD KUMAR SRIVASTAVA III

body2016
JUDGMENT : (Delivered by Hon'ble Ramesh Sinha,J.) 1. The present Government Appeal has been preferred against the judgment and order dated 13.9.2005 passed by Special Judge (Anti Corruption), Bareilly in Special Case No.12 of 2004, by which the accused respondents have been acquitted by the trial Court for offence under Sections 467, 468, 471, 420, 120-B I.P.C. and 13 Prevention of Corruption Act. 2. The prosecution case in brief is that complainant Sri J.P. Singh, Recovery Officer/District Assistant Registrar, Co-operative Societies, U.P. Moradabad sent a written complaint to S.O., P.S. Civil Lines, Moradabad stating therein that on receiving a complaint made by Shri Swaroop Singh regarding embezzlement of loan and its disbursement, the District Assistant Registrar, Co-operative Societies, U.P. Moradabad vide his letter No.7074 dated 29.3.1989 directed C.O.I.D. (Embezzlement) Sri Raghuvir Saran to enquire into the matter. Sri Raghuvir Saran made an in depth enquiry into the matter and submitted his partial interim report dated 17.4.1989 in which it was disclosed that a sum of Rs.30,81,173/- were embezzled and misused by Sri Moti Lal Srivastava, the then Secretary-General Manager, District Co-operative Bank Ltd., Moradabad, Sri Virendra Singh, the then Branch Manager, Main Branch, Sri Mohd. Ghani, Industrial Supervisor and so called Chairman and Secretary of Societies. Sri Raghuvir Saran in his report dated 16.9.1989 added further amount of Rs.10,54,216/- to the above amount and in this way the total amount embezzled and misused was mentioned to the tune of Rs.41,35,389/-. In the light of the complaint made by Sri Swaroop Singh and the interim partial enquiry report submitted by Sri Raghuvir Saran Sharma, the District Assistant Registrar, Co-operative Societies, U.P. Moradabad, vide his order no.278/6 dated 21.4.1989 constituted a Committee to verify the loan disbursed to the weavers' societies during the tenure of Sri Moti Lal Srivastava, the then Secretary/General Manager of District Co-operative Bank Ltd., Moradabad. Since all the members of the said Committee, except one, were either transferred or got retired, therefore, the above Committee was reconstituted vide order No.3080 dated 20.10.1989 and the work of verification of disbursement of loan to the weavers societies was entrusted to Recovery Officer, Moradabad, Additional District Co-operative Officer (A.D.C.O.), Moradabad and A.D.C.O., Sambhal. The Committee enquired into the matter but could not find any member of the weavers' societies to whom the loan was disbursed. No office or sign board of the weavers' societies could be traced out. The Committee enquired into the matter but could not find any member of the weavers' societies to whom the loan was disbursed. No office or sign board of the weavers' societies could be traced out. No evidence could be procured that the members of the weavers' societies to whom the loan was disbursed, were doing any business either separately or collectively. To the contrary, the information which the Committee could gather, was that the members of the weavers' societies had gone out of station and were either doing some service or pulling rickshaw or were engaged in the work of labour. All the documents were found to be false and fake. Those members whose names addresses figured in the list of loan, were concocted and 12 members out of that list denied their signatures and stated they never went to the Bank nor they ever took any loan from the Bank nor they were ever signed the documents. As such, whatever documents were prepared, were all fake. Even the photographs were found to be forged and fake. Sri Ezaz Husain also denied his signature on the documents and said that the photograph also does not resemble his face, and the said photograph is of some other person. Likewise Sri Mukhtyar, Sri Mohd. Ali and Sri Sirtaz Husain also denied their signatures and photographs on the documents. Sri Moti Lal Srivastava, the then Secretary/General Manager of District Co-operative Bank, Moradabad and his subordinate staff/employees of the Bank were found guilty for acting and working against the directions contained in the Circular Letter No.121 dated 14.3.1984. On the basis of the above complaint, an FIR was lodged against Virendra Singh, Bharat Singh, Mohd. Ghani and Mohd. Zahoor Bux. After investigation the I.O. submitted charge sheet against the accused Moti Lal Srivastava, Virendra Singh, S.N. Mishra, Mohd. Zahoor and Bharat Singh. 3. Accused persons appeared in the Court. Charge was framed against all the accused persons on 26.2.2005, under Sections 467, 468, 471, 420, 120-B I.P.C. and 13 Prevention of Corruption Act. The accused persons pleaded not guilty and claimed to be tried. 