Central Bureau Of vs . 1. Rc Kala on 7 February, 2012

[Cites 42, Cited by 0]

Delhi District Court

Central Bureau Of vs . 1. Rc Kala on 7 February, 2012

IN THE COURT OF SH. DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI,
SAKET COURTS, NEW DELHI

CC No. 17/11
Unique Case ID No. 02401R0089581999

Central Bureau of Vs. 1. RC Kala
Investigation S/o Late Sh. S.L. Kala
R/o H.No. 4, Ashoka Enclave I,
Sector 34, Faridabad,
Haryana.

2. Vijay Sharma
S/o Late Sh. Tara Chand Sharma
R/o H.No. 43, Gali No. 10,
Lakhpat Colony - II, Meethapur
Extn., Badarpur, Delhi.

3. BS Negi
S/o Sh. Inder Singh
R/o H.No. A281, Shiv Colony
Palla No. 4, Faridabad, Haryana.

RC No. : 25(A)/97
u/Ss : u/S 120B, 471 IPC, Sec. 13(1)(c), 13(1)(d) r/w 13(2) PC
Act.

Judgment announced on 31.1.2012
Date of order on sentence : 07.02.2012

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 1 of 6
2

ORDER ON SENTENCE

Present : Sh. D.K. Singh, Ld. PP for CBI

Convicts A1 RC Kala, A2 Vijay Sharma and A3 BS Negi

present in person

Heard on the point of sentence.

1.0 Convicts have been convicted for the offence u/S 120B IPC and

for the offence u/Ss 471 IPC, Sec. 13(1)(c), 13(1)(d) r/w 13(2) of the PC Act.

2.0 Sh. D.K. Singh, Ld. PP has argued that taking into account the

seriousness of the offence, the accused persons may be awarded maximum

punishment.

2.1 On the other hand, Sh. SP Kaushik, Ld. Counsel for convict RC

Kala has argued that convict has rendered 30 years of unblemished service in

Super Bazar. The convict is not involved in any other criminal case. It has

further been submitted that convict is 70 years of age and has several

ailments and therefore, a lenient view may be taken.

2.2 Sh. Bharat Bhushan, Ld. Counsel for convicts Vijay Sharma and

BS Negi has submitted that Vijay Sharma and BS Negi have also rendered

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 2 of 6
3

unblemished service in the Super Bazar. Their antecedents are clear and are

not involved in any other case. Convict Vijay Sharma has 03 children. His

one son is suffering from fits and one daughter is suffering from heart

ailment. Accused Vijay Sharma is the sole bread earner of his family and

there is no one to look after the children and his wife. Similarly, convict BS

Negi also has 03 children and he is the sole bread earner of the family. Ld.

Counsel has submitted that the children of both the convicts are unmarried

and are studying. Ld. Counsel has prayed for a lenient view.

3.0 I have considered the submissions of both the sides and perused

the record carefully.

4.0 Convicts have committed a very serious offence. The convicts

herein who were entrusted with the responsibility of cash and stock handled

the same as for their fiefdom.

4.1 Corruption is a malady which calls for harsh punishment. The

punishment is designed not only to punish the guilty but also to protect

society by deterring potential offenders. The wheels of justice should grind

efficiently and effectively, so as to meet the societal need to counter this

menace.

In State of J&K Vs. Vinay Nanda, (2001) 2 SCC 504, it was

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 3 of 6
4

inter alia held as under:

"Corruption at any level, by any person, of any
magnitude is condemnable which cannot be ignored
by the judicial courts, when proved. No leniency is
required to be shown in proved cases under the
Prevention of Corruption Act which itself treats the
offences under it of a special nature to be treated
differently than the general penal offences. The
convicts of the offences under the Act are to be dealt
with a heavy hand and a deterrent rod. No populous
or sympathetic approach is needed in such cases. The
only exception is the existence of special
circumstances for awarding the minimum sentence."

It is pertinent to mention here that merely because the case has

been pending for over a period of time cannot be taken as mitigating

circumstances in view of the prevailing circumstances. I consider that taking

lenient view only because of pendency of case for a long period would be

malevolent and by no stretch of imagination can be termed as special reason.

Corruption in a civil society is a serious disease, which is leading this

country towards disastrous consequences. Corruption is spreading like a fire

in the jungle and has almost become like the HIV leading to AIDS being

incurable. The time has come, when if harsh steps are not taken this Country

may crumble under the weight of corruption. Corruption is not only ante

people, but it has the potential of destroying the democracy and polity of the

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 4 of 6
5

country.

4.2 Section 120B IPC provides punishment for criminal conspiracy.

If a person has been held guilty for a criminal conspiracy to commit an

offence punishable with death, imprisonment for life or rigorous

imprisonment for a term of two years or upwards, the accused shall be liable

to be punished as if he had abated such offence in case Cr.PC does not make

any provision for the punishment of such a conspiracy. Sec. 109 IPC provides

punishment of abetment, if the act abetted is committed in consequence and

no express provision is made for its commission. Sec. 109 IPC provides that

in case of such an offence, the accused shall be punished with the

punishment provided for the offence. The accused persons had been held

guilty for the commission of offence u/S 13(2) PC Act as well as for the

offence committing u/S 471 IPC. Sec. 13(2) PC Act , 1988 provides

punishment for imprisonment for a term which shall not be less than one

year which may extend to seven years alongwith fine. Similarly, Sec. 471 IPC

provides that if a person has fraudulently or dishonestly used as genuine a

document which he knew to be a forged, the accused shall be punished in the

same manner as if he had forged such document. The punishment for forgery

for the purpose cheating has been provided u/S 468 IPC. The imprisonment

u/S 468 IPC is imprisonment of either description, which may extend to 07

years alongwith fine. Therefore, for the offence u/S 13(2) PC Act and Sec.

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 5 of 6
6

471 IPC, the accused persons can be convicted upto the period of 07 years.

5.0 The convicts have been convicted for the offence u/S 120B IPC

and for the offence u/S 471 IPC and 13(1)(c) , 13(1)(d) r/w 13(2) PC Act,

1988. The offence proved against the convicts is very serious in nature. They

misappropriated the goods and the cash entrusted to them. I consider that the

offence proved against the convicts is such that they deserve to be treated

harshly as any leniency shown to them, will send a wrong signal to the

potential offenders. In the facts and circumstances, convicts RC Kala, Vijay

Sharma and BS Negi are sentenced to RI for 05 years and fine of Rs.

20,000/ each in default SI for 06 months u/S 120B IPC, RI for 05 years

and fine of Rs.10,000/ each in default SI for 06 months u/S 471 IPC and

RI for 05 years and fine of Rs.20,000/ each in default SI for 06 months

u/S 13(2) of Prevention of Corruption Act, 1988.

All the sentences shall run concurrently. Benefit of Sec. 428

Cr.PC, if any, be given to the convicts.

Copy of the judgment alongwith order on sentence be given the
the convicts free of cost.

7.0 File be consigned to Record Room.

Announced in the open court (Dinesh Kumar Sharma)
today on 07.02.2012 Spl. Judge(PC Act) CBI: N. Delhi

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 6 of 6
7

IN THE COURT OF SH. DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI, SAKET COURTS, NEW DELHI

CC No. 17/11
Unique Case ID No. 02401R0089581999

Central Bureau of Vs. 1. RC Kala
Investigation S/o Late Sh. S.L. Kala
R/o H.No. 4, Ashoka Enclave I,
Sector 34, Faridabad,
Haryana.

2. Vijay Sharma
S/o Late Sh. Tara Chand Sharma
R/o H.No. 43, Gali No. 10,
Lakhpat Colony - II, Meethapur
Extn., Badarpur, Delhi.

3. BS Negi
S/o Sh. Inder Singh
R/o H.No. A281, Shiv Colony
Palla No. 4, Faridabad, Haryana.

4. Shiv Prasad
S/o Sh. Bhagwati Prasad
R/o H.No. 55, East Azad Nagar
Delhi - 51.

RC No. : 25(A)/97
u/Ss : u/Ss.120B r/w 409/420/467/468 r/w S.471 IPC and
S.13(2) r/w S.13(1)(c) & S.13(1)(d) of PC Act 1988

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 7 of 6
8

Date of Filing: 15.12.1999
Received by transfer on : 27.09.2011
Arguments Concluded on : 25.01.2012
Date of Decision : 31.01.2012

Appearances:
Sh. D.K. Singh, Ld. PP for CBI.
Sh. SP Kaushik, Ld. Counsel for accused RC Kala.
Sh. Bharat Bhushan, Ld. Counsel for accused Vijay Sharma, BS Negi and
Shiv Prasad

JUDGMENT

Factual Matrix 1.0 There is an old adage that a person can lie but the document can never. Documents are the best piece of evidence and if found to be genuine can certainly be made the basis for proving or disproving the fact. In the present case, the accused persons who are public servants have been charged and tried for the offence of cheating, forgery, criminal misappropriation, misconduct and abuse of their official position. The sum and substance of the case is that the accused persons while working in New Friends Colony branch of Super Bazar failed to deposit the sale proceeds in the bank or Regional Distribution Center (RDC) in violation of the rules and also misappropriated the goods entrusted to them for the purpose of sale to the public. The accused persons also forged certain documents so as to cover up CBI Vs. RC Kala & Ors. CC No. 17/11 Page 8 of 6 9 their offences. The accused persons had not broadly disputed the non deposit of cash or shortage of stock, however, they have tried to shift the onus upon one another. The prosecution has based its case upon the documents vide which the goods were entrusted to the accused persons, inventory prepared during the stock taking, statement showing non deposit of cash and the extra judicial confession made by the accused persons. It is pertinent to mention here that A1 RC Kala who was Branch Incharge has shifted the responsibility on A2 Vijay Sharma and A3 BS Negi, whereas A2 Vijay Sharma and A3 BS Negi have shifted the responsibility upon A1 RC Kala stating that as per rules A1 RC Kala who was Branch Manager was over all responsible for the affairs in the branch. It is worth to mention here that A1 RC Kala, A2 Vijay Sharma and A3 BS Negi were posted in New Friends Colony Branch of Super Bazar, whereas A4 Shiv Prasad was posted in Regional Distribution Center and he has been charged and tried for tampering with the inventory of stock taking dtd 26/3/96 to cover up the misconduct of remaining accused persons.

1.1 RC No.25(A)/97 was registered on 22.04.97 on the basis of a source information regarding fraud having been committed in Super Bazar, New Friends Colony (NFC) Branch, New Delhi by the officers posted therein. Allegedly, Sh. RC Kala (A1), while working as Sr. Supervisor / CBI Vs. RC Kala & Ors. CC No. 17/11 Page 9 of 6 10 Branch Incharge of Super Bazar, NFC Branch, New Delhi, during the year 1994 to 1996 entered into a criminal conspiracy with Sh. Vijay Sharma, Sales Asstt. (A2), Sh. BS Negi, Sales Asstt. (A3) and Shiv Prasad, Accounts Asstt. (A4) with an object to misappropriate the cash and goods of Super Bazar, NFC Branch amounting to Rs.6,17,099.67 ps by committing cheating and forgery. Sh. HS Bindra, Asstt. Accounts Officer of Regional District Centre (RDC), Trilok Puri was also suspected to be a part of conspiracy. As per officer orders Branch Incharge of Super Bazar was under an obligation to deposit the sale proceeds on the next day either in the RDC or in the concerned bank. Branch Incharge was also under a duty to submit the daily sales report of the branch to the RDC along with the counterfoils / cash deposit slip of the bank / RDC for maintenance of accounts and reconciliation. The sale in the Super Bazar used to be conducted through the cash machines / cash memos. At the end of the day, the Z slip indicating the total sale conducted at that day, through cash registrex machine was used to be taken out. The Branch Incharge was supposed to deposit the Z slip of cash registrex machine and the duplicate copy of the cash memo alongwith the deposit slip of the bank with the daily sale report. However, in the present case accused persons failed to deposit the sale proceeds in the Bank or Regional Distribution Center. Pursuant to the complaint received, a surprise check was conducted in Super Bazar, NFC Branch firstly on CBI Vs. RC Kala & Ors. CC No. 17/11 Page 10 of 6 11 25.10.96 and subsequently, on 13.11.96. In the said surprise check, various irregularities were found including sale amount having not been deposited in the bank or in the RDC and huge shortage of stock. A surprise check was followed by the Vigilance inquiry.

