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2022 DIGILAW 92 (MAN)

W. Mayonmi Tangkhul v. State of Manipur

2022-05-26

M.V.MURALIDARAN

body2022
JUDGMENT 1. This Criminal Appeal has been filed against the conviction dated 24.1.2013 and sentence dated 28.1.2013 imposed on the appellant in Special Trail No.4 of 1995 on the file of the Special Judge No.II, Manipur East. 2. Originally, this appeal has been filed by the appellant/accused by namely, Mr. W. Mayonmi Tangkhul, aged about 54 years, S/o Late W. Peter of Phungreitang, a permanent resident of Sirarkhong Village, P.S. Somdal, P.O. Ukhrul, Ukhrul District, Manipur. During the pendency of the appeal, the appellant/accused was died on 24.08.2020 and later on by the order dated 02.03.2022 passed in MC(Cril.A) No. 28 of 2021, the wife by namely, Mrs. Worthingpam Woleng was added as legal heir of the appellant/accused to proceed the appeal. 3. The case of the prosecution is that on 11.6.1989, the complainant Kamjathang Malun, Inspector of Police, Vigilance, lodged a written complaint with the Officer-in-Charge of Vigilance Police Station, Manipur against the appellant/accused alleging that he had enquired the Vigilance Enquiry File No.72/SP-V/89 and it reveals that on 7.7.1988, the appellant/accused, while functioning as Treasurer of Ukhrul sub- Treasury, had withdrawn a sum of Rs.2 lakh from the said Sub- Treasury by tampering the bill amount of Bill No.91-E dated 31.5.1988 for which the actual amount was Rs.1,31,718/- into Rs.3,31,718/- belonging to the office of the District Education Office, Ukhrul and thus, misappropriated the said amount of Rs.2 lakh. 4. Based on the complaint lodged by the Officer-in- Charge of the Vigilance Police Station, an FIR bearing No.4(8)89 was registered under Section 409/420/468/477/120-B and 34 IPC and under Section 13(2) of PC Act, 1988. Thereafter, P.W.18 took up the case for investigation and seized 17 documents on being produced by the complainant and upon examining all the witnesses and after completion of the investigation filed the charge-sheet against the appellant/accused under Section 468 and 477A IPC and under Section 13(2) of the Prevention of Corruption Act, 1988. After committal, the case was made over to the learned Special Judge, Manipur East. 5. Before the trial Court, on the side of the prosecution, 18 witnesses were examined and 27 documents were marked. The appellant/accused was examined under Section 313 Cr.P.C. and during 313 questioning, when the learned Special Judge questioned the appellant/accused that - Will you adduce evidence for your defence, the accused replied that he will not lead any evidence from his side. The appellant/accused was examined under Section 313 Cr.P.C. and during 313 questioning, when the learned Special Judge questioned the appellant/accused that - Will you adduce evidence for your defence, the accused replied that he will not lead any evidence from his side. Accordingly, his side evidence was closed and the learned Special Judge proceeded to hear the matter further. 6. Upon consideration of the oral and documentary evidence, the learned Special Judge convicted the appellant/accused under Section 468 and 477A IPC and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and the matter was directed to be listed on 28.1.2013 for hearing relating to sentence. The appellant/accused was present along with his counsel and upon hearing appellant/accused and also finding that there is no ground for releasing the appellant/accused on probation under Section 360 Cr.P.C. and under the provisions of Probation of Offender's Act, the learned Special Judge, imposed sentence to undergo 3 years simple imprisonment and to pay fine of Rs.50,000/-, in default to undergo three months simple imprisonment for the offence under Section 468 IPC; sentenced to undergo three years simple imprisonment and to pay fine of Rs.50,000/-, in default to undergo three months simple imprisonment for the offence under Section 477A IPC and sentenced to undergo three years simple imprisonment and to pay fine of Rs.50,000/-, in default to undergo three months simple imprisonment for the offence under Section 13(2) of the Prevention of Corruption Act, 1988. The learned Special Judge ordered that all the sentences awarded have to run concurrently. Challenging the said conviction and sentence imposed on the appellant/accused, he has filed the present appeal. 7. The charge leveled against the appellant/accused is that while he was functioning as Treasurer of Ukhrul Sub- Treasury, he had withdrawn a sum of Rs.2 lakh from the said Sub-Treasury by tampering the bill amount of Bill No.91-E dated 31.5.1988, for which the actual amount was Rs.1,31,718/- into Rs.3,31,718/- belonging to the office of the District Education Office, Ukhrul and, thus, the accused/appellant misappropriated the said sum of Rs.2 lakh. 8. Upon appreciation of evidences and documents produced, the learned Special Judge, framed the following points for consideration: (1) Whether the Bill amount of Bill No.91-E dated 31.5.1988 is Rs.1,31,718.00 or Rs.3,31,718/-? 