4. The prosecution, in support of its case, examined 17 witnesses in all, S.P. Mathura as PW1, Abdul Samad as PW2, K.K.S. Shukla as PW3, Hari Nath Singh Kushwaha as PW4, Mehbood Ali as PW5, Mohd. Ahsan as PW6, Alemuddin as PW7, Mohd. The accused persons pleaded not guilty and claimed to be tried. 4. The prosecution, in support of its case, examined 17 witnesses in all, S.P. Mathura as PW1, Abdul Samad as PW2, K.K.S. Shukla as PW3, Hari Nath Singh Kushwaha as PW4, Mehbood Ali as PW5, Mohd. Ahsan as PW6, Alemuddin as PW7, Mohd. Yaqoob as PW8, Amer Husain as PW9, Iftekhar Ahmad as PW10, Masood Ali as PW11, Abdul Rehman as PW12, Jameel Ahmad as PW13, Raghuvir Saran Sharma as PW14, Harpal Singh as PW15, Shadi Lal Khatri as PW16 and A.P. Mishra as PW17 and closed the evidence. 5. Statements of the accused persons were recorded under Section 313 Cr.P.C. wherein all the accused persons denied the prosecution story as well as the evidence on record and have stated that they have been falsely implicated in the case due to departmental enmity and annoyance. 6. Accused Moti Lal has stated that he remained posted as Secretary/General Manager from 24.7.1984 to 25.7.1989. A false report based on vitiated enquiry report was submitted by the Enquiry Committee and no physical verification of the Societies was done nor the evidence of concerned persons were taken. He is not named in the FIR and false charge sheet was filed which is not supported by any evidence. Without any evidence, he was falsely implicated in the investigation. Witness Raghuvir Saran was inimical to him. 7. All the other accused persons have also stated that neither the physical verification was done nor the statement of the concerned persons were taken. The FIR was lodged on false facts and wrong charge sheet was filed which is not supported by any witness. They were falsely implicated without any evidence. Al the accused persons except the accused S.N. Mishra have stated that witness Raghuvir Saran was inimical to them. 8. Heard Sri A.K.Saxena, learned AGA for the State, Sri K.K.Arora, learned counsel for accused-respondent no.1, Sri Sanjay Srivastava, learned counsel for accused-respondent nos. 2, 3 & 4 and perused the trial Court judgment and record. 9. Learned AGA has submitted that the learned trial Court has misread the evidence on record and acquitted the accused respondents. The trial court has not properly appreciated the evidence of the prosecution and decided the case on the basis of surmises and conjectures. 2, 3 & 4 and perused the trial Court judgment and record. 9. Learned AGA has submitted that the learned trial Court has misread the evidence on record and acquitted the accused respondents. The trial court has not properly appreciated the evidence of the prosecution and decided the case on the basis of surmises and conjectures. He submitted that the evidence of the prosecution witness, i.e., PW4-Hari Nath Singh Kushwaha and PW14 Raghuvir Saran Sharma were misread by the trial Court and the accused respondents have been acquitted. Hence, the judgment and order of the trial Court should be set aside. 10. Learned counsel for the accused-respondents on the other hand, have submitted that out of 17 prosecution witnesses, 10 witnesses, i.e., PW2-Abdul Samad, PW5-Mehmood Ali, PW6-Mohd. Ehsan, PW7-Aleemuddin, PW8-Mohd. Yaqub, PW9-Ammer Husain, PW10-Iftekhar Ahmad, PW11-Masood Ali, PW12-Abdul Rehman & PW13-Jameel Ahmad have turned hostile and they have not supported the prosecution story. Moreover, the seven remaining witnesses i.e., PW15-Har Pal Singh, PW17-A.P. Mishra are the Investigating Officer. PW3-K.K.Shukla and PW4-Hari Nath Singh Kushwaha were the members of the Committee?who verified the enquiry report submitted by Raghivir Saran Sharma who has also produced as PW 14, PW16 is Shadi Lal Khatri, who simply submitted in the Court the file containing the Circular letters and PW 1 S.P. Mathur has been produced in order to prove the circular letters and some letters of the Bank. They further argued that the all the seven prosecution witnesses are the formal witness in nature and they have also not been able to bring the guilt of the accused persons and the trial Court has rightly acquitted the accused-respondents from the charges. They further argued that the loan which was disbursed has already been deposited by the respective persons.? 11. Considered the submissions advanced by the learned counsel for the parties and perused the record. 12. It? appears that the accused-respondent no.1 was the then Secretary/General Manager of the District Co-operative Bank, Moradabad and other accused-respondents were his subordinate staff/employees of the Bank at the time of incident. 13. The prosecution in all produced 17 prosecution witnesses out of which 10 witnesses of fact have become hostile and rest of the seven witnesses out of which PW15-Harpal Singh? 