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Himachal Pradesh High Court · body

2016 DIGILAW 1399 (HP)

Rajinder Singh v. State of H. P.

2016-07-15

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 21.5.2011, rendered by the learned Special Judge (Addl. Sessions Judge), Mandi, H.P., in Corruption Case No. 3/2005(1999), whereby the appellant-accused (hereinafter referred to as the accused), was charged with and tried for offences punishable under Sections 468, 471, 409, 120B IPC and Section 5(2) (old)/Section 13(2) (new) of the Prevention of Corruption Act. The accused was acquitted under Sections 467 and 120B IPC. He was convicted and sentenced to undergo simple imprisonment for two years and to pay fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for two months for the commission of offence punishable under Section 409 IPC. He was also convicted and sentenced to undergo simple imprisonment for two years and to pay fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for two months for the commission of offence punishable under Section 468 IPC. He was further convicted and sentenced to undergo simple imprisonment for two years and to pay fine of Rs. 2,00,000/- and in default of payment of fine to further undergo simple imprisonment for one year for the commission of offence punishable under Section 13(2) of Prevention of Corruption Act. All the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nut shell, is that accused Rajinder Singh was posted as Clerk-cum-cashier in the office of Project Director, Desert Development Project Kaza. Accused Dharam Chand was posted as SDC in the office of Assistant Engineer, Tindi. Deepak Shanan (PW-22) was posted as ADC Kaza. All the projects were under ADC under single line administration. Building of the Veterinary Dispensary was being constructed under Desert Development Project. Executive Engineer Kaza was executing the work. An amount of Rs. 1,00,000/- was provided to the Executive Engineer vide cheque No. A/147-0258098 dated 2.6.1987 and an amount of Rs. 1,00,000/- was provided vide cheque No. A/147- 0258311 dated 1.4.1987. Receipt Ext. PW-4/F was issued by the Executive Engineer and this amount was duly reflected in the cashbook. Cheque No. A/147-0258093 was issued by the Project Director. It was endorsed in favour of Rajinder Singh Rawat. It was encashed on the same day. A sum of Rs. 1,00,000/- was stated to have been paid to the Executive Engineer Kaza. Temporary receipt Ext. PW-4/F was issued by the Executive Engineer and this amount was duly reflected in the cashbook. Cheque No. A/147-0258093 was issued by the Project Director. It was endorsed in favour of Rajinder Singh Rawat. It was encashed on the same day. A sum of Rs. 1,00,000/- was stated to have been paid to the Executive Engineer Kaza. Temporary receipt Ext. PW-4/D was issued by the Executive Engineer. The receipt was written by Dharam Chand, SDC. It transpired that only Rs. 2,00,000/- was deposited with the PWD instead of Rs. 3,00,000/-. This fact came to the notice of Charan Dass (PW-1) when PW-1 Charan Dass went to Deepak Shanan to submit progress and expenditure report. A sum of Rs. 3,00,000/- was shown to have been disbursed to Public Works Department (PWD). Deepak Shanan told that a sum of Rs. Rs. 2,00,000/- was paid to PWD Authorities and not Rs. 3,00,000/-. Charan Dass verified the record and found that a sum of Rs. 3,00,000/- was deposited with PWD. Telegram was sent to Deepak Shanan. Record was also produced before him. Letter Ext. PW-3/D was issued by the Executive Engineer, HP PWD that only a sum of Rs. 2,00,000/- was received and cheque No. 0258093 was mentioned in place of cheque No. 0258098. The audit was conducted by A.R.Sharma (PW-8) who found that Rs. 2,00,000/- was paid to HP PWD vide cheques Ext. P-3 and P-4. Rs. 1,00,000/- was shown to have been paid to HP PWD in the cashbook but no such amount was in fact paid to HP PWD. He submitted report Ext. PW-7/A. It was further found during the investigation that a sum of Rs. 34203/- was also misappropriated by the accused during the year 1986-87. Accused had taken detail from Rattan Singh, Store Keeper (PW-6) but Rs. 22,000/- and Rs. 250/- were not entered in the receipt columns. Whereas these were shown to have been paid vide voucher No. 56-57 dated 14.10.1987. Rs. 2200/- and Rs. 600/- were not entered in the receipt and payment column. Rs. 2408.25 received from ITDP department Project Officer and Rs. 3744.75 received from Rattan Singh, Storekeeper were not entered in the cashbook. Rs. 3000/- was shown to have been paid to Smt. Yankit Dolma (PW-19) twice. In this way, accused Rajinder Singh misappropriated Rs. 1,34,203/- during the year 1986-87, 1987-88. Accused Dharam Chand had entered into conspiracy to misappropriate a sum of Rs. 3744.75 received from Rattan Singh, Storekeeper were not entered in the cashbook. Rs. 3000/- was shown to have been paid to Smt. Yankit Dolma (PW-19) twice. In this way, accused Rajinder Singh misappropriated Rs. 1,34,203/- during the year 1986-87, 1987-88. Accused Dharam Chand had entered into conspiracy to misappropriate a sum of Rs. 1,00,000/-. The investigation was completed and the challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as twenty five witnesses. Accused Dharam Chand died during the pendency of trial. Accused Rajinder Singh was also examined under Section 313 Cr.P.C. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Varun Rana Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused and the accused could not be charged under Section 13(2) of the Prevention of Corruption Act, 1988. However, the fact of the matter is that the accused was charged under Section 5(2) of the previous Act and now Section 13(2) of the Prevention of Corruption Act, 1988, as per the charge framed by the learned Special Judge. Mr. Varun Rana, Advocate, has also argued that the statements recorded earlier in time could not be read in evidence. The fact of the matter is that the statements were duly exhibited when these witnesses were again re-examined. On the other hand, Mr. Neeraj K. Sharma, Dy. Advocate General has supported the judgment of the learned trial Court dated 21.5.2011. 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. This case has a chequered history. The prosecution has examined initially PW-1 Charan Dass as PW-4, PW-2 Surinder Singh as PW-3, PW-3 Shakti Singh as PW-20, PW-5 Navrata Ram as PW-10, PW-6 Rajinder Singh as PW-11, PW-9 J.S.Guleria as PW-5 and PW-11 R.P. Sharma as PW-19. 7. PW-1 Charan Dass testified that he was posted as Superintendent (Grade-II), Desert Development Project, Kaza. His statement was recorded vide Ext. PW-1/A before the learned Special Judge, Kullu on 2.1.2001 and he sought the permission to read the same in evidence in this case. PW-1 in his statement has deposed that he was posted as Superintendent (Grade-II), Desert Development Project, Kaza in the year 1987. His statement was recorded vide Ext. PW-1/A before the learned Special Judge, Kullu on 2.1.2001 and he sought the permission to read the same in evidence in this case. PW-1 in his statement has deposed that he was posted as Superintendent (Grade-II), Desert Development Project, Kaza in the year 1987. He took charge from Rajinder Singh Rawat. Mr. Deepak Shanan at that time was ADC Kaza. He was ex-officio Director of DDP, Kaza. Under single line administration, all departments, at Kaza were under administrative control of ADC Kaza. All projects and plannings were done under direct control of veterinary dispensary, Kaza through PWD by depositing the amount. DDP Kaza used to get funds from the Central Government and State Government. After his joining as Superintendent Project Director, Kaza, Mr. Deepak Shanan asked for progress report of expenditure for sending to State Headquarter. He prepared the report. When he prepared the report, he found Rs. 3,00,000/-having been given to the PWD for deposit work. When the statement was shown by him to Mr. Shanan at Shimla he told that they had given only Rs. 2,00,000/- to the PWD authorities and not Rs. 3,00,000/-by showing Rs. 2,00,000/- having been given to the PWD by way of deposit. He after coming to Kaza again verified the record which showed deposit of Rs. 3,00,000/- with PWD and qua which he sent telegram to headquarter at Shimla and also sent reports. At that time Deepak Shanan was posted as Dy. Secretary (Finance), H.P. Government, Shimla having dual charge of Project Director, DDP, Kaza. Thereafter, he took the record from Kaza to Shimla and showed the same to Deepak Shanan that as per record a sum of Rs. 3,00,000/- were deposited with PWD and not Rs. 2,00,000/-. He has seen the writing of the accused and he was conversant with his writing and signatures. He has seen the original cashbook Ext. P-1 and at page 93 there is entry of cheque No. 0258098 dated 2.6.1987 amounting to Rs. 1,00,000/-. It was entered on 30.6.1987 in the cashbook. The cheque was in the name of Executive Engineer, PWD, Kaza but as per entry the cheque was taken in cash book and this entry Ext. PW-4/A was in the hands of accused. Cheque of this entry is Ext. P-2. Cheque bearing No. 0258311 dated 1.9.1987 for Rs. 1,00,000/- Ext. 1,00,000/-. It was entered on 30.6.1987 in the cashbook. The cheque was in the name of Executive Engineer, PWD, Kaza but as per entry the cheque was taken in cash book and this entry Ext. PW-4/A was in the hands of accused. Cheque of this entry is Ext. P-2. Cheque bearing No. 0258311 dated 1.9.1987 for Rs. 1,00,000/- Ext. P-3 