Delhi District Court
Cbi vs Priti Chakravarty on 19 December, 2012
CBI vs Priti Chakravarty
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 43/12 (Old CC No. 34/11)
RC No. DAI/08/A0045/CBI/ACB/ND
U/S 409 IPC and 13 (2) read with Section 13 (1)(c) of PC Act
CBI vs. Priti Chakravarty
Unique ID No. : 02403R0411662009
Central Bureau of Investigation
vs.
Priti Chakravarty W/o Sh. Gautam Chakravarty,
R/o C603, Panchsheel Apartments, Plot 24, Sector 4,
Dwarka, PhaseI, New Delhi110075
Date of FIR : 07/11/2008
Date of filing of Chargesheet : 09/12/2009
Arguments heard on : 06/12/2012
Date of Judgment : 19/12/2012
Appearances
For prosecution : Sh Anil Tanwar, Ld. Public Prosecutor for CBI.
For accused : Sh Jagdish Singh,Ld. Counsel for accused
JUDGMENT
Factual matrix of the prosecution case in brief is as follows:
The case of CBI is that the accused Priti Chakravarty was posted as AccountantcumCashier in New External Affairs Hostel RC No. DAI/08/A0045/CBI/ACB/ND 1/52 CBI vs Priti Chakravarty (herein after referred as 'NEAH') located at R.K. Ashram, New Delhi, during the period 01.07.1999 to 07.03.2003. The said hostel was having 48 single and 38 double suites accommodation and licence fee used to be charged for each suite as approved from the Ministry from time to time.
During special inspection conducted during period from 29/10/07 to 02/11/07 in respect of the maintenance of cash and account records of NEAH by the audit officials of Ministry of External Affairs (MEA) it was found that accused had realized an amount of Rs 12,32,238/ during the period of her posting and had not deposited the same in the concerned bank account with the RBI. A complaint was lodged by Sh Vijay Khanduja, Under Secretary (Vigilance), Ministry of External Affairs, New Delhi in this matter and consequent to the investigation done by the CBI, it was culled out that cash was collected by accused Priti Chakravarty towards the realization of licence fee on various occasions during the course of her duties against which receipts were issued by her and though the receipts were recorded in the concerned account books, the corresponding cash receipts along with cash were not deposited in the bank. The investigation further revealed 43 numbers of challans of NEAH showing deposit of cash amount in the concerned branch of the RBI were not genuine and not bearing the genuine seal of the RBI. The complete investigation revealed that the accused had realized cash amount of Rs. 11,78,041/ by way of rent/licence fee during the period July 1999 to March, 2003 but accused Priti Chakravarty had not deposited the same in the account of Ministry of External Affairs in RC No. DAI/08/A0045/CBI/ACB/ND 2/52 CBI vs Priti Chakravarty the RBI and instead criminally misappropriated the same. The accused was arraigned for commission of offences under Section 409 IPC and Section 13 (2) read with Section 13(1) (c) of the Prevention of Corruption Act, 1988.
2. On completion of the investigation, chargesheet was filed by the investigating agency on 09/12/2009. The cognizance of the case was taken by my Ld. Predecessor on 19/12/2009 and accused was summoned. On appearance accused was enlarged on bail.
3. Requirements under Section 207 Cr.P.C were complied with.
CHARGES
4. In terms of order of charge dated 10/05/2011 of my Ld. Predecessor, charges for offences (1) under Sections 409 IPC and (2) under Section 13 (1) (c) read with Section 13(2) of the Prevention of Corruption Act were framed on 10/05/2011 against accused Priti Chakravarty, to which she pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. To connect the accused with the offences charged, prosecution has examined in all 17 witnesses namely Sh Suresh Jarwal (PW1); Sh A.K. Sinha (PW2); Sh Vijay Khanduja (PW3); Sh Ravi Kant RC No. DAI/08/A0045/CBI/ACB/ND 3/52 CBI vs Priti Chakravarty Kalra (PW4); Sh Devender Kumar (PW5); Sh D.K. Singh (PW6); Sh Dharambir (PW7); Sh. Sunil Kumar (PW8); Sh Ajit Kumar Luthra (PW9); Sh Sant Ram Yadav (PW10); Sh R.K. Tyagi (PW11); Sh Man Singh Bisht (PW12); Inspector Prem Nath (PW13); Dr. S. Ahmed (PW14); Inspector S.S. Bhullar (PW15); Sh Rajbir (PW16) and Sh Pradeep Kumar Chatterjee (PW17).
STATEMENT OF ACCUSED
6. Thereafter accused was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication. Accused admitted that her specimen handwritings and signatures Ex PW2/A (colly) were obtained by investigating officer Inspector S.S. Bhullar (PW15) in the presence of Sh A.K. Sinha (PW2), LDC of Delhi Jal Board on 24/06/2009 without any pressure or coercion. Accused further stated that she never used to go in the bank for deposit of cash or cheque; DDO used to depute any employee of class IV including casual labour, peon mostly Anup Lal who used to go for deposit of cash or cheque in the bank; whatever cash or cheques accused Priti Chakravarty received in course of her duties, she used to give them to DDO daily in the evening; DDO then used to ask her to prepare challans to deposit the cheques and cash and she then used to prepare the challans to deposit the cheques or cash which she used to give to DDO and then DDO used to depute any employee of class IV including casual labour, peon mostly Anup Lal who used to go for RC No. DAI/08/A0045/CBI/ACB/ND 4/52 CBI vs Priti Chakravarty deposit of cash or cheque in the bank. Accused Priti Chakravarty admitted that cash challans Ex PW4/A1, Ex PW4/A2, Ex PW4/A3, Ex PW7/A, Ex PW8/A1, Ex PW8/A2, Ex PW9/A, Ex PW9/A2, Ex PW9/A3, Ex PW9/A4, Ex PW12/A1 to Ex PW12/A33 were filled up in her handwriting. Accused Priti Chakravarty stated that writings Q360 and signatures Q361 were not of her while the receipt books D15 to D26 of External Affairs Hostel i.e., Ex PW12/B1 to Ex PW12/B12 and the pages marked Q1 to Q178 (D15), Q179 to Q359 (D16), Q360 to Q389 and thereafter from Q400 to Q565 (D17) except Q360, Q476, Q478, Q480 and Q482, Q556 to Q763 and thereafter Q644 to Q 645A (D18), Q764 to Q816, Q816A, Q817 to Q833 and Q835 to Q959 (D19), Q960 to Q1094 and Q1094A, Q1095 to Q1132 (D20) except Q1062; Q1133 to Q1184 (D21), Q1185 to Q1380 and thereafter Q1187A to 1330A (D22), Q1381 to Q1574 and Q1553A to Q1536A (D23), Q1575A and Q1576A (D24), Q1771 to Q1963 and Q1854A (D25), Q1964 to Q1999 (D26) were bearing her signatures/initials under the Head Reception Officer; said receipt books had been issued by the department and the such issued receipts were so issued by her and others in ordinary course of business. Accused Priti Chakravarty further stated that she had written from page 1 to page 200 of cash book/rent receipt (D30), Ex PW12/C in official course of business. Accused Priti Chakravarty further stated that applications/leave applications (A1 to A16), Ex PW14/C3 (colly) as well as the specimen writings Marked S1 to S95, Ex PW2/A (colly) were in her writings.
RC No. DAI/08/A0045/CBI/ACB/ND 5/52
CBI vs Priti Chakravarty
Accused Priti Chakravarty also admitted that she was Accountant in the office of MEAH, receipts of room rent received were issued by her; accounts work including billing etc was also done by her in the office; cash challans Ex PW14/C2 (colly) were prepared by her wherein at points Q2043, Q2044, Q2045, Q2046, Q2047, Q2050 to Q2071, Q 2076 to Q2085, her signatures were there at said challans. Accused Priti Chakravarty also admitted that excepting writings Q360 and signatures Q361, the cash receipts in cash receipt books Ex PW12/B1 (except receipt no. 10912 and 10976), Ex PW12/B2, Ex PW12/B3 (except receipt nos. 11602, 11656, 11657, 11658 and 11659), Ex PW12/B4 (except receipts nos. 11742, 11747, 11757, 11759, 11768, 11774, 11777, 11790, 11798), Ex PW12/B5, Ex PW12/B6 (except receipt no. 11465), Ex PW12/B7 (except receipt no. 11581), Ex PW12/B8, Ex PW12/B9(except receipt no. 11918 and 11920), Ex PW12/B10, Ex PW12/B11 and Ex PW12/B12 were issued by her. Accused Priti Chakravarty also stated that she was not knowing about the percentage of the occupancy in the hostel; reception was open 24 hours and bills were prepared by the official who was on duty, including her; they used to receive cash as well as cheques for the charges. Accused Priti Chakravarty stated that this is a false case against her which was got registered by DDOs as she was a lady officer and was harassed by them.