13. The prosecution in all produced 17 prosecution witnesses out of which 10 witnesses of fact have become hostile and rest of the seven witnesses out of which PW15-Harpal Singh? and PW17-A.P. Mishra were the Investigating Officers, PW3- K.K.Shukla and PW4-Hari Nath Singh Kushwaha were the members of the Committee constituted for verifying the enquiry report submitted by the Raghuvir Saran Sharma who was also produced as PW14.? PW16, namely, Shadi Lal Khatri who has simply submitted in the Court the file containing the Circular letters and PW1 has been produced by the prosecution in order to prove the Circular letters and some other letters of the Bank. 14. From the cross examination of PW3-K.K.Shukla, the trial Court found that he does not remember as to how many weavers' societies were to be verified by him.The members of the Committee verified only 10 societies and complete verification was not done by him. He did not record the statement of the Chairman and members of those societies which were verified. He is unable to state as to whose statements were recorded by him.. He also did not record the statements of those persons who had denied being the Chairman of the societies and he further did not record the statement of any independent person. He also did not record the statements of those persons who had verified the photographs nor knew the names and addresses of those persons from whom verification was done. He also did not enquire from the places where the societies were registered. During verification of the report, he did not get the signatures of those persons verified who had received the cheque. He did not make any enquiry about the Government guarantee against the loan. He further admitted in his oral evidence that it is true that loan was granted to the societies on the directions of the Director of Industries and Registrar Cooperative Societies, U.P., Lucknow. 15. PW 4-Hari Nath Singh Kushwaha has stated in his oral evidence that he was posted as A.D.C.O., Moradabad on 19.7.1990. The District Cooperative Bank, Moradabad had sanctioned loan to the Cooperative Societies and some embezzlement was done in the process. Its enquiry was made by Raghuvir Saran Sharma and he had submitted his enquiry report. 15. PW 4-Hari Nath Singh Kushwaha has stated in his oral evidence that he was posted as A.D.C.O., Moradabad on 19.7.1990. The District Cooperative Bank, Moradabad had sanctioned loan to the Cooperative Societies and some embezzlement was done in the process. Its enquiry was made by Raghuvir Saran Sharma and he had submitted his enquiry report. For verification and detailed enquiry of his report, a Committee was constituted comprising of J.P.Singh, K.K.Shukla and this witness.The members of the Committee enquired into the matter and made verification. The members also made spot verification but on the spot they did not find any office of the societies nor any signboard of the societies nor any member of the societies. The Chairman and Secretary of most of the societies were also not found on the spot. He proved the report Ex.A-4 which bears the signature of this witness. In the enquiry report Ex.A-4 he has not mentioned those documents which were the basis of the enquiry report. 16. PW 14-Raghuvir Saran Sharma has stated in his oral evidence that 17.4.1989 he was posted as C.O. Audit (Embezzlement) in the office of District Assistant Registrar, Cooperative Societies, Moradabad. He enquired into the matter and found that while sanctioning the loans to the weavers' cooperative societies, recommendation of Development Officer of the Bank was not obtained nor the spot inspection of the weavers' societies was done by the Development Officer of the Bank before sanctioning the loan and no verification was done whether the weavers' societies were actually in existence or not and thus submitted report that the accused Moti Lal Srivastava, the then Secretary/General Manager of the District Cooperative Bank, Moradabad by misusing his official post, disbursed loan to fake societies. For doing this act, he took the other accused respondents under his influence who were all subordinate to him. 17. PW15-Harpal Singh was the first Investigating Officer of the case and PW17-A.P. Mishra who is second Investigating Officer of the case, submitted charge sheet against the accused-respondents. 18. The trial Court after scanning the evidence of the formal witnesses came to the conclusion that there has been irregularity in the investigation and further the investigation was tainted one. 17. PW15-Harpal Singh was the first Investigating Officer of the case and PW17-A.P. Mishra who is second Investigating Officer of the case, submitted charge sheet against the accused-respondents. 