was issued to Executive Engineer, PWD, Kaza and qua this cheque at page No. 113 of Ext. P-1 there is entry which is in the hands of accused vide Ext. PW-4/B. Cheque bearing No. 258093 dated 14.4.1987 of Rs. 2,00,000/- Ext. P-4 was issued in favour of self and entry of this cheque is at page 93 of Ext. P-1. This entry Ext. PW-4/C is in the hands of accused Rajinder Singh Rawat. Amount of cheque Ext. P-4 was withdrawn by Rajinder Singh Rawat and he identified his signatures on back of the cheque Ext. P-4. Amount of cheque Ext. P-4 as per receipt Ext. PW-4/D was received by Dharam Chand Thakur accused on behalf of Asstt. Engineer, HP PWD, Kaza. As per entry in Ext. P-1 at page 99, which is in the hands of accused Rajinder Singh Rawat, an amount of Rs. 1,00,000/- was handed over to Executive Engineer B & R Kaza in cash. This entry is Ext. PW-4/E. The cheque though Ext. P-4 was drawn for Rs. 2,00,000/-, payment in cash was made for Rs. 1,00,000/- to Asstt. Engineer, B & R, Kaza. Amount of cheque Ext. P-2 and P-3 was handed over to Asstt. Engineer, B & R, Kaza qua which receipt Ext. PW-4/F was obtained. In his cross-examination on 20.10.2003 by Y.R. Deshta, Advocate, he admitted that all the government transactions were made by way of cheques and drafts. He denied that whenever any cheque was received in the office the temporary receipt was issued by the department. Volunteered that whenever original cheque was received in the department, the original receipt was issued. He denied that when the cheque was encashed only thereafter permanent receipt was issued. Temporary receipt was replaced by permanent receipt on encashment. On issuance of permanent receipt, temporary receipt was returned. Entry in the cashbook was made only once against both the receipts. 8. PW-2 Surender Singh deposed that his statement was recorded vide Ext. He denied that when the cheque was encashed only thereafter permanent receipt was issued. Temporary receipt was replaced by permanent receipt on encashment. On issuance of permanent receipt, temporary receipt was returned. Entry in the cashbook was made only once against both the receipts. 8. PW-2 Surender Singh deposed that his statement was recorded vide Ext. PW-2/A before the learned Special Judge, Kullu on 1.1.2001 and he prayed that the same may be read in evidence in this case. He was not cross-examined at all. 9. PW-3 Shakti Singh deposed that he was posted as Branch Manager, SBI Kaza. His statement was recorded vide Ext. PW-3/A before the learned Special Judge, Kullu on 18.6.2001 and he prayed that the same may be read in evidence in this case. He was also not cross-examined. In Ext. PW-3/A, he deposed that on 26.10.1989, Vigilance Police, Kullu took from bank custody cheques Ext. P-2 to P-4 qua which memo was prepared. 10. PW-5 Narottam deposed that his statement was recorded vide Ext. PW-5/A before the learned Special Judge, Kullu on 3.1.2001 and prayed that the same may be read in evidence in this case. In Ext. PW- 5/A, he deposed that letters Ext PW-8/A and PW-8/B were handed over by him to the Vigilance Department through memo Ext. PW-10/A. 11. PW-6 Rattan Singh deposed that his statement was recorded vide Ext. PW-6/A before the learned Special Judge, Kullu and he prayed that the same may be read in evidence in this case. In Ext. PW-6/A he deposed that he remained posted as storekeeper Desert Development Project Kaza from 1978 to 1985. He came on deputation as storekeeper in Desert Development Project Kaza in the year 1986. The charge of petrol and diesel of the project was with him. For purchase of petrol-diesel, he used to get money from head clerk Rajinder Singh Rawat. He used to give account to Rajinder Singh Rawat. Entire account and vouchers used to be given by him to Rajinder Singh Rawat. He did not recall to what extent and what amount was taken and settled with Rajinder Singh Rawat qua petrol and diesel. He proved details of expenditure Ext. PW-11/A. At the time of preparing it, he handed over cash of Rs. 3744/- to Rajinder Singh Rawat who signed Ext. PW-11/A in his presence. 12. He did not recall to what extent and what amount was taken and settled with Rajinder Singh Rawat qua petrol and diesel. He proved details of expenditure Ext. PW-11/A. At the time of preparing it, he handed over cash of Rs. 3744/- to Rajinder Singh Rawat who signed Ext. PW-11/A in his presence. 