RC No. DAI/08/A0045/CBI/ACB/ND 6/52
CBI vs Priti Chakravarty
DEFENCE EVIDENCE
7. Accused entered into her defence and examined herself
under Section 315 Cr.P.C as DW1 and Sh B.N. Srivastava, Private Handwriting Expert as DW2.
ARGUMENTS
8. I have heard the arguments of Sh Anil Tanwar, Ld. Public Prosecutor for CBI, Sh Jagdish Singh, Ld. Defence Counsel for the accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
9. Ld. PP for CBI argued that accused was the sole Accountant cum Cashier in NEAH, had received the cash against receipts proved on record but did not deposit the same with the concerned bank as per her duties and instead misappropriated sum of Rs. 11,78,041/ to own use and no cogent evidence has been led in defence to prove that such amount collected was given to the DDO at any moment of time, while the prosecution witnesses of RBI have testified to the fact that the challans in question were not deposited in the RBI. Also was argued that prosecution has been able to prove its case against accused beyond reasonable doubt for committing the criminal breach of trust as a public servant and also having committed the criminal misconduct. Ld. PP for CBI has prayed for conviction of the accused for the charges framed accordingly.
RC No. DAI/08/A0045/CBI/ACB/ND 7/52
CBI vs Priti Chakravarty
10. Ld. Defence Counsel in his written arguments as well as oral arguments asserted that the accused is a simple lady with mild manners and duped by her superiors and supporting (subordinate) staff. Also has been argued that it was not part of duty of accused to go to the bank to deposit cash against cash challans, while in terms of Rule 13 of the Receipts and Payments Rules, 1983, it was ultimate responsibility of the DDO for the proper maintenance and accuracy of accounts, said DDO was required to check and initial the Rent Cash Book and Main Cash Book on daily basis as well as to authenticate the cash challans and to depute someone from the lower staff to deposit the cash amount in the accredited bank and to check the said challans after deposit of cash in the bank with the entries in the Cash Book(s). Also was argued that it was statutory duty of the DDO to reconcile the accounts as per the Bank Statement of Account with the entries in the Rent Cash Book/Main Cash Book and to record a signed and dated certificate about the correctness of the accounts. Also was argued that the accused as Accountant cum Cashier was diligent, dedicated and prepared bills, received cash payments, made entries in the Rent Cash Book/Main Cash Book, prepared challans in triplicate, submitted such challans for authentication to AO/DDO, also handed over the requisite cash amount to DDO for deputing someone from the lower staff for depositing the cash in the bank, upon which the duty of accused as Accountant cum Cashier ceased and she was no more concerned with the handling of such cash further; the challans through which the cash was deposited RC No. DAI/08/A0045/CBI/ACB/ND 8/52 CBI vs Priti Chakravarty were retained by the AO/DDO after the same were handed over to him by peon concerned and these challans were never passed on to the accused. It was also argued that accused subordinate to DDO worked under the control and according to instructions of the DDO. Also was argued that the sanction accorded by PW11 was bad in law as it was accorded as Joint Secretary, Ministry of External Affairs and PW11 was not the Central Government for the purposes of Section 19 of the Prevention of Corruption Act. Also was argued that the writings and the figures in the portion within the bank's rubber stamp/seal were not in the writings of accused, as testified by private handwriting expert DW2 Sh B.N. Sirivastava regarding which PW14 had not given any opinion. It was also argued that the investigation was farce,unfair, biased, tainted and sham which was so conducted only to shield AO/DDO for entire embezzlement. Also was argued that since provisions of Special Law prevailed over the provisions of General Law, so the offence alleged under Section 13(1)(c) of Prevention of Corruption Act, 1988 would prevail over the offence alleged under Section 409 IPC and the trial held against the accused is to be deemed to have been held for offence under Section 13(1)(c) read with Section 13 (2) of Prevention of Corruption Act only and not under Section 409 IPC, since these two provisions are similar in nature having similar ingredients though couched in different phraseology. Ld. Counsel for accused relied upon the cases of (1) The State vs Gurcharan Singh, 1951 (Vol. LIII) PLR 198; (2) Madhusudan Singh & Anr. Vs State of Bihar, AIR 1995 SC 1437; (3) RC No. DAI/08/A0045/CBI/ACB/ND 9/52 CBI vs Priti Chakravarty Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh & Anr., VIII (2005) SLT 556 (SC). Ld. Counsel for accused has prayed for acquittal of the accused accordingly.
RELEVANT LAW
11. Section 409 IPC & Section 13(2) read with Section 13(1)
(c) of the Prevention of Corruption Act, 1988:
Section 13(1)(c) of the Prevention of Corruption Act, 1988 provides as under:
"13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do."
Section 13(2) of the Prevention of Corruption Act, 1988 provides for punishment to the public servant found guilty of misconduct.
Section 409 of IPC reads as under:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property,shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"
RC No. DAI/08/A0045/CBI/ACB/ND 10/52
CBI vs Priti Chakravarty
12. The necessary ingredients of Sec. 13(1)(c) of Prevention of Corruption Act, 1988 are:
1. The accused must be public servant;
2. Entrustment of property to accused; and,
3. Dishonest or fraudulent misappropriation or conversion for his own use of any such property by accused.
13. The necessary ingredients of Sec. 409 IPC are as under:
1. The accused must be a public servant;
2. He must have been entrusted in such capacity the property; and,
3. He must have committed the breach of trust in respect of such property.
14. The perusal of Sec.13(1)(c) of Prevention of Corruption Act, 1988 and Sec. 409 IPC indicates the similarity between the two.
This question came up for discussion before the Hon'ble Supreme Court in Om Prakash Gupta vs. State of UP, AIR 1957 SC 458, wherein the Constitution Bench of the Supreme Court was confronted with the question that whether Sec. 409 IPC in so far as it applies to the public servant, has been impliedly repealed by the enactment of Sec. 5(1)(c) of Prevention of Corruption Act 1947 equivalent to Sec. 13(1)(c) of Prevention of Corruption Act, 1988 and Sec.5(2) of Prevention of Corruption Act 1947. The Apex Court also dealt with the question assuming that there was no such implied repeal, would the application of Sec 409 IPC to a public servant infringe Article 14 of the Constitution, in view of the fact that the provisions of Prevention of Corruption Act RC No. DAI/08/A0045/CBI/ACB/ND 11/52 CBI vs Priti Chakravarty and procedure laid down there under are available to deal with the breach of trust by a public servant. The Supreme Court held that a clear comparison and contrast of the different elements constituting the two offences would show that an offence u/s 405 IPC is separate and distinct from the one u/s 5(1)(c) of Prevention of Corruption Act 1947. In Om Prakash Gupta's case, the Constitution Bench spelled out the distinction in Section 5(1)(c) of Prevention of Corruption Act 1947 equivalent to Section 13(1)(c) Prevention of Corruption Act 1988 and 405 IPC. It was noted that under Prevention of Corruption Act, the gist of the offence can also be made out if the offender allows another person to dishonestly or fraudulently misappropriate or otherwise convert for his own use any property so entrusted. Also was held that Section 5(1)(c) of Prevention of Corruption Act 1947, equivalent to Section 13(1)(c) Prevention of Corruption Act 1988, creates a new offence called "criminal misconduct" and cannot by implication displace the offence under section 405 of Indian Penal Code. Also was held that the view taken by the Punjab High Court in Case of State vs. Gurcharan Singh (Supra) (relied by Ld. Defence Counsel) was not sound.
15. Similarly, in State of MP vs. Veereshwar Rao Agnihotri, AIR 1957 SC 592, the Supreme Court held that the offence of criminal misconduct punishable u/s 5(2) of Prevention of Corruption Act, 1947 is not identical in essence, import and content with an offence u/s 409 of RC No. DAI/08/A0045/CBI/ACB/ND 12/52 CBI vs Priti Chakravarty the Penal Code. If we read Sec. 13(1)(c) of Prevention of Corruption Act, 1988 and Sec. 409 of IPC, it would indicate that the concept of mensrea is enlarged for the purpose of Sec.13(1)(c) of Prevention of Corruption Act, 1988. Under section 13(1)(c) of Prevention of Corruption Act, 1988, the omission may be dishonest or fraudulent. The word "fraudulent" does not find place in Sec. 405 of IPC. The words "dishonest and fraudulently" connote two different things. The elements which make an act fraudulent are deceit or intention to deceit and in some cases mere secrecy. In case intention to deceive and secrecy are missing, the act may be dishonest but may not come within the purview of fraudulent. Thus, Sec.409 of IPC and Sec. 13(1)(c) of Prevention of Corruption Act 1988 are distinct offences. Perusal of Sec. 13(1)(c) of Prevention of Corruption Act 1988 would indicate that the offence laid down therein is equivalent to embezzlement. In English law, the embezzlement is complete if the property has been received by the accused for or in the name or on account of the master or employer and the accused fraudulently misappropriates that property. The essence of the offence of criminal misappropriation is that the property of another person comes into the possession of the accused in some neutral manner and has been misappropriated or converted to his own use by the accused. The offence consists dishonest misappropriation or conversion.