8. Upon appreciation of evidences and documents produced, the learned Special Judge, framed the following points for consideration: (1) Whether the Bill amount of Bill No.91-E dated 31.5.1988 is Rs.1,31,718.00 or Rs.3,31,718/-? (2) Is there any tempering to the Bill No.91-E dated 31.5.88 of the District Education Office, Ukhrul by changing the figure 1' to 3' and the word 'one' to 'three' and other relevant registers maintained by the Treasury Office, Ukhrul? (3) Whether a sum of Rs.3,31,718.00 was taken out from the Treasury of Treasury Office, Ukhrul for the Bill No.91-E dated 31.5.1988 instead of its actual bill amount of Rs.1,31,718/- on 7/7/1988? (4) Is the accused responsible for any withdrawal of excess money of Rs.2 lakhs in respect of Bill No.91- E dated 31.5.1988 of the District Education, Ukhrul? 9. The conclusion of the learned Special Judge on the aforesaid four points as follows: 'Point No.1 - In the result of the foregoing observations, I come to the conclusion that the prosecution has well established that the Bill amount of Bill No.91-E dated 31.5.1988 of District Education Office, Ukhrul is Rs.1,31,718.00 and not Rs.3,31,718.00. Point No.2 - Situated thus, I come to the conclusion that there was tempering to the Bill No91-E dated 31.5.1988 of the District Education Office, Ukhrul by changing the figure 1' to 3' and the word 'one' to 'three' and also the other relevant registers maintained by the Treasury Office, Ukhrul such as, Exts.P7 and P8. Point No.3 - In the result, I come to the conclusion that the prosecution has established that a sum of Rs.3,31,718.00 was taken out from the Treasury of Treasury Office, Ukhrul for the Bill No.91-E dated 31.5.1988 instead of its actual bill amount of Rs.1,31,718/- on 7/7/1988. Point No.4 - The accused is responsible for withdrawal of excess money of Rs.2 lakhs in respect of Bill No.91-E dated 31.5.1988 of the District Education, Ukhrul. 10. Assailing the impugned judgment of the trial Court, the first and foremost argument of Mr. Point No.4 - The accused is responsible for withdrawal of excess money of Rs.2 lakhs in respect of Bill No.91-E dated 31.5.1988 of the District Education, Ukhrul. 10. Assailing the impugned judgment of the trial Court, the first and foremost argument of Mr. N. Mahendra, the learned counsel for the appellant/accused is that no sanction was accorded under Section 197 Cr.P.C. and the sanction for prosecution under Section 19(1)(b) of the Prevention of Corruption Act, 1988 is invalid since the offence is alleged to have been occurred on 7.7.1988 and it is not a sanction under Section 6 of the Prevention of Corruption Act, 1947 and further, the Prevention of Corruption Act, 1988 is not applicable in the case. Therefore, it is violative of Article 20 of the Constitution of India. The next contention of the learned counsel for the appellant/accused is that no appointment of Shri M.Manojkumar Singh, Additional Sessions Judge, Manipur East as Special Judge as required under the provisions of the Prevention of Corruption Act, 1988 by the appropriate authority and therefore, on the aforesaid two grounds the impugned judgment is not sustainable. 11. Insofar as the defective sanction and no sanction accorded under Section 197 of Cr.P.C. and the sanction for prosecution under Section 19(1)(b) of the Prevention of Corruption Act, 1988 is invalid canvassed by the appellant are concerned, the same cannot be entertained at this stage, as the appellant/accused has not raised anything before the trial Court. Before the trial Court, the appellant/accused defended the case on other grounds and therefore, he cannot raise such grounds after the conviction and sentence imposed on him. Further, having participated in the trial of the criminal case and having cross-examined the prosecution witnesses in depth before the trial Court, particularly before the learned Special Judge, the appellant/accused cannot contend that no appointment of a particular Judge as Special Judge under the provisions of the Prevention of Corruption Act, 1988 by the appropriate authority. The aforesaid plea raised by the appellant/accused at the appellate stage is only to maintain the criminal appeal against the judgment. Therefore, the aforesaid two grounds now raised by the appellant/accused at the appellate stage cannot be entertained by the High Court. In view of the above, this Court is of the view that the two grounds raised by the appellant/accused are rejected. 