12. PW-7 Shamsher Singh deposed that on 23.10.1990, ACJM, Kullu had moved an application Ext. PW-7/A before him and requested him to take specimen signatures and handwriting of Rajinder Singh Rawat. He took specimen signature and handwriting of the accused vide Ext. PW- 7/B in ten sheets which are Ext. PW-7/J to PW-7/L. 13. PW-8 Atma Ram deposed that his statement was recorded vide Ext. PW-8/A before the learned Special Judge, Kullu and he prayed that the same may be read in evidence in this case. In his cross-examination of Ext. PW-8/A, he testified that he went to Kaza to conduct audit of Desert Development Project Kaza. He conducted audit for the year 1987-88. After conducting audit, he submitted report to the Director, Rural Development Shimla. The report is Ext. PW-7/A. During audit he found that an amount of Rs. 2,00,000/- was to be paid to PWD out of which Rs. 1,00,000/- was paid under cheque No. A/147-0258098 dated 2.6.1987 and another cheque No. A/147-0258311 dated 1.9.1987 was issued. It was found that in accounts of Desert Development Project Kaza, an amount of Rs. 1,00,000/- was shown transmitted to PWD by way of draft for which temporary receipt was obtained from SDO Tindi and accounted for in the accounts. But it was found that the amount of Rs. 1,00,000/- shown paid to PWD through draft in fact was never paid and deposited in account of the PWD. As such in account books Rs. 3,00,000/- were shown to be paid to PWD but actually Rs. 2,00,000/- were paid and not Rs. 3,00,000/-. His audit report was based on cashbook, vouchers and other official documents. 14. PW-9 J.S.Guleria testified that his statement was recorded vide Ext. PW-9/A before the learned Special Judge, Kullu and he prayed that the same may be read in evidence in this case. In his cross-examination, he deposed that he called Ext. PW-4/D to be temporary as there is no meaning of it for the purpose of accounts. 14. PW-9 J.S.Guleria testified that his statement was recorded vide Ext. PW-9/A before the learned Special Judge, Kullu and he prayed that the same may be read in evidence in this case. In his cross-examination, he deposed that he called Ext. PW-4/D to be temporary as there is no meaning of it for the purpose of accounts. He deposed that permanent receipt is issued after receipt of the cheque and sending of the same under challan to the treasury. The receipt is sent to the concerned department after crediting of the amount in their account. Ext. PW-4/D is a temporary receipt given on demand. Temporary receipt is not meant for accounts purposes. 15. PW-11 R.P. Sharma, testified that his statement was recorded vide Ext. PW-11/A and he prayed that the same may be read in evidence in this case. In his examination-in-chief, as per Ext. PW-11/A, he stated that Deepak Shanan during that period was posted as ADC Kaza and vested with power of Director, Desert Project Development. For construction of Animal Husbandry building Kaza, a sum of Rs. 2,00,000/- in the shape of two cheques was received from Director, Desert Development, Kaza. Both cheques were in the name of his designation. Cheque Ext. P-2 and P-3 were endorsed by him in favour of Asstt. Engineer, Kaza. The amount of both cheques was drawn and credited to their accounts. Except amount or these two cheques, no other amount for construction of building was received from the Director. As per practice on receipt of cheque temporary receipt used to be issued by SDO or any official of the department and after encashment of cheque payment receipt or GR was issued. In his cross- examination, he deposed that there was no rule for issuance of temporary receipt but on demand issued by way of proof, there was instruction of the department to issue temporary receipt. No temporary receipt book was issued from the department. 16. PW-12 B.S.Parmar testified that letter Ext. PW-12/A was sent by him to the Police Department. Ext. PW-12/B was also sent by him to Director Desert Development Project, Spiti. Letter Ext. PW-12/C was also sent by him to S.P. (ACB) Zone, Kullu. 17. PW-13 Dorje Funchuk deposed that his statement was recorded before the Special Judge Kullu, vide Ext. PW-13/A. It was requested to be read in evidence in the present case also. Ext. PW-12/B was also sent by him to Director Desert Development Project, Spiti. Letter Ext. PW-12/C was also sent by him to S.P. (ACB) Zone, Kullu. 17. PW-13 Dorje Funchuk deposed that his statement was recorded before the Special Judge Kullu, vide Ext. PW-13/A. It was requested to be read in evidence in the present case also. He deposed that he was posted as Section Officer at Kaza from 1989 to October, 2003. Coaccused Rajinder Singh Rawat was posted as Superintendent at Kaza. Internal audit was conducted in the present case prior to his joining. Total embezzlement amounting to Rs. 1,34,000/- was found as per audit report. The audit was also conducted by AG Office. Dorje Chhering was Class-IV employee in Desert Development Project, Kaza. As per cashbook Ext. PW- 13/B, an amount of Rs. 3,000/- was paid to Dorje Chhering as advance and entry was recorded at page 93 of document Ext. PW-13/B cashbook. At page 107 of the