RC No. DAI/08/A0045/CBI/ACB/ND 13/52
CBI vs Priti Chakravarty
APPRECIATION OF EVIDENCE
16. PW10 Sh. Sant Ram Yadav, the then Assistant Accounts Officer (AAO) was transferred to MEA after 08/07/2009 and vested with the task of compilation and audit of monthly account of various Indian Embassies or Missions in 1011 countries of the world. PW10 deposed that he was instructed by Sh DDKT Dasan, Senior Accounts Officer, MEA to carry out inspection and audit of accounts of New External Affairs Hostel at RK Ashram Marg, New Delhi and Old External Affairs Hostel at Curzon Road, New Delhi.
17. PW10 deposed that as per instructions, he (PW10), constituted a team comprising of himself (PW10), two accountants namely Sh Dhiraj Kumar and Sh Deepak Kumar which team conducted the inspection and audit separately in regard to the two hostels. PW10 further deposed that Sh Deepak Kumar, Accountant was associated with inspection of New External Affairs Hostel while accountant Dhiraj Kumar was associated with inspection of Old External Affairs Hostel; such inspection of New External Affairs Hostel at RK Ashram Marg, New Delhi was conducted by the said team for the period July 1999 to March 2003 and whatever status and irregularities were found that were detailed in a report D35, Ex PW10/A, prepared by the aforesaid team, submitted with Pay & Accounts Officer and signed by Sh Rishi Ram, Senior Accounts Officer.
RC No. DAI/08/A0045/CBI/ACB/ND 14/52
CBI vs Priti Chakravarty
18. The Vigilance Unit of the Ministry of External Affairs had got aforesaid special inspection of the records of the New External Affairs Hostel at R.K. Ashram Marg done which revealed irregularities in collection and deposits of the amounts received by way of rental charges, electricity and water charges from the guests staying in the hostels; audit report D35, Ex PW10/A, was submitted to the Head of the Communication NGO and Vigilance Division (CNV).
19. PW3 Sh Vijay Khanduja, the then Under Secretary (Vigilance) in the Ministry of External Affairs Hostels preferred complaint D2, Ex PW3/A in October, 2008 regarding misappropriation of cash received from the various offices at New External Affairs Hostel at R.K. Ashram Marg, New Delhi with effect from July 1999 to March 2003.
20. Upon registration of FIR, D1 bearing no. RCDAI2008A 0045, Ex PW13/A recorded by SP Sumit Sharan, the case was marked to Inspector Prem Nath (PW13) of CBI for investigation.
21. During course of investigation, on 12/11/2008, search was conducted by the team led by Inspector Prem Nath (PW13) in the office of Administrative Officer (AO), New External Affairs Hostel (NEAH) at R.K. Ashram Marg, New Delhi members of which inter alia were independent witness Suresh Jarwal (PW1), SI Pankaj Vats and SI Manoj RC No. DAI/08/A0045/CBI/ACB/ND 15/52 CBI vs Priti Chakravarty Kumar. While conducting search Sh P.K. Chatterjee (PW17), the then Administrative Officer was also present. The documents were seized in said search and were detailed in memo Ex PW1/A. The copy of the search memo was given to Sh P.K. Chaterjee (PW17). Such seized documents were handed over by Inspector Prem Nath (PW13) to Inspector S.S. Bhullar (PW15) who took over further investigation.
22. PW17 Sh P.K. Chatterjee, Administrative Officer (AO) produced documents on 19/02/2009 in CBI office which were seized vide productioncumseizure memo Ex PW15/A (D4/1) by investigating officer Inspector S.S. Bhullar(PW15).
23. PW15 Investigating Officer Inspector S.S. Bhullar obtained the specimen handwriting and signatures of accused Priti Chakravarty, D20, Ex PW2/A (colly) in the presence of Sh A.K. Sinha (PW2), LDC of Delhi Jal Board on 24/06/2009 without any pressure or coercion.
24. PW4 Sh Ravi Kant Kalra, Assistant Manager in RBI in Foreign Exchange Department; Sh Dharambir (PW7), Sh Sunil Kumar (PW8) and Sh Ajit Kumar Luthra (PW9), the then tellers in RBI till 2003 stated that in the course of day to day business of RBI, every morning depending upon the nature and quantum of work, the officers/staff were posted at different counters and each of them were assigned a particular seal of the counter so as to function there; these seals were issued to each RC No. DAI/08/A0045/CBI/ACB/ND 16/52 CBI vs Priti Chakravarty staff/officer after taking due acknowledgment under their signatures; in regard to business of cash collection, the first thing that the teller was to see was as to whether the challan produced pertained to his counter; having verified that, the teller was supposed to conduct scrutiny of the challan so as to see that the amount of cash to be deposited is correctly indicated with details of the currency denominations; once that was found okay, the cash was collected and the money was counted and the challan was entered into the system, the challan was issued after putting seal of the counter; the seal of the counter indicates the counter number and the running serial number besides the signatures of the teller, which were supposed to be identical as the one that was done in the morning while taking the seal.
25. PW4 Sh Ravi Kant Kalra deposed that document D27, the challans Ex PW4/A1 to A3 were not bearing seal of RBI nor were having signatures of PW4 regarding receipt of the amount mentioned in the challans at counter no. 34,35 of RBI.
26. PW5 Sh Devender Kumar, Assistant Manager, Reserve Bank of India came to know that CBI had made a request to Public Accounts Department for preparation of the statement and head of department of PW5 permitted PW5 to prepare such statement; PW5 prepared Ex PW5/A1, pertaining to details of the vouchers/challans deposited in 2002 and 2003 by and on behalf of MEA. He (PW5) also RC No. DAI/08/A0045/CBI/ACB/ND 17/52 CBI vs Priti Chakravarty deposed that he was handed over the original cash vouchers/challans to find out if there had been any deposit against challans detailed in Ex PW5/A1. PW5 deposed that he ascertained and found that said list Ex PW5/A1 was list of such challans/cash vouchers, the amount mentioned therein was not deposited with RBI.
27. PW5 also deposed that he was instructed by his head of department to prepare list thereby indicating details of the persons/staff of RBI posted as tellers for the period 2002 and 2003 upon which he (PW5) prepared list Ex PW5/A2; said list Ex PW5/A2 indicated that some of the counter numbers indicated in the cash vouchers/ challans did not tally with the details of the tellers in Ex PW5/A2.
28. PW5 further deposed that he was also handed over the specimen of seal used by RBI in official business of receipt of money by the tellers at the counters; the seal impression of the genuine RBI seal was given in document D10, page no. 9, Ex PW5/A3 bearing signatures of PW 5 at point A. PW5 also stated that aforesaid documents Ex PW5/A1 to A3 were handed over by him (PW5) to his HOD i.e. Sh J. Chander Shekhar, Treasurer vide covering letter dated 15/02/2009, Ex PW5/A4.
29. PW6 Sh D.K Singh, Assistant General Manager, Reserve Bank of India, Foreign Exchange Department had sent letter dated RC No. DAI/08/A0045/CBI/ACB/ND 18/52 CBI vs Priti Chakravarty 13/04/2009, Ex PW6/A; letter dated 11/05/2009, Ex PW6/B and letter dated 18/05/2009 Ex PW6/C to CBI with documents detailed therein inter alia including D6, Ex PW6/D (colly) i.e., certified copy of statement of account no. 5210001009 for the period October 1999 to December 2001 and January 2002 to March 2003 with certificate under Banker's Book of Evidence Act containing of all details regarding deposit of amount from time to time by the MEA.
30. During course of investigation, PW15 made certain queries vide letter dated 03/09/2009 (D12/1) alongwith list, collectively Ex PW15/D (colly) mentioned therein the details of the cash receipts; for said queries, the reply of RBI received by PW15 was Ex PW6/E. Vide letter dated 14/09/09, D13, Ex PW6/E, in regard to the scrutiny of details regarding deposit amount in account no. 5210001009 of MEA, PW6 found some discrepancies therein while tallying the vouchers, also finding that following receipt number supplied by the CBI and the receipt number available in RBI system did not tally but the amount of deposit and the date of deposit were correct; regarding which facts, the details in Ex. PW 6/E are as follows.
Sl. Date Receipt Receipt No. Amount Remarks
No. No. as as per (Rs.)
advised records of
by CBI RBI
1 31.05.2001 11813 71559 984.00 Receipt number differs.
