Research › Search › Judgment

J&K High Court · body

2024 DIGILAW 196 (JK)

Mohd. Sadiq v. State of J&K

2024-04-20

SANJAY DHAR

body2024
JUDGMENT : 1. Through the medium of above titled two appeals, the appellant has called in question judgment dated 05.09.2005 passed by the learned Special Judge Anti Corruption Jammu, whereby the appellant has been convicted of offence under Section 409 RPC and Section 5(2) of the J&K Prevention of Corruption Act and sentenced to rigorous imprisonment for one year in both the offences. In addition thereto, the appellant has also been sentenced to pay a fine of Rs. 1.00 lac for conviction under Section 5(2) of the J&K Prevention of Corruption Act. 2. As per the prosecution case, an enquiry was ordered by Deputy Commissioner Rajouri (PW-3) into the allegations made by the appellant/accused, who was working as a salesman with Cooperative Society, Darhal. The appellant/accused had alleged that he had paid an amount of Rs. 93070/-vide two receipts one for Rs. 53070/-and other for Rs. 38000/-to the Supervisor of the Society namely Sh. Mohd. Yaqeen (PW-6). Upon enquiry made by Assistant Commissioner, Development Rajouri, Sh. Iqbal Sadiq(PW-2), it was found that the two receipts had been tampered with and the appellant/accused had retained sale proceeds in respect of fertilizer and other consumer items while working as salesman. The enquiry officer further attributed negligence to PW Mohd. Yaqeen, the Supervisor and concluded that he had failed to exercise supervision and control over the working of appellant/accused and it was recommended that misappropriated amount be recovered from the appellant/accused and PW Mohd. Yaqeen in equal proportions. 3. The aforesaid enquiry report was forwarded by Deputy Commissioner, Rajouri (PW-3-A. K. Wani) to Superintendent of Police, Vigilance for appropriate action and on the basis of this report, FIR No. 15 of 1982 for offences under Sections 409, 467, 468 and 120-B RPC and 5(2) J&K Prevention of Corruption Act came to be registered with the then Vigilance Organization Jammu and the investigation of the case was set into motion. 4. During course of the investigation, the relevant record of the Cooperative Society was seized and statements of the witnesses under Section 161 Cr.P.C. were recorded. The Accounts Officer of Vigilance Organization Jammu prepared his report on the basis of the seized record. After concluding the investigation, it was found that the appellant/accused, while performing his duties as salesman of the Cooperative Society Darhal, had misappropriated various sale items like cloth, rice, stationery, fertilisers, karyana etc. The Accounts Officer of Vigilance Organization Jammu prepared his report on the basis of the seized record. After concluding the investigation, it was found that the appellant/accused, while performing his duties as salesman of the Cooperative Society Darhal, had misappropriated various sale items like cloth, rice, stationery, fertilisers, karyana etc. It was found that for the period with effect from 01.07.1980 to 30.06.1981, misappropriation to the tune of Rs. 68,645.47/-had taken place and for the period with effect from 01.07.1981 to 29.06.1982 misappropriation to the tune of Rs. 91,006.76 had taken place. Two separate challans for the aforesaid two spells of period were laid before the learned Special Judge. It is pertinent to mention here that as per the challans filed by the Investigating Agency against the appellant/accused only offences under Section 409 RPC and Section 5(2) of the Prevention Act were found established against the appellant/accused whereas offences under Sections 467, 468 and 120-B RPC were dropped. 5. On 18.01.1996 charges for offences under Section 5(2) of the Prevention of Corruption Act and Section 409 RPC were framed against the appellant/accused in both the challans. After framing of the charges against the appellant/accused in both the cases, his plea was recorded. The appellant/accused denied the charges and claimed to be tried. Accordingly, the prosecution led evidence in support of the charges. After completion of the prosecution evidence, the statement of appellant/accused under Section 342 Cr.P.C. was recorded in both the cases. The appellant/accused did not lead any evidence in defence. The learned Special Judge after hearing the parties and on the basis of evidence on record, passed a common judgment, which is impugned herein. By virtue of the said judgment, the appellant/accused have been convicted of offences under Section 409 RPC and Section 5(2) of the J&K Prevention of Corruption Act. 6. The appellant has challenged the common judgment passed by the learned Special Judge by filing two separate appeals, which are subject matter of the present judgment on the grounds that sanction order in original