cashbook, there is specific entry that an amount of Rs. 3,000/- was paid to the wife of Dorje Chhering, namely, Yankit Dolma. In his statement recorded earlier vide Ext. PW-13/A, he deposed that when audit was conducted by A.G., further embezzlement of Rs. 34,203/- was detected. It was found during audit that Rs. 40,000/- paid by Rattan Singh to Office Superintendent Rajinder Singh Rawat accused was not found accounted for in the cashbook in the receipt side. To Dorje Chhering, an employee Rs. 3,000/- was paid as advance when he had fallen ill. It was found that advance of Rs. 3,000/- to Dorje Chhering was shown twice. In cashbook at page 93, there was entry of payment of advance of Rs. 3,000/- to Dorje Chhering. Second entry of this advance of Rs. 3,000/- was reflected at page 107 of Ext. P-1 on 28.9.1987 in the name of Ankit Dolma, wife of Dorje Chhering. 18. PW-14 N.C. Sood, deposed that he was posted as Dy. Government Examiner of Questioned Documents at Shimla since 1969. His statement was recorded before the Special Judge, Kullu and in the present case it may be read in evidence as Ext. PW-14/A. He proved opinion Ext. PW-14/B. According to his statement Ext. PW-14/A, the documents of the case were received in his office from S.P.(Vigilance) North Range, Dharamshala vide letter No. 2818 dated 28.7.1997. His statement was recorded before the Special Judge, Kullu and in the present case it may be read in evidence as Ext. PW-14/A. He proved opinion Ext. PW-14/B. According to his statement Ext. PW-14/A, the documents of the case were received in his office from S.P.(Vigilance) North Range, Dharamshala vide letter No. 2818 dated 28.7.1997. The specimen writing of Dharam Chand Thakur were marked as S-1/I to S-10/1 on Ext. PW-2/A (ten sheets). The admitted writing of Dharam Chand Thakur were marked as A1/I on Ext. PW-8/A and A2/1 on Ext. PW-8/B. According to him, the person who wrote the red enclosed writings and signatures stamped and marked as S-1/1 to S-10/1 and A-1/1 and A-2/1 also wrote the red enclosed writings and signatures similarly stamped and marked Q- 1/1. He recorded his opinion as PW-8/C. 19. PW-16 Amar Nath deposed that he was summoned before the Court as PW-22 on 30.7.2003. His statement was recorded vide Ext. PW- 16/A. In his examination-in-chief in Ext. PW-16/A, he deposed that he had partly investigated the case. He obtained admitted handwriting of Dharam Chand from PWD, Sub Division Kaza vide memo Ext. PW-10/A. He also filed an application before the CJM, Kullu for taking specimen handwriting and signatures of accused Dharam Chand. He also obtained record from inquiry file pertaining to embezzlement of Rs. 34230/- vide Exts. PW-9/A and PW-11/A. 20. PW-18 Sudarshanbir Thakur deposed that he was posted at Kaza from 1982 to 1987 in the HP PWD. Co-accused Dharam Chand Thakur was Assistant along with him. Temporary receipt Ext. PW-18/A was issued by co-accused Dharam Chand Thakur. Permanent receipt was to be issued after confirmation of the account from the competent authority. Temporary receipt Ext. PW-18/A was issued in receipt of cheque Ext. PW-18/B. Volunteered that actually the serial number of the cheque received was 0258098. Due to mistake the temporary receipt was issued qua cheque No. 0258093. In his cross-examination, he admitted that there was precedent in the office to issue temporary receipt as and when cheque or draft was received in the office. Original receipt was issued on the clearance of cheque by the competent authority. 21. PW-19 Yankit Dolma deposed that her husband Dorje Chhering was working as Beldar in DDP at Kaza. About 12 years ago her husband fell ill and he was taken to Shimla for treatment. Original receipt was issued on the clearance of cheque by the competent authority. 21. PW-19 Yankit Dolma deposed that her husband Dorje Chhering was working as Beldar in DDP at Kaza. About 12 years ago her husband fell ill and he was taken to Shimla for treatment. Her husband might have taken an advance from the department. Co-accused Rajinder Singh Rawat did not call her. He did not obtain her signature or thumb impression upon any document. She was illiterate. She was declared hostile and cross-examined by the learned Public Prosecutor. She denied the suggestion that when her husband died, co-accused Rajinder Singh Rawat called her and obtained her thumb impression. Co-accused Rajinder Singh Rawat did not give her any amount. She has also given her statement before the Court of Special Judge, Kinnaur at Rampur Bushahr in the present case. 22. PW-20 Kamal Narain testified that on the basis of audit report, FIR Ext. PW-20/A was registered. He conducted the investigation. In his cross-examination, he deposed that cheques were received by the office of Executive Engineer, HP PWD Kaza. Volunteered that cheques issued in the name of Executive Engineer were received in the office of Asstt. Engineer. The cheque amount was deposited in the account of PWD Department. Entry of cashbook was verified by Project Director. The Project Director was equally liable in the present case because he had verified the entries. 