12. Therefore, the aforesaid two grounds now raised by the appellant/accused at the appellate stage cannot be entertained by the High Court. In view of the above, this Court is of the view that the two grounds raised by the appellant/accused are rejected. 12. Coming the merits of the case, the learned counsel for the appellant/accused argued that he Daily Transit Register of the Treasury Office, Ukhrul seized under Ex.P1 is material document in deciding the present case, but the said document has not been produced by the prosecution and therefore, adverse inference under Section 114(g) of the Indian Evidence Act for non-production of material document should have been drawn by the learned trial Judge. The learned counsel would submit that the prosecution utterly failed to prove the charge put against the appellant/accused by proving that the appellant had forged a document intending that the forged document would be used for the purpose of cheating and to defraud and made any false entry or altered any material, particularly in any such book, paper, writing and/or misappropriation of money of Rs.2 lakh and as such the conviction and sentence imposed on the appellant/accused is illegal. 13. The learned counsel for the appellant/accused further submitted that the alteration of numerical figures and words appearing on Exs.P7 and P8, which is alleged to be handiwork of the appellant/accused was not proved to have been done by him. However, the trial Court erroneously overlooked this aspect from the evidence adduced by the prosecution. 14. It is also the submission of the learned counsel for the appellant/accused that the prosecution has failed to seek an Expert opinion about the alteration of words 'one' to 'three' in a scientific way and method. Therefore, the conviction and sentence imposed by the trial Court is liable to be set aside. 15. Per contra, Mr. H. Samarjit, the learned Public Prosecutor appearing for the respondent State submitted that by examining P.Ws.2, 12 and 15, the prosecution has established that in the original Bill No.91-E dated 31.5.1988, the figure 1' has been changed to 3' and the word 'one' also been changed to 'three', thereby converted the bill amount of Rs.1,31,718/- to Rs.3,31,718/- by the appellant/accused. 16. 16. On a perusal of the documents and depositions of the prosecution witnesses, this Court finds that the witnesses, namely PWs.11, 12, 13 and 14 are the officials of Treasury Office, Ukhrul who categorically deposed and their evidences corroborated to each other that the Bill No.91-E dated 31.5.1988 relates to a bill of District Education Office, Ukhrul amounting to Rs.1,31,718/- and the figure 1' was found changed as 3'. Similarly, the word 'one' was also found changed as 'three' in the said bill, thereby changing the amount as Rs.3,31,718/-. 17. In his evidence P.W.2, who conducted the preliminary inquiry relating to the instant case, has categorically stated that on examination of the witnesses as well as the appellant/accused, who was the Treasurer of the Sub-Treasury Office, Ukhrul at the relevant time, it was ascertained that on 7.7.1988, the appellant/accused had tampered the figure of Rs.1,31,718/- to Rs.3,31,718/- on the original copy of the bill and other relevant registers of the Treasury Office and it is also transpired that the amount of Rs.2 lakh had been misappropriated by him by tampering the figure 1' to 3'. 18. At this juncture, the learned counsel for the appellant/accused submitted that P.W.14 also acted to the alleged wrong bill and therefore, there is no direct or circumstance evidence to establish that the alleged tampering of bill, including the other official registers of Treasury Office, Ukhrul and withdrawal of Rs.2 lakh in excess done by the appellant/accused. He added that the alleged withdrawal of Rs.2 lakh in excess from the original bill amount may be due to either some mistake in calculation or through negligence in discharge of the official duty and such mistake or negligence are not criminal offence. The aforesaid argument of learned counsel for the appellant cannot be countenanced for the reason that there is a norms of procedure and practice in passing Government bills in Treasury and the appellant/accused, who was working as Treasurer of Ukhrul Sub-Treasury Office at the relevant point of time has to follow the said norms of procedure. 19. To show that there was tampering of the bill and other relevant registers, Exs.P4, P7 and P8 were forwarded to the Expert for opinion. P.W.15 - the Expert, after examining the documents, gave his finding in Ex.P26 opining that in the bill there was overwriting 'three' and the earlier writing could be deciphered as 'one'. 