2 12.07.2001 11855 1787 1281.00 Receipt number differs.
RC No. DAI/08/A0045/CBI/ACB/ND 19/52
CBI vs Priti Chakravarty
3 26.08.2002 26435 Cashier 400.00 No receipt number as per
records of RBI.
4 26.08.2002 Cashier 400.00 No receipt number as per
records of RBI.
31. Accordingly, as per Ex. PW 6/E no deposits were received in Reserve Bank of India against amounts of receipt no. 11813; 11855 and 26435 aforesaid. Vide aforesaid letter Ex. PW 6/E (colly), PW 6 had interalia replied that statement pertaining to period 7/99 to 9/99 belongs to precomputerization period and relative information, if any, are not traceable as of now. So, PW 6 could not admit or deny if Cash Vouchers / Challans reflected in statement u/s 161 Cr. PC Ex. PW 6/DX1 totaling Rs. 26,459/ of period upto September 1999 were deposited in the account of MEA or not. Also, vide Ex. PW 6/E, PW 6 informed PW 15 IO that they had examined / scrutinized the details of the cash stated to have been received by NEAH [as supplied by PW 15 vide his letter Ex. PW 15/D (colly)] on the basis of their computer generated records / statement for the period in question and it has been observed that no such cash deposit have been made with the RBI in the account no. 5210001009 of NEAH. PW6 also stated that by saying that the details of 43 cash vouchers /challans did not match with their record, he (PW6) meant that the amount against said vouchers/ challans were not deposited in the account of the MEA. Vide letter dated 27/05/2009, Ex PW6/F, PW6 further sent some information required by CBI. In terms of the testimony of PW 6, his information given in Ex. PW 6/E in response to RC No. DAI/08/A0045/CBI/ACB/ND 20/52 CBI vs Priti Chakravarty Ex. PW 15/D (colly), sum of Rs. 11,82,248/ [Rs. 12,08,707/ {the total of the sum of cash receipts detailed in Ex. PW 15/D (colly)} minus Rs. 26,459/ {the sum pertaining to period upto September 1999 detailed in Ex. PW 6/DX1}] was not deposited in Reserve Bank of India against the cash receipts detailed in Ex. PW 15/D (colly).
32. PW7 Sh Dharambir deposed that challan D27, dated 23/01/2003 for Rs 157/, Ex PW7/A was not bearing seal of RBI nor was bearing his signatures regarding receipt of the amount mentioned in the challan.
33. PW8 Sh Sunil Kumar stated that document D27 (page 2), dated 24/02/2003 for Rs 16,497/, Ex PW8/A1 and cash challan at page 11 of D27, dated 04/02/2003 for Rs 10,485/, Ex PW8/A2 were not bearing seal of RBI nor were bearing his (PW8) signatures.
34. PW9 Sh Ajit Kumar Luthra deposed that cash challan dated 07/03/2003 for Rs 4447/ at page 3 of D27, Ex PW9/A1; cash challan dated 07/03/2003 for Rs 574/ at page no. 4 of D27, Ex PW9/A2; cash challan dated 07/03/2003 for Rs 5060/ at page no. 5 of D27, Ex PW9/A3 and cash challan dated 07/03/2003 for Rs 2651/ at page no. 6 of D27, Ex PW9/A4 were not bearing seal of RBI nor were bearing his (PW9) signatures.
RC No. DAI/08/A0045/CBI/ACB/ND 21/52
CBI vs Priti Chakravarty
35. PW12 Sh Man Singh Bisht deposed that he used to basically look after the maintenance of New External Affairs Hostel till December, 2001 and was also dealing with the matter regarding bringing up cash from the bank for distribution of salary amongst the staff of the hostel, while accused Priti Chakravarty being posted and functioning as a Cashier was responsible for receiving of cash/cheque from the guests/occupants of the hostel, issue receipts and maintained the cash register; accused Priti Chakravarty was also supposed to fill up the cash challans in triplicate and many times even others used to fill up such challans including PW12 whenever accused Priti Chakravarty were not available on account of leave or engaged in some other duties.
36. PW12 also deposed that he had seen accused Priti Chakravarty writing and signing documents during his tenure with accused Priti Chakravarty; 43 cash challans forming part of D27, Ex PW4/A1, Ex PW4/A2, Ex PW4/A3, Ex PW7/A, Ex PW8/A1, Ex PW8/A2, Ex PW9/A, Ex PW9/A2, Ex PW9/A3, Ex PW9/A4, Ex PW12/A1 to Ex PW12/A33 were filled up in handwriting of accused Priti Chakravarty; none of these challans were handled by PW12 for the purposes of depositing cash with RBI.
37. PW12 further deposed that the receipt books D15 to D26 of External Affairs Hostel i.e., Ex PW12/B1 to Ex PW12/B12 and the pages marked Q1 to Q178 (D15), Q179 to Q359 (D16), Q360 to RC No. DAI/08/A0045/CBI/ACB/ND 22/52 CBI vs Priti Chakravarty Q389 and thereafter from Q400 to Q565 (D17) except Q360, Q476, Q478, Q480 and Q482, Q556 to Q763 and thereafter Q644 to Q 645A (D18), Q764 to Q816, Q816A, Q817 to Q833 and Q835 to Q959 (D19), Q960 to Q1094 and Q1094A, Q1095 to Q1132 (D20) except Q1062; Q1133 to Q1184 (D21), Q1185 to Q1380 and thereafter Q1187A to 1330A (D22), Q1381 to Q1574 and Q1553A to Q1536A (D23), Q1575A and Q1576A (D24), Q1771 to Q1963 and Q1854A (D25), Q1964 to Q1999 (D26) bear the signatures/initials of accused Priti Chakravarty under the Head Reception Officer; said receipt books had been issued by the department and the such issued receipts by accused Priti Chakravarty and others were so issued in the ordinary course of business.
38. PW16 Sh Rajbir, Attendant in New External Affairs Hostel, deposed that accused Priti Chakravarty was Accountant in the office of New External Affairs Hostel; receipts of room rent received were issued by accused Priti Chakravarty; accounts work including billing etc. was also done by accused Priti Chakravarty in the office; cash challans Ex PW14/C2 (colly) were prepared by accused Priti Chakravarty wherein at points Q2043, Q2044, Q2045, Q2046, Q2047, Q2050 to Q2071, Q2076 to Q2085, signatures of accused were there at said challans. PW16 further deposed that the cash receipts in cash receipt books Ex PW12/B1 (except receipt no. 10912 and 10976), Ex PW12/B2, Ex PW12/B3 (except receipt nos. 11602, 11656, 11657, 11658 and 11659), RC No. DAI/08/A0045/CBI/ACB/ND 23/52 CBI vs Priti Chakravarty Ex PW12/B4 (except receipts nos. 11742, 11747, 11757, 11759, 11768, 11774, 11777, 11790, 11798), Ex PW12/B5, Ex PW12/B6 (except receipt no. 11465), Ex PW12/B7 (except receipt no. 11581), Ex PW12/B8, Ex PW12/B9(except receipt no. 11918 and 11920), Ex PW12/B10, Ex PW12/B11 and Ex PW12/B12 were issued by accused Priti Chakravarty.
39. In terms of report Ex. PW 14/B of AGEQD PW 14, the writings in portions Q15 in receipt no. 10912, Q139 in receipt no.10976 part of Ex. PW 12/B1; Q646 in receipt no.11742, Q656 in receipt no.11747, Q676 in receipt no.11757, Q680 in receipt no.11759, Q698 in receipt no. 11768, Q710 in receipt no.11774, Q716 in receipt no.11777, Q742 in receipt no.11790, Q758 in receipt no. 11798 part of Ex. PW 12/B4; Q1161 in receipt no. 11581 part of Ex. PW 12/B7; Q 1415 in receipt no. 11918, Q1419 in receipt no. 11920 part of Ex. PW 12/B9 were of accused Priti Chakravarty after these were compared with her specimen writings and admitted writings elicited herein above. Even, in her deposition as DW 1, the accused did not claim these aforesaid writings in aforesaid receipts were not her's. In answer to question 28 accused admitted in her statement under Section 313 Cr.P.C that aforesaid writings in aforesaid receipts were of her. Later when in question 38 in her statement under Section 313 Cr.P.C it was put to accused that PW16 Rajbir had stated receipts other than these aforesaid receipts were issued by her (accused) since PW16 had not been able to RC No. DAI/08/A0045/CBI/ACB/ND 24/52 CBI vs Priti Chakravarty identify writings in these receipts to be of accused then accused stated that writings in these receipts were not of her. From the testimonies of PW12, PW16 (detailed in preceding para) corroborated by the version of PW14 and his report Ex. PW 14/B, it has been proved that (1) the aforesaid writings in aforesaid receipts were of accused Priti Chakravarty; (2) writings in the cash receipts detailed in Ex PW15/D (colly) excluding receipt numbers 11602, 11659, 11464 were of accused Priti Chakravarty.
