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Himachal Pradesh High Court · body

2018 DIGILAW 1645 (HP)

Tara Chand v. State Of H. P.

2018-09-12

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J. - The present appeal is preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure assailing the judgment of conviction dated 26.12.2011/28.12.2011, passed by the learned Special Judge, Kullu, H.P., whereby, the appellant has been convicted under Section 409 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act and sentenced him for a period of five years and a fine of Rs. 5,000/- and in default of payment of fine to undergo six months imprisonment under Section 409 IPC and further he has been sentenced to imprisonment for a period of two years and a fine of Rs. 2,000/- and in default of payment of fine, he shall further undergo six months imprisonment under Section 13(2) of the Prevention of Corruption Act with a prayer to set aside the impugned judgment. 2. Briefly stating, as per prosecution story, facts giving rise to the present appeal, are that on 09.6.2008, an application (Ex.PW14/A) forwarded by the Assistant Engineer, HPSEB, Manali, through S.I. Pawan Kumar, which was received in the Police Station regarding pocketing of cash of consumers. It has been alleged that the accused was Junior Assistant in the office of the Assistant Engineer, Manali and he was entrusted the work of Cashier since June, 2007. It has been alleged that though the accused was receiving cash from consumers but the post entries were not made by him in the consumers cash received register and this way the consumer cash was fraudulently misappropriated by him for his own use. This misappropriation came to the notice of the Assistant Engineer when the consumers approached with bills showing amount of arrears and complained that the amount of bills was already paid. On receipt of complaint, FIR No.153/08 dated 9.6.2008, Ex.PW14/B was registered at Police Station, Manali, against the accused under Section 409 IPC and under Section 13(2) of the Prevention of Corruption Act. Thereafter, investigation was started. 3. It has been alleged that during investigation, the police recovered and took into possession CCR books Ex.PW5/B and Ex.PW6/B, computerised bills of consumers Ex.PW6/C1 to Ex.PW6/C32, applications of consumers and three seals alongwith detail of bills. It has been alleged that the register containing entry regarding deposit of Rs. 19,050/- by accused and appointment/posting orders Ex.PW6/E to ExPW6/H of accused were also taken in possession. It has been alleged that the register containing entry regarding deposit of Rs. 19,050/- by accused and appointment/posting orders Ex.PW6/E to ExPW6/H of accused were also taken in possession. Statements of witness were recorded and accused was arrested on 23.8.2008. Thereafter, specimen handwriting and signatures of accused were also obtained and sent for comparison to FSL, Junga. On investigation, it was found that while posted as Cashier, the accused misused his position as public servant and embezzled an amount of Rs. 2,11,000/- in the month of March, 2008 and out of fear of complaint deposited a sum of Rs. 19,050/- with the office. On receipt of report of FSL, Junga, Ex.PW18/A, challan was prepared and put in the Court below. 4. After consideration of documents and other material annexed with the police report, it was found that the accused has committed offences under Sections 409 IPC and under Section 13(2) of the Prevention of Corruption Act. 5. To prove the case against the accused, the prosecution has examined as many as 19 witnesses. After the closure of the prosecution evidence, incriminating circumstances and other material proved on record was put to the accused under Section 313 Cr.P.C. The accused termed the incriminating circumstances and material to be incorrect and wrong. He claimed innocence and false implication. 6. Heard. 