18. The trial Court after scanning the evidence of the formal witnesses came to the conclusion that there has been irregularity in the investigation and further the investigation was tainted one. The charge sheet which was submitted against the accused persons were under the pressure and according to the direction of the higher authorities which comprises of the D.I.G.,CID., S.P.,CID and Legal Advisor CID which amounted interference in the investigation as the Investigating Officer in compliance of the directions of the Senior Prosecuting Officer sent the case diary to the Senior Prosecuting Officer and after obtaining his legal opinion, disposed of and completed the investigation in terms of the legal opinion given by the S.P.O. The trial Court while passing the impugned order has relied upon the judgement of the Apex Court reported in 2000 (2) JIC pg 249 (SC), R.Sarla Vs. T.S. Velu and others , where the Apex Court has held that the act and conduct of the Investigating Agency in seeking legal opinion from the Prosecuting Officer amounted interference in investigation and submitted charge sheet against the accused persons which was not sustainable in the eyes of law.?????????????? 19.The trial Court found that the PW15-Harpal Singh, who was the first Investigating Officer of the case, who was entrusted with the investigation which remained with him for about 100 days, but during that period he did not make physical verification of any society nor did he meet any member of any society and till the time the investigation of the present case remained with him, he did not arrive at any conclusion.? He also in his cross-examination has stated that during the period of investigation, he did not contact the accused persons for the purpose of recording their statements.? So far PW17-A.P. Mishra, the second Investigating Officer was concerned, the trial Court from his evidence found that he also did not carry out the investigation in a fair manner and further submitted charge sheet against the accused persons under Section 13 of the Prevention of Corruption Act and had not complied with the with the provision of Section 19 of the Prevention of Corruption act. He also did not record the statement of any? person of weavers' society. He also did not record the statement of any? person of weavers' society. He even did not record the statement of any accused or any witnesses. Therefore, the investigation which was carried out reflects the infirmities and tainted manner in which the investigation of the case was conducted.?????????????????????? 20. The trial Court further found that the prosecution has not been able to prove as to which document was forged by accused Moti Lal Srivastava and how he had committed fraud and had fraudulently misappropriated the amount of loan sanctioned or disbursed by the District Co-operative Bank, Moradabad. The prosecution has further? not been able to prove how the said accused Moti Lal Srivastava misused his official position for the offence for which he has been charged.???????????????????? 21.The finding of acquittal which has been recorded by the trial Court in acquitting the accused respondents from the charge levelled against them appears to have been scanned by the trial Court on the basis of evidence of PW3 and PW4 who were the members of the Committee entrusted with the task of verification of the report submitted by PW14. 22. This Court is conscious of the fact that mere the fact that investigation being a tainted one, the accused cannot be let off on the said ground. It appears from the record that the evidence of PW3, PW4 and PW14 is not sufficient to bring home the guilt of the accused respondents particularly when all the witnesses of fact who are ten in number have turned hostile and did not support the prosecution case. 23. The Apex Court in the case of State of Rajasthan Vs. Darshan Singh, SCC 2012 (15) 789 has laid down the scope of interference in the appeal against acquittal and held that appellate court interferes with order in acquittal only in compelling circumstances and when the impugned order is found to be perverse, the appellate court should bear in mind?presumption of innocence of accused. Interference in a routine manner where another view is possible should be avoided, unless there are good reasons for interference. 24. Having considered the totality of the circumstances of the present case, we are of the opinion that the view taken by the trial court in acquitting the accused-respondents does not suffer from any perversity or illegality. The learned trial judge was perfectly justified in passing the impugned judgment of acquittal. 25. 24. Having considered the totality of the circumstances of the present case, we are of the opinion that the view taken by the trial court in acquitting the accused-respondents does not suffer from any perversity or illegality. The learned trial judge was perfectly justified in passing the impugned judgment of acquittal. 25. The appeal lacks merit and is dismissed, accordingly.