23. PW-21 Kiran Kumar deposed that he remained posted as Range Officer in DDP Kaza from July, 1986 to October, 1988. Sh. Deepak Shanan was Project Director of DDP at that time. He used to take money from co-accused Rajinder Singh Rawat for payment of forest sectors. He received Rs. 81,000/- and Rs. 22,000/- from DDP Kaza. Rs. 81,000/- was received through cheque and Rs. 22,000/- was received in cash from Storekeeper Rattan Singh. Rs. 6,000/- was given to him by co-accused Rajinder Singh Rawat in cash. 24. PW-22 Deepak Shanan deposed that he remained posted as Project Director, Desert Development Project Kaza from August 1985 to March, 1988. Co-accused was working with him as Head Clerk. As Head Clerk, co-accused Rajinder Singh Rawat used to maintain cashbook and used to look after the accounts work of the Project. He used to conduct all the work which was related to bank. Co-accused was working with him as Head Clerk. As Head Clerk, co-accused Rajinder Singh Rawat used to maintain cashbook and used to look after the accounts work of the Project. He used to conduct all the work which was related to bank. He did not remember the exact budget which was sanctioned for the construction of Animal Husbandry Building in the year 1987. The work of the building construction was entrusted to PWD. Cheque Ext. PW-20/B was filled by the co-accused Rajinder Singh Rawat and signed by him. An amount of Rs. 2,00,000/- was withdrawn by co-accused Rajinder Singh Rawat vide cheque Ext. PW- 20/C. Co-accused Rajinder Singh Rawat had signed in the cheque Ext. PW-20/C in red circle at point Ext. PW-22/A. He identified signatures of co-accused Rajinder Singh Rawat. Cheque Ext. PW-20/B was sent to Executive Engineer, PWD, Kaza and cheque Ext. PW-18/B was also sent to him. Cashbook Ext. PW-20/E was prepared by the office which is in the hands of co-accused Rajinder Singh Rawat. The entry of Rs. 2,00,000/- was recorded by co-accused Rajinder Singh Rawat vide Ext. PW-22/B in register Ext. PW-20/E. Entry Ext. PW-22/C was also recorded by co-accused Rajinder Singh Rawat. He found that in the expenditure statement an amount of Rs. 3,00,000/- has been shown as deposit with Executive Engineer (B & R), Kaza for the construction of Animal Husbandry building. He distinctly found that only Rs. 2,00,000/- had been given to the Executive Engineer (B & R), Kaza. He asked the Head Clerk Charan Dass to re-examine the record and also cross-check with the PWD about the amount of deposit made with them. His statement was recorded before the learned Special Judge, Kullu vide Ext. PW-22/D. In his cross-examination, he admitted that cheques Ext. PW-18/B and PW-20/B were issued in the name of Executive Engineer, HP PWD, Kaza and payment was also withdrawn by them. These cheques have been signed by him. He has also verified the cashbook. He deposed that temporary receipt is issued when cheque or draft is received. 25. PW-23 S.K. Saxena deposed that he received the disputed documents for examination. He proved report Ext. PW-23/J. He came to the conclusion that the person who wrote the red enclosed writing stamped and marked S-1 to S-10 and A-1 to A-9 also wrote the red enclosed writings similarly stamped and marked as Q-1 to Q-7. 26. 25. PW-23 S.K. Saxena deposed that he received the disputed documents for examination. He proved report Ext. PW-23/J. He came to the conclusion that the person who wrote the red enclosed writing stamped and marked S-1 to S-10 and A-1 to A-9 also wrote the red enclosed writings similarly stamped and marked as Q-1 to Q-7. 26. The statement of PW-1 Charan Dass was earlier recorded as PW-4 marked as PW-1/A. In his examination-in-chief vide Ext. PW-1/A, he testified that he has brought to the notice of Deepak Shanan that a sum of Rs. 3,00,000/- was paid and not Rs. 2,00,000/- for the construction of the Animal Husbandry building. He took record from Kaza to Shimla and showed the same to Deepak Shanan that as per record a sum of Rs. 3,00,000/- were deposited with PWD and not Rs. 2,00,000/-. He was well conversant with the hand writing and signatures of accused. He has seen the original cashbook Ext. P-1. At page 93 of the same, there was entry of cheque No. 0258098 dated 2.6.1987 amounting to Rs. 1,00,000/-. It was entered on 30.6.1987 in the cashbook. The cheque was in the name of Executive Engineer, PWD, Kaza but as per entry the cheque was taken in cash book and this entry Ext. PW-4/A