was not produced before the trial court and that the sanction for prosecution against the appellant/accused was not proved. It has been further contended that during trial of the case, tampering of two receipts for an amount of Rs. 53070/-and Rs. 38000/-has not been proved and in fact even in the challan, there was no allegation to this effect. It has been further contended that during trial of the case, tampering of two receipts for an amount of Rs. 53070/-and Rs. 38000/-has not been proved and in fact even in the challan, there was no allegation to this effect. Therefore, the appellant/accused could not have been convicted of offences under Sections 409 RPC and 5(2) of the Prevention of Corruption Act. It has been contended that once forgery of receipts has not been established, it cannot be stated that there was misappropriation of any amount. It has been further contended that there are inherent contradictions in the prosecution case with respect of the alleged embezzlement of the amount. It has also been contended that the Special Judge has relied upon the statement of PW-6 Mohd. Yaqeen whose role in the entire episode has come under serious doubt in terms of the enquiry report rendered by PW-2 M. I. Sadiq, therefore, his statement is not worthy of credit. 7. I have heard learned counsel for the parties and I have also gone through the impugned judgment, the grounds of appeal and the trial court record including the evidence produced during trial of the case. 8. The charge against the appellant/accused is that he in his official capacity as salesman of Cooperative Society Darhal, District Rajouri during his tenure from 01.07.1980 to 29.06.1982, has misappropriated the goods in the shape of cloth, rice, karyana, stationery, fertilisers and other items worth an amount of Rs. 1,59,652.23/-and thereby abused his official position as public servant by conferring pecuniary benefit to the extent of aforesaid amount to himself and causing corresponding loss to the Society. 9. Before embarking upon the determination of the merits of the grounds raised by the appellant for assailing the impugned judgment of the Special Judge, it would be apt to notice the legal position as regards the requirements for establishing a charge of criminal breach of trust against an accused. This is essential to the present case as the main charge against the appellant is that he has misappropriated the stocks/sale proceeds of the Society in his capacity as a salesman. 10. Section 405 of RPC defines the criminal breach of trust. This is essential to the present case as the main charge against the appellant is that he has misappropriated the stocks/sale proceeds of the Society in his capacity as a salesman. 10. Section 405 of RPC defines the criminal breach of trust. As per this provision, when a person entrusted with property or with any dominion over the property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law, such person is stated to have committed criminal breach of trust. When the offence of criminal breach of trust is committed by a public servant, banker, merchant, factor, broker, attorney or agent, the offence falls under the one, defined under Section 409 RPC. Thus, in order to prove the charge of criminal breach of trust by a public servant, it has to be shown that the accused in his capacity as a public servant, was entrusted with property or dominion over the property and that he has misappropriated or converted this property to his own use or that he has used or disposed of the property in violation of any direction of the law. In the face of the aforesaid legal position, let us now proceed to examine as to whether in the instant case, the offence of criminal breach of trust is established against the appellant. 11. In order to prove that the appellant/accused was working as a salesman with Cooperative Society Darhal at the relevant time, the prosecution has examined PW-18 Ali Bahadur, Sarpanch Darhal. He stated that he was a member of the Cooperative Society Darhal when the appellant/accused applied for appointment as a salesman. He has further stated that a resolution was passed in a meeting of members of the Society and the appellant/accused was appointed as Salesman on a monthly salary of Rs. 200/-. The resolution is part of the challan and as per the said resolution, the appellant/accused was appointed as Salesman on 10.11.1978. The evidence on record further shows that the appellant was terminated from service in the year, 1981 pursuant to the enquiry that became the basis of the present case. Thus, there is sufficient evidence on record to show that the appellant was working as a salesman during the relevant period in the Society. The evidence on record further shows that the appellant was terminated from service in the year, 1981 pursuant