7. Mr. Sunil Kumar Chaudhary, Advocate, appearing on behalf of the appellant/accused, has vehemently argued that the appellant is innocent and the prosecution has failed to prove the guilt of the accused. He has further argued that it has come in the evidence that there were 4-5 persons responsible for the collection and the appellant, who was a promotee from the Class-IV, was also designated as a Cashier, but the Assistant Engineer concerned was also there to supervise daily and other persons, who were also collecting the bills, were not made accused. He has argued that even the Handwriting Expert, who is believed by the learned Trial Court is not believable, as that is a very weak piece of evidence and as there is no other connection to the handwriting and the prosecution has failed to prove that it is the accused, who has not deposited the amount after being collected beyond the shadow of reasonable doubt. Hence, the appeal is required to be allowed. Hence, the appeal is required to be allowed. He has further argued that even the amount has been recovered from the salary of the accused by the Electricity Board. On the other hand, Mr. Ashwani Sharma, learned Additional Advocate General for the respondent/ State has argued that the prosecution has proved the guilt of the accused beyond shadow of reasonable doubt. 8. To appreciate the arguments of the learned counsel for the parties, I have gone through the record in detail. 9. Pw1, Tej Ram has stated that he is resident of Manali and on 07.4.2008, he received electricity consumption bill for Rs. 1,622/- which was deposited with the accused qua which receipt was issued. The accused had appended seal impression on the bill after receiving the amount. He further stated that on 26.6.2008, he received consumption bill in which the amount of Rs. 1,622/- was shown as outstanding. Thereafter, he approached the concerned S.D.O. and deposited the amount of Rs. 3,290/- on account of the bill dated 26.6.2008 with the accused, who had put seal impression on the bill after receipt of money. He also proved the bills Ex.PW1/A and Ex.PW1/B. 10. Pw2 Rakesh Goyal has stated that he was running shop in the tenanted premises owned by one Norbu at Manali. He further stated that in the month of March, 2008 on receipt of electricity bills Ex.PW2/A, Ex.PW2/B and Ex.PW2/C amounting to Rs. 4,555/-, Rs. 1,542/- and Rs. 2,282/- he deposited the bill amount with the accused. He further stated that the accused after putting seal impressions on the bills returned the same to him. He has further stated that he received bills Ex.PW2/D to Ex.PW2/F in which the amount already paid vide bills Ex.PW2/A to Ex.PW2/C was shown outstanding and the amount of those bills was not paid by him. 11. Pw3 Samer Ahmad Beg has stated that he is running a shop at Manali and that in the month of January, 2008, he received consumption bill Ex.PW3/A to the tune of eight thousand six hundred and something, which he paid to the accused on 27.1.2008 and in the next bill Ex.PW3/B an amount of Rs. 8,608/- was shown as outstanding which was also paid to the accused. Thereafter, the matter was brought to the notice of officials of Electricity Board. 12. 8,608/- was shown as outstanding which was also paid to the accused. Thereafter, the matter was brought to the notice of officials of Electricity Board. 12. Pw4 Mujaffar Ahmad has stated that he was running a shop at Manali and that in the month of March, 2008, electricity bill Ex.PW4/A was received, but the payment of the amount was not made by him. He further stated that the amount of bill Ex.PW4/B for an amount of Rs. 17,958/- received in the month of May, 2008 was also not paid by him. He further stated that in the month of June, 2008, he also received bill Ex.PW4/C for Rs. 8,412/-, the payment of which was made by him to the accused. He further stated that the accused retained the bill and issued receipt on a piece of paper and also that the amount of Ex.PW4/D received in the month of January,2008, was paid to the accused, but no receipt was issued to him nor the bill was returned. 13. Pw5 HC Krishan Lal has stated that in his presence on 17.8.2010, Hira Lal produced register, which was taken in possession vide recovery memo Ex.PW5/A. 14. Pw 6 Hira Lal has stated that he produced Consumer Cash Received Book, Ex.PW6/B before the Investigating Officer, which was taken in possession vide memo Ex.PW6/A. He also stated that he had handed over to police consumer cash received book Ex.PW5/B. He has further stated that the bills, as shown in memo Ex.PW6/A, have not been entered in Ex.PW5/B and Ex.PW6/B. He has stated that consumer bills Ex.PW6/C1 to Ex.PW6/C-32, which bears signatures of the accused and seal of the department affixed by him. He has stated that vide memo Ex.PW6/A, the police had also taken into possession two seals the impression of which was found on the bills and the same were sealed in cloth parcel. He further stated that he also handed over the duty register Ex.PW6/D to the police, which was taken in possession vide memo Ex.PW5/A and the register Ex.PW6/D contained entry regarding deposit of Rs. 19,050/- by the accused. 