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2017 DIGILAW 112 (CHH)

S. M. Gupta v. State of Madhya Pradesh (Now CG)

2017-03-06

PRITINKER DIWAKER

body2017
JUDGMENT : Pritinker Diwaker, J. This appeal arises out of the judgment or conviction and order of sentence dated 21-10-1997 passed by the II Additional Sessions Judge, Bilaspur in Special Criminal Case No. 4/88 convicting the accused/appellant under Sections 409, 420 of IPC and 5(1)(d) read with Section 5(2) of Prevention of Corruption Act. He has been sentenced to undergo RI for three years, fine of Rs. 1000/-, RI for three years, fine of Rs. 1000/-, RI for two years, fine of Rs. 500/- and RI for one year, fine of Rs. 1000/- with default stipulations respectively. 2. As per prosecution case, at the relevant time the appellant S. M. Gupta was working as Assistant Engineer in the State Electricity Board. Under the supervision of M.P. Electricity Board, Construction Division, (E.H.T.), Bilaspur the work of laying down of new electric line at Rajnandgaon, Bhilai, Simga, Akaltara, Korba and Dallirajhara was going on. The said work was being carried out by the workers on the basis of muster roll. A complaint was received by the police from secret sources that for carrying out the said work, apart from irregularities, a lot of bungling has been done where forged entries in the muster roll have been made, muster rolls are not being made in the office by Shri S.S. Prasad, appellant S.M. Gupta, both Assistant Engineers, with the connivance of other accused persons namely Shri A. Annamalai (Fourman) and Shri B.S. Bais (Store Assistant). It was further averred in the complaint that the appellant with the help of co-accused persons is making entry in the muster roll sitting at Bilaspur and while doing so, even the name of those persons are being mentioned who have either not worked or not in existence. Further, while payment is shown to have been made to these persons, in fact either no such payments has been made or actual payments has been made only for a week whereas in the muster roll it has been shown that throughout the month they have worked and payment has been made accordingly. After receiving the secret information, a detailed letter was written by the Inspector Shri M.K. Heeradhar (PW-34) to the Superintendent of Police, Lokayukt vide Ex. P/33, based on which Dehati Nalishi was recorded. In the said letter it has been averred that the facts can be verified after reaching the places where payment is being made. After receiving the secret information, a detailed letter was written by the Inspector Shri M.K. Heeradhar (PW-34) to the Superintendent of Police, Lokayukt vide Ex. P/33, based on which Dehati Nalishi was recorded. In the said letter it has been averred that the facts can be verified after reaching the places where payment is being made. Accordingly, on 11-5-1980 the Police of Special Establishment, Bhopal reached near railway crossing, Rajnandgaon, and Muster Roll No. 924 was examined and it was found that forged entries have been made in the same, excessive payment has been shown in it whereas actually very less amount has been paid on the laboures as they have worked only for few days. At the spot itself, offence under Sections 468, 420, 409 of IPC and Sections 5(1)(d) and 5(2) of Prevention of Corruption Act was registered and investigation was set in motion. The muster rolls which were in possession of the appellant were examined, however, the appellant could not be traced from 11-5-1980 to 14-5-1980. Information was given to the police authorities by the Divisional Engineer that on 15-5-1980 the appellant is likely to go to Bhilai for making payment to the labourers, on which the police party reached there and directed for seizure of muster rolls, Muster Roll Nos. 917, 918, 919, 921 and 922 were examined and it was found that though payment has been made to the labourers but proper entries have not been made in the muster rolls. Statements of various labourers were recorded wherein they disclosed that though they have worked for hardly few days, they have been made excessive payment and therefore, some of them have returned the amount paid in excess to them. All these details are part of Dehati Nalishi Ex. P/33. During investigation, it was found that the accused persons in connivance with each other have grabbed a huge amount. Thereafter, FIR (Ex. P/34) was registered under Sections 409, 420, 468 of IPC and Sections 5(1)(d) and 5(2) of Prevention of Corruption Act against the appellant and other accused persons. After obtaining due sanctions, the accused persons were put to trial. The trial Court framed charges against all the three accused persons namely S. M. Gupta, A. Annamalai and B.S. Bai under Sections 409, 420, 468 of IPC and Sections 5(1)(d) and 5(2) of Prevention of Corruption Act. 3. After obtaining due sanctions, the accused persons were put to trial. The trial Court framed charges against all the three accused persons namely