to the enquiry that became the basis of the present case. Thus, there is sufficient evidence on record to show that the appellant was working as a salesman during the relevant period in the Society. In fact the appellant has not disputed this aspect of the matter while making his statement under Section 342 of J&K Cr.P.C. 12. The next question that comes up for consideration is as to whether in his capacity as salesman of the Society, the appellant/accused was entrusted with the items/amounts alleged to have been misappropriated. In this regard, if we have a look at the statement of PW-19 (Zameer Hussain), who was posted as Assistant Manager Marketing Society Rajouri with effect from 1978 to 1981, he has stated that the Society used to receive seeds and fertilisers from JAKFED Store Jammu, whereafter, the same were being supplied to various branches including Rikiban branch, where the appellant was posted as a salesman. According to the witness, two leaves of challan used to be handed over to the Driver, who would deliver one copy of the challan to the concerned Society along with the stores and obtain signatures of the Salesman acknowledging receipts of goods on the second copy of the challan that was to be returned to the Society. The witness identified his signatures as Storekeeper on as many as more than 30 challans and he also identified the signatures of the appellant on these challans (Ex PW ZH to ExPW ZH-30). 13. Similarly PW-20 Muneer Hussain who had worked as Manager-cum Salesman of Darhal Cooperative Society upto 1981, has stated that the appellant was posted as salesman at Rikiban branch and he has also stated that the stores were being supplied to Rikiban from Rajouri and the appellant had been issuing the receipts against the challan. The sale proceeds were being deposited at Rajouri. The witness identified the signatures of the appellant on challans exhibited as ExPw ZH to ExPW Zh-29. He further stated that he is familiar with the signatures of the appellant as such, he identifies his signatures. 14. There is nothing in the cross examination of aforesaid two witnesses that would make their statements unworthy of credit. The witness identified the signatures of the appellant on challans exhibited as ExPw ZH to ExPW Zh-29. He further stated that he is familiar with the signatures of the appellant as such, he identifies his signatures. 14. There is nothing in the cross examination of aforesaid two witnesses that would make their statements unworthy of credit. In fact no suggestions have been made by the defence to these witnesses to dispute the receipt of stocks by the appellant in his capacity as a salesman. The challans, which have been proved, relate to the period, which is subject matter of the case. From this evidence on record, it can be safely stated that the prosecution has able to establish entrustment of the stocks to the appellant while he was working as Salesman of Cooperative Society Darhal, Branch Rikiban. 15. Once it has been established that the appellant/accused was entrusted with the stocks of the Society, it has to be seen whether he has accounted for the same. In this regard, the prosecution has relied upon the statements of PW-6 Mohd Yaqeen, the Supervisor/Incharge Manager of the Society and the statement of PW-7 Abdul Majeed, the Supervisor of the Cooperative Society Rajouri. According to PW Mohd. Yaqeen he intended to check the stores of appellant/accused but he refused to produce the record. He submitted an application (ExPW MY) to the Assistant Registrar Cooperatives. The application was submitted by PW Mohd Yaqeen in January, 1982. The Assistant Registrar deputed PW Mohd Yaqeen and PW Abdul Majeed to conduct the inspection of the Society where the appellant/accused was working as a Salesman. They submitted a report (ExPW MY/1). As per this report, the appellant/accused had misappropriated stocks worth Rs. 1,32,949/-. Along with the report, they produced details relating to receipt of different types of stocks by the appellant/accused in his capacity as a Salesman which have been exhibited as ExPW MY/4, ExPW MY/5, ExPW MY/6, ExPW MY/7, ExPW MY/8, ExPW MY-9 and ExPW MY-10. The consolidated statement was prepared by the team, which has been exhibited as ExPW MY-4. PW-8, Badar Hussain, Assistant Registrar has testified to the fact that he had received application(ExPW MY) of Mohd. Yqeen whereafter, he directed him along with PW Abdul Majeed to conduct the checking. He also testified to the fact that the reports and statements mentioned above were submitted before him. 16. PW-8, Badar Hussain, Assistant Registrar has testified to the fact that he had received application(ExPW MY) of Mohd. Yqeen whereafter, he directed him along with PW Abdul Majeed to conduct the checking. He also testified to the fact that