19. To show that there was tampering of the bill and other relevant registers, Exs.P4, P7 and P8 were forwarded to the Expert for opinion. P.W.15 - the Expert, after examining the documents, gave his finding in Ex.P26 opining that in the bill there was overwriting 'three' and the earlier writing could be deciphered as 'one'. Similarly the evidence of P.W.15 is to the effect that the figure 1' subsequently overwritten as 3' and the earlier figure could be deciphered as 1'. In their evidence, P.Ws.2 and 12 have also spoken about alteration in the bill in question. Thus, the categorical evidence of the prosecution witnesses, namely, P.Ws.2, 12 and 15 is that in the original bill No.91-E dated 31.5.1988, the figure 1' is changed to 3' and the word 'one' is also changed to 'three', thereby converted the bill amount of Rs.1,31,718/- into Rs.3,31,718/-. In fact, the aforesaid aspect has been rightly analysed by the trial Court considering the oral and documentary evidences and upon consideration, came to the following conclusion: 'On having synthetic perusal the testimonies of P.Ws. no.2, 12 and 15 it is evident that in the original Bill No.91- 12E dated 31-5-88 the figures 1' is changed to 3' and the word 'one' is also changed to 'three' thereby converted the bill amount of Rs.1,31,718/- to Rs.3,31,718/-. The entries made in the payment Register maintained by the Treasurer of Treasury Office, Ukhrul [Ext.P/7] are to be tallied with the entries made in the payment register maintained by Podar [Ext.P/8], however, in the payment register maintained by Treasurer, Ext.P/7, the bottom portion of page no.245 where the total amounts of that page is to be reflected is found torn and at Sl.No.51 where the amount relating to Bill no.91-E is reflected is found as a torn hole in front of the figure 31,718=00. Moreover, at page no.245 of the daily payment register maintained by Podar [Ext.P/8] the figure found at Sl.No.51 is changed to 3' from 1' [Ext.P/8] and the first figure found as the total amount at the bottom of page no.245 is also changed to 9' from 7'. Further, at page no.267 of Ext.P/8 the first figure found at Sl.No.357 is changed to 9' from 7' and the second figure of the total amount found at the bottom of page no.267 is also changed to 2'.' 20. Further, at page no.267 of Ext.P/8 the first figure found at Sl.No.357 is changed to 9' from 7' and the second figure of the total amount found at the bottom of page no.267 is also changed to 2'.' 20. This Court finds that the aforesaid conclusion arrived at by the learned Special Judge is based on the oral and documentary evidence produced by the prosecution and, therefore, no interference is warranted. In view of the above, the argument of the learned counsel for the appellant that because of alteration of numerical figures and words appearing on Exs.P7 and P8, which is allegedly the handiwork of the appellant was not proved to have been done by the appellant, however, the trial Court has erroneously overlooked this aspect form the evidence adduced the prosecution cannot be accepted. 21. From the oral and documentary evidence produced by the prosecution, this Court finds that on 7.7.1988, a total amount of Rs.38,10,900/- was taken out from the strong room and the said amount was handed over to the appellant/accused being Treasurer of the Sub-Treasury Office, Ukhrul for disbursement. The said amount of Rs.38,10,900/- was in excess of Rs.2 lakh from the actual total amount of money to be disbursed on the said date. The evidence of prosecution witnesses is to the effect that the total amount of Rs.38,10,900/- was handed over to the appellant/accused and the said fact was also admitted by the appellant/accused himself. The appellant/accused stated that the amount handed over him was also disbursed by obtaining signatures of the drawers. 22. As per Ex.P7, all the bill amounts of District Education Office, Ukhrul disbursed on 7.7.1988 was received by one Labango Singh. If the appellant/accused disbursed all the amount handed over to him on 7.7.1988, he must have handed over a sum of Rs.3,31,718/- in respect of Bill No.91-E dated 31.5.1988 of District Education Office, Ukhrul in excess of Rs.2 lakh from its actual amount of Rs.1,31,718/-. 23. If the appellant/accused disbursed all the amount handed over to him on 7.7.1988, he must have handed over a sum of Rs.3,31,718/- in respect of Bill No.91-E dated 31.5.1988 of District Education Office, Ukhrul in excess of Rs.2 lakh from its actual amount of Rs.1,31,718/-. 