S. M. Gupta, A. Annamalai and B.S. Bai under Sections 409, 420, 468 of IPC and Sections 5(1)(d) and 5(2) of Prevention of Corruption Act. 3. So as to hold the accused persons guilty, the prosecution examined as many as 44 witnesses. Statements of the accused persons were also recorded under Section 313 of Cr. P. C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting accused B. S. Bais of all the charges, convicted and sentenced the accused/appellant and A. Annamalai as mentioned in para-1 of this judgment. Accused A. Annamalai preferred criminal appeal (Cr. A.No. 2319/97) whereas the present appeal has been preferred by accused S. M. Gupta. During pendency of Cri. A.No. 2319/97, accused A. Annamalai expired on 17-1-2004 and therefore, his appeal stood abated vide order dated 29-1-2014. 5. Learned counsel for the appellant submits as under :- (i) that basic ingredients of Sections 409, 468, 420 of IPC are completely missing in the present case. (ii) even assuming that the muster rolls were prepared by the accused persons in the office of the appellant, no fault can be attributed to the appellant for this because the entries were made in the register by the appellant based on slip/small piece of paper showing strength of the workers on given dates. It was practically impossible for the appellant to have muster rolls at every place for making entry in the same. (iii) that the appellant had no option but to accept the slips/small piece of paper given to him by his subordinates and accordingly, entries were by him in the muster rolls. (iv) that after the incident came to light, along with the appellant one Mr. P.K. Shrivastava (PW-40), Additional Chief Engineer, was also suspended, however, in the departmental enquiry it was found that both were negligent while performing their duties and for this act of negligence, while withholding one increment of Mr. Shrivastava, the appellant's two increments were withheld. (iv) that after the incident came to light, along with the appellant one Mr. P.K. Shrivastava (PW-40), Additional Chief Engineer, was also suspended, however, in the departmental enquiry it was found that both were negligent while performing their duties and for this act of negligence, while withholding one increment of Mr. Shrivastava, the appellant's two increments were withheld. According to the department, the act of the appellant can only be termed as irregularity and negligence and by no stretch of imagination, the same would fall within the ambit of any criminal act. (v) that the muster rolls signed by the appellant were ultimately approved by Mr. P. K. Shrivastava and once the appellant can be made accused, them Mr. Shrivastava was also liable to be arrayed as accused. (vi) that as per PW-15 Manharan Singh Goutam entries of the work and payment were to be made on a piece of paper and in turn, those papers used to be given to deceased accused A. Annamalai and it is Annamalai who used to further supply these papers to the appellant. The appellant on the basis of those paper used to make entry in the muster rolls and ultimately, the same was verified by Mr. P.K. Shrivastava. Whatever material was forwarded by Annamalai was accepted by the appellant. (vii) even accepting the entire evidence adduced by the prosecution, it is evident that the prosecution has utterly failed to prove its case against the appellant in relation to offence under Sections 409, 468, 420 of IPC and Section 5(1)(d) read and 5(2) of Prevention of Corruption Act. (viii) lastly, it has been submitted that if the Court finally comes to the conclusion that the appellant has been rightly held guilty for the aforesaid offences by the trial Court, then considering the fact that the appellant is facing prosecution since 1988, by now he is aged about 66 years and is not keeping good health, has already remained in jail for about 28 days and that there is no minimum sentences prescribed under these sections, the jail sentence of the appellant may be reduced to the period already undergone by him. 6. 6. On the other hand, supporting the impugned judgment it has been argued by the State counsel that conviction of the accused/appellant is based on proper appreciation of the evidence and there is not illegality or infirmity in the same warranting interference by this Court. He submits that the appellant was head in-charge of the entire work, which was being carried out by the Electricity Board and being in-charge and a responsible officer, he cannot shirk his liability. The prosecution witnesses have categorically stated that they have worked for few days but muster rolls go to show that payments has been made to them for the entire month and even entries have been made of those persons who were not in existence. Lastly, he has submitted that the appellant has also failed to offer any explanation in his statement under Section 313 of Cr. P. C. as to how such entries were made in the muster rolls by him. 7. Heard counsel for the respective parties and perused the material on record. 