40. PW12 further deposed that in official course of business accused Priti Chakravarty had written from page 1 to page 200 of cash book/rent receipt, document D30, Ex PW12/C.
41. PW15, Investigating Officer sent request letter D14 with enclosures collectively Ex PW15/E (colly) for GEQD opinion.
42. PW14 Dr. S. Ahmed, AGEQD, CFSL, Directorate of Forensic Science, MHA, Government of India deposed that he had examined the documents in this case referred by SP CBI vide forwarding letter Ex PW14/A. PW14 had proved his detailed opinion in his report Ex PW14/B. Also, PW14 deposed that the questioned writings Q1 to Q178 Ex.PW12/B1 (D15); Q179 to Q354 Ex.PW12/B2(D16); Q360 to Q389, Q400 to Q565 Ex.PW12/B3 (D17);Q566 to Q763, Q644A and Q645A Ex.PW12/B4 (D18); Q764 to Q833, Q835 to RC No. DAI/08/A0045/CBI/ACB/ND 25/52 CBI vs Priti Chakravarty Q959, Q816A Ex.PW12/B5 (D19); Q962 to Q1132, Q1094A Ex.PW12/B6 (D20); Q1133 to Q1184 Ex.PW12/B7 (D21); Q1185 to Q1380, Q1187A, Q1330A Ex.PW12/B8 (D22); Q1381 to Q1574, Q1433A, Q1536A Ex.PW12/B9 (D23); Q1575 to Q1770, Q1575A, Q 1576A Ex.PW12/B10 (D24); Q1771 to Q1963, Q1854A Ex.PW12/B11 (D25); Q1964 to Q1999 Ex.PW12/B12 (D26); Q2000 , Q2043, Q 2086 Ex.PW7/A; Q2001 , Q2044, Q2087, Q2136 Ex.PW14/C1, Q 2002, Q2045, Q2088, Ex.PW9/A1, Q2003, Q2046, Q2089 Ex.PW9/A2; Q2004, Q2047, Q2090 Ex.PW9/A3; Q2005, Q 2048, Q2091 Ex.PW9/A4; Q2006, Q2049, Q2118 Ex.PW8/A1; Q 1007, Q2050, Q2092, Q2119 Ex.PW4/A1, Q2008, Q2051, Q2093, Q2120 Ex.PW4/A2; Q2009, Q2052, Q2121 Ex.PW4/A3; Q2010, Q2053, Q2094 Ex.PW8/A2; Q2011 to Q2042, Q2054 to Q2085, Q2095 to Q2117, Q2122 to Q2135 were Ex PW14/C2 (colly); the specimen writings of accused were Marked S1 to S95, which are Ex PW2/A (colly) and the admitted writing and signatures of accused i.e., A1 to A16 were Ex PW14/C3 (colly) on the applications/leave applications of accused in the course of her official work in External Affair Hostel. PW14 also deposed that the same case was also independently examined by Dr. B.A. Vaid who also reached the same conclusion and on report Ex PW14/B Dr. B.A. Vaid, Government Examiner of questioned documents (GEQD) had signed at point B.
43. As per Ex PW14/B, the report of Dr. B.A. Vaid (GEQD) and RC No. DAI/08/A0045/CBI/ACB/ND 26/52 CBI vs Priti Chakravarty Dr. S. Ahmed, (PW14) AGEQD, the writings and signatures in the enclosed portions stamped and marked Q1 to Q15, Q17 to A41, Q43 to Q249, Q251 to Q266, Q268 to Q312, Q314 to Q359, Q362 to Q389, Q400 to Q475, Q484 to Q644, Q644A, Q645, Q645A, Q646 to Q714, Q716, Q718 to Q742, Q744 to Q791, Q794 to Q816, Q816A, Q817 to Q833, Q835 to Q1061, Q1064 to Q1094, Q1094A, Q1095 to Q1129, Q1131, Q1133 to Q1135, Q1137 to Q1187, Q1187A, Q1188 to Q1218, Q1220 to Q1242, Q1244 to Q1248, Q1250 to Q1312, Q1314 to Q1330, Q1330A, Q1331 to Q1403, Q1405 to Q1427,Q1429 to Q1453, Q1453A, Q1454 to Q1458, Q1460 to Q1478, Q1480 to Q1490, Q1492 to Q1536, Q1536A, Q1537 to Q1575, Q1575A, Q1576, Q1576A, Q1577 to Q1587, Q1589 to Q1611, Q1613 to Q1709, Q1711 to Q1729, Q1731 to Q1745, Q1747 to Q1749, Q1751 to Q1755, Q1757 to Q1761, Q1763, Q1765 to Q1772, Q1775, Q1777 to Q1815, Q1817, Q1823, Q1825 to Q1854, Q1854A, Q1855 to Q1892, Q1894 to Q1914, Q1916 to Q1924, Q1926 to Q1956, Q1958 to Q1982, Q1984 to Q2042, Q2045, Q2048 to Q2063, Q2065 to Q2078, Q2081, Q2082, Q2084, Q2085; S1 to S95 and A1 to A16 have been written by one and the same person i.e., accused Priti Chakravarty.
44. In terms of the said report Ex. PW 14/B, the writings Q360 in receipt no. 11602 of Rs. 1,198/, Q482 in receipt no. 11659 of Rs. 1,136/, both part of receipt book Ex. PW 12/B3 as well as the writings Q1062 of receipt no. 11464 of Rs. 1,873/, part of receipt book Ex. PW RC No. DAI/08/A0045/CBI/ACB/ND 27/52 CBI vs Priti Chakravarty 12/B6, on comparison with the specimen writings S1 to S95 and admitted writings of accused i.e., A1 to A16, were not of accused. The amount of the aforesaid three receipts is totaling Rs. 4,207/, which are not in the writing of the accused as per the handwriting expert, AGEQD PW 14. To assail the report Ex. PW 14/B, on the aspect of the writings in Receipt Books Exts. PW12/B1 to PW12/B12, no evidence in defence has been led. The private handwriting expert DW 2 neither examined this facet, nor gave any opinion nor any evidence on this count. Accordingly, the amount of rent proceeds received by accused against receipts issued by her (details of receipts issued by accused are in para 39 above) is Rs. 11,78,041/ (Rs. 11,82,248/ as detailed in para no. 31 above minus Rs. 4,207/ herein above said)(now termed cash in question).
45. The Investigating Officer PW15 deposed that he had received certain documents i.e., copy of computerized system generated statement showing the date wise record of transaction in respect of account no. 5210001009, copies of scroll relating to the entries from S. No. 1 to 43 as shown in the list supplied by him (PW15), copy of information / certified copy from RBI vide forwarding letter D5, D7 and D10, Ex. PW 6/A, Ex. PW 6/B and Ex. PW 6/C respectively. The date wise record of transaction in respect of aforesaid account, Ex. PW 6/D collectively (D6); the receipt scroll (D9), Ex PW15/B (colly); D8 (receipt certificate), Ex. PW 15/C collectively, the information contained in Ex PW5/A1 to A4 were received by PW15 in the ordinary course of RC No. DAI/08/A0045/CBI/ACB/ND 28/52 CBI vs Priti Chakravarty investigation.
46. PW17 Sh Pradeep Kumar Chatterjee, Section Officer/Administrative Officer in NEAH deposed that he had handed over letter dated 19/02/2009, D4/2, Ex PW17/A to CBI officials. PW17 further deposed that occupancy in the New External Affairs Hostel, R.K. Ashram Marg, was generally above 90% and said hostel was for MEA officers, officials coming on short leaves and transfers and also for their families; the Establishment Division in the MEA were issuing the allotment letters for the New External Affairs Hostel; on basis of the allotment letters the rooms were allotted to the allotee; on arrival of the allotee in the hostel, the allotee made the entry in the Visitor / Entry Book for occupation of the room and he was given the accommodation allotted; on the basis of the period of occupancy, rent, electricity and water charges were charged; at the time of departure, bill was raised for accommodation provided to allotee; bill was raised by the Accountant; during those days, the procedure followed was that in case the stay period was 20 days or less, then the rent and other charges were charged on daily basis and in case period of stay was more than 20 days then such charges were charged on monthly basis; before joining of PW17 in November 2006, the aforesaid charges were received by cash as well as by cheque; later to joining of PW17 in November 2006, w.e.f January 2007, as far as PW17 was able to remember, the aforesaid charges were taken by cheques; cash charges were so collected by the Accountant and RC No. DAI/08/A0045/CBI/ACB/ND 29/52 CBI vs Priti Chakravarty receipts were issued. PW17 stated that he was not aware as to in period prior to joining of PW17, what was the practice adopted by the accountant to deal with the such collected cash; entries of collected rent and charges were made in the Cash Book and Rent Register by Accountant; for payment deposited in the bank, entries were made by the accountant in the Cash Book.