was in the hands of accused. The cheque of this entry was Ext. P-2. Cheque bearing No. 0258311 dated 1.9.1987 for Rs. 1,00,000/- Ext. P-3 was issued to Executive Engineer, PWD, Kaza and qua this cheque at page No. 113 of Ext. P-1 there was entry which was in the hands of accused vide Ext. PW-4/B. Cheque bearing No. 258093 dated 14.4.1987 of Rs. 2,00,000/- Ext. P-4 was issued in favour of self and entry of this cheque was at page 93 of Ext. P-1, cashbook. This entry Ext. PW-4/C was also in the hands of accused R.S. Rawat. Amount of cheque Ext. P-4 was withdrawn by R.S. Rawat and he identified his signatures on back of the cheque Ext. P-4. The amount of cheque Ext. P-4 as per receipt Ext. PW-4/D was received by accused Dharam Chand Thakur on behalf of Asstt. Engineer, HP PWD, Kaza. According to entry in Ext. P-1 at page 99, which was in the hands of accused R.S. Rawat, an amount of Rs. 1,00,000/- was handed over to Executive Engineer B & R Kaza in cash. This entry is Ext. P-4 as per receipt Ext. PW-4/D was received by accused Dharam Chand Thakur on behalf of Asstt. Engineer, HP PWD, Kaza. According to entry in Ext. P-1 at page 99, which was in the hands of accused R.S. Rawat, an amount of Rs. 1,00,000/- was handed over to Executive Engineer B & R Kaza in cash. This entry is Ext. PW-4/E. The cheque though Ext. P-4 was drawn for Rs. 2,00,000/-, payment in cash was made for Rs. 1,00,000/- to Asstt. Engineer, B & R, Kaza. The amount of cheques Ext. P-2 and P-3 was handed over to Asstt. Engineer, B & R, Kaza qua which receipt Ext. PW-4/F was obtained. 27. PW-3 Shakti Singh vide Ext. PW-3/A deposed that he was posted as Branch Manager, SBI Kaza. He deposed that on 26.10.1989, Vigilance Police, Kullu took from bank custody cheques Ext. P-2 to P-4 qua which memo was prepared. PW-5 Narottam deposed that letters Ext PW- 8/A and PW-8/B were handed over by him to the Vigilance Department through memo Ext. PW-10/A. The specimen signatures and hand writing of the accused were taken before PW-7 Shamsher Singh. The statement of PW-9 J.S.Guleria was recorded vide Ext. PW-9/A before the learned Special Judge, Kullu. In his examination-in-chief, he deposed that he succeeded Sh. S.P. Thakur in PWD Sub Division, Kaza. The amount of cheques Ext. P-2 and P-3 was received in the office and receipt was issued vide Ext. PW-4/F. This receipt bears his signatures. Ext. PW-4/D was temporary receipt. He did not know who issued the said receipt. 28. PW-11 R.P. Sharma, is the material witness. In his statement Ext. PW-11/A he deposed that Deepak Shanan during that relevant period was posted as ADC Kaza and vested with power of Director, Desert Project Development. For the construction of Animal Husbandry building Kaza, a sum of Rs. 2,00,000/- in the shape of two cheques was received from Director, Desert Development, Kaza. Both cheques were in the name of his designation. Cheques Ext. P-2 and P-3 were endorsed by him in favour of Asstt. Engineer, Kaza. The amount of both cheques was drawn and credited to their accounts. Except this amount or these two cheques, no other amount for construction of building was received from the Director. Thus, the prosecution has duly proved that though a sum of Rs. 3,00,000/- was released but only Rs. Engineer, Kaza. The amount of both cheques was drawn and credited to their accounts. Except this amount or these two cheques, no other amount for construction of building was received from the Director. Thus, the prosecution has duly proved that though a sum of Rs. 3,00,000/- was released but only Rs. 2,00,000/- was received as per the statement of PW-19 R.P. Sharma, retired S.E., HP PWD. 29. PW-13 Dorje Funchuk deposed that as per the cashbook Ext. PW-13/B, an amount of Rs. 3,000/- was paid to Dorje Chhering as advance and entry was recorded at page 93 of document Ext. PW-13/B cashbook. He also testified that at page 107 of the cashbook, there is specific entry that an amount of Rs. 3,000/- was paid to the wife of Dorje Chhering, namely, Yankit Dolma. PW-14 N.C. Sood, was posted as Dy. Government Examiner of Questioned Documents at Shimla since 1969. He proved his opinion Ext. PW-14/B. According to his statement Ext. PW- 14/A, the person who wrote the red enclosed writings and signatures stamped and marked as S-1/1 to S-10/1 and A-1/1 and A-2/1 also wrote the red enclosed writings and signatures similarly stamped and marked Q- 1/1. 