8. PW-1 Latiram turned hostile. PW-2 Guharam has stated that in his village Omkar Singh and few 4-5 persons had come, who were engaged as labourers for carrying out the work of Electricity Department. PW-3 M. Devrajan is a witness of seizure of Ex. P/2 paid voucher and register. PW-4 N. Devrajan is a witness from whom Muster Roll No. 12 was seized vide Ex. P/3. PW-5 R. D. Singh has proved service record of appellant and deceased accused Annamalai. PW-6 R. B. Tiwari is a witness of seized voucher and muster roll Ex. P/9. PW-7 Madhukumar, PW-8 P.K. Dubey and PW-9 Ramnarayan have not supported the prosecution case. PW-10 Kedarnath was working as labour in MPEB. He has stated that deceased accused Annamalai was working as foreman and under him he was working. In official vehicle he had gone to Saroud along with accused persons and on the way 4-5 labourers boarded, their signatures were obtained in the muster roll by appellant and the deceased accused. The accused/appellant had given Rs. 50/- as advance to the labourers and on his request Rs. 140/- was given to him. He states that thereafter he went on leave. 9. PW-11 Rajkumar has turned hostile. PW-12 Sarjuprasad has stated that at the rate of Rs. The accused/appellant had given Rs. 50/- as advance to the labourers and on his request Rs. 140/- was given to him. He states that thereafter he went on leave. 9. PW-11 Rajkumar has turned hostile. PW-12 Sarjuprasad has stated that at the rate of Rs. 5.50/- per day amount was given to him for the entire month, however, as he had worked only for seven days, he kept wages of seven days and returned the remaining amount. PW-13 Maanaklal has stated that Rs. 165/- was given to him as labour charges for the entire month, however, as he had worked for 8 days, retaining the amount of 8 days, he returned rest of the amount. PW-14 Manthirlal and PW-16 Jhumuklal have made similar statements as have been made by PW-12 to PW-14. PW-15 Manharan Singh Goutam has turned hostile. PW-17 J. K. Bhimte was working as AG-I in the office of Electricity Board, he has proved the sanction for prosecuting the appellant and deceased accused Annamalai. PW-18 Manharan has turned hostile. PW-19 Budhuram has admitted that he received Rs. 10/- and signed the muster roll. He admits that he has never worked for Electricity Department or P. W. D. PW-20 Lalitkumar has also stated that only Rs. 10/- was given to him and he signed the register. PW-21 Dilip Kumar, PW-22 Baliram, PW-23 Nareshram have admitted that they received Rs. 10/- and signed the muster roll. 10. PW-24 Sahulala has turned hostile. PW-25 Cholaram Dewangan has not supported the prosecution case. PW-26 Nemisharan, PW-27 Dharamlal and PW-28 Sansram have turned hostile. PW-29 Manharan, PW-30 Keshavram, PW-31 Bhagatram and PW-32 Milauram have stated that they received Rs. 10/- and put signature on the register. 11. PW-33 Bodhram has stated that in the year 1977-78 in the Electricity Department, work of wiring and tower erection was going on, he was working under Omkar Singh, he was asked by Omkar Singh to sit in the vehicle of Mr. Gupta and then he found co-accused Annamalai and other labourers in the vehicle, they were taken to a place Banari, that he will give Rs. 10/- to each as there was acute drought in the village. Number of persons agreed and they all sat in the vehicle and their signatures were obtained by the appellant and the deceased accused Annamalai. Gupta and then he found co-accused Annamalai and other labourers in the vehicle, they were taken to a place Banari, that he will give Rs. 10/- to each as there was acute drought in the village. Number of persons agreed and they all sat in the vehicle and their signatures were obtained by the appellant and the deceased accused Annamalai. Thereafter in the Court he identified the accused/appellant and the deceased accused and stated that they had given Rs. 10/- to each villager. 12. PW-34 M. K. Hiradhar helped in the investigation. PW-35 R. S. Chaturvedi, Dy. Collector (Retd.) is a seizure witness of muster roll Exs. P/23 to P/29. PW-36 Rama has stated that he did not work anywhere, however, he was given Rs. 10/- and then he put his signature on the muster roll. PW-37 Dwarika has turned hostile. PW-38 D.R. Khunte, Naib Tehsildar, made seizure of muster roll vide Ex. P/30 to P/32. PW-39 S.S. Gour has proved signature of Shri. S.B. Richharia, in-charge DSP, who conducted investigation, as Shri. Richharia has expired. He has proved seizure Exs. P/24, P/30 to P/57. He has stated that the labourers who were paid amount in excess had deposited the excess amount with Mr. Richharia and accordingly, seizure of the same was made. 13. PW-40 P. K. Shrivastava was working as Executive Engineer in between 25-11-1978 to 1-8-1980. He has stated that the appellant was working under him and was in-charge of laying of electric wire and the work was being done of the basis of muster roll entry. It was the appellant who was