15. Pw7 Charan Dass has testified that Hira Lal PW6 had produced before the police bills Ex.PW6/C1 to Ex.PW6/A-32, cash book Ex.PW6/B and Ex.PW6/D. 16. Pw8 Bhim Sen has stated that he was running a bakery shop at Manali and that the amount of Rs. 19,050/- by the accused. 15. Pw7 Charan Dass has testified that Hira Lal PW6 had produced before the police bills Ex.PW6/C1 to Ex.PW6/A-32, cash book Ex.PW6/B and Ex.PW6/D. 16. Pw8 Bhim Sen has stated that he was running a bakery shop at Manali and that the amount of Rs. 12,736/- of electricity bill(Ex.PW8/A) was deposited with the accused on 24.3.2008 and thereafter, in the next bill the amount already paid was again claimed by the department. He further stated that the receipt was shown to the higher officials and complaint was also made. He has stated that after adjusting the amount already paid, remainder was paid by him and thereafter next bills Ex.PW8/B for Rs. 18,399/- and Ex.PW8/C for Rs. 28,746/- were received by him. 17. Pw9 Shambhu Sherpa has stated that he was running a tea stall at Manali and in the month of February,2008, he had received electricity bill of Rs. 700/- - 800/- payment of which was made. He further stated that he received next bill in which the amount already paid, was also claimed and thereafter, he approached the concerned officials. He was also cross-examined, but he failed to identify the accused. He admitted that he had paid bill amount to the department but the same was embezzled and amount was shown as arrears in next bill. 18. Pw10 HHC Gautam Chand has stated that on 05.10.2008, MHC Hem Raj handed over one parcel and one another parcel sealed with three seals of impression ''M'', alongwith relevant documents to him, which he carried vide RC No.137/2008 and deposited the same at FSL on 05.10.2008 and on return, handed over the RC containing receipt of FSL with MHC. 19. Pw 11 Sahid Khan has stated that he was running a shop of electrical goods. He received bill of Rs. 6,062/- in March 2008 and Rs. 5,928/- whereby department had claimed amount already deposited by him. He has further stated that he had deposited bills Ex.PW6/C-29 to Ex.PW6/C32 and Ex.PW11/A with accused and receipts whereof were also issued by him. He contacted Charan Dass of Electricity Department and had shown receipt of amount already deposited with the department. 20. Pw12 ASI Hem Raj has stated that he remained posted as MHC, Police Station, Manali. He has further stated that he had deposited bills Ex.PW6/C-29 to Ex.PW6/C32 and Ex.PW11/A with accused and receipts whereof were also issued by him. He contacted Charan Dass of Electricity Department and had shown receipt of amount already deposited with the department. 20. Pw12 ASI Hem Raj has stated that he remained posted as MHC, Police Station, Manali. On 10.7.2008, Inspector Sanjay Kumar had deposited a parcel containing three seals with him sealed with three seals of impression ''M'' alongwith sample seal those were entered in Malkhana Register. He has further stated that on 05.10.2008 vide RC Ex.PW12/A, the parcel was handed over to HHC Gautam Chand with the direction to deposit the same at FSL, who carried the same and deposited at FSL vide receipt Ex.PW12/B and on return handed over the receipt. 21. Pw13 Harvinder Singh has stated that on the request of the police, he produced documents Ex.PW13/A. 22. Pw14 ASI Daya Ram has stated that on receipt of complaint, Ex.PW14/A, he registered FIR Ex.PW14/B. On 25.8.2008, application to the learned J.M.I.C., Manali and specimen handwriting and signatures of the accused Tara Chand Ex.PW14/C1 to Ex.PW14/C-18 were obtained in the presence of the learned JMIC. He has further stated that he took in possession abstract of Malkhana register from M.HC. Hem Raj and recorded his statement. 23. Pw15 HHC Gautam Chand No.9 has stated that on 05.10.2008, MHC Hem Raj handed over to him a parcel sealed with three seals of impression ''M'' vide RC No.137 of 2008 (Ex.PW12/A), with direction to deposit the same at FSL and he accordingly carried the same and deposited at FSL on 06.10.2008 and on his return handed over receipt on RC to MHC and that so long as the case property remained in his custody, it was untampered and safe. In cross-examination, he denied the suggestion that no parcel was handed over to him by MHC nor he deposited the same at FSL. 24. Pw16 Inspector Sanjay Sharma has stated that he remained posted as SHO, Police Station, Manali and investigated this case. After registration of FIR, Hira Lal, Junior Assistant of the office of Assistant Engineer, HPSEB, Manali had produced record CCR Ex. PW5/B, consumer cash register Ex.PW6/B, bills Ex.PW6/C1 to Ex.PW6/C32. He has further stated that the amount of bills was not reflected in the registers and the same was embezzled. After registration of FIR, Hira Lal, Junior Assistant of the office of Assistant Engineer, HPSEB, Manali had produced record CCR Ex. PW5/B, consumer cash register Ex.PW6/B, bills Ex.PW6/C1 to Ex.PW6/C32. He has further stated that the amount of bills was not reflected in the registers and the same was embezzled. He has further stated that the parcel was sealed with seal of impression ''M'' sample seal of which is Ex.PW16/B. He also took into possession register Ex.PW6/D. He further stated that he has recorded the statements of witnesses and on receipt of FSL report Ex.PW18/A, the challan was prepared. 