47. The onus to prove the fact is always on the prosecution. In the criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This onus to prove never shifts. The prosecution can also not take benefit of the weakness of the defence of the accused. However, this proposition is subject to certain exceptions. For example, if the accused has taken the plea of alibi, this has to be proved by the accused. Similarly, if the accused takes the plea that his case falls within the general exceptions of Penal Code, the onus is upon the accused to prove the same. In the similar fashion, Section 106 of the Indian Evidence Act provides that if the act done is within the special knowledge of the accused, it is for him to prove the same. However, the rule of caution is that even in these cases, the prosecution is required to prove its case prima facie and therefore, if there are certain circumstances which were in the special knowledge of the accused, then it is for the accused to come out and spell out those circumstances.
48. In a criminal trial, the prosecution is duty bound to prove its RC No. DAI/08/A0045/CBI/ACB/ND 30/52 CBI vs Priti Chakravarty case against the accused beyond reasonable doubt. Sections 101 to 104 of Indian Evidence Act (IEA) lay down the general principles as to onus to prove. Section 106 of IEA provides asunder :
"106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
49. However, Section 106 IEA comes into play only after the prosecution has been able to prove prima facie case. If the prosecution has not been able to make out a prima facie case, accused cannot be asked to prove any particular fact which is within his knowledge. The principles underling section 106 can be summed up that initially the burden to prove the guilt beyond reasonable doubt always remain upon prosecution. If the prosecution has been successful in proving the fact from which a reasonable inference can be drawn regarding the existence of certain facts, then the accused is required to offer an explanation regarding such fact so as to set aside the reasonable inference being presented by the prosecution. The accused must offer an explanation which should be probable and satisfactory.
50. In Shambhu Nath Mehra Vs. State of Ajmer, AIR 1956 SC 404, the scope of section 106 of IEA was held as under :
"This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the RC No. DAI/08/A0045/CBI/ACB/ND 31/52 CBI vs Priti Chakravarty accused could prove them are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts."
51. Perusal of the above said judgment makes it clear that the prosecution has to lead evidence to substantiate its accusations, but if facts within the special knowledge of accused are not satisfactorily explained, it is a factor against the accused.
52. It is a settled proposition that the concept "beyond reasonable doubt" cannot be stretched too far. The whims and fancies of the accused cannot displace the facts proved by the prosecution in accordance with the provisions of IEA. The prosecution is not supposed to meet every hypothetical questions raised by the defence, if it is presumed to be so, it would amount to deflecting the course of justice.
53. True that in terms of Rule 13 of the Receipts and Payments Rules, 1983, it was ultimate responsibility of the DDO for the proper maintenance and accuracy of accounts; to check and initial the Rent Cash Book and Main Cash Book on daily basis as well as to authenticate the cash challans; to check the said challans after deposit of cash in the bank with the entries in the Cash Book(s); to reconcile the accounts as per the Bank Statement of Account with the entries in the Rent Cash Book/Main Cash Book and to record a signed and dated RC No. DAI/08/A0045/CBI/ACB/ND 32/52 CBI vs Priti Chakravarty certificate about the correctness of the accounts. Yet, failure of DDO to discharge such responsibility in itself would not suffice for accused to furnish grounds for acquittal on charges framed. Rule 13 of the Receipts and Payments Rules, 1983 nowhere provides it being responsibility of the DDO to depute someone from the lower staff to deposit the cash amount in the accredited bank. Infact sub rule (viii) of Rule 13 of the Receipts and Payments Rules, 1983 provides that "the employment of Peons to fetch or carry money should be discouraged. When it is absolutely necessary to employ one for this purpose, a man of some length of service and proved trustworthiness should only be selected and in case where the amount to be handled is large, one or more guards should accompany the messenger". So only in extreme case of absolute necessity, the Peon(s) can be deputed to fetch or carry money and that too in that eventuality such a Peon has to be a man of integrity and when cash amount handled is large, then guard(s) should accompany such Peon(s). In routine, Peon(s) were not permitted to fetch or carry money.
54. Even report Ex. PW 10/A inter alia embodies the fact of the cash book Ex. PW 12/C for the period 08.07.2002 to 07.03.2003 was not signed by the DDO. Accused as DW 1 admitted that Ex. PW 12/C contained only her writings. Also was observed there in Ex. PW 10/A that (1) the Accountant (i.e., accused Priti Chakravarty) was having the receipt book with her and issuing the receipts conveniently; (2) the reconciliation of receipts remitted into the bank through challans RC No. DAI/08/A0045/CBI/ACB/ND 33/52 CBI vs Priti Chakravarty required to be conducted by the DDO after collecting the duplicate copy of the receipted challans with receipt scrolls from accredited bank was not done at all by DDO; (3) had such reconciliation work been undertaken by the DDO, Government money would have been deposited timely and in full at proper due dates itself.
55. Lapses on part of the DDO may be sheer negligence but certainly short of having element of conspiracy and / or criminal misappropriation / breach of trust, for lack of evidence.
56. PW 12 Man Singh categorically stated that the 43 cash challans viz, Ex. PW 7/A; Ex. PW 9/A; Ex. PW 9/A2 to A4; Ex. PW 4/A1 to A3; Ex. PW 8/A1, A2; Ex. PW 12/A1 to A33 were not pertaining to the period of his tenure (i.e., till December 2001) in the hostel (NEAH). Besides that PW 12 stated in crossexamination that during his tenure Peon Anup Lal used to go to the bank for depositing the cash. Neither PW 12 himself elicited in detail nor was questioned in crossexamination before my Ld. Predecessor as to regarding deposit of which cash, said Peon Anup Lal used to go to the bank and specifically to which bank. PW 12 did not testify that cash collected by accused was taken by Peon Anup Lal to RBI under instructions of DDO. PW 12 also admitted the suggestion in crossexamination that challans used to be placed before the DDO for authorizing someone to get the cash deposited with RBI, but PW 12 had no idea if DDO used to authenticate the RC No. DAI/08/A0045/CBI/ACB/ND 34/52 CBI vs Priti Chakravarty challans by putting his seal, stamp and initials / signatures on the same. PW 12 did specify so regarding the cash challans prepared during his tenure and not about 43 cash challans elicited herein before, which were not pertaining to his tenure. Said 43 cash challans were in the writings of accused as proved in evidence elicited herein before and also so admitted by accused but were not bearing any writings, initials, signatures of DDO / AO.
57. PW 16 Rajbir in his crossexamination elicited that he had never gone for deposit of cash in RBI but simply stated that since Anup had duty so he used to go to the bank. Neither PW 16 himself specified nor he was questioned in crossexamination (1) the purpose of visit of Anup to bank; (2) nature of duty of Anup for bank purpose; (3) on whose directions Anup used to go to bank and (4) which bank Anup used to go.
58. PW 10, Sh Sant Ram Yadav, the then Assistant Accounts Officer of MEA deposed that it used to be the cashier who was supposed to deposit the cash with the bank in the ordinary course of business, as per practice that was in vogue in NEAH. PW 10 also categorically denied the suggestions in his crossexamination that (1) accused used to handover the treasury challans as well as cash collected to the DDO on day to day basis and (2) thereafter the accused (cashier) was left with no control over the deposit of the same with the bank.
RC No. DAI/08/A0045/CBI/ACB/ND 35/52
CBI vs Priti Chakravarty
59. PW 16, Rajbir, the Attendant in NEAH inter alia testified that he had never seen accused going to bank for deposit of cash. Said version infact strengthens the prosecution case of collected, entrusted Government cash having been misappropriated by accused instead of being deposited in accredited bank.
60. Receipt books Ex. PW 12/B1 to B12 as well as Cash Book Ex. PW 12/C bear no writings, signatures or initials of any DDO / AO, so as to prove or even infer the fact of delivery of any collected cash against receipt by accused to DDO / AO as alleged by her as DW 1. So it makes DW 1 unworthy of credence.
61. As per Ex. PW 14/B, it was not possible for PW 14 as well as Dr.B.A.Vaid, GEQD to express any opinion interalia for the figures written with red pen marked as Q2086 to Q2117 (including figures written with blue pen marked Q2101 to Q2108) within the stamp impression portion of purported RBI stamp in the aforesaid 43 cash challans, on comparison with the rest of the questioned items containing numericals marked as Q2000 to Q2042.
62. Admittedly, aforesaid 43 cash challans were prepared by accused in her writings. Signatures at Q2045, Q2048 to Q2063, Q 2065 to Q2078, Q2081, Q2082, Q2084, Q2085 on said cash challans on behalf of and over stamp of Assistant Manager, Ministry of External RC No. DAI/08/A0045/CBI/ACB/ND 36/52 CBI vs Priti Chakravarty Affairs, New External Affairs Hostel, R.K. Ashram Marg, New Delhi have been proved to be of accused. It is not the case of prosecution that accused had herself forged the RBI rubber stamp impression or writings within it or had used it. Accused is not facing trial on charges for (1) being maker of forged documents / valuable securities; (2) using the forged documents as genuine. Perpetrators of said offences of forgery have not been ascertained, booked or tried.
63. In this fact of the matter, in the backdrop of elicited evidences on record, the opinion of private handwriting expert DW 2 that accused is not maker of disputed figure work Q2136 within the purported rubber stamp impression of RBI on cash challan Ex. PW 12/A 1, would be of no help to defence to furnish any ground for acquittal of accused for the charges framed.
64. PW11 Sh R.K. Tyagi, the then Joint Secretary, Communication NGO Vigilance (CNV), Ministry of External Affairs (MEA), South Block, New Delhi in December 2009, deposed that he was competent to remove the employees to the rank of Accountantcum Cashier including accused Priti Chakravarty, as per prevailing rules of the Department. PW11 further deposed that he had gone through all relevant documents viz. the FIR, statements of the witnesses and the documents prepared during investigation, submitted before him by the CBI; had also called the Investigating Officer Inspector S.S. Bhullar RC No. DAI/08/A0045/CBI/ACB/ND 37/52 CBI vs Priti Chakravarty (PW15) and had raised certain queries to him regarding this case and after being fully satisfied that the employee concerned i.e., accused Priti Chakravarty had committed criminal misconduct, Sh R.K Tyagi (PW11) had accorded the sanction Ex PW11/A, dated 03/12/2009 against accused Priti Chakravarty under Section 19 of Prevention of Corruption Act, 1988 for her prosecution for offences punishable u/s 409 of IPC and Section 13 (2) r/w 13 (1) (c) of PC Act, 1988. Vide forwarding letter Ex PW15/F, dated 03/12/2009 the sanction was sent to SP CBI by IO PW15. It has not been suggested to PW 11 in his cross examination that he was not competent to remove accused, the AccountantcumCashier. It is proved on record that PW 11 was competent to remove the accused, AccountantcumCashier as PW 11 was the then Joint Secretary, CNV in Ministry of External Affairs of Central Government. I advert to Ex. PW11/A. It finds mention on the top of it, "No. Q/Vig/843/12/07, Government of India, Ministry of External Affairs (Vigilance Unit)". Per se, it is apparent on face of record that PW11 had issued Ex. PW11/A for and on behalf of the Ministry of External Affairs (Vigilance Unit), Government of India being its Joint Secretary, CNV and competent to remove the accused, Accountantcum Cashier. The sanction order Ex. PW11/A also bears the elicited number of the file concerned of the Vigilance Unit, Ministry of External Affairs, Government of India. Fallacy in the arguments of Ld. Defence Counsel on this count is apparent on the face of record. It was also argued by Ld. PP for CBI that after framing of charge, sanction gets the immunity and RC No. DAI/08/A0045/CBI/ACB/ND 38/52 CBI vs Priti Chakravarty accused persons are not entitled to challenge the same. At the stage of the charge, the sanction order was assailed by the accused through her Counsel, only on the premise that it had been accorded u/s 19 of the Prevention of Corruption Act only and not u/s 197 of the Code of Criminal Procedure. Even at the stage of charge, it had not been in any manner argued that the Sanctioning Authority lacked competence for according such sanction or the sanction u/s 19 of the Prevention of Corruption Act was bad in law, as has been now argued in the course of final arguments. Be that as it may, fact remains that accused has not been able to demonstrate that the sanction order was suffering from non application of mind or the Sanctioning Authority was not competent to remove her (accused) from service or any alleged error/omission/irregularity in such sanction had occasioned or resulted in a failure of justice. The contention of the defence qua sanction order being bad in law, does not hold any water.
65. In the case of Madhusudan Singh (Supra), the allegations in FIR were not proved at trial nor substantiated by oral evidence besides which in view of acquittal of the three accused persons by the Trial Court for the offence u/s 409 of IPC, the conviction of those three accused for offence u/s 5 (1) (c) of the Prevention of Corruption Act, 1947 was not sustained.
66. In the case of Dilawar Singh (Supra), it was held that "the RC No. DAI/08/A0045/CBI/ACB/ND 39/52 CBI vs Priti Chakravarty provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr. P.C. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr. P.C. if no sanction has been granted by the Appropriate Authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person."
67. The facts and circumstances embodied in the cases of Dilawar Singh (Supra) and Madhusudan Singh (Supra) are at complete variance and entirely distinguishable to the set of facts and circumstances of the case in hand, as discussed herein above in detail, accordingly the pronouncements in the said cases are of no aid for defence to seek acquittal on the facts in issue.
68. In the case of "Mustafikhan vs State of Maharashtra"
2007(1) RCR (Criminal) 503, it was held that "9. In order to sustain a conviction under Section 409 IPC the prosecution is required to prove that (a) the accused, a public servant was entrusted with property of which he has duty bound to account for,
(b) the accused had misappropriated the property.
10. Where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged.
11. The above position was reiterated in Jagat Narayan Jha vs. State RC No. DAI/08/A0045/CBI/ACB/ND 40/52 CBI vs Priti Chakravarty of Bihar (1995 (Supp) 4 SCC 518).
12. It is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. In the instant case, there is no dispute about the entrustment."
69. There is a famous legal maxim "nullus commodum capere potest de injuria sua propria", which means that no man can take advantage of his own wrong. It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong. This maxim is based on elementary principles and has gained status in law and equity. Herein pursuant to receipt of cash in question, the accused did not deposit it in the account of NEAH in the accredited bank, RBI but converted it to own use. Accused cannot be permitted to take advantage of her own wrong.
70. There is also another legal maxim "acta exteriora indicant interiora secreta" which means that acts indicate the intention. The previous intention of a person can be judged by his subsequent acts. It is a settled proposition that if a man abuses his authority given to him by RC No. DAI/08/A0045/CBI/ACB/ND 41/52 CBI vs Priti Chakravarty the law, he becomes a trespasser ab initio.
CONCLUSION
71. From the testimonies of prosecution witnesses, it is proved on record that cash in question was collected against elicited receipts by the accused in course of her duties as Accountantcum Cashier, a public servant in NEAH. Even it has been admitted by accused herself as herein before elicited. So accused received and was entrusted with the cash in question against receipts issued by her. But there is no cogent evidence on record that (1) after collection of such cash the accused used to hand over the cash with challans prepared by her to the AOs / DDOs and her duty ceased and (2) it was the AO / DDO who used to depute someone from lower staff / peon for depositing the cash in the bank for the challans in question, as has been alleged in defence by accused as DW 1 and her Ld. Defence Counsel. Of course, prosecution did not prove the actual mode and manner of misappropriation of such received cash by accused, nor was it duty bound to do so. No cogent evidence is borne out of record as to what actually was done with such received cash in question by the accused. Explanation given by accused of handing over the such received cash to DDO / AO daily, defies logic, stands not proved for want of any cogent evidence on record including absence of any signatures, initials or writings of such DDO / AO in the Cash Book, Receipt Books and even the Cash Challan Vouchers concerned. The tendered defence of accused RC No. DAI/08/A0045/CBI/ACB/ND 42/52 CBI vs Priti Chakravarty elicited herein before stands not proved. The explanation offered by the accused is neither probable nor satisfactory. Per contra, it appears to be sham, tendered only for the purpose to adopt it to save own skin. Falsity of such explanation of accused is writ large on the face of record. In consonance with the maxim "nullus commodum capere potest de injuria sua propria", accused cannot be permitted to take advantage of her own wrong merely due to inaction or sheer negligence on part of DDO / AO to timely notice and check the misdeeds of the accused for retention of the cash in question instead of deposit in the accredited bank on its receipt. In terms of the maxim "acta exteriora indicant interiora secreta", the intention of the accused is judged from her subsequent acts. Ex. PW 12/C, the Cash Book contains no writings, initials, signatures of the DDOs / AOs concerned in respect of it having been shown to them by the accused. Sheer negligence on part of DDOs / AOs for lack of supervision in deposit of the collected cash by accused in accredited bank and reconciliation of accounts did not entitle the accused to carry further her misdeeds for retention of received / entrusted Government cash in question instead of depositing it in the accredited bank. Per contra, the accused retained the received / entrusted Government cash in question amounting to Rs. 11,78,041/, thereby instead of depositing it in the accredited bank had converted it to her own use and thus committed criminal misconduct. Dishonest intention of accused for misappropriation of the said received and entrusted cash is writ large on RC No. DAI/08/A0045/CBI/ACB/ND 43/52 CBI vs Priti Chakravarty face of record and stands proved.