the reports and statements mentioned above were submitted before him. 16. Besides the above evidence, the prosecution has relied upon the statement of PW-22 Mohd Razaaq, Sub Auditor of the Cooperative Society. He has stated that he conducted the stock checking of Darhal Cooperative Society on 30.06.1981 for the previous year. He stated that he inspected the record and checked the records physically in presence of appellant/accused who was posted as Salesman over there. He proved stock taking lists (ExPW MR, ExPW MR-I and ExPW MR-II) and stated that these lists bear signatures of appellant/accused as well. He further identified the signatures of the appellant on each page of Stock Register. He also stated that he prepared a report which is signed by the appellant/accused and one copy of the same was retained by the Society and the second copy was kept by the Salesman whereas the third copy was sent to the District Audit Office. PW Abdul Aziz, the Auditor of the Cooperative Society has stated that when he conducted the audit and verified the stocks, the same were found corresponding to the record as on 01.07.1980. This means that misappropriation has taken place after 01.07.1980. 17. The prosecution has placed heavy reliance upon the report of PW 05-Sh. H. N. Zadoo, Accounts Officer of the Vigilance Organization, who on the basis of the seized record of the Society, conducted verification of stocks and remittances with effect from November, 1978 to June 1982. As per his report (ExPW HMZ) during the period in question, it was established that an amount of Rs. 1,67,364.91/-had been withheld. PW K. K. Gupta, DSP has stated that he conducted inspection along with Supervisor Cooperative, whereafter, the statements were prepared year wise and it was found that stock valued at Rs. 1,69,652.23 had been misappropriated. He proved the statement (ExPW KK). 18. The consistent evidence on record that has been brought forth by the prosecution during the trial of the case before the learned Special Judge is that the appellant/accused in his capacity as salesman had received stocks of fertilizers, cloth, karyana and other items during the relevant period. 1,69,652.23 had been misappropriated. He proved the statement (ExPW KK). 18. The consistent evidence on record that has been brought forth by the prosecution during the trial of the case before the learned Special Judge is that the appellant/accused in his capacity as salesman had received stocks of fertilizers, cloth, karyana and other items during the relevant period. However, the sale proceeds remitted by the appellant did not correspond with the actual stock position. It is true that there is a variation in the amount of shortfall in the three reports on which the prosecution has relied upon. In the report prepared by PWs Mohd Yaqeen and Abdul Majeed, the shortfall shown is to the tune of Rs. 1,32,949.01 whereas shortfall as per the report prepared by PW H. N. Zadoo is Rs. 1,67,364.91/-. However, these variations have been reconciled and re-verified by Investigating Officer PW K. K. Gupta, who with the assistance with the Supervisor Cooperatives, prepared final and updated statement (ExPW KK), according to which, during the relevant period, shortfall of stocks in the amount of Rs. 1,59,652.23/-was found. 19. The variation, it appears, is because the first report prepared by PW Mohd. Yaqeen and PW Abdul Majeed does not correspond with the period which is subject matter of the challans. Similarly, the shortfall depicted in the report prepared by PW H. N. Zandoo also does not correspond in entirety with the aforesaid period. It is for this reason that the Investigating Officer Dy.SP K. K. Gupta has, on the basis of these reports, reconciled the statements and prepared an updated statement showing the shortfall of stocks which corresponds to the period, which is subject matter of the present case. So the contention of the learned Senior Counsel appearing for the appellant that there is variation in the different statements/reports prepared and relied upon by the prosecution during the investigation of the case makes the case of the prosecution doubtful, is without any merit. 20. Much emphasis has been laid by the learned Senior Counsel appearing for the appellant on the fact that in the instant case, two receipts depicting payment of Rs. 55070/-and Rs. 20. Much emphasis has been laid by the learned Senior Counsel appearing for the appellant on the fact that in the instant case, two receipts depicting payment of Rs. 55070/-and Rs. 38000/-to PW Mohd Yaqeen by the appellant/accused, which have been termed as forged by the prosecution, have not been proved to be so during trial of the case and in fact the prosecution has dropped offences under Sections 467, 468 and 120-B RPC against the appellant/accused at the time of filing the challan against him. On this ground, it has been contended that once offence of forgery has not been established against the appellant, the consequent offences under Section 409 RPC and 5(2) of the Prevention of Corruption Act would also fail. In this regard reliance has placed upon the judgment of the Supreme Court in the case of Guru Bipin Singh v. Chongthan Manihar Singh, (1996) 11 SCC 622 . In the said case, it has been held that when there is an allegation of forgery and cheating on the basis of a forged document, once offence of forgery is not proved, the offence of cheating cannot stand. 