25. Pw17 has stated that he remained posted as Sub Inspection, Police Station, Manali at the relevant time and he prepared supplementary challan on 04.3.2011 and also filed audit report alongwith supplementary challan and alongwith challan, he also filed photocopy of RC Register No.19 as well as prosecution sanction. RC No.137 of 2008 is Ex.PW12/A and abstract of register No.19 is Ex.PW12/C. The prosecution sanction in respect of accused Tara Chand is mark-X2. 26. Pw18 Dr. Minakshi, Assistant Director, SFSL, Junga has stated that in this case one sealed envelope bearing six seals of English letter-D was received through HHC Gautam Chand-246 on 06.10.2008. The seal impression on the envelope were found intact and tallied with the sample seal impressions sent vide document No.8056/5A on 5.10.2008. The envelope was cut and opened and the exhibits mentioned under the heading "question documents, specimen documents and admitted exhibits" as mentioned in the FSL report No.2139 FSL Document (204) 08 were obtained. The questioned items were red enclosed, stamped and marked as Q-1 to Q-103 and Q-86A. She has stated that the questioned items were already exhibited in the Court and she identified the same. She has stated that the specimen items were blue enclosed and marked as S-1 to 18 and identified the same. She has further stated that the seal impression on the cloth parcel were found intact and tallied with the sample seal impression. The parcel was cut and opened and three number of rubber stamps were obtained. She has stated that the rubber stamps were carefully and thoroughly examined in the laboratory with the scientific aids and photographic light system etc. She has further stated that the seal impression on the cloth parcel were found intact and tallied with the sample seal impression. The parcel was cut and opened and three number of rubber stamps were obtained. She has stated that the rubber stamps were carefully and thoroughly examined in the laboratory with the scientific aids and photographic light system etc. The general and individual writing character sticks were taken into consideration while reaching at the conclusion mentioned in para 2 of the result part FSL report No.2139 FSL document (204) 08. She did not find any fundamental difference between the writing character sticks of the questioned and respective standard items marked as Q-36 when compared with the specimen items S13 to S18. She further stated that super imposition test was conducted to compare the stamp impression with the rubber stamps. She has stated that the report was prepared by the then Scientific Officer namely Shri M.R. Sharma and she had countersigned the report. In her cross-examination, she has admitted that she has mentioned in the result part of the report that all the principles of writing identification were taken into consideration while reaching at the conclusions. She has admitted that details of scientific principles of writing identification have not been given in the result. There are number of parameters on the basis of which they draw their conclusions. She denied the suggestion that the report is fabricated one and it was prepared at the instance of the police. Further that hand writing identification science is not an accurate and perfect science. She denied the suggestion that different experts can come with different conclusions. She admitted that she could not give the exact number of parameters, however, there are number of parameters, on the basis of which they drawn the conclusions. She admitted that the documents were initially sent for the purpose of examination on 15.9.2008 and the same were returned to the Investigating Agency after raising certain observations. The documents when were again sent on 24.9.2008, which were again sent back with the remarks to remove earlier raised observations and finally the documents were accepted for examination on 06.10.2008. 