23. As rightly held by the learned Special Judge, even if the accused/appellant do not know the alleged handing over of Rs.3,31,718/- in excess of Rs.2 lakh through mistake or negligence on 7.7.1988, the appellant/accused may known about that discrepancy of Rs.2 lakh in respect of Bill No.91-E dated 31.5.1988 of District Education Office, Ukhrul from the year 1989 because the investigation by the Vigilance Department about the withdrawal of excess amount of Rs.2 lakh in respect of the Bill No.91-E was started. In that case, there is no proper explanation forthcoming from the appellant/accused as to why he did not take steps for recovery of the said excess amount of Rs.2 lakh from the District Education Office, Ukhrul. Further, if the said excess amount of Rs.2 lakh was handed over to the drawer through mistake or negligence, then why the original bill and the related documents of the bill in question are found tampered for showing the excess amount of Rs.2 lakh. The circumstances aforesaid clearly establish that the appellant/accused taking advantage of his position as Treasurer of the Sub-Treasury Office, Ukhrul disbursed a sum of Rs.1,31,718/- to the drawer and not Rs.3,31,718/- in respect of Bill No.91-E dated 31.5.1988 (Ex.P4), thereby misappropriating a sum of Rs.2 lakh for his personal gain. 24. The evidences produced by the prosecution, including P.W.14 also establish that the original bill No.91-E dated 31.5.1988 of the District Education Office, Ukhrul, daily payment register maintained by the Treasurer and another daily payment register maintained by Podar were forged and tampered by the appellant/accused for the purpose of cheating. Further, taking advantage of the position he held as Treasurer at the relevant point of time, the appellant/accused altered and falsified the book, paper writing, etc., namely Exs.P4, P7 and P8, thereby committing criminal misconduct by corrupt practice. Thus, the prosecution established that a sum of Rs.3,31,718/- was taken out from the Treasury for the Bill No.91-E dated 31.5.1988 instead of its actual amount of Rs.1,31,718/- on 7.7.1988. 25. Thus, the prosecution established that a sum of Rs.3,31,718/- was taken out from the Treasury for the Bill No.91-E dated 31.5.1988 instead of its actual amount of Rs.1,31,718/- on 7.7.1988. 25. The learned counsel for the appellant/accused also contended that the prosecution case has to stand on its own legs and has to prove the case beyond all reasonable doubt and cannot take advantage of the weakness of the defence, as has been done. The aforesaid argument of the learned counsel for the appellant/accused does not merit consideration. In fact, the prosecution has proved the case beyond all reasonable doubt by examining the witnesses and by producing documents. 26. In the instant case, the accused is responsible for withdrawal of the excess money of Rs.2 lakh in respect of Bill No.91-E dated 31.5.1988 of the District Education Office, Ukhrul. Being a Treasurer and having responsibility over every paise of the Treasury, the appellant/accused cannot simply say that the alleged withdrawal of Rs.2 lakh in excess from the original bill amount may be due to either some mistake in the calculation or through negligence in discharge of his official duty. Since the alteration of the amount in respect of the bill in question has been proved by the prosecution and that the accused is only held responsible for the alteration and for withdrawal of the excess of Rs.2 lakh, this Court is of the view that the appellant/accused had committed the criminal misconduct, for which the trial Court has rightly convicted him under Section 13(2) of the Prevention of Corruption Act, 1988. 27. The prosecution has established its case against the appellant/accused beyond all reasonable doubt and the trial Court has also, after analyzing the oral and documentary evidence, rightly convicted the accused/appellant under Section 468 and 477A IPC. Therefore, the re-examination and reappreciation of the entire evidence adduced by the prosecution as canvassed by the appellant/accused does not arise in this appeal. To defend his case, the appellant/accused has not examined anybody from his side nor produced any material. Moreover, no good grounds have been made out to interfere with the well considered judgment of the trial Court. There is no merit in the appeal and therefore, the same is liable to be dismissed. 28. To defend his case, the appellant/accused has not examined anybody from his side nor produced any material. Moreover, no good grounds have been made out to interfere with the well considered judgment of the trial Court. There is no merit in the appeal and therefore, the same is liable to be dismissed. 28. At the end, it is to be pointed out that having committed the offence during the year 1988 and taken cognizance of the case in the year 1995 was finally decided by the trial Court vide judgment in the year 2013 only after a long period of more than 17 years. The present appeal is also is of the year 2013. For one reason or the other, the appeal has been delayed for the past 14 years. 29. In the result, the criminal appeal is dismissed.