responsible for the entire act. He has stated that the deceased accused was working under him as foreman; Exs. P/50 to P/57 and P/40 bear the signature of the appellant and Exs. P/39, P/40 and P/41 contain details of the labourers. Muster Roll No. 929 was issued by him to Shri Gupta on 30-5-1980. Likewise, other Muster Roll No. 917 was also issued by him to Shri Gupta which was duly signed by him. The inner sheet 348 of this muster roll was given to the appellant which was signed by the appellant. Bill amounting to Rs. 20,703.50/- came to him for sanction which was sectioned by him. Muster Roll No. 918 Ex. P/46 was also issued by him and handed over to Shri Gupta and bill of Rs. The inner sheet 348 of this muster roll was given to the appellant which was signed by the appellant. Bill amounting to Rs. 20,703.50/- came to him for sanction which was sectioned by him. Muster Roll No. 918 Ex. P/46 was also issued by him and handed over to Shri Gupta and bill of Rs. 2920.50/- came to him for sanction which was done by him. Muster Roll No. 921 was given by him to Shri Gupta, which was done by him. Bill of Rs. 8085/- came to him for sanction which was done by him. Exs. P/59 to P/64 is a tour diary, which bear the signature of Shri Gupta. He has further stated that he sanctioned the bills on the basis of muster roll, and mistake, if any, in the muster roll is to be looked into by the Divisional Accountant. He states that in the matter of forgery in muster roll he too was suspended along with Shri Gupta and Shri Prasad. He was subjected to departmental enquiry and his one increment was stopped. 14. PW-41 Josaf Rai, driver of the jeep, has stated that labourers were collected in the vehicle, at Taroud there were 40-50 persons standing, the appellant and the deceased accused Annmalai got down from the vehicle and went inside the village and after about 1-½ hour they returned. Advance payment was made to them and their signatures were obtained after giving Rs. 10/- to each. PW-42 Tikaram and PW-43 Ramaji have turned hostile. PW-44 Ramlal has stated that in the year 1980 the accused/appellant came to him and asked to sign the muster roll but he refused to sign the same, however, he was given threat that it has been asked by the Executive Engineer and when he again refused, he was again given threat and then under threat he signed the same. He states that when he had gone to the office he was informed that vigilance people are searching for the appellant and then he narrated the earlier incident to the staff and told them that is signature has been obtained in the muster roll. He was asked by the staff not to do it again and then he made a written complaint vide Ex. P/67 to the vigilance. 15. He was asked by the staff not to do it again and then he made a written complaint vide Ex. P/67 to the vigilance. 15. Close scrutiny of the evidence makes it clear that at the relevant time, the accused/appellant was working as Assistant Engineer in the State Electricity Board and at the time, the work laying down of new electric line at Rajnandgaon, Bhilai, Simga, Akaltara, Korba and Dallirajhara was going on, which was being carried out by the workers on the basis of muster roll. The prosecution witness (PWs-18, 19, 20, 21, 22, 23, 29, 30, 32, 33, 36, 43) have specifically stated that at the instance of accused persons they signed on the muster rolls after receiving Rs. 10/-. PW- 44 Ramlal has stated that the accused/appellant forcibly made him sign on the muster roll and subsequently, when he came to know that vigilance people are searching for the appellant, he informed the staff members about signing on the muster roll at the instance of the appellant, who scolded him for doing so and thereafter, he made a written complaint Ex. P/67 to the vigilance officials. He has also proved the said complaint. Likewise, PWs-12, 13, 14, 16, 42, and 43 have stated that though they worked for few days, but were given payment for the entire month, however, they returned the excess payment after retaining the amount of the period they had worked. PW-41 has stated that he recognises all the accused persons, they are employees of Electricity Department. At the relevant time he was working as driver. According to him, the accused/appellant had asked Omkar Singh to collect such persons who are not working in M. P. E. B. and take their signatures on the muster rolls and in lieu therefore, each of them would be given Rs. 10/-. The witnesses to seizure of muster rolls and other documents have duly supported the prosecution case. 16. There can do no doubt that before a public servant can be convicted of an offence under Section 409 of IPC, the property which is said to have been misappropriated must be entrusted to him. In the present case, PW-39 S.S. Gour has proved signature of Shri S. B. Richharia, in-charge DSP, who conducted investigation, as Shri Richharia has expired. He has proved seizure Exs. In the present case, PW-39 S.S. Gour has proved signature