21. At the first blush, argument advanced by the Senior Counsel appearing for the appellant appears to be attractive, but when we minutely analyse the present case in light of the evidence on record, it appears that the said argument is bound to fail. In the instant case, it has been established that the appellant/accused in his capacity as Salesman of Cooperative Society, Darhal, Rikiban branch was entrusted with stocks of fertilizers, cloth, karyana etc and it has also been established that after conducting audit as also the inspection on the basis of original record seized by the Investigating Agency during investigation of the case, shortfall in the amount of Rs. 1,59,652.23/-has been found. The disputed receipts represent payment of Rs. 55070/-and Rs. 38000/-to PW Mohd. Yaqeen by the appellant/accused. According to PW Mohd. Yaqeen, his signatures appear on these receipts but he has received only an amount of Rs. 5707/- and Rs. 3800/-from the appellant/accused, who has tampered these figures so as to make them as Rs. 53070/-and Rs. 38000/-. There is evidence on record in the shape of the original cash book, according to which, only an amount of Rs. Yaqeen, his signatures appear on these receipts but he has received only an amount of Rs. 5707/- and Rs. 3800/-from the appellant/accused, who has tampered these figures so as to make them as Rs. 53070/-and Rs. 38000/-. There is evidence on record in the shape of the original cash book, according to which, only an amount of Rs. 701.50/-was lying in the balance with the appellant/accused on 14.07.1979 and as such, there was no occasion for the appellant/accused to pay an amount of Rs. 53070/-to PW Mohd. Yaqeen. Similarly, there was only a balance Rs. 1732.01/-as per cash book in the hands of appellant/accused on 16.08.1991 as such, he had no occasion to deposit an amount of Rs. Rs. 38000/-with the PW Mohd. Yaqeen. This in itself makes the two receipts executed by PW Mohd. Yaqeen doubtful. 22. Even if, it is assumed that PW Mohd. Yaqeen had received the amounts reflected in the aforesaid two receipts still then it would not make any difference to the case. This is so for the reason that these receipts have not been executed by PW Mohd. Yaqeen in his official capacity. The receipts, as is clear from their very appearance, have been executed on loose chits, one pulled out from a diary and the other a small chit. These receipts have not been executed on any official letter head/receipt book. The appellant/accused in his capacity as salesman was supposed to make remittance of sale proceeds in the account of the Society and by no stretch of imagination, he was supposed to hand over the cash to Mohd. Yaqeen. If he has done so, it would be at his own peril because once he has been entrusted with the stocks, it was for him to give proper account of the same. If he has paid certain amount out of the sale proceeds to an employee of the Society in his private capacity, he is responsible for the same. Payment of any amount by the appellant to PW-Mohd. Yaqeen does not mean that he has remitted the amount to account of the Society, which he was legally bound to do in his capacity as a salesman. Thus it can safely be stated that he has acted in violation of the trust reposed upon him. 23. Learned Senior Counsel appearing for the appellant has also argued that the statement of PW Mohd. Thus it can safely be stated that he has acted in violation of the trust reposed upon him. 23. Learned Senior Counsel appearing for the appellant has also argued that the statement of PW Mohd. Yaqeen could not have been relied upon for the reason that his role was under serious cloud and being an accomplice in the crime, it was not safe to rely upon his statement. It is true that as per the enquiry report(ExPW MIS) submitted by PW M. I. Sadiq, role of PW Mohd. Yaqeen had also come under scrutiny and it was concluded in the report that PW Mohd. Yaqeen has failed to exercise supervision and as such, had acted negligently. Failing to exercise supervision over subordinate may or may not amount to criminal culpability. It all depends upon the facts of a particular case. The Investigating Agency in the instant case did not find any evidence to conclude that PW Mohd. Yaqeen was in connivance with the appellant/accused. It may be a case of dereliction of duty on the part of PW Mohd. Yaqeen, but his criminal culpability cannot be presumed, particularly because of the fact that it is he who brought to the notice of the Assistant Registrar the fact that the appellant/accused is not allowing inspection of the records. 