1.2 In the charge sheet, CBI alleged that primarily, the accused persons in their conspiracy with each other caused total loss of Rs. 6,17,099.67 ps by way of stock shortage and non deposit of sale amount. The charge sheet filed by the CBI reveals that the accused persons committed misappropriation of either cash or goods in the following manner :

(i) Non deposit of sale amount in the month of October 1996 The senior officers of Super Bazar received a complaint regarding misappropriation of cash, pursuant to which a surprise check was conducted at Super Bazar, NFC Branch by team lead by Sh. Nirmal Kumar Goel (PW11). In the raid, it was found that sale proceeds of 24.10.96 and 25.10.96 was not deposited in the bank by the Branch Incharge. The total sale proceeds of 24.10.96 and 25.10.96 was Rs.72,454.70 ps. However, the team recovered the total cash of Rs.52,135/ from the branch and therefore, there was a shortage of Rs.20,319.70 ps. In the vigilance inquiry, it was found that the sale proceed of the branch amounting to Rs.3,36,291.72 was not deposited in the bank by the officials of NFC Branch of seven days during CBI Vs. RC Kala & Ors. CC No. 17/11 Page 11 of 6 12 the period between 03.10.96 to 18.10.96. The daily sale report of these days was sent by the Branch Incharge to RDC without the counterfoils of the bank / RDC receipt. The investigation also disclosed that two cash memo books bearing No.4721 and 4722 were issued to A3 BS Negi for sale of goods of the Branch, but sale proceeds collected against these books were neither deposited in the bank nor reflected in the daily sale report submitted to RDC by the Branch Incharge. The total sale proceeds of these two cash memo books was amounting to Rs.41,103.25 ps.

(ii) Forgery of Rs.7,500/ From the period 01.04.94 to 31.03.95, the goods in the sum of Rs.21,17,586.50 ps were supplied to NFC Branch by RDC. However, in the consolidated receipt and issue certificate prepared and issued by RC Kala (A1) and verified by Sh. PC Chawla, it was shown that goods worth Rs.

21,10,086.50 ps were issued. It was found that this manipulation was done to cover up the stock shortage of Rs.7,500/ and the consolidated certificate was overwritten and the figure mentioned at Sr. No.4 was manipulated to Rs. 21,10,086.50 ps from Rs.21,17,586.50 ps.

(iii) Forgery in Inventory sheet No.10170 dated 23.06.96 amounting to Rs.44,102.50 ps There used to be periodical physical inspection of all the stock in the NFC Branch and the total stock value of each item and the total value CBI Vs. RC Kala & Ors. CC No. 17/11 Page 12 of 6 13 of each inventory sheet used to be prepared. A stock taking of NFC Branch was conducted on 26/3/96 by RDC, Trilok Puri. In the inventory sheet No. 10170, prepared during stock taking of 26/3/96, the stock of Palmoline Oil was shown as 5 units with rate of each unit as Rs.29.50. Thus, the total stock value of Palmoline Oil was written as Rs.147.50 and the total stock value of inventory sheet No.10170 was Rs.6,189.55. However, allegedly accused Shiv Prasad (A4) in collusion with the officials of NFC branch changed the total stock value of Palmoline Oil from Rs.147.50 to Rs.44,250/ and also changed the stock position of Palmoline Oil from 5 units to 1500 units. The total value of inventory sheet No.10170 was also changed from Rs.6,189.55 to Rs. 50,292.05. This was done to cover up the stock shortage of 245 units of palmoline oil as on 26.03.96.

(iv) Stock Shortage of Rs.89,318.16 ps In the inspection conducted on 26.10.96, it was found that during the period 16.10.96 to 23.10.96, goods in the sum of Rs.2,45,221.80 ps were supplied to NFC Branch and during this period, the sale was Rs. 3,31,256.90 ps. The closing balance as on 25.10.96 vide inventory sheet Nos. 96951 to 97000 was Rs.4,25,811.37 ps. However, the opening balance as per Management Information System (MIS) was Rs.6,02,164.71 ps. Thus, the officials of NFC Branch have misappropriated the stock in the branch worth Rs.89,318.16 ps.

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 13 of 6 14

(v) Stock shortage of Rs.67,055.95 ps during the period 26.10.96 to 12.11.96 The officials of Super Bazar conducted again surprise stock taking on 13.11.96 and this time again, stock shortage amounting to Rs. 67,055.95 ps was found. As per inventory sheet prepared at the time of physical stock taking on 25.10.96, the closing balance was Rs.4,25,811.37 ps. During the period from 25.10.96 to 11.11.96, the total goods in the sum of Rs. 5,46,188.45 ps were received. During the period from 26.10.96 to 13.11.96, sale in the sum of Rs.6,55,204.55 ps was effected. However, the inventory sheet bearing No.97001 to 97038 showed the closing balance of Rs. 2,50,739.40 ps. It indicated that the officials of NFC Branch had misappropriated the stock worth Rs.67,055.95 ps during the period from 26.10.96 to 13.11.96.

After investigation, Sh. H.S. Bindra was placed in column No.II and the charge sheet u/S.120B IPC r/w 409, 420, 467, 468 r/w S.471 IPC and 13(2) r/w S.13(1)(c) & 13(1)(d) of the PC Act, 1988 was filed against the accused persons on 15.12.99.

CHARGE 2.0 The cognizance of the offence was taken on 12.01.2000 and after compliance of the Section 207 Cr.P.C., my Ld. Predecessor ordered for CBI Vs. RC Kala & Ors. CC No. 17/11 Page 14 of 6 15 framing of charge vide order dated 03.06.2006. Charge under 7 heads u/Ss. 120B r/w 409, 420, 467, 468 r/w S.471 IPC and S.13(2) r/w S.13(1)(c) & S. 13(1)(d) of PC Act 1988 was framed against the accused persons to which accused persons pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE 3.0 Prosecution examined 19 witnesses in support of its case. 3.1 PW1 Sh. SP Pathak accorded the sanction for prosecution of all the accused persons. In this case, all the accused persons were public servants and the sanction was accorded vide a common sanction order Ex.PW1/A. Sh. SP Pathak was Managing Director of Super Bazar at the relevant time and he was competent to remove the accused persons from their service.

3.2 PW2 Raghbir Singh was posted as packer in Super Bazar, NFC Branch in February 1995 along with the accused persons. He identified the accused persons and stated that sale proceeds of the day used to be deposited in State Bank of India and if there used to be holidays for 2/3 days at a stretch in the bank, the sale proceeds used to be deposited in RDC. PW2 stated that accused Vijay Sharma (A2) used go to the bank or RDC for deposit and in his absence, accused RC Kala (A1) used to go to bank or RDC for deposit of CBI Vs. RC Kala & Ors. CC No. 17/11 Page 15 of 6 16 the sale amount. PW2 Raghbir Singh identified the handwriting of accused BS Negi (A3) on bill book No.4721 and 4722, Ex.PW2/A and Ex.PW2/B, respectively. In the cross examination, PW2 stated that he does not know that as to which official was under an obligation to deposit the amount in the bank.

3.3 PW3 Sandeep Kumar Arora was the member of the team headed by Sh. DK Gupta, which conducted the stock checking on 26.03.96. PW3 proved the inventory prepared at the spot bearing No.10156, 10157, 10170, 10175, 4792 to 4800 as Ex.PW3/A1 to A13. In inventory No.10170, Ex.PW3/A3, in the last item, he had shown the balance of palmoline oil as 5 litres which has been changed to 1500 litres by forging his signatures against the relevant entry at point A. PW3 identified his genuine signatures at point C on Ex.PW3/A3. The witness specifically stated that value of the stock is entered later on. The value of palmoline oil Rs.44,250 at point C is not in his handwriting and the same has been changed from 147.50 to 44,250. In the cross examination, PW3 stated that the inventory sheets are prepared in triplicate. Ex.PW3/A3 is the original copy retained by the team leader and was submitted in RDC, Trilok Puri. 3.4 PW4 Harish Singh Rao was posted in Trilok Puri Branch of CBI Vs. RC Kala & Ors. CC No. 17/11 Page 16 of 6 17 Super Bazar as Sales Asstt. His duty was to issue goods to the Mini branches against demand. On receipt of demand, the goods were supplied to the respective branches. Witness stated that at the end of year, reconciliation was used to be done in respect of goods supplied and the damaged goods received from the branch. During the period 04.04.94 to 31.03.95, goods worth Rs.21,17,586.50 were issued to NFC Branch and goods worth Rs. 11,384.10 were returned back. The certificate issued by PW4 was proved as Ex.PW4/A along with its carbon copy Ex.PW4/A1 having signatures of witness at point A. During the period from 01.04.95 to 31.03.96 goods worth Rs.26,48,500.50 were issued to NFC branch out of which goods worth Rs.7,644.45 were returned vide photocopy of certificate Ex.PW4/B. Witness testified that in the last column of the voucher, the value of goods is shown in his own handwriting at point A on Ex.PW4/C1 to C31. The witness also identified his initials at point A on store receipt Voucher, Ex.PW4/D regarding the value of goods received from NFC branch from 27.05.96 to 04.03.97. PW4 stated that as per the procedure, at the time of reconciliation, the store issue voucher is produced by the Branch Incharge which is reconciled with the record of RDC and a certificate thereon is given to the Branch Incharge. The witness identified the signatures of Vijay Sharma (A2) on Ex.PW4/A and Ex.PW4/B. In the cross examination, witness deposed about the procedure of supply of goods from RDC to Branch. He CBI Vs. RC Kala & Ors. CC No. 17/11 Page 17 of 6 18 stated that Branch Incharge used to come to RDC every 2/3 months for the purpose of reconciliation.

3.5 PW5 Sh. Devender Khanna deposed about the procedure regarding the working of Branches and RDC. The witness stated that Branch Incharge used to prepare 45 copies of the indent regarding the requirement of the branch which used to be sent to RDC. The RDC have different departments for different kind of goods and indent is marked to the concerned department. The quantity demanded by the Branch is taken out from the store by the store keeper, and was handed over to the liason cell. The liason cell after collecting all the requisitioned material from different department, used to deliver the same to the Branch. The Branch Incharge after checking the goods received from RDC used to keep the original copy of the indent and hand over the duplicate and triplicate to the liason officer at RDC. The liason officer used to deliver the second copy of the indent to the concerned department and keeps the third copy for his record. After receipt of the goods, the Branch Incharge used to evaluate the store received by him and same was used to be posted in the MIS. PW5 stated that it is the duty of the Branch Incharge to maintain daily sale report. Witness stated that the sales are effected by the invoice / cash memo books and cash registrex machine. The CBI Vs. RC Kala & Ors. CC No. 17/11 Page 18 of 6 19 Z slip / print out of the registrex machine is taken out at the end of the day and the cash collection by invoice and Z slip are reflected in the daily sale report. The daily sale proceeds are to be deposited on the next working day in the authorized bank and the daily sale reports alongwith Z slips, tally sheets of cash memos and the bank deposit slips are forwarded fortnightly to the concerned RDC. As per procedure, the corresponding entries are also made in the MIS and copy of the same is sent to work study and other departments.

PW5 was the member of the surprise checking team, which conducted the surprise check on 25.10.96 alongwith Sh. Nirmal Kumar Goel (PW11), Sh. Shyam Sunder and one more official of Accounts Branch. The witness identified the inventory sheets No.96951 to 97000 reflecting the physical stock available in the Branch at the time of inspection as Ex.PW5/A1 to A50. He identified the signatures of Sh. Nirmal Kumar Goel at point B and signatures of accused RC Kala (A1) at point C. Copy of the facet roll / print out was also attached with the each inventory sheet which are Ex.PW5/B1 to B47. Accused RC Kala, Vijay Sharma and BS Negi were also issued certificate Ex.PW5/D that entire stock available in the Branch has been taken out for preparing the inventory sheets No.96951 to 97000. The consolidated sheet regarding the above inventory and facet roll / print out has been proved as Ex.PW5/E to E1.

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 19 of 6 20

PW5 deposed that the team also checked the cash against the sale proceed of 24.10.96 and 25.10.96. The total sale as per Z slip No.7705 was Rs/41,387.25 and the sale proceed on 25.10.96 vide Z slip No.7789 was Rs.31,067.45 ps and thus, the total sale of these two dates was Rs.72,454.70 ps. However, the total cash available in the Branch was Rs.52,135/ and therefore, there was a shortage of Rs.20,319.70 ps at the time of inspection. The inspection sheet Ex.PW5/F was prepared which had signatures of RC Kala (A1) and BS Negi (A3). PW5 again visited the branch along with Sh. Harvinder Singh (PW19), Sh. N.K. Goel (PW11) on 13.11.96 for the purpose of physical handing over of the charge to the new team and again physical stock taking of the Branch was conducted. The inventory sheets No.97001 to 97038, Ex.PW5/G1 to G38 bearing the signatures of RC Kala (A1) and BS Negi (A3) were prepared. The facet roll / print out of the entries, Ex.PW5/H1 to H37 were also taken. The witness stated that the result of physical stock taking of the Branch held on 13.11.96, Ex.PW5/I was prepared, which indicated the stock shortage for the period 25.10.96 to 13.11.96 to the tune of Rs.67,055.95 ps. The cash sale statement as reflected from cash memo and Z slip was also compiled by PW5 vide report Ex.PW5/J. Statement of goods received by NFC Branch, Ex.PW5/K was also prepared by this witness and the department wise goods received by NFC Branch was proved as Ex.PW5/K1. The consolidated sheet of the inventory CBI Vs. RC Kala & Ors. CC No. 17/11 Page 20 of 6 21 sheet No.97001 to 97038 was proved as Ex.PW5/L. Witness proved Daily Branch Control Receipt Statement for the month of October 1996 prepared at RDC Accounts level. This statement reflected the cash deposit against the daily sale proceed in column No.12 and short deposit / non deposit in column No.15. Witness stated that this statement was prepared in RDC on the basis of daily sale report and bank deposit slip / RDC chief cashier slip. PW5 proved this statement as Ex.PW5/Q. PW5 identified the signatures of Sh. MK Mathur (since expired) at point A. Witness also proved cash memo issued challan vide which cash memo book No.4721 and 4722 was handed over to accused BS Negi (A3), as Ex.PW5/R. Witness proved the daily sale report of NFC dated 11.11.96 and identified signatures of RC Kala at point A on Ex.PW5/S. Daily sale report of NFC Branch sent by accused RC Kala (A1) along with Z slip / bank deposit slips, RDC deposit slip and second copies of cash memo etc. was proved as Ex.PW5/T. Witness identified the daily sale report dated 03.10.96, 05.10.96, 06.10.96, 09.10.96, 10.10.96, 17.10.96 and 18.10.96 as Ex.PW5/U1 to U7. These daily sale report were having alongwith it Z slip, machine roll, second copy of cash memos. PW5 specifically stated that NFC had not deposited the cash against these daily sale reports as reflected in Ex.PW5/A. The office orders from time to time making the Branch Incharge liable for the deposit of the sale proceeds and other instructions have been proved as Ex.PW5/V1 to V9. These office CBI Vs. RC Kala & Ors. CC No. 17/11 Page 21 of 6 22 orders reflected the instructions and norms for working of the branches.

In the cross examination on behalf of accused RC Kala (A1), the witness admitted that accused Vijay Sharma (A2) was operating the cash registrex machine on 25.10.96. Witness stated that he was not told whether accused Vijay Sharma (A2) and BS Negi (A3) when caught with short cash had requested that they had spent the amount on their domestic affairs and will now deposit the deficit cash nor was he shown any letter written by accused RC Kala (A1) at the time of inspection. Witness also stated that he was not told by accused RC Kala (A1) that accused Vijay Sharma (A2) used to go to deposit the cash in the bank.

In the cross examination on behalf of accused Vijay Sharma (A2), PW5 admitted that sale proceed is handed over to Branch Incharge along with Z slip and copies of cash memo for preparing the daily sale report and cash is kept by the Branch Incharge in the cash chest, which needs to be deposited by the him in the authorized bank or RDC on the next working day in the business hours of the bank. He stated that the Branch Incharge must adopt this practice and if there is heavy shortage / non deposit of the cash by the concerned sales man to the Branch Incharge, then it is the duty of the Branch Incharge to immediately inform the RDC and the Head quarter and also mention this thing in the Remark Column in the register maintained by the branch. Witness specifically stated in the cross examination that if the CBI Vs. RC Kala & Ors. CC No. 17/11 Page 22 of 6 23 Branch Incharge is unable to perform his duty due to some urgent work then it is his duty to inform the concerned RDC Manager telephonically or by any mean. Further in the cross examination, witness stated that on 25.10.96 the checking started at 11 am. Witness stated that they reached at NFC Branch and checked cash against sale proceeds at Counter of accused Vijay Kumar. Later on, it was found that cash of the previous date i.e. 24.10.96 was not deposited by the Branch Incharge with the bank / RDC and the cash relating to the sale proceeds of 24.10.96 was recovered from the cash chest of Branch Incharge. Witness stated that as per the directions of the team leader, the total cash available for the sale proceeds of 24.10.96 and 25.10.96 was mixed at the branch before counting and the same was not segregated. He admitted that cash available at the counter of accused Vijay Sharma on 25.10.96 at the time of inspection is not separately reflected in the inspection report. Witness was not able to recall whether sale report of 24.10.96 was prepared or not. In respect of inspection conducted on 13.11.96, witness stated that the team was divided into two and thus, the signatures of all the officials are not available on all the memos. Witness was not able to recall whether accused Vijay Sharma was present on 13.11.96 or not.

3.6 PW6 Vimal Kumar Sehgal the then Supervisor Vigilance Department visited the NFC Branch on 25.10.96 along with Chief Vigilance Officer. He conducted the vigilance inquiry and checked the consolidated CBI Vs. RC Kala & Ors. CC No. 17/11 Page 23 of 6 24 receipt and issue certificate, Ex.PW4/A, for the period 01.04.94 to 31.03.95 prepared/ issued by accused RC Kala (A1). This certificate indicated that the goods worth Rs.21,17,586.50 ps were issued to NFC Branch from 04.04.94 to 26.03.95. However, the consolidated receipt and issue certificate, Ex.PW6/A for the period April 1994 to March 1995 reflected the issue of toilet goods from toilet stores in the sum of Rs.21,10,086.10 ps, having the sign of accused RC Kala (A1). Witness stated that as per Ex.PW6/A and Ex.PW4/A, there was a stock shortage of Rs.7,500/. PW6 deposed on oath that he also visited the Oriental Bank of Commerce, NFC Branch which was an authorized bank for depositing the money of sale proceeds of Super Bazar Branch and compared the bank statement with the daily sale report of NFC Branch. Witness proved the daily sale report of 03.10.96 reflecting the sale of Rs.55,524.97 ps as Ex.PW6/B1, daily sale report of 05.10.96 for a sum of Rs.47,037.83 ps as Ex.PW6/B2, daily sale report of 06.10.96 for a sum of Rs. 56,963,68 ps as Ex.PW6/B3, daily sale report of 09.10.96 for a sum of Rs. 57,812.25 ps as Ex.PW6/B4, daily sale report of 10.10.96 for a sum of Rs. 49,775.25 ps as Ex.PW6/B5, daily sale report of 17.10.96 for a sum of Rs. 39,089.25 ps as Ex.PW6/B7 and daily sale report of 18.10.96 for a sum of Rs. 30,088.25 ps as Ex.PW6/B8, bearing the signatures of accused RC Kala (A1). Witness stated that on comparison with the statement of bank, it was found that these amounts were not deposited by NFC Branch. He also stated CBI Vs. RC Kala & Ors. CC No. 17/11 Page 24 of 6 25 that there was no deposit slip with NFC Branch regarding deposit of above said amounts in the bank or in the RDC, Trilok Puri. PW6 deposed on oath that he also examined the employees of NFC Branch. He proved statement of accused Vijay Sharma (A2) as Ex.PW6/D regarding shortage of Rs.20,319.70 ps which was found short on 25.10.96. Witness stated that accused Vijay Sharma (A2) gave his statement voluntarily without force, pressure or coercion from any corner and same was recorded by accused RC Kala (A1) in his own handwriting at portion X to X vide his endorsement from portion Y to Y. This statement also had the signatures of accused Vijay Sharma (A2) at point A. Witness stated that the statement was recorded before him and he gave his endorsement from portion Z to Z. Sh. Nirmal Kumar Goel (PW11) was also a witness as reflected vide endorsement from portion B to B. Witness further stated that on 26.10.96 accused Vijay Sharma (A2) also gave his handwritten confessional statement for misappropriation of funds on various occasions. The said statement was proved as Ex.PW6/E. PW6 stated that accused RC Kala (A1) also gave his handwritten confessional statement regarding misappropriation of sale proceeds at NFC Branch under his signatures and the same was proved as Ex.PW6/F. Witness also stated that accused BS Negi (A3) also made a confessional statement in his own handwriting and signatures and proved the same as Ex.PW6/G. Accused BS Negi (A3) made an extra judicial confessional statement regarding CBI Vs. RC Kala & Ors. CC No. 17/11 Page 25 of 6 26 misappropriation of sale proceed regarding Bill No.944201 to 944367 and 944001 to 944200, Ex.PW2/B and Ex.PW2/A, respectively, amounting to Rs. 41.102.85 ps. Accused BS Negi (A3) also gave an undertaking to deposit the defrauded amount. Witness identified the signatures of accused BS Negi (A3) at point A and also proved his endorsement from portion B to B. Witness stated that accused also wrote a letter, Ex.PW6/H on 26.10.96 seeking extension of time for depositing the defrauded amount. Witness also proved the statement of Prem Singh and Raghubir Singh as Ex.PW6/I and Ex.PW6/J regarding the conduct of accused RC Kala (A1), Vijay Sharma (A2) and BS Negi (A3). PW6 deposed on oath that during the course of his inquiry, it was revealed that cutting has been done in inventory sheet No. 10170 (the original inventory sheet) at two places. Value has been changed from 147.50 to 44,250 and stock has also been shown as 1500 in place of 5. Witness stated that during physical stock taking three copies of inventory are prepared by the team. First and third copy is taken by the team leader and is deposited in the account section of concerned RDC and second copy is kept with the Branch. This witness stated that during this inquiry, he called upon PW3 Sanjeev Kumar Arora who filled up the inventory sheet No.10170 at the time of physical stock taking and accused Shiv Prasad (A4) Accounts Asstt. from RDC, Trilok Puri. However, A4 Shiv Prasad did not turn up during vigilance inquiry, and PW3 specifically stated that signatures at Q187A are CBI Vs. RC Kala & Ors. CC No. 17/11 Page 26 of 6 27 similar to his signatures, but these signatures are not his genuine signatures.

In the cross examination on behalf of accused RC Kala (A1), witness stated that Accounts Officer was the responsible officer to keep the consolidated certificate as well as inventory sheet in his possession at RDC and once the record is deposited in the accounts section, only the concerned officer in accounts section has access to it. Witness stated that during inspection, he found that registrex machine was operated by Vijay Sharma (A2) and cash memo was being dealt by accused BS Negi (A3). It is worthwhile to note that in the cross examination on behalf of accused BS Negi (A3), witness stated that only Branch Incharge was entitled for conveyance allowances for depositing the amount in bank and accused RC Kala (A1) had not taken any permission in writing to depute any person to deposit the amount in the bank nor there was any official order that BS Negi (A3) and Vijay Sharma (A2) will deposit the amount in the bank. However, the witness stated that Branch Incharge can depute any person to deposit the amount but it was the duty of the Branch Incharge to deposit the daily sale proceed in the bank.

In the cross examination on behalf of accused Vijay Sharma (A2), PW6 stated that he reached NFC Branch at around 4 / 5 pm on 25.10.96 and at that time, PW5 Devender Kumar Khanna and PW11 Sh. Nirmal Kumar Goel along with other officials were already present. Witness CBI Vs. RC Kala & Ors. CC No. 17/11 Page 27 of 6 28 also stated that he visited the NFC Branch on 26.10.96 and 27.10.96 and remained there for whole day. He also recorded the statement of Branch officials and checked the daily sales report and other records. It is pertinent to mention here that witness stated that statement of accused RC Kala (A1) was recorded in the handwriting of Branch Incharge himself. Witness stated that he also recorded statement of accused Vijay Sharma (A2) and BS Negi (A3), Prem Singh and Raghubir Singh. Witness stated that accused persons have given their statements in their own handwriting on 25.10.96, accused Vijay Sharma (A2) had given his statement on 26.10.96 and he had not given any statement on 25.10.96.

3.7 PW7 Dharmender Kumar Gupta had conducted the physical stock taking at NFC Branch on 26.03.96 along with PW3 Sandeep Kumar Arora, Typist, Prem Kumar Account Asstt. and Sh. Virender Kumar, Store Asstt. He checked the stock available at NFC Branch and prepared the inventory of the goods lying in the branch vide inventory sheets No.10151 to 101175, Ex.PW7/A1 to A23, Ex.PW3/A3 and Ex.PW3/D. Witness identified the signatures of accused RC Kala (A1) and BS Negi (A3) at point B and C. PW7 stated that during the physical stock taking, inventory sheet No.10170, Ex.PW3/A3 reflected the stock of 5 palmoline oil amounting to Rs.147.50 @ 29.50 ps. However, Ex.PW3/A3 reflected the change of the quantity from 5 to 1500 and it also reflected change of the amount from Rs.147.50 to Rs. CBI Vs. RC Kala & Ors. CC No. 17/11 Page 28 of 6 29 44,250/. Witness specifically stated that the copy of inventory sheet No. 10170, Ex.PW3/A3, was in the custody of accused Shiv Prasad (A4) and cutting was done by Shiv Prasad (A4) on the amount by writing the inflated amount and also inflated the quantity without his knowledge and authorization. In the cross examination, witness admitted that he has not seen accused Shiv Prasad making the cutting inflating the quantity and value of palmoline oil.

3.8 PW8 Sh. Kailash Chand Chawla the then Asstt. Manager, RDC deposed on oath that on 24.06.95, RC Kala (A1) came to him to obtain the signatures on consolidated receipt issue certificate for the period ending March 1995. Witness stated that accused RC Kala (A1) brought this certificate and there was no over writings and subsequent to his (PW8) signing on the certificate, the amount in figure Rs.21,17,586.50 ps was corrected as Rs.21,10,086.50 ps. Witness identified the signatures of RC Kala (A1) at point A on Ex.PW6/A and his signatures at point B. Witness stated that the correction was done for avoiding recoverable stock shortage by the accused. In the cross examination, witness reiterated that when the certificate was got signed from him, there was no cutting / corrections in figure and it is done afterwards.

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 29 of 6 30 3.9 PW9 Sh. Prakash Narayan deposed about the procedure of stock maintenance, sales and accounts procedure in the branch as well as in the store where the goods are kept and issued to various branches and departments. The procedure has also been deposed in detail by PW5. Even otherwise there is no dispute regarding the procedure. 3.10 PW10 Sh. Deen Bandhu the then Asstt. Manager in Super Bazar, RDC proved the store issue voucher of Tea Store, Toy Household, Masala Store, Toilet Store, Ghee Store and also the store receipt Control Register of different departments. His testimony is mainly related to the supply of goods from RDC to NFC Branch. It is pertinent to mention here that these facts have not been disputed by the accused persons. 3.11 PW11 Sh. Nirmal Kumar Goel is another material witness. He was heading the surprise checking team on 25.10.96 along with PW5 Devender Kumar Khanna, PW19 Harvinder Singh and Shyam Sunder. PW11 stated that in inspection, it was found that sale proceed amount of Rs. 41,387.25 ps of 24.10.96 was not deposited in the bank and till the time of check, the sale done by the branch was of Rs.31,067.45 ps. As such, the total of Rs.72,454.70 ps was supposed to be in the branch. However, an amount of Rs.52,135/ was found in the branch and as such a sum of Rs.20,319.70 ps was found short. Statement showing the sale proceed of 24.10.96 and CBI Vs. RC Kala & Ors. CC No. 17/11 Page 30 of 6 31 25.10.96 and shortage of cash of Rs.20,319.70 ps was prepared. Accused RC Kala (A1) informed that no cash memo book was used by the branch for 24 / 25 October 96. The report, Ex.PW11/A was prepared by accused RC Kala (A1) on which witness identified his signatures at point A and of PW5 Devender Kumar Khanna at point B. Witness stated that during the surprise check, all the items were accounted and a certificate in this regard, Ex.PW5/D was prepared under the joint signatures of accused RC Kala (A1), Vijay Sharma (A2) and accused BS Negi (A3) and witness also prepared the result of stock taking, Ex.PW11/B in his own handwriting and signatures. In respect of shortage of goods as on 25.10.96, witness stated that opening balance as per MIS on 16.10.96 was Rs.6,02,164.71 ps. During the period from 16.10.96 to 25.10.96, the goods received by NFC Branch was amounting to Rs.2,45,221.80 ps and sale proceed during the period 16.10.96 to 25.10.96 was amounting to Rs.3,31,256.90 ps. As per inventory sheet No. 96951 to 97000, the closing balance as on 25.10.96 was Rs.4,26,811.45 ps and therefore, stock amounting to Rs.89,318.16 was found short. Witness stated that stock in hand of Rs.4,26.811.45 was calculated on the basis of inventory sheets bearing No.96951 to 97000 (Ex.PW5/A1 to A50). Witness identified his endorsement at point X on all the pages and of accused RC Kala (A1) at point C. PW11 stated that the result of stock taking, Ex.PW11/B was prepared on the basis of calculation sheet, Ex.PW5/E and Ex.PW5/E1, CBI Vs. RC Kala & Ors. CC No. 17/11 Page 31 of 6 32 Ex.PW11/C (statement regarding demand and issue vouchers).

In the cross examination on behalf of accused RC Kala (A1) witness was not able to recollect if accused Vijay Sharma (A2) and BS Negi (A3) told him on that day that they had spent money on their personal expenses and they would return the same nor was the witness able to recollect that if accused RC Kala (A1) showed him letters written by accused Vijay Sharma (A2) and BS Negi (A3) mentioning that they had spent the money on their personal needs and they would return it. In the cross examination on behalf of accused Vijay Sharma (A2), witness stated that sale proceed of everyday used to be kept in the chest at the Branch and it is the joint responsibility of the persons working in the branch to keep the sale proceeds in the chest.

3.12 PW12 Sh. Sukhbir Singh the then Accountant in the Super Bazar, Trilok Puri was examined to identify the signatures of Sh. MK Mathur (since expired). He identified the Daily Branch Receipt Control Statement pertaining to NFC Branch prepared and signed by Sh. MK Mathur as Ex.PW5/Q. Witness stated that as per this statement, the total sale proceed of NFC Branch from 03.10.96to 31.10.96 was Rs.9,55,552.84 ps against which the branch had deposited a sum of Rs.6,19,261.15 ps, out of which Rs. 5,60,416.80 ps had been deposited in Oriental Bank of Commerce and Rs. 58,844.35 ps had been deposited in cash in RDC Trilok Puri. As per this CBI Vs. RC Kala & Ors. CC No. 17/11 Page 32 of 6 33 statement, Rs.3,36,291.72 has been shown as short deposit. PW12 proved the trial balance as on 31.03.98 as Ex.PW5/P2 and ledger register pertaining to RDC, Trilok Puri as Ex.PW12/A. Witness also deposed that that said statement showed shortage of amount of Rs.3,36,291.72 on the part of NFC Branch, which was proved as Ex.PW12/B. 3.13 PW13 Sh. Shiv Nath was a witness to the taking of specimen handwriting of BS Negi (A3) and Shiv Prasad (A4). He identified specimen handwriting of BS Negi (A3) as Ex.PW13/A and Shiv Prasad (A4) as Ex.PW13/B. 3.14 PW14 Sh. Nand Gopal Mishra the then Incharge of Office Stationary Store identified his handwriting and signatures on carbon copy of challan No.004012, Ex.PW5/R. PW14 stated that his job was to issue cash memo books to different branches and issue challan against the issuance of said cash memo books. PW14 stated to have issued the challan, Ex.PW5/R against the issuance of cash book No.4721 & 4722 bearing Bill No. 9440012 & 944400. Witness proved the cash books as Ex.PW14/A & Ex.PW14/B. Witness specifically stated that as per stock register cash memo, Ex.PW14/C, cash memo books Ex.PW14/A & Ex.PW14/B were issued to BS Negi (A3) against his signatures. It is pertinent to mention here that this fact has not been disputed by the accused.

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 33 of 6 34 3.15 Sh. VK Khanna, retired Principal Scientific Officer and Incharge Document Division, CFSL, CBI (PW15) deposed that in the present case on a request being received from CBI, he carefully examined the documents with scientific aides and gave the following opinion:

Opinion No.I: "Handwriting evidence points to the writer of the specimen English Writings marked S1 to S96 and S91A which are already Ex.PW13/B collectively. Being the person responsible for writing the questioned carbon writings marked Q1 to Q185 (except Q48) and questioned English ball pen writings marked Q186A. During to the reasons given in detail in my report dtd. 31/8/99 running into 6 pages which bears my signature alongwith my official stamp at page No. 6 at point A and also signatures at point on all the running pages. The said report is Ex.PW15/B."

Opinion No. II: "Handwriting evidence points to the writer of the specimen English writings marked S97 to S102 already Ex.PW13/A collectively.

Being the person responsible for writing the questioned English writings marked Q191 and Q191A (except overwritings), due to the reasons given in the report Ex.PW15/B."

Opinion No. III: "The questioned entries reading "21,10,086.50" in one column and entries reading "21,10,086.50" in another column marked CBI Vs. RC Kala & Ors. CC No. 17/11 Page 34 of 6 35 Q191A, one examined under VSCIV using various rays and filters, reveal that originally the amount read as "21,17,586.50" in 1st column and "21,17,586.50" in another column, i.e., the existing figure 0 at 100th place and 0 at 1000th place in both the entries were originally 5 & 7 and were changed to read as 0 & 0."

In the cross examination on behalf of A2 Vijay Sharma and A3 BS Negi, the witness admitted that carbon copy of Ex.PW14/A and Ex.PW14/B are faded and not readable. Though the witness admitted that opinion cannot be given on that face and non readable document, however, he stated that certain portion on the second carbon copy was not faded on some points and was having clear impressions from the first carbon copy.

The witness stated that there might be some differences in the original and carbon copy but the fundamental characteristics would remain the same which are required for the purpose of examination.

3.16 PW16 Inspt. Anil Kumar Singh, IO proved the carbon copy of RC No. 25(A)/97 as Ex.PW16/A. He proved the seizure of documents vide seizure memo Ex.PW5/N1, Ex.PW5/N2, Ex.PW5/M6 and Ex.PW5/N3.

Inspt. Anil Kumar Singh stated that he recorded the statement of witnesses, seized documents vide seizure memo which were already exhibited and collected CFSL report Ex.PW16/C. IO stated that after receiving the CBI Vs. RC Kala & Ors. CC No. 17/11 Page 35 of 6 36 requisite sanction for the prosecution of accused persons, he filed the chargesheet. During cross examination on behalf of A1 RC Kala, IO stated that he had come to know that the cash was being deposited either by A1 RC Kala or A2 Vijay Sharma. He also admitted to have come across handwritten letter of A2 Vijay Sharma and A3 BS Negi i.e. Ex.PW6/E and Ex.PW6/H. However, the witness was not able to say that on the day when no cash or short cash was deposited in the bank, whether A1 RC Kala or A2 Vijay Sharma had gone to deposit the same. IO denied the suggestion that there was no deficiency of cash in the money recovered from A2 Vijay Sharma of 25/10/96 and since there was deficiency in the cash recovered from A1 RC Kala, accused A2 Vijay Sharma was falsely implicated.

3.17 PW17 Sh. Prem Singh was working as helper in New Friends Colony Branch at the relevant time. Prem Singh deposed on oath that in October 1996, A2 Vijay Sharma used to deposit the cash in the branch, however, in case of necessity A1 RC Kala used to visit the bank for deposit of cash. Sh. Prem Singh stated that on 1516 October, 1996 he visited the bank where bank official told him that the cash of the branch is not being deposited for several days. Prem Singh informed this to A1 RC Kala and other persons of the branch on which A1 RC Kala started discussing the matter with other accused persons. PW17 Prem Singh stated that A1 RC Kala and A2 Vijay Sharma went to the house of inlaws of A2 Vijay Sharma CBI Vs. RC Kala & Ors. CC No. 17/11 Page 36 of 6 37 for collecting the money. However, he was not aware whether thy got the money from the house or not. Prem Singh stated that after 10 days of his visit to the bank, Vigilance Department of the Super Bazar raided the branch and started enquiry. He stated that accused A1 RC Kala, A2 Vijay Sharma and A3 BS Negi never gave him any money. In cross examination on behalf of A1 RC Kala, the witness stated that A1 RC Kala was suffering from skin problem and could not pay much attention to his work and that he had assigned his work to A2 Vijay Sharma and A3 BS Negi. He also endorsed that upon his information about non deposit of cash A2 Vijay Sharma and A3 BS Negi assured to deposit the money in the bank and also gave in writing to A1 RC Kala, their undertaking to the fact that they would deposit the money in Bank and in future would not do such an act . He also stated that A2 Vijay Sharma and A3 BS Negi had also assured and gave in writing to the staff of Vigilance Department that they had spent the money and would deposit the same back. In the cross examination on behalf of A2 Vijay Sharma and A3 BS Negi, the witness stated that he is aware about the rules and procedures of the Super Bazar. Everyday after sales are completed in all the counters, the cash is collected and handed over to Incharge and the cash is kept in the cash chest and the key of the said cash chest is kept by the Incharge only. He has submitted that it is the duty of the Branch Incharge to deposit the cash and conveyance charges is paid for going to the bank for CBI Vs. RC Kala & Ors. CC No. 17/11 Page 37 of 6 38 depositing the cash. However, witness was not aware that who claimed the conveyance expenses.

3.18 PW18 Govind Ram, Constable, ITBP was a formal witness. He collected the documents from the office of Director, CFSL, CGO Complex, Lodhi Road at the instructions of Inspt. Anil Kumar PW16 and handed over the same to the IO.

3.19 PW19 Harvinder Singh was another material witness. He had conducted the stock taking on 13/11/96 alongwith PW11 NK Goel, Asst. Accountant, PW5 Devender Khanna and Shyam Sunder during the surprise check. The team also audited the stock and cash of the branch. The witness stated that after stock taking report was prepared by taking all the requisite documents pertaining to the stock and the inventory prepared and all the documents relating to stock taking, preparation of inventory were placed in file and the file was collectively identified and exhibited as Ex.PW19/A. The witness identified the signature of PW11 NK Goel at point A on page No.1 and at point X on all inventory sheets, running from 96951 to 97000. He also identified his signatures at point A on all sheets. The witness was also part of the team, which conducted surprise check on 25/10/96. PW19 Harvinder Singh stated that after reaching at New Friends Colony on 25/10/96 the 'Z' slip of cash machine was taken out. A2 Vijay Sharma was CBI Vs. RC Kala & Ors. CC No. 17/11 Page 38 of 6 39 sitting on the cash counter. The 'Z' slip conveys the total sale transacted through cash machine. The cash in possession of A2 Vijay Sharma was seized and the cash in possession of A1 RC Kala was also taken into possession and thereafter, the entire cash was counted and documents were prepared. Around Rs.20,000/ were found short. PW19 Harvinder Singh proved the document Ex.PW5/F and identified the signature of PW5 Devender Khanna at point A and of RC Kala at point B. Sh Harvinder Singh stated that during stock taking, stock shortage of Rs.89,318.16 was found during the period 16/10/96 to 25/10/96 regarding which a detailed note Ex.PW11/B was prepared.

In respect of stock taking on 13/11/96, the witness stated that stock in the sum of Rs.67,055.95 was found short. PW19 prepared a handwritten statement in this respect regarding opening balance held on 25/10/96 to 11/11/96 which is Ex.PW5/I and part of file Ex.PW19/B. The witness identified the signature of PW5 Devender Khanna on Ex.PW5/G1 to G38 i.e., the inventory sheets prepared at the time of stock taking on 13/11/96. In the cross examination on behalf of A1 RC Kala, the witness stated that he has been working in the Super Bazar since 1975 and he knew A1 RC Kala since the time of his joining. The witness endorsed that A2 Vijay Sharma used to sit on the cash receipt seat and A3 BS Negi used to sit on the bill book seat. During cross examination on behalf of remaining CBI Vs. RC Kala & Ors. CC No. 17/11 Page 39 of 6 40 accused persons, the witness stated that he remained in New Friends Colony Branch on 25/10/96 from around 11/11:30am to 6/6:30pm. He stated that immediately on reaching New Friends Colony Branch, cash machine handled by A2 Vijay Sharma was closed and print out of total cash receipts was taken. The witness stated that cash taken from Vijay Sharma was not counted and at the instructions of PW11 NK Goel, the cash recovered from RC Kala and Vijay Sharma were mixed and then counted. The witness endorsed that as per the system, the entire cash proceeds of a day, is handed over to Branch Incharge and Branch Incharge keeps the entire cash in the lock and key of the cash chest. It is also the duty of the Branch Incharge to deposit the cash next day in the bank or RDC. The witness admitted that Branch Incharge claims the conveyance charges for going and coming back to Bank or RDC for deposit of cash. The Branch Incharge has the duty to maintain attendance register, stock register, movement register and daily sales register. PW19 endorsed that in the movement register, if anybody goes out of the office, the purpose of his going out is mentioned alongwith the time of arrival and departure. In a specific question put to the witness, the witness admitted that on a day the raid is conducted, the sale of that particular day and of different day is separately accounted for and reflected on separate sheets. PW19 Harvinder Singh was unable to say if there was no deficiency of cash recovered from A2 Vijay Sharma. PW19 was not able to recall whether A2 CBI Vs. RC Kala & Ors. CC No. 17/11 Page 40 of 6 41 Vijay Sharma was present or not in the branch on 13/11/96. He also stated that in case some employee is not working properly, Branch Incharge is responsible for reporting this to RDC and there was no specific complaint against A2 Vijay Sharma and A3 BS Negi.

STATEMENT OF ACCUSED PERSONS u/S 313 Cr.PC.

4.0 In the statement u/S 313 Cr.PC, accused A1 RC Kala stated that sanction was granted without application of mind. A1 RC Kala stated that he used to prepare the sale report of the sale which had taken on the previous day and entire sale used to be deposited in the bank. He used to send A2 Vijay Sharma and A3 BS Negi to deposit the cash in bank or RDC. The sale report alongwith receipt issued by the bank used to be kept in an almirah and every fortnight, he used to prepare the MIS. A1 RC Kala stated that when Prem Singh PW17 told him that sale of certain days have not been deposited in the bank, he checked the sale report and found that the same were accompanied with bank receipts. A1 RC Kala stated that there was no reason for him to dispute the genuineness of those receipts, but lateron he came to know that sale of certain dates were not deposited by A2 Vijay Sharma in the bank. A2 Vijay Sharma initially refused on being asked but then sought some time to deposit. A1 RC Kala stated that his fault is that he did not inform the headquarter immediately, thinking that he will inform after A2 Vijay Sharma deposit the entire cash amount. A1 RC Kala admitted that he had gone to the CBI Vs. RC Kala & Ors. CC No. 17/11 Page 41 of 6 42 house of in laws of A2 Vijay Sharma to collect money. The accused stated that he had not done any forgery on Ex.PW3/A3 regarding change of quantity of value of palmolin oil in respect of the stock taking on 26/3/96. The accused stated that he does not know anything about this and came to know only after he was suspended and matter was referred for investigation. In respect of the goods supplied for the period 4/4/94 to 31/3/95, the accused stated that he does not remember about the figures but the certificate was used to be issued after reconciliation. As far as the procedure aspect is concerned, the accused admitted the same. A1 RC Kala also admitted that it is the duty of the Branch Incharge to maintain daily sales report and the sales are effected by the invoice / cash memo books and cash registrex machine. In respect of cash shortage, accused stated that there was no cash shortage in the sale of 24/10/96 and the shortage was only in the sale of 25/10/96. In respect of inventory sheet No. 96951 to 97000 Ex.PW5/A1 to A50, the accused admitted the same to be a matter of record. The accused also admitted the surprise stock taking on 13/11/96 by PW5 Devender Khanna, PW19 Harvinder Singh, PW11 NK Goel and Shyam Sunder and preparation of inventory sheets Nos. 97001 to 97038 Ex.PW5/H1 to H37. In respect of stock shortage of Rs. 67,055.95 during the period 25/10/96 to 13/11/96, A1 RC Kala stated that he does not know about the value of stock shortage. Accused stated that at the time of stock taking the team only used to count CBI Vs. RC Kala & Ors. CC No. 17/11 Page 42 of 6 43 the quantity and value used to be assessed lateron. A1 RC Kala stated that entire staff of Super Bazar used to be responsible for stock shortage and recovery used to be effected from them. He stated that he did not use to handle the counter and does not know how and why stock shortage was found. In response to the question that the sale proceeds of 3/10/96, 5/10/96, 6/10/96, 9/10/96, 10/10/96, 17/10/96 and 18/10/96 alongwith 'Z' slips, machine scrolls, second copy of the cash memos etc. Ex.PW5/U1 to U7 bearing his signatures i.e. A1's signatures, were not deposited as reflected in the daily branch receipt control statement ExPW5/Q for the month of October 1996, accused stated that A2 Vijay Sharma used to deposit the cash and for the above said dates also A2 Vijay Sharma had annexed the receipts purported to be issued from the bank alongwith daily sale report on the basis of which he (A1) presumed that cash has been deposited. However, lateron it was found that those receipts were forged and A2 Vijay Sharma had not deposited the cash in the bank. In respect of the office order for working of branches Ex.PW5/V1 to V9, the accused stated that it is the matter of record. In respect of the stock shortage of Rs.7,500/ as reflected on the comparison of certificate Ex.PW4/A, regarding supply of goods to New Friends Colony branch from 4/4/94 to 26/3/95 and consolidated receipt and certificate for the period April 1994 to March 1995, Ex.PW6/A, the accused expressed his ignorance.

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 43 of 6 44

In respect to the confessional statement given by A2 Vijay Sharma Ex.PW6/E and his own (A1), Ex.PW6/F, accused stated that accused admitted to have given the statement admitting his responsibility. However, accused (A1) stated that he had not done any misappropriation. In respect of his handwriting on confessional statement Ex.PW6/F, A1 admitted to have given the same. Accused A1 RC Kala stated that he accepted his fault only being the Incharge of the branch. In respect of the stock shortage of Rs. 89,318.16 as found on 25/10/96, accused expressed his ignorance. However, he did not dispute the stock taking on 25/10/96. Accused stated that he had been implicated falsely. He even stated that his fault was that all the lapses took place when he was Branch Incharge but he was not involved at all. A1 RC Kala stated that he even presumed that daily sales receipt were deposited in bank. In respect of stock shortage, A1 stated that the staff at the counter is responsible for that. He was not holding the counter and therefore, he does not know anything about this. Accused RC Kala stated that PW5 Devender Khanna was enemical towards him as while accused was Member Secretary, Departmental Promotion Committee, Devender Khanna was not promoted and he used to think that he (A1) has been instrumental in denial of promotion to him.

Accused A2 Vijay Sharma in his statement u/S 313 Cr.PC stated that it is the duty of Branch Incharge to deposit the cash and to CBI Vs. RC Kala & Ors. CC No. 17/11 Page 44 of 6 45 maintain all the norms of the branch. The accused i.e. A2 Vijay Sharma denied the fact that he used to go to the bank or RDC to deposit the sale proceeds. A2 Vijay Sharma admitted that he was sitting on the cash machine on 25/10/96. He also admitted that there was cash shortage of around Rs. 20,000/. Accused A2 Vijay Sharma stated that cash of 25/10/96 was found correct on being counted by Sh. DK Khanna and PW19 Harvinder Singh. However, he was not able to tell about the cash shortage (if any of 24/10/96). The accused stated that the cash on 25/10/96 was found to be correct but lateron it was mixed with the cash in possession of A1 RC Kala of 24/10/96 and then it was again counted. In respect of inspection conducted on 13/11/96 on the directions of Controller of Accounts and Finance, the accused stated that he was on medical leave on that day. In respect of the confessional statement Ex.PW6/D, accused A2 Vijay Sharma stated that his signatures were obtained on blank papers by PW7 VK Sehgal, PW5 Devender Khanna and PW11 Nirmal Goel. The accused stated that documents Ex.PW6/D is not in his handwriting. It is in the handwriting of A1 RC Kala. In respect of extra judicial confession of his coaccused, the accused expressed his ignorance. In respect of other questions, the accused generally stated that either it is a matter of record or it was the duty of the Branch Incharge.

Accused A3 BS Negi also in his statement u/S 313 Cr.PC stated CBI Vs. RC Kala & Ors. CC No. 17/11 Page 45 of 6 46 that is the duty of Branch Incharge to deposit the cash and to maintain all the norms of the branch. A3 BS Negi admitted that A2 Vijay Sharma used to go to bank or RDC to deposit the sale proceeds. A2 BS Negi stated that Branch Incharge used to send anybody from the staff to deposit the cash. In respect of his confessional statement Ex.PW6/G, the accused stated that the same was got written from him under threat and force and he was given the promise that he would be pardoned of as though he had not committed any mistake but still if he did not write, he would be implicated. In respect of letter Ex.PW6/H dated 26/10/96 written by him (A3) to MD, Super Bazar, for extension of time for depositing the defrauded amount, A3 stated that the letter was got written from him under force by PW7 VK Sehgal and PW11 NK Goel. In respect of all other questions, the accused generally admitted the same to be matter of record. In respect of the handwriting expert report, the accused stated that the documents on the basis of which opinion was given, was carbon copy and cannot be read in evidence and the CBI has failed to produce the original. The accused stated that the it was the fault of Branch Incharge (A1) but the entire staff was held responsible for the same.

Accused A4 Shiv Prasad is a different set of accused. He was employed in Regional Distribution Center and therefore, admitted most of the questions as being matter of record. In respect of the inventory sheet Ex.PW3/A3, the accused (A4) stated that the procedure was that all such CBI Vs. RC Kala & Ors. CC No. 17/11 Page 46 of 6 47 inventories were used to be prepared at the branch and it used to be sent to RDC under the control of Sh. HS Bindra. Sh. HS Bindra used to be in exclusive possession of these documents as the documents used to be remain under his key and control and any change could have been made by Sh. HS Bindra or at his instance only. The accused stated that he had not done any cutting or overwriting in Ex.PW3/A3 as these documents had never been in his possession. The accused stated that he has been made a scapegoat by the Vigilance Department.

4.1 A2 Vijay Sharma, A3 BS Negi and A4 Shiv Prasad examined DW1 Sh. Mahesh Chander Verma, an Ex.employee of Super Bazar, in defence. Sh. Mahesh stated that he worked in Super Bazar for around 3536 years and worked as Branch Incharge, Sr. Supervisor. DW1 Mahesh stated that on account his experience, he knows the procedure and functioning of Branch Incharge. The duty of Branch Incharge include the deposit of cash and to look after the other related work of the branch. The duty of preparing inventory of the goods received from RDC and of the items sold are also of Branch Incharge. DW1 Mahesh stated that in the Super Bazar, the movement register is maintained at the branch level and overall responsibility of maintaining the movement register is of Branch Incharge. In the movement register, the time and departure and entry and the purpose is recorded of each and every staff working in the staff. The maintenance of such register is CBI Vs. RC Kala & Ors. CC No. 17/11 Page 47 of 6 48 mandatory. The defence witness stated that duty of depositing the daily sale proceeds after having received from the staff is of the Branch Incharge. The witness also stated that during the surprise checking of the branch, the salesman would be asked about the cash/sale proceeds of that day and if cash of previous day had not been deposited, the Branch Incharge would be asked about it. In case of cash of previous day not being deposited, the statement of the cash/sale proceeds of the day of inspection and the previous day is made separately. The witness also stated on oath that the inventory sheets are sent to the RDC and such sheets remain in the possession of Accounts Officer of RDC and it remains under the key and control of Accounts Officer. ARGUMENTS ON BEHALF OF CBI 5.0 Sh. DK Singh, Ld. PP for CBI has argued that this case is primarily based upon the documents and the documents proved on the record by the CBI goes to prove the charges against the accused persons. Accused persons in the present case are the public servants and therefore, the composite sanction Ex.PW1/A has been granted against the accused persons. Sh DK Singh, Ld. PP submitted that at the stage of charge, the sanctioning authority is not obliged to give a personal hearing to the delinquent and the only duty casted upon the sanctioning authority is that sanction is granted only after due application of mind. In support of his contention Ld.PP for CBI Vs. RC Kala & Ors. CC No. 17/11 Page 48 of 6 49 CBI has cited Superintendent of Police (CBI) Vs. Deepak Chowdhary, AIR 1996 SC 186 and State of Bihar Vs. PP Sharma, AIR 1996 SC 1260. Ld. PP for CBI took this Court in detail through the statement of objects and reasons of Prevention of Corruption Act and Section 19 of the PC Act so as to emphasize his point that sanction can be challenged only at the stage of cognizance and once, the cognizance has been taken, the trial cannot be vitiated in view of Sec. 19 of the Prevention of Corruption Act. Ld. PP submitted that after framing of charge, sanction gets the immunity and the accused persons are not entitled to challenge the same. It was submitted that in the present case, during the trial, the accused persons had not pleaded that they have been prejudiced in any manner or there has been any miscarriage of justice, therefore, the plea of challenge to the sanction is not available to the accused persons. Ld. PP for CBI Sh. DK Singh has placed his arguments in respect of all the five heads as mentioned in the chargesheet for which the accused persons have been charged. In respect of the forgery of Rs.7,500/, Ld. PP has submitted that the relevant documents are Ex.PW4/A and Ex.PW6/A and the relevant witnesses are PW6 Vimal Kumar Sehgal and PW8 Kailash Chand Chawla. In respect of the forgery done in inventory sheets 10170 Ex.PW3/A3, Ld. PP has submitted that the relevant document is Ex.PW3/A3 and PW6 Vimal Kumar Sehgal and PW7 Dharmender Kumar Gupta have specifically deposed about the manipulation having been done by CBI Vs. RC Kala & Ors. CC No. 17/11 Page 49 of 6 50 the accused persons. Similarly, Ld. PP has read the testimony of PW5 Devender Khanna, PW6 Vimal Kumar Sehgal and PW19 Harvinder Singh in respect of alleged stock shortage of Rs.67055.95 during the period 25/10/96 to 11/11/96. The relevant documents in this regard are Ex.PW5/G1 to G38 and Ex.PW5/H1 to H37 and Ex.PW5/I. Ld. PP for CBI has also specifically read out the testimony PW5 Devender Khanna, PW11 NK Goel, PW6 Vimal Kumar Sehgal and PW14 Nand Gopal Mishra regarding the other head of the charges framed against the accused persons. Sh. DK Singh, Ld. PP has submitted that the prosecution witnesses have specifically stated on oath that the cash of around Rs.20,000/ was found short at the time of surprise inspection on 25/10/96. It has also been proved on record that the sale proceeds of various dates between 3/10/96 to 18/10/96 were not deposited in the bank or in the regional distribution center. Besides this, the PW's by way of consistent and corroborative statement on oath have proved that the accused persons did the manipulation in the consolidated receipt so as to avoid shortage of Rs.7,500/ and it has also been proved on record by way of credible documents that there was stock shortage of Rs.67,055.95 and Rs. 89,318.16 for the period 16/10/96 to 25/10/96 and 25/10/96 to 11/11/96. Ld. PP has submitted that A1 RC Kala, A2 Vijay Sharma and A3 BS Negi were posted in New Friends Colony Super Bazar at the relevant time. The material on the record is speaking in volume regarding their conspiracy in pursuance CBI Vs. RC Kala & Ors. CC No. 17/11 Page 50 of 6 51 of which they misappropriated the cash and the stock. The act and conduct of the accused persons are sufficient to hold them guilty beyond any reasonable doubt.

ARGUMENTS ON BEHALF OF ACCUSED A1 RC KALA 5.1 On behalf of A1 RC Kala, Sh. SP Kaushik, Ld. Counsel has submitted written arguments. It is worth to mention here that during the trial Sh. RC Kala was being represented by Sh. Rakesh Kumar, Advocate. However, on 23/1/2012, when the last opportunity was given for final arguments, Sh. SP Kaushik, Adv. filed his vakalatnama for accused RC Kala. IT is also pertinent to mention here that Sh. SP Kaushik, Adv. had earlier represented A2 Vijay Sharma. A vakalatnama of Sh. SP Kaushik, Adv in favour of Vijay Sharma is on record and even some of the prosecution witnesses were cross examined by Sh. SP Kaushik, Adv on behalf of Vijay Sharma. In the written arguments, A1 RC Kala has pleaded that the sanction has been granted mechanically without any application of mind. The sanctioning authority did not give any opportunity of being heard and the sanction is invalid and illegal and has caused prejudice to his right, interest and defence and has resulted in failure of natural justice. PW2 Raghbir Singh has admitted in his evidence that the sale proceeds of the day used to be deposited in State Bank of India and A2 Vijay Sharma used to go to the bank or RDC to deposit the same. In respect of the cash having been short on CBI Vs. RC Kala & Ors. CC No. 17/11 Page 51 of 6 52 25/10/96, A1 RC Kala has submitted that the cash on 24/10/96 given by him was complete and whatever shortage was there, was in respect of cash pertaining to 25/10/96 and therefore, shortage cannot be attributed to him. In respect of the confessional statement Ex.PW6/F, it has been argued that this merely amounts to an endorsement to the effect that misappropriation of sale proceeds has been done by the concerned Sales Assistants and it cannot be taken as confessional statement. Ld. Counsel has also relied upon the cross examination of PW17 Prem Singh, wherein the witness had admitted that A1 RC Kala had assigned his work to accused A2 Vijay Sharma and A3 BS Negi. The cross examination of PW17 Prem Singh has also been highlighted wherein the witness has stated that A2 Vijay Sharma and A3 BS Negi had assured to deposit the money in bank and also gave in writing to A1 RC Kala to the effect that as they had spent the money, they would deposit the same in bank and in future they would not do such an act. In the written arguments, it has been submitted that the testimonies of prosecution witnesses make it clear that A2 Vijay Sharma was handling the cash and cash register of the NFC branch and statements of sales were also prepared by A2 Vijay Sharma and A3 BS Negi was handling / dealing the stock and stock registers of the NFC branch and on 25/10/96 i.e., the date of inspection, accused Vijay Sharma A2 was handling the cash registrex machine and the shortage was there in respect of the sale done on 25/10/96. Accused has submitted in his CBI Vs. RC Kala & Ors. CC No. 17/11 Page 52 of 6 53 written arguments that even forged bank deposit slips bearing the seal of the bank were recovered from A2 Vijay Sharma and A2 Vijay Sharma has been concealing the fact of non deposit of cash in the bank. In respect of cash shortage and manipulation / forgery in the inventory, A1 RC Kala submitted that A3 BS Negi was exclusively dealing with the stock and stock register of the NFC branch, therefore, the shortage of stock and manipulation / interpolation of entries in the stock registers cannot be attributed to him and he cannot be held liable for the same.

ARGUMENTS ON BEHALF OF A2 VIJAY SHARMA, A3 BS NEGI AND A4 SHIV PRASAD 5.2 Sh. Bharat Bhushan, Ld. Counsel for accused A2 Vijay Sharma, A3 BS Negi and A4 Shiv Prasad has argued in detail and submitted that the prosecution has miserably failed to prove on record any evidence against his clients. Ld. Counsel submitted that the procedure as narrated by the prosecution witnesses on the record shows that it was the duty of the Branch Incharge to deposit the cash in the bank or the RDC and therefore, the shortage of cash or non deposit of the same cannot be attributed to anybody except A1 RC Kala. Sh. Bharat Bhushan, Ld. Counsel submitted that there was no occasion to mix the cash of 24/10/96 and 25/10/96 and the cash was mixed in conspiracy of PW11 NK Goel and A1 CBI Vs. RC Kala & Ors. CC No. 17/11 Page 53 of 6 54 RC Kala. Ld. Counsel took the Court through the testimony of PW11 NK Goel, PW5 Devender Khanna and PW19 Harvinder Singh so as to show that the mixing of cash of 24/10/96 and 25/10/96 was in contravention of rules. In respect of the forgery of Rs.7,500/, Ld. Counsel has taken this court through the testimony of PW3 Sandeep Kumar Arora, PW6 Vimal Kumar Sehgal, PW7Dharmender Kumar Gupta and PW8 Kailash Chand Chawla. It has been submitted that the Branch Incharge is overall responsible and the inventory sheet was in possession of the Accounts Officer. A4 Shiv Prasad cannot be held liable or responsible for any kind of interpolation in the same. Ld. Counsel has relied upon the cross examination of PW7 Dharmender Kumar Gupta in this regard. Sh. Bharat Bhushan, Ld. Counsel has submitted that extra judicial confession as alleged by the prosecution are of no value. Ld. Counsel submitted that extra judicial confession is a weak kind of evidence and it cannot be taken into consideration for purpose of recording any conviction against the accused persons. Testimony of witnesses have been highlighted by the defence counsel so as to buttress the point that there are contradictions in the evidence of prosecution witnesses which has made the case of the prosecution weak and non reliable. Sh. Bharat Bhushan, Ld. Counsel has based his case on the fact that as per norms and instructions issued from time to time by the headquarter, the Branch Incharge is overall responsible for the functioning of the branch and his clients, A2 Vijay CBI Vs. RC Kala & Ors. CC No. 17/11 Page 54 of 6 55 Sharma and A3 BS Negi, who were the junior officers in the branch, cannot be held responsible for any irregularity committed in the branch. In respect of A4 BS Negi, Ld. Counsel has submitted that the inventory sheet Ex.PW3/A3 had never been in possession of A4 BS Negi. It had always been in possession of Accounts Officer who was initially named in the FIR and was lateron placed in Col. No. 2 for the reasons best known to the CBI. Ld. Counsel submitted that his clients are innocent and have been implicated falsely and are entitled to be acquitted.

6.0 I have heard the Ld. PP for CBI and Ld. Counsels for the accused persons and perused the record carefully.

7.0 The accused persons have faced the trial for the offence u/Ss. 120B r/w 409/420/467/468 r/w S.471 IPC and S.13(2) r/w S.13(1)(c) & S. 13(1)(d) of PC Act 1988. The plea of the CBI is that their documents are speaking loud and clear. The entrustment to the accused persons have been proved. The shortage in stock has also been proved by the prosecution witnesses. The accused persons have admitted that the cash was not deposited. The accused persons have also made extra judicial confession which has also been proved on record and therefore, the case of the prosecution stands proved. Per contra, the case of the defence can be divided into three categories. 1) A1 RC Kala has stated that he being unwell had CBI Vs. RC Kala & Ors. CC No. 17/11 Page 55 of 6 56 deputed A2 Vijay Sharma and A3 BS Negi for deposit of cash and they had misappropriated . He has also disowned his responsibility regarding shortage of stock by saying that A2 Vijay Sharma and A3 BS Negi used to work at counter and they were supposed to ensure that there is no shortage of stock. (2) A2 Vijay Sharma and A3 BS Negi have also not disputed the non deposit of cash or stock shortage. They have pleaded that it was A1 RC Kala, who being Branch Incharge was over all responsible. The extra judicial confession by A2 Vijay Sharma and A3 BS Negi have also been disputed. (3) the plea of A4 Shiv Prasad is that he had nothing to do with the offence and the Accounts Officer HS Bindra who has been placed in Col. No.2 is the actual culprit who has been let off by the CBI. This case is primarily based on the documentary evidence. The CBI had a task of proving the conspiracy amongst the accused persons, entrustment of goods, its misappropriation and forgery. The charge being under multiple heads, this court propose to take up the charges one after another.

CONSPIRACY:

8.0 Section 120A of the Indian Penal Code defines criminal conspiracy. It is pertinent to mention here that the ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. It is not necessary that illegal act is actually done. The very agreement to do an illegal act is an offence and is punishable. In the case of criminal CBI Vs. RC Kala & Ors. CC No. 17/11 Page 56 of 6 57 conspiracy, it is very difficult to adduce direct evidence. Generally, a conspiracy is hatched in secrecy and therefore, the prosecution in such case normally rely upon evidence of act of various parties to infer that the acts were done in reference to their common intention. It is a herculean task for the prosecution to prove the conspiracy and the only way to prove the same is to rely or place circumstantial evidence. The Court in such cases is required to ascertain that whether the accused persons had been pursuing the same end independently or they were together in the pursuit of unlawful object. If the act had been independent and the pursuit to an unlawful object was not done together, it may not amount to conspiracy. The prosecution may not be able to prove the express agreement, but there is to be some manifestation of agreement between the accused persons to do an illegal act. It would be impractical to expect that the prosecution would prove the actual words of communication to prove the conspiracy. If the prosecution proves the tacit understanding between the conspirator, it should be accepted as sufficient to prove the offence.

In the case of State v. Nalini, 1999 (5) SCC 253, the Apex Court inter alia held as under:

"In reaching the stage of meeting of minds, two or more persons share information about doing an il legal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a CBI Vs. RC Kala & Ors. CC No. 17/11 Page 57 of 6 58 plan for committing an illegal act or a legal act by il legal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the con spiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspira cy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of con spiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.

The theory of agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. Those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to be ing liable for criminal conspiracy; but, the nonpartic ipant conspirators cannot be found guilty of the of CBI Vs. RC Kala & Ors. CC No. 17/11 Page 58 of 6 59 fence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. Criminal offences and punishments therefor are gov erned by statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle. (Para 12) A distinction was maintained between the con spiracy and the offences committed pursuant to the conspiracy. It is only in order to prove the existence of conspiracy and the parties to the conspiracy, a rule of evidence is enacted in S. 10 of Evidence Act based on the principle of agency. S. 10 of the Evidence Act pro vides that anything said, done or written by one of the conspirators in reference to the common intention of all of them can be proved as a relevant fact as against each of the conspirators, subject to the condition pre scribed in the opening part of the section. Thus, the evidence which is in the nature of hearsay is made ad missible on the principle that there is mutual agency amongst the conspirators. Whether or not the conspir ators will be liable for substantive offences other than the conspiracy and, if so, to what extent and what punishment has to be given for the conspiracy and the other offences committed pursuant thereto, depend on the specific scheme and provisions of the penal law. The offence cannot be spelt out by applying the princi ple of agency if the statute does not say so. For in CBI Vs. RC Kala & Ors. CC No. 17/11 Page 59 of 6 60 stance, in the case of S. 34, IPC, the constructive lia bility for the crime is specifically fastened on each of those who participate in the crime in furtherance of the common intention. But S. 120B does not convey that idea.

In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge ob served that "there is always difficulty in tracing the precise contribution of each member of the conspira cy but then there has to be cogent and convincing ev idence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. v. Falcone (109 F. 2d,579) was referred to: "This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders." At para graph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspira cy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows :

"One who commits an overt act with knowl edge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along CBI Vs. RC Kala & Ors. CC No. 17/11 Page 60 of 6 61 with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."

It was further observed in the cited case that:

One more principle which deserves notice is that cu mulative effect of the proved circumstances should be taken into account in determining the guilt of the ac cused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be con scious and clear enough to infer their concurrence as to the common design and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict." AIR 1988 SC 1883 :

1989 Cri LJ 1.

The privacy and secrecy are the characteristics of a conspiracy. In such cases, the prosecution may not be able to give affirmative evidence about the conspiracy and the manner in which the object of conspiracy was to be carried out. It has been repeatedly held that in the cases of conspiracy, the prosecution need not necessarily prove that the perpetrator expressly CBI Vs. RC Kala & Ors. CC No. 17/11 Page 61 of 6 62 agreed to do or cause to be done an illegal act. Such an agreement may be proved by necessary implication. In the present case, the substances of the case of the prosecution is that A1 RC Kala, A2 Vijay Sharma and A3 BS Negi were posted in New Friends Colony Branch of Super Bazar and they entered into criminal conspiracy pursuant to which they failed to deposit the sale proceeds of the day in the bank or in the Regional Distribution Center, as required under the norms / rules laid down from time to time, and there was also huge misappropriation of stock from the said branch which resulted into huge shortage of stock from that branch. It has also been alleged that A4 Shiv Prasad who was posted in Regional Distribution Center was also party to this conspiracy and in one of the inventory Ex.PW3/A3, the forgery was made so as to cover up the misadventure of the accused persons. It is not disputed on behalf of the accused persons that they were posted in New Friends Colony Branch of Super Bazar during the relevant time. It is also not disputed that A1 RC Kala was branch Manager and A2 Vijay Sharma and A3 BS Negi were also working as Sales Assistants. It has been proved on record, and interestingly, not disputed by the accused persons that on many occasions the sale proceeds were deposited after delay and on particular dates i.e. 3/10/96, 5/10/96, 6/10/96, 9/10/96, 10/10/96, 17/10/96 and 18/10/96, the cash was not at all deposited in the bank. The defence of A1 RC Kala is that he was not keeping well and had delegated his duties to A2 Vijay CBI Vs. RC Kala & Ors. CC No. 17/11 Page 62 of 6 63 Sharma and A3 BS Negi and therefore, though he may be held liable for negligence, but was not party to the misappropriation of cash and goods. 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, recognised 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. Accused RC Kala who was under the duty to deposit the sale proceeds cannot now rely upon on delegating the same to A2 Vijay Sharma and A3 BS Negi, in violation of the norms. Per contra the plea of A2 Vijay Sharma and A3 BS Negi is that they were merely subordinate of A1 RC Kala and as per rules and regulations A1 RC Kala was the over all incharge of the branch and they were merely carrying out the orders of A1 RC Kala and cannot be held responsible for the misappropriation of cash and goods.

8.1 Before proceeding further, let me make one thing clear that as far as accused A4 Shiv Prasad is concerned, his case stands on different footing. A4 Shiv Prasad was posted at RDC as Accounts Assistant. The allegation against him is that he forged inventory Ex.PW3/A3 and changed the value and quantity of palmolin oil so as to cover up the offences committed by the accused persons. However, I have not found any evidence CBI Vs. RC Kala & Ors. CC No. 17/11 Page 63 of 6 64 on record to connect A4 Shiv Prasad with A1 RC Kala, A2 Vijay Sharma and A3 BS Negi. A4 Shiv Prasad had never been posted at New Friends Colony Branch of Super Bazar. His role has been highlighted on account of a single instance where the prosecution has alleged that in a document which was in his custody, the interpolations were made. On the basis of this, CBI wants this Court to believe that A4 Shiv Prasad was also in conspiracy with remaining accused persons. However, this plea of the CBI could not be substantiated by any credible evidence on their behalf. I do not find any evidence on record so as to prove the conspiracy between A1 RC Kala, A2 Vijay Sharma, A3 BS Negi and A4 Shiv Prasad. There has to be some cogent and creditworthy evidence to infer conspiracy. The charge of conspiracy cannot be held to be proved at the mere asking of the prosecution. Therefore, A4 Shiv Prasad does not seem to be party to the conspiracy at all. 8.2 Now coming to the conspiracy amongst A1 RC Kala, A2 Vijay Sharma and A3 BS Negi. In a criminal trial, the prosecution can prove a positive fact. It would be too impractical to expect from the prosecution to prove the negative facts. The CBI in this case has proved on record that accused persons were employed in New Friends Colony Branch of Super Bazaar where huge misappropriation of cash and goods took place. The accused persons are not denying the stock shortage or non deposit of cash. CBI Vs. RC Kala & Ors. CC No. 17/11 Page 64 of 6 65

They merely want this Court to believe their defence, where in A1 has stated that misappropriation had been done by A2 Vijay Sharma and A3 BS Negi where as A2 Vijay Sharma and A3 BS Negi have stated that it was all done by A1 RC Kala.

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.

8.3 In a criminal trial, the prosecution is duty bound to prove its CBI Vs. RC Kala & Ors. CC No. 17/11 Page 65 of 6 66 case against the accused beyond reasonable doubt. Section 101 to 104 of Indian Evidence Act (IEA) lays down the general principles as to onus to prove. Section 106 IEA provides as under :

"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."

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.

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 CBI Vs. RC Kala & Ors. CC No. 17/11 Page 66 of 6 67 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 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."

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.

It is a settled proposition that the concept "beyond reasonable doubt" cannot be stretched too far. The whims and fancy 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.

8.4 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 the law, he CBI Vs. RC Kala & Ors. CC No. 17/11 Page 67 of 6 68 becomes a trespasser ab initio.

8.5 In the present case, it were the accused persons who were incharge and custodian of the goods and cash. What was happening amongst them is only within their knowledge. Nobody from the outside could know that what was going on. The thing which came out ultimately was that in New Friends Colony Branch of Super Bazar, there was huge misappropriation of goods and cash. The prosecution has brought documents on record, which are not disputed by the accused persons that certain amount of goods were supplied to the New Friends Colony Branch of Super Bazar and on stock taking the stock shortage was found and the cash / sale proceeds of certain days were not deposited in the bank. If these things have been proved by the prosecution, then what happened to that stock and cash is to be explained by the persons, who were looking after the affairs of that branch. The accused persons were at responsible position in the branch. This fact could be in their special knowledge only that what happened to that stock and cash. They were required to give truthful and plausible explanation for the same. However, the accused persons instead of that, came out with a strange defence, wherein they started throwing stones on each other. The defence of the accused persons is implausible and improbable. It seems that the accused persons got together and were looting the public property, were CBI Vs. RC Kala & Ors. CC No. 17/11 Page 68 of 6 69 enjoying the cash and sale proceeds and when they were caught, they started making allegations against each other. The Court in such cases are required to appreciate the evidence in a practical manner. If they were not in conspiracy with each other, why did not they come out before they were caught to tell their authorities. A1 RC Kala was responsible for the deposit of cash in the bank. The sale proceeds was required to be deposited on the next day, whereas it was being deposited after number of days on many occasions and on number of occasions, the sale proceeds were not deposited at all. If A1 RC Kala was so innocent, why did not he inform the senior officers that he had assigned his duty to A2 Vijay Sharma and A3 BS Negi and they are plundering public property. It is unbelievable that in a branch, an instance of such a magnitude happens without the connivance or understanding, tacit or express of the branch incharge. Similarly, if A2 Vijay Sharma and A3 BS Negi were so innocent that they were merely obeying the directions of the superiors, what stopped them from reporting this matter to the Headquarters. The evidence on the record is very clear that the accused persons were in conspiracy with each other. Their act, omission and conduct goes to prove that they were in conspiracy with each other. In such like cases, generally, the outside agency would come into picture when the offence comes to light and therefore, it is very difficult to find out exactly that what was going on amongst the accused persons. If a property has been entrusted to a group of CBI Vs. RC Kala & Ors. CC No. 17/11 Page 69 of 6 70 persons and later it is found to have been misappropriated, the simple inference is that they got together to misappropriate the same. In the present case also, I consider that on the basis of material and evidence on the record, it can simply be concluded that A1 RC Kala, A2 Vijay Sharma and A3 BS Negi were in conspiracy with each other. Thus, it is held that accused persons were in conspiracy with each other.

SECTION 409 IPC & SEC. 13(2) r/w 13(1)(c) & 13(1)(d) of the PC ACT: 9.0 In this case, all the accused persons chargesheeted by the CBI are the public servants. The accused persons have been charged for the offence u/S 409 IPC as well as Sec. 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act. Section 13(1)(c) 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."

Similarly, Sec. 13(1)(d) provides as under:

"13. Criminal misconduct by a public servant -

(1) A public servant is said to commit the offence of criminal misconduct,

(d) if he, CBI Vs. RC Kala & Ors. CC No. 17/11 Page 70 of 6 71

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii)by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;

or

(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."

Section 13(2) of the PC Act provides for punishment to the public servant found guilty of misconduct. Before proceeding further, it is also pertinent to go through the Section 409 IPC which 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"

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 71 of 6 72

The necessary ingredients of Sec. 13(1)(c) PC Act are:

1. the accused must be public servant;

2. entrustment of property; and,

3. dishonest or fraudulent misappropriation or conversion for his own use any such property.

The necessary ingredients of Sec. 13(1)(d) PC Act are:

1) accused was a public servant;

2) accused used corrupt or illegal means or otherwise abused his position; and,

3) accused obtained for himself or for any other person any valuable thing or pecuniary advantage.

Similarly, 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.

The perusal of the Sec. 13(1)(c) PC Act and Sec. 409 IPC indicates the similarity between the two. This question came up for CBI Vs. RC Kala & Ors. CC No. 17/11 Page 72 of 6 73 discussion before the Hon'ble Supreme Court in Om Prakash Gupta Vs. State of UP, AIR 1954 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) equivalent to Sec. 13(1)(c) of PC Act, 1988 and Sec.5(2) PC 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 PC Act 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 PC Act, 1947. In Om Prakash Gupta's case, the Constitution Bench spelled out the distinction in Section 5(1)(c), 13(1)(c) and 405 IPC. It was noted that under PC 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. Similarly, in State of MP Vs. Veereshwar Rao Agnihotri, AIR 1957 SC 592, the Hon'ble Supreme Court held that the offence of criminal misconduct punishable u/S 5(2) PC Act is not identical in essence, import and content with an offence u/S 409 of CBI Vs. RC Kala & Ors. CC No. 17/11 Page 73 of 6 74 the Penal Code. If we read Sec. 13(1)(c) PC Act and Sec. 409 IPC, it would indicate that the concept of mensrea is enlarged for the purpose of Sec.13(1)

(c) PC Act. U/s 13(1)(c) PC Act, the omission may be dishonest or fraudulent. The word "fraudulent" does not find place in Sec. 405 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 IPC and Sec. 13(1)(c) are distinct offence.

Perusal of Sec. 13(1)(c) would indicate that the offence laid down herein 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 misappropriated or converted to his own use by the accused. The offence consist dishonest misappropriation or conversion.

9.1 Coming to the facts of the present case, the accused persons have primarily been chargesheeted and tried for non deposit of sale amount CBI Vs. RC Kala & Ors. CC No. 17/11 Page 74 of 6 75 in the month of October 1996, forgery of Rs.7,500/ to cover up the shortage of stock, forgery in inventory sheet No. 10170 dated 26/3/96 amount to Rs. 44102.50 and stock shortage of Rs.89,318.16 and Rs.67,055.95 found during the surprise stock taking on 26/10/96 and 13/11/96 respectively. Thus, the offence charged against the accused persons can be classified into three acts:

1) shortage of stock;

2) Non deposit of sale proceeds;

3) forgery on the record to cover up the stock shortage.

It is not disputed that the accused persons are public servants and they were posted in New Friends Colony branch of Super Bazar in different capacities. A1 RC Kala was the Branch Manager, A2 RC Kala and A3 BS Negi were Sales Assistants. The procedure has been duly spelled out by the prosecution witnesses primarily, PW4 Harish Singh Rao, PW5 Devender Khanna, PW6 Vimal Kumar Sehwag, PW7 Dharmender Kumar Gupta, PW8 Kailash Chand Chawla and PW9 Prakash Narayan. PW11 NK Goel has also deposed about the procedure / norms of the work of the Super Bazar branch. The defence witness produced by A2 RC Kala and A3 BS Negi has almost more or less deposed on the same lines. It is pertinent to mention here that as far as the procedure is concerned, that has not been disputed by the accused persons and therefore, taking the plea of brevity, this court would be allowing itself from not reproducing the procedural part as CBI Vs. RC Kala & Ors. CC No. 17/11 Page 75 of 6 76 deposed by the prosecution witnesses. However, the sum and substance of the procedure as stated by the prosecution witnesses can be summarized as that the Branch Incharge sends demand to the RDC of the goods and in pursuant to the demand, the goods are supplied by the RDC to the Super Bazar branch for the purpose of sale to the public. The stock so supplied is subject to reconciliation from time to time. The senior officers also keep on conducting the stock taking. There is also system of the regular conciliation of stock by way of Management Information System, wherein there is a constant monitoring of the stock in the Super Bazar branch. There is also procedure of regular interaction between the branch and the RDC. In respect of the sale proceeds the Branch Incharge is duty bound to deposit the same next day in the bank or in case of bank holiday in the RDC. Therefore, the procedure which has been proved by the prosecution, and not disputed by the accused persons, proves on record that the RDC entrusts the goods to the Super Bazar branch and in a way the staff of the Super Bazar merely holds this good as the caretaker. Their duty is to receive the goods and then to further sell it to the public and the cash collected from the sale is to be deposited in the bank or in the RDC. In respect of the cash shortage a surprise check was conducted by the prosecution witnesses PW5 Devender Khanna, PW11 NK Goel and PW19 Harvinder Singh on 25/10/96. The witnesses have consistently stated on oath that on 25/10/96 A2 Vijay Sharma CBI Vs. RC Kala & Ors. CC No. 17/11 Page 76 of 6 77 was sitting on the cash machine and vide 'Z' slip No. 7789, the total sale in the sum of Rs. 31,067.45 had taken place. It was found that the sale of 24/10/96 in the sum of Rs. 41,387.25 had also not been deposited. As per the statement of the prosecution witnesses, the cash of 24/10/96 was in possession of A1 RC Kala and the cash of 24/10/96 and 25/10/96 was counted together and it was found that there was a shortage of Rs.20,319.70. Ld. Counsel for A2 Vijay Sharma and A3 BS Negi had argued vehemently that the cash of 24/10/96 and 25/10/96 was mixed together at the instance of PW11 NK Goel only to falsely implicate A2 Vijay Sharma and A3 BS Negi. It had been argued that there was no shortage of cash in receipt of sale of 25/10/96 and the shortage of cash was only in receipt of 24/10/96. The prosecution witnesses and the defence witnesses have also stated that in the event of surprise check, the sale of two different dