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Jharkhand High Court · body

2022 DIGILAW 870 (JHR)

R. B. Singh v. State of Jharkhand

2022-07-18

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. Since all these criminal revision applications arise out of common judgment and are interconnected; as such same are heard together and disposed of by this common judgment. 3. These revision applications are directed against the common judgment dated 20.3.2006 passed by learned 7th AJC-cum-Special Judge, C.B.I., Ranchi in Criminal Appeal No.148/05 and in Criminal Appeal No. 152/2005; whereby the judgment of conviction and order of sentence dated 8.8.2005 passed by the learned SDJM-cum-Special Judicial Magistrate, C.B.I., Ranchi in R.C. Case No.5(S)/89(R), Tr. No.9/2005; whereby the petitioners were convicted u/s 120B, 420, 468, 471 of the IPC and were sentenced to undergo R.I. for two years each with fine of Rs.2,000/- each and in case of default, to further undergo S.I. for three months; has been affirmed and the appeal filed by the petitioners was dismissed. 4. At the outset it is relevant to mention here that vide order dated 29.10.2018, this application was dismissed as abated as against the petitioner No.1-Ranjit Kumar Ghosh in criminal revision No.442 of 2006. 5. The prosecution case in short is that the above named petitioners while posted at Bokaro Steel Plant, Bokaro during October, 1986 to October, 1988 entered into a criminal conspiracy to cheat the Management of Bokaro Steel Plant by submitting false T.A. advance application bearing forged signature of controlling officers and in pursuance of said criminal conspiracy, they withdrew advance T.A. of Rs.3,21,500/- for which they were otherwise not entitled. It is further alleged that all the applications of the accused persons were directly handed over to account section where Sumeru Singh and N. Mishra passed the advance and Md. Salauddin, S.K. Roy, Ajay Kumar and T. Chkaraborty authorized the payment. On the basis of credible information, the case was instituted by the informant Ashok Kumar Saha, Inspector of Police, CBI/S.P.E, Ranchi on his self-written report and investigation was taken up. After due investigation charge sheet has been submitted against 19 accused persons, cognizance of the offence has been taken against them on 30.5.1990. Rest six accused persons, namely, Md. Salauddin, Sri Swapan Kumar Roy, Sri Ajay Kumar, Sri T. Chakraborty, Sri Samaru Singh and Sri Nageshwar Mishra have not been sent up for trial and final form has been submitted against them and they have been discharged. Rest six accused persons, namely, Md. Salauddin, Sri Swapan Kumar Roy, Sri Ajay Kumar, Sri T. Chakraborty, Sri Samaru Singh and Sri Nageshwar Mishra have not been sent up for trial and final form has been submitted against them and they have been discharged. Out of 19 accused persons seven persons namely, T.K. Goswami, G.P. Singh, G.Y. Giri, P.M. Gangadharan, S.K. Paul, Nar Bahadur and L.D. Ram remained absent and they never appeared, as such their case was separated and 12 accused persons/above named petitioners faced trial. Charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 6. Mr. V.P Singh, learned senior counsel appearing on behalf of the petitioner (in Cr. Rev. No.486/06) submits that though 25 persons were named accused in the F.I.R., however accused No.5-Sumeru Singh, accused No.6-Nageshwar Mishra who passed the T.A. advances and accused No.1-Md. Salauddin, accused No.2-Swapan Kumar Roy, accused No.3-Ajay Kumar and accused No.4-Sri T. Chakraborty who authorized the payments were not charge-sheeted. Mr. Singh specifically submits that all non-charge sheeted persons were from the Accounts Department. This clearly goes to show that the fraud/conspiracy/cheating is not proved as the allegation is with regard to withdrawal of forged T.A. bills. Mr. Singh further submits that there was a long delay in institution of this case and no plausible explanation has been submitted for the said delay and the Investigating Officer (P.W.10) in his deposition admitted that there was no explanation for delay in lodging the F.I.R. Further this case has not been instituted by Management of Bokaro Steel Plant. Learned senior counsel further submits that there was specific rule of the Bokaro Steel Plant for its employees with regard to availment of T.A. advance and in support of his contention he refers to the deposition of P.W.8 (Kalyan Chatterjee, retired Manager, BSP) wherein it has been categorically mentioned that as per the rule an employee who takes advance payment under Travelling Allowances is required to submit the bills within a period of one month, failing which the advance payment will be adjusted from the salary of the subsequent month. Relying upon the aforesaid statement of P.W.8 whose evidence has been accepted by the learned trial court, submits that the said rule clearly transpires that if any advance for T.A. is disbursed by the Accounts Department and if the employee does not submits the corresponding vouchers for the said advance then the said advance will be adjusted from his salary, then how there can be any cheating, inasmuch as, there is no loss to the company. He further referred to the deposition of P.W.6 wherein he has categorically stated that before lodging the instant criminal case maximum advance of T.A. was adjusted. He lastly submits that the company itself did not initiate any departmental proceeding for misconduct with regard to forged advance T.A. for the obvious reasons that the rule itself says if any voucher is not deposited within a period of one month to the accounts department the quantum of advance towards T.A. shall be adjusted from the salary of subsequent month. He concluded his arguments by submitting that even seized documents were not sealed by the prosecution which has been admitted by the P.W.-10, who was the C.B.I. inspector posted at Ranchi and was the informant and I.O. of the case. He also admitted in his deposition at paragraph No.45 that loans or advances were to be recovered within 15 days from the salary of the concerned employee. Thus there cannot be any question of wrongful loss to Bokaro Steel Plant or wrongful gain to the petitioners. 7. Mr. Anil Kumar, learned senior counsel appearing for the petitioner (in criminal revision No.700/06) submits that apart from the aforesaid submission made by Mr. Singh, he further draws attention of this Court to the fact that when the person belonging to the accounts department who were responsible for disbursement of T.A advances were not charge-sheeted, the conspiracy cannot be held to be committed. Mr. Kumar further draws attention of this Court to one of the vital lacuna wherein the informant himself was the investigating officer of the case. Mr. Kumar further draws attention of this Court to one of the vital lacuna wherein the informant himself was the investigating officer of the case. He further submits that though in normal circumstances there is no bar as to informant who cannot investigate the case, but the fact where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum-investigator and the case of prosecution is merely based upon the deposition of the informant-cum-investigator, then such aspect of the matter can be given due weightage while assessing the evidence on record. He further referred to the judgment passed in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120 wherein at paragraph No.12.2 the Hon’ble Apex Court has held as under : “12.2. Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum-investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in Bhaskar Ramappa Madar, the matter has to be decided on a case-to-case basis without any universal generalisation.” Relying upon the aforesaid judgment he submits that this is a case where the petitioners have proved the bias of the investigating officer-cum-informant for several reason; such as, even the company did not institute any case for misconduct. The main allegation of cheating and obtaining wrongful gain cannot be done in view of the rule of adjustment of any advances and above all there is a huge delay in instituting the criminal case and no plausible explanation has been tendered by the prosecution. The learned trial court should have given weightage on this plea but the fact remains that both the trial court as well as appellate court have failed to consider all these aspects and thus all these applications requires interference. 8. Mr. Prashant Pallav learned ASGI assisted by Mr. The learned trial court should have given weightage on this plea but the fact remains that both the trial court as well as appellate court have failed to consider all these aspects and thus all these applications requires interference. 8. Mr. Prashant Pallav learned ASGI assisted by Mr. Navneet Sahay submits that there is specific allegation against these petitioners that they have received cash amount as T.A. advance after submitting T.A. advance applications containing forged signature of their controlling officer and used the forged signature as genuine and cheated the Management of Bokaro Steel Plant Limited. Learned ASGI further submits that the witnesses have fully supported the case of the prosecution and the G.E.Q.D also found the signature of the controlling officer was forged. He further submits that the Courts below fully perused and scrutinized all the evidences, both oral and documentary, properly; as such there is no any illegality or irregularity in the findings of the learned courts below. Hence, there is no merit in these applications and deserves to be dismissed. 9. Having heard learned counsel for the parties and after going through the impugned judgments including the LCR, it becomes apparent that the case of the prosecution against these petitioners is that while they were posted at Bokaro Steel Plant, Bokaro during October 1986 to October 1988, entered into a criminal conspiracy to cheat the Management of Bokaro Steel Plant by submitting false T.A. advance application bearing forged signature of controlling officers and in pursuance of said criminal conspiracy, they withdraw advance T.A. of Rs.3,21,500/- for which they were not otherwise entitled and for the said offence they have been convicted under Sections 120B, 420, 468, 471 of the IPC. In order to appreciate the correctness, legality and propriety of the conviction order and appellate order, it is necessary to go through the relevant provisions of the act and to see the depositions of witnesses, relying upon which the petitioners have been convicted. In order to appreciate the correctness, legality and propriety of the conviction order and appellate order, it is necessary to go through the relevant provisions of the act and to see the depositions of witnesses, relying upon which the petitioners have been convicted. Sections 415 & 420 of the IPC are quoted herein below:- 415:- Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation,--A dishonest concealment of facts is a deception within the meaning of this section. 420:- Cheating and dishonestly inducing delivery of property - Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 10. The legislature has defined the term cheating and its punishment in the aforesaid two sections. The language of section 415 deals in two parts. The Hon’ble Apex Court in the case of G.V. Rao Vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 had occasion to discuss the intent of the provision. The Hon’ble Supreme Court has held that Section 415 IPC has two parts, while in the first part the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property. In the second part, the intentional deception must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The relevant portion of the aforesaid judgment is quoted herein below:- 6. In the second part, the intentional deception must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The relevant portion of the aforesaid judgment is quoted herein below:- 6. This part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. The intentional deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have led the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. 7. As mentioned above, Section 415 has two parts. While in the first part, the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, “mens rea” on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. 11. In the case in hand the Bokaro Steel Plant had a rule of giving T.A. advance where the petitioners were employed. The Rule stipulates that the concerned employee has to make an application for T.A. advance and after receipt of the said Amount in advance if the relevant vouchers for the said travelling are not produced within 30 days then such advanced amount would be settled after deduction from employees’ salary. Thus, there cannot be any question of damage caused to the company. Thus, there cannot be any question of damage caused to the company. In the instant case admittedly; there is no loss to the company. Even otherwise, when the employees of Bokaro Steel Plant knew this very fact that if the concerned vouchers for the respective T.A. advance will not be submitted by them within a period of one month, the same would be adjusted from their salary of subsequent month then there cannot be any intention for cheating also. The prosecution has failed to give any evidence, either documentary or by way of deposition of any prosecution witness to the extent that the petitioners were not knowing the rules; rather the investigating officer himself has accepted this very rule and he had also admitted in his deposition that loans or advances were to be recovered within 15 days from the salary of the concerned employees. Thus, this Court holds that no offence of cheating as per Section 415 I.P.C. is made out and consequently the conviction under Section 420 of the IPC cannot stand in the eye of law. 12. So far as conviction for the offence under Section 468 IPC (forgery) is concerned, for brevity Section 463 & 464 of the IPC is quoted herein below which deals with the definition of forgery:- 463:- Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. 464- Making a false document - A person is said to make a false document or false electronic record— First.—Who dishonestly or fraudulently— (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any [electronic signature] on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the [electronic signature], with the intention of causing it to be believed that such document or part of a document, electronic record or [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.—Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with [electronic signature] either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his [electronic signature] on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.] In this regard reference may be made to the case of Dr. Vimla Vs. Delhi Administration reported in AIR 1963 SC 1572 wherein the Hon’ble Apex Court explained the scope of sections 463 & 464 IPC and discussed the case of Sanjiv Ratanappa Vs. Emperor of Bombay High Court wherein the Court held that the element of injury or risk of injury and corresponding advantage to other party is an essential ingredient of forgery. Relevant portion of the judgment rendered in the case of Dr. Vimla (supra) is extracted herein below: “11. A Division Bench of the Bombay High Court in Sanjiv Ratnappa v. Emperor, AIR 1932 Bom 545 at p. 550 had also occasion to consider the scope of the expression "fraudulently" in S. 464 of the Penal Code. Relevant portion of the judgment rendered in the case of Dr. Vimla (supra) is extracted herein below: “11. A Division Bench of the Bombay High Court in Sanjiv Ratnappa v. Emperor, AIR 1932 Bom 545 at p. 550 had also occasion to consider the scope of the expression "fraudulently" in S. 464 of the Penal Code. The Court held that for an act to be fraudulent there must be some advantage on the one side with a corresponding loss on the other. Adverting to the argument that an advantage secured by the deceiver would constitute fraud, Broomfiel, J., observed thus : "I think in view of the Bombay decisions to which I have referred we must hold that that is an essential ingredient in the definition of forgery. In the great majority of cases, the point is not very material............ But there may occasionally be a case in which the element of loss or injury is absent, and I think the present is such a case." This decision therefore does not accept the view of White C.J., of the Madras High Court. 12. A Division Bench of the Lahore High Court, in Emperor v. Abdul Hamid, AIR 1944 Lah 380 at p.382 had also expressed its view on the meaning of the word "fraudulently" The learned Judges accepted Stephen's definition but proceeded to observe as follows : "It may be noted in this connection that the word 'injury' as defined in S. 44, Penal Code, is very wide as denoting "any harm whatever, illegally caused to any person, in body, mind, reputation or property." The learned Judges were willing to assume that in almost every case an advantage to one would result in an injury to the other in the widest sense indicated by S. 44 of the Penal Code. 13. The other decided cases cited at the Bar accept the necessity for the combination of a deceit by one and injury to the other to constitute an act to defraud and therefore, it is not necessary to multiply citations. No other decision cited at the Bar throws any light on the further question, namely, whether an advantage secured to the deceiver without a corresponding loss to the deceived would satisfy the second condition laid down by the decisions. No other decision cited at the Bar throws any light on the further question, namely, whether an advantage secured to the deceiver without a corresponding loss to the deceived would satisfy the second condition laid down by the decisions. At the cost of repetition, in the instant case also there was no injury or risk of injury to the management and/or corresponding advantage to employees/petitioners, inasmuch as, the rule of the company was very clear that any advance would be adjusted from the salary of subsequent month if the corresponding vouchers will not be submitted by the concerned employee within 30 days of its receipt. Thus, no offence is made out under Section 463, 464 and hence there cannot be any conviction under Section 468 & 471 of the IPC. 13. Now the question comes as to whether offence of any criminal conspiracy is made out or not. In the instant case offence of criminal conspiracy is not made out as there was nothing illegal to give application for T.A. advance. Further, as aforesaid if the relevant vouchers for the said travelling are not produced within 30 days then the amount would be settled from the subsequent month after deduction from employees’ salary. The prosecution has failed to prove any agreement, connivance between the petitioner and the accounts department or the intention of the petitioners that for what purpose they have conspired when the money will be ultimately adjusted for their own salary after 30 days. Even for the sake of arguments, it is assumed that there was an agreement between petitioners and accounts department then also it cannot be proved that the agreement was to do something illegal or something legal by illegal means and thus, even the offence of criminal conspiracy is not made out. 14. Before parting it would be relevant to deal with the issue raised by the learned senior counsel for the petitioner as to whether the informant and I.O can be one and the same person. In this regard it is pertinent to mention here that in the instant case none of the petitioners have been proceeded with any departmental proceeding. This appears to be obvious since the rule itself for taking TA advance and submission of vouchers was very clear with regard to adjustment of T.A. advances. In this regard it is pertinent to mention here that in the instant case none of the petitioners have been proceeded with any departmental proceeding. This appears to be obvious since the rule itself for taking TA advance and submission of vouchers was very clear with regard to adjustment of T.A. advances. Further, in spite of this background, the FIR has been instituted after a delay of 2 years and no explanation has been afforded by the prosecution. Looking to the overall facts and circumstances and the discussion made herein above, the informant and the investigating officer being the same person has highly prejudiced the case of the petitioners and this aspect has not been taken care by the courts below. In the case of Mukesh Singh (supra) which has been quoted herein above, this Court holds that in this peculiar facts and circumstances, the informant and the investigating officer being the same person has prejudiced the case and no conviction can be made out due to that reason also. 15. Consequently, the judgment dated 20.3.2006 passed by learned 7th AJC-cum-Special Judge, C.B.I., Ranchi in Criminal Appeal No.148/05 and in Criminal Appeal No. 152/2005 whereby the judgment of conviction and order of sentence dated 8.8.2005 passed by the learned SDJM-cum-Special Judicial Magistrate, C.B.I., Ranchi in connection with R.C. Case No.5(S)/89(R), Tr. No.9/2005 has been affirmed, is hereby, quashed and set aside. 16. The petitioners shall be discharged from the liability of their bail bonds. 17. Accordingly, all these criminal revision applications, are hereby, allowed and disposed of. 18. Let a copy of this order be communicated to the court below and the lower court records be sent to the court concerned forthwith.