24. Be that as it may, even without the statement of PW Mohd Yaqeen, there is enough evidence on record to show that the appellant/accused was entrusted with the stocks of the Society and he had failed to give account for the same. It has come in the evidence on record that all the material and record that were seized by the Investigating Agency during the investigation, was in possession of the appellant/accused and it is on the basis of the said original record that statements relating to receipt of stocks and remittance of sale proceeds were prepared by PW H. N. Zadoo, which were later on updated by PW K.K. Gupta. This leaves no manner of doubt in holding that the appellant/accused in his capacity as Salesman of the Society was entrusted with the stocks and he could not account for the same thereby leaving an amount of Rs. 1,59,652.23/-as unaccounted. 25. This leaves no manner of doubt in holding that the appellant/accused in his capacity as Salesman of the Society was entrusted with the stocks and he could not account for the same thereby leaving an amount of Rs. 1,59,652.23/-as unaccounted. 25. Learned Senior Counsel appearing for the appellant has argued that the Investigating Agency has not collected any material to show as to in what manner the appellant has misappropriated the amount. In this regard, it is to be noted that law does not cast an obligation upon the prosecution to prove as to in what manner an accused, who has misappropriated the amount, has converted the said amount into his own use. Reference in this regard can be made to the ratio laid down by the Supreme Court in the case Jai Krishan Dass and Manohar Dass Desai AIR 1960 SC 889 . In the said case, the Supreme Court, has, while discussing this aspect of the matter observed as under: “4…………..to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.” 26. From the foregoing analysis of law on the subject, it is manifestly clear that the prosecution is not obliged to prove the precise mode of conversion or misappropriation by the accused of the property entrusted to him. From the foregoing analysis of law on the subject, it is manifestly clear that the prosecution is not obliged to prove the precise mode of conversion or misappropriation by the accused of the property entrusted to him. Once it has been established that the appellant/accused had been entrusted with the stocks of the Society and the appellant is unable to render the account, an inference of misappropriation with dishonest intent has to follow. 27. In the instant case, the appellant, while making his statement under Section 342 Cr.P.C, did not plead any defence nor did he state anything as regards the manner in which he has discharged his duty as a trustee of the stocks received by him. In fact, the appellant has, neither during cross examination of the witnesses nor in his statement under Section 342 Cr.P.C. taken the defence that he had paid the amount of sale proceeds as reflected in the two receipts executed by PW Mohd. Yaqeen. He has not even disputed the assertion of PW Mohd. Yaqeen that these receipts were only for Rs. 5307/-and Rs. 3800/-and not for Rs. 53070/-and Rs. 38000/-either during cross examination of the said witness or in his statement under Section 342 Cr.P.C. In the face of this situation, the only inference that can be drawn is that the appellant/accused has misappropriated the stocks entrusted to him to the tune of Rs. 1,59,652.23/-. 28. The learned Special Judge, has, while passing the impugned judgment, meticulously analysed the evidence on record and has drawn correct conclusions which are backed by legally sound reasons. There is, thus, no ground to interfere in the impugned judgment passed by the learned Special Judge. The appeals lack merit and as such, the same are dismissed. 29. The appellant/accused is directed to surrender before the Special Judge Anti Corruption Jammu within a period of one month from today. His bail/surety bonds shall stand cancelled. In case, the appellant fails to surrender before the learned Special Judge within the aforesaid period, the necessary steps in accordance with the provisions of the Code of Criminal Procedure shall be taken by the learned Special Judge for apprehending the appellant/accused, whereafter, he shall be sent to Jail for serving the remaining portion of the sentence. 30. A copy of this judgment along with the original record be sent to the trial court.