30. The statement of PW-8 Atma Ram was recorded vide Ext. PW- 8/A before the learned Special Judge, Kullu. He has conducted the audit of Desert Development Project Kaza for the year 1987-88. After conducting audit, he submitted report to the Director, Rural Development Shimla. The report is Ext. PW-7/A. During the audit he found that in the accounts of Desert Development Project Kaza, an amount of Rs. 1,00,000/- was shown transmitted to PWD by way of draft for which temporary receipt was obtained from SDO Tindi and accounted for in the accounts. But it was found that the amount of Rs. 1,00,000/- shown to be paid to PWD through draft in fact was never paid and deposited in accounts of the PWD. As such in account books Rs. 3,00,000/- were shown to be paid to PWD but actually Rs. 2,00,000/- were paid and not Rs. 3,00,000/-. It is, thus duly proved as per the report Ext. PW-7/A that an amount of Rs. 1,00,000/- was never paid to PWD. In fact, it was misappropriated by the accused. 31. PW-22 Deepak Shanan has also deposed that in the expenditure statement, an amount of Rs. 2,00,000/- were paid and not Rs. 3,00,000/-. It is, thus duly proved as per the report Ext. PW-7/A that an amount of Rs. 1,00,000/- was never paid to PWD. In fact, it was misappropriated by the accused. 31. PW-22 Deepak Shanan has also deposed that in the expenditure statement, an amount of Rs. 3,00,000/- has been shown as deposit with Executive Engineer (B & R), Kaza for the construction of Animal Husbandry building. He distinctly found that only Rs. 2,00,000/- had been paid to the Executive Engineer (B & R), Kaza. The statement of PW-22 Deepak Shanan is duly corroborated by PW-1 Charan Dass who has reconciled the records. PW-23 S.K. Saxena has proved report Ext. PW- 23/J. He has admitted the signatures and writing of co-accused Rajinder Singh Rawat. According to his opinion, the person who wrote the red enclosed writing stamped and marked as S-1 to S-10 and A-1 to A-9 also wrote the red enclosed writing similarly stamped and marked as Q-1 to Q- 7. 32. It is evident from the contents of explanation Ext. PW-4/H and PW-23/C that accused himself had personally paid Rs. 1,00,000/- cash out of the cheque on 15.6.1987 to the official against receipt issued by the Office of Assistant Engineer, Tindi. The entry was made by him on 30.6.1987. Thus, his plea that he has handed over the cheque to the Executive Engineer and receipt was issued to him by Dharam Chand Thakur, STC is not acceptable. As a matter of fact, entry was made by him on 30.6.1987 showing said receipt at Voucher No. 167 dated 30.6.1987. It is evident from entry Ext. PW-4/E that an amount of Rs. 1,00,000/- was paid to Executive Engineer (B & R) for construction of veterinary building. It is duly proved that this letter was in the hand writing of the accused. Thereafter, money was paid by accused in cash and not by way of cheque. Receipt Ext. PW-18/A is regarding draft/Cheque No. A/147-0258093, dated 2.6.1987 for sum of Rs. 1,00,000/-. It was deposited in SBI Kaza on 15.6.1987. This transaction talks of payment by draft and not by cash. It is reiterated that PW-11 R.P.Sharma has admitted that he was paid only Rs. 2,00,000/- by means of cheques Ext. P-2 and P-3. This amount infact was drawn and credited to the accounts of the Department. No other amount was received from the Directorate. This transaction talks of payment by draft and not by cash. It is reiterated that PW-11 R.P.Sharma has admitted that he was paid only Rs. 2,00,000/- by means of cheques Ext. P-2 and P-3. This amount infact was drawn and credited to the accounts of the Department. No other amount was received from the Directorate. Receipt Ext. PW-4/F was issued regarding the cheques. There is no record of temporary receipts. 33. PW-8 Atma Ram has also got verified from the HP PWD that it has received only Rs. 2,00,000/- and not Rs. 3,00,000/-. In fact, an amount of Rs. 2,00,000/- was withdrawn by the accused by means of self drawn cheques. There was no provision for making payment by cash. Ext. PW-18/A cannot be accepted as receipt for the receipt of amount by the PWD. Ext. PW-22/E is the receipt issued by Yankit Dolma. It is duly proved that an amount of Rs. 3,000/- was paid to Dorje Chhering and the amount was entered at Sr. No. 93 of the cashbook. There was entry again at page No. 107 that an amount of Rs. 3000 was paid to Yankit Dolma. A sum of Rs. 3744.75 was handed over to the accused by PW-6 Rattan Singh. This amount has not been shown in the cashbook. It was also misappropriated by the accused. Thus, in all, the accused has misappropriated an amount of Rs. 106744.75. The accused was public servant and he was custodian of the government money. He has misappropriated the government money and thus committed criminal misconduct as defined under Section 5(2) of the old Act and now Section 13(2) of the Prevention of Corruption Act, 1988. The accused has misappropriated a sum of Rs. 106744.75. The prosecution has proved the case against the accused beyond reasonable doubt. 34. Accordingly, there is no merit in this appeal and the same is dismissed. Bail bonds are cancelled.