72. In view of foregoing discussions, I am of the considered opinion that prosecution has been successful in proving its case beyond reasonable doubt against arraigned accused Priti Chakravarty for offences (1) under Section 409 of IPC and (2) of criminal misconduct, as defined in Section 13 (1) (c) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988, for which offences, the said accused is held guilty and convicted accordingly. Let she be heard on sentence.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e.,19.12.2012 Patiala House Court, New Delhi.
RC No. DAI/08/A0045/CBI/ACB/ND 44/52 CBI vs Priti Chakravarty IN THE COURT OF SH. GURVINDER PAL SINGH, SPECIAL JUDGE (PC ACT) (CBI)6, PATIALA HOUSE COURT, NEW DELHI CC No. 43/12 (Old CC No. 34/11) RC No. DAI/08/A0045/CBI/ACB/ND U/S 409 IPC and 13 (2) read with Section 13 (1)(c) of PC Act CBI vs. Priti Chakravarty Unique ID No. : 02403R0411662009 Central Bureau of Investigation vs. Priti Chakravarty W/o Sh. Gautam Chakravarty, R/o C603, Panchsheel Apartments, Plot 24, Sector 4, Dwarka, PhaseI, New Delhi110075 ORDER ON SENTENCE:
Having convicted Priti Chakravarty (1) under Section 409 of IPC and (2) of criminal misconduct, as defined in Section 13 (1) (c) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988; I have heard the Ld. PP for CBI, the Ld. Defence Counsel and the Convict and have perused the record.
2. Sh. Anil Tanwar, Ld. Public Prosecutor for CBI has prayed for maximum prison term on the premise that corruption has reached RC No. DAI/08/A0045/CBI/ACB/ND 45/52 CBI vs Priti Chakravarty phenomenal level and deterrent sentence would meet the ends of justice as is required in the interest of the society.
3. Sh Jagdish Singh, Ld. Counsel for Convict in his written submissions and even orally has prayed that (1) the convict has got unblemished record of service, has been discharging her duties most diligently and efficiently; (2) convict is victim of criminal conspiracy hatched by the AO/DDO and the Peon (s); (3) convict remained suspended from service from 13/06/2007 to 28/12/2009, got only 50% of her salary as Subsistence Allowance during the period of suspension; (4) convict suffered from mental agony and frustration during period of suspension, investigation and trial, while she also suffered finanacially; (5) convict had been regularly and punctually attending the trial on every date of hearing without any default; (6) convict is the first offender of the alleged crime; (7) convict has only one son, who is under education; (8) convict is suffering from various ailments i.e., Diabetes, acute Arthritis (Joint knee pain) in both the legs; (9) convict is the sole bread earner in the family since her husband retired four years ago from private service not getting any pension or retirement benefits; (10) convict has to pay monthly loan installment of Rs 7,000/ for her residential flat in Cooperative Group Housing Society, she has also to discharge social obligations; (11) any sentence imposed would result in loss of job, forfeiture of retiral benefits and complete ruination of the family. Accordingly, lenient view has been prayed for seeking awarding RC No. DAI/08/A0045/CBI/ACB/ND 46/52 CBI vs Priti Chakravarty of minimum possible sentence. Convict herself submitted to be of age 56 years, being educated till class 11 th; that her only son of age 27/28 years is doing MCA privately and since her husband is retired from private service, she is the sole bread earner in her family and has prayed for lenient view.
4. In the case of "State of U. P. v. Kishan," AIR 2005 SC 1250, it was held that "Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (AIR 1991 SC 1463).
The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal."
RC No. DAI/08/A0045/CBI/ACB/ND 47/52
CBI vs Priti Chakravarty
5. In the case of "A.Wati A.O. vs. State of Manipur," 1996 Cri. L. J. 403 (SC), it was held that "The fact that the appellant is a senior IAS Officer really requires a serious view of the matter to be taken, instead of soft dealing. The fact that he has a number of dependents and is going to lose his job are irrelevant considerations in as much as in almost every case a person found guilty would have dependents and if he be a public servant, he would lose his job. The present being the first offence is also an irrelevant consideration. Though the delay has some relevance, but as in cases of the present nature, investigation itself takes time and then the trial is prolonged, because of the type of evidence to be adduced and number of the witnesses to be examined, we do not think that the fact of delay of about five years could have been a ground to award the sentence of imprisonment till rising of the Court, which really makes a mockery of the whole exercise."
6. In view of the law laid in the case of A. Wati A.O. (Supra), in the cases of corruption the age, family, responsibilities, previous records of convict and the possibility of loss of job cannot be considered as mitigating circumstances in sentencing of the convict.
7. Corruption is indeed one of the major roadblocks in India's journey from a developing to a developed economy. There is an urgent need to have a comprehensive framework that would help curtail corruption. Rigid bureaucracy, complex laws and long drawn processes of the legal system deters people from taking legal recourse against corrupt public servants.
8. Need of the hour is to sacrifice selfish approach for the sake RC No. DAI/08/A0045/CBI/ACB/ND 48/52 CBI vs Priti Chakravarty of the society and nation. Corruption needs to be eradicated from the nation. Task is arduous but not unachievable. To achieve that, one has to rise above his vainglorious interest and to raise his moral standards. Public persons need to resist to such illegitimate insistence and rather should act as whistleblowers. Only with collective efforts, corruption can be eradicated.
9. In the fact of the matter Convict had the job profile of AccountantcumCashier as public servant in the Hostel of Ministry of External Affairs. Convict was responsible to keep entrusted cash safely and account for it. Instead, consequences were kept at bay by the convict while usurping Government money despite the fact that the convict had a long experience in government service and was educated till class 11 th, capable of understanding well all consequences of her criminal acts. The criminal breach of trust and criminal misconduct were committed by the convict, a public servant, with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Government Exchequer and/or Community. Also, disregard for the interests of the Government Exchequer and/or Community was manifest in the acts of convict, who was also unmindful of the damage done to the society and nation. Convict gave supremacy to illegal personal gains putting the Government Exchequer at loss to the tune of Rs 11,78,041/. No glimpse of remorse was visible on the face of the Convict. Over all entire nation is suffering on account of misdeeds of such offenders who RC No. DAI/08/A0045/CBI/ACB/ND 49/52 CBI vs Priti Chakravarty put Government Exchequer to such loss compromising with the economy of the nation. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book and suitably punished.
10. Grant of probation to convict would be like granting license to such offenders to usurp Government/ public money in detriment to public interest. Cry of society is that such convict is to be suitably sentenced. Grant of probation to convict is passe part not made out. Breach of trust and criminal misconduct by a public servant putting the Government Exchequer at loss are certainly serious offences calling for a deterrent sentence in the interest of nation as well as society, lest it would send wrong signals to public at large that by fleebite sentence, such offenders can be let off, which would encourage such like offenders to commit similar offences and enhance misery of society and nation, which are infact presently reeling under under the evil of corruption.
11. Be that as it may, I cannot be oblivious of the fact that the convict has no bad antecedents and has already undergone agony of trial for period little less than three years as well. Keeping in mind overall facts and circumstances of the case, the Convict Priti Chakravarty is sentenced to:
(i) Rigorous Imprisonment for four years and fine of Rs.10,000/ in default thereof she would undergo Simple RC No. DAI/08/A0045/CBI/ACB/ND 50/52 CBI vs Priti Chakravarty Imprisonment for a further period of six months under Section 409 of IPC;
(ii) Rigorous Imprisonment for four years and fine of Rs.10,000/ in default thereof she would undergo Simple Imprisonment for a further period of six months under Section 13 (1) (c) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988.
The sentences of Rigorous Imprisonment shall run concurrently. The sentences of Simple Imprisonment in default of payment of fine shall run consecutively.
12. The convict was on bail since filing of the case and during trial. The convict has been sent to jail on 19/12/2012 after the judgment of conviction in this case. Needless to say, the convict would be entitled to benefit of Section 428 Cr.P.C.
13. A copy of judgment and order on sentence be given to the convict free of cost.
14. Let the convict be sent to jail under appropriate warrant for which the Reader is directed to do needful.
RC No. DAI/08/A0045/CBI/ACB/ND 51/52
CBI vs Priti Chakravarty
15. The convict has also been made aware about the fact that she has right to file appeal.
16. Ahlmad is directed to page and bookmark the file as per the latest circular so as to enable digitization of the entire record.
File be consigned to record Room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 21/12/2012. Patiala House Court, New Delhi.
Deepika RC No. DAI/08/A0045/CBI/ACB/ND 52/52