27. Pw 19 Om Parkash Bhatia, Senior Assistant in the office of Executive Director(Personnel), HPSEB, Shimla has proved prosecution sanction of accused Tara Chand, Ex.PW19/A, which was granted by Dr. M.P. Sood. 27. Pw 19 Om Parkash Bhatia, Senior Assistant in the office of Executive Director(Personnel), HPSEB, Shimla has proved prosecution sanction of accused Tara Chand, Ex.PW19/A, which was granted by Dr. M.P. Sood. He stated that file complaining all the documents was put up before competent authority. Thereafter, the competent authority dictated sanction to him. 28. From the above this Court finds that PW2 Rakesh Goyal could not say that how many employees were working in the Electricity Board at Manali, but stated that he has made payment of the bill to the persons sitting in the collection window. But he has not stated that it was the accused, who was sitting in the collection window. 29. Further, PW1 in his cross-examination, has stated that there were 8-9 Meters installed in his building. The outstanding amount was given only qua his meter. At the same point of time, PW3, in his cross-examination, has stated that he has seen the accused for the first time, when he was sitting in the office. Similarly, PW6 Hira Lal, Senior Assistant has admitted that there were 89 officials in their office at Manali. Further, he has admitted that cash is collected by Cashier from the consumers and thereafter the same is deposited with Senior Assistants of the office in the evening. He does not know that the accused was promoted from the post of Class-IV. The Consumer Cash Received Book is filled once every day in the evening. He admitted that the same is signed by the Senior Assistant and the Assistant Engineer. He denied the suggestion that the bills amounting to more than Rs. 5,000/- are deposited with the Assistant Engineer. He has stated that memos were not repared in his presence and that accused had not put his signatures on Consumer Cash Received Books. He has denied the suggestion that he was not associated by the police in the investigation of this case and the record was not taken in possession by the police. 30. Dr. Minakshi Mahajan (PW18), who has given the report with regard to the handwriting has stated that she has given no reasons for her report and she has not given any details of scientific principles of writing identification in the report. She has also stated that the documents were returned to the Investigating Agency initially with certain observations and finally it was accepted. She has also stated that the documents were returned to the Investigating Agency initially with certain observations and finally it was accepted. The evidence, which has come on record, thus is not conclusive, as it has come on record that there were 5-6 persons working at the place of making collections against the electricity bills issued. There are other persons responsible for the daily inspection of the collection made. The complainants i.e. PW1, PW2 and PW3 were interested persons, as these persons, who have complained that they have earlier made the payment of the bills were shown as outstanding in the subsequent bills. These witnesses have not proved anything on record that they had deposited the bills themselves. Even the accused was not identified by some of the witnesses. The accused is promotee from Class-IV post and was under the supervision of his superiors who were not intercepted by the Investigating Officer nor made accused in the present case. The last but not least, the amount has already been recovered by the Electricity Board from the salary of the accused. This is though not a mitigating circumstance, but has to be taken into consideration while taking over all material into consideration. 31. The net result of the above discussion is that convicting a person on the basis of document, the documents should speak in clarity, which leads to the conclusion that it is the accused who has committed the offence, but in the present case there are material contradictions in the statements of the witnesses, as stated hereinabove. The petitioner and the prosecution have miserably failed to prove the guilt of the accused beyond shadow of reasonable doubt. The principle of the criminal jurisprudence is that in case there is a doubt, the benefit of doubt goes to the accused and no one can be convicted, if there is any suspicion circumstance. 32. For the above said reasons, the findings of conviction and sentence imposed upon the appellant are thus set aside and quashed. 33. All the pending application(s), if any, stands disposed of.