of Shri S. B. Richharia, in-charge DSP, who conducted investigation, as Shri Richharia has expired. He has proved seizure Exs. P/24, P/30 to P/57 and stated that the labourers who were paid amount in excess had deposited the excess amount with Mr. Richharia and accordingly, seizure of the same was made. Further, PW-40 P. K. Shrivastava who was working as Executive Engineer in between 25-11-1978 to 1-8-1980, has stated that the appellant was working under him and was in-charge of laying of electric wire and the work was being done on the basis of muster roll entry. He has stated that the responsibility of disbursement of payment was entrusted to the appellant. The muster roll seized by the police bear the signature of the appellant. The evidence of PW-39 gets corroboration from the evidence of PW-15 Manharan Singh Gautam who has stated that it is the accused/appellant who used to prepare muster rolls in the divisional office. As such, it stands established from the aforesaid evidence that the appellant was entrusted with the property in question. 17. Now it is to be seen whether the appellant, in any manner, misappropriated the property so entrusted to him by committing forgery in muster rolls. From the evidence of the prosecution witnesses, as discussed above, it is clear that the accused/appellant in connivance with other co-accused persons obtained signatures of such persons on the muster rolls who had either not worked or had worked for 7-8 days only and despite that they were paid wages for the entire month. Such forged entries in the muster rolls have been duly proved by the witnesses. According to unrebutted evidence of PW-44 Ramlal, he was forcibly made to sign on the muster roll by the accused/appellant and that is why he made a written complaint vide Ex. P/67 to the vigilance against the appellant. Defence has utterly failed to elicit anything from the prosecution witnesses which could make their evidence untrustworthy or doubtful. This apart, the appellant has also failed to offer any explanation in his statement under Section 313 of Cr.P.C. as to how such misappropriation, forgery or cheating occurred. 18. P/67 to the vigilance against the appellant. Defence has utterly failed to elicit anything from the prosecution witnesses which could make their evidence untrustworthy or doubtful. This apart, the appellant has also failed to offer any explanation in his statement under Section 313 of Cr.P.C. as to how such misappropriation, forgery or cheating occurred. 18. Thus, on the basis of evidence, oral and documentary, adduced by the prosecution, it is crystal clear that the appellant, who was Assistant Engineer in M.P. E.B., entrusted with the responsibility of making payment to the labourers engaged in the work of laying down of electric line at specified places, by misappropriating the Government fund committed breach of trust and in connivance with other co-accused committed forgery in muster rolls, thereby withdrew fund from the public exchequer even in the name of those persons who were not in existence. This act of the accused/appellant definitely makes him guilty under Sections 409, 468 and 420 of IPC. That apart, since appellant being a public servant has committed the offence of criminal misconduct by dishonestly or fraudulently misappropriating for his own use the property entrusted to him of under his control, thereby abusing his position as public servant, his act is also punishable under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947. The trial Court after due appreciation of the entire evidence on record has rightly convicted the appellant under the aforesaid sections and this Court does not find any illegality or infirmity in the findings arrived at by the trial Court. 19. As regards the quantum of sentence, keeping in view the fact that the incident is of the year 1988, the appellant has already undergone physical incarceration for 28 days and must have suffered tremendous mental trauma and anguish for these 28 years and at present, is also having poor health, this Court is of the opinion that ends of justice would be served if the appellant is sentenced to the period already suffered by him under Sections 409, 468 and 420 of IPC and Sections 5(1)(d)/5(2) of Prevention of Corruption Act and is directed to pay a total fine Rs. 1 lac with default stipulation. 20. In the result, the appeal is allowed in part. 1 lac with default stipulation. 20. In the result, the appeal is allowed in part. While maintaining conviction of the appellant under Sections 409, 468 and 420 of IPC and Section 5(1)(d), 5(2) of Prevention of Corruption Act, his jail sentence under these sections is reduced to the period already undergone by him. He is, however, directed to pay a total fine Rs. 1 lac, excluding the fine amount imposed by the trial Court, and in default thereof he shall have to suffer additional R. I. for six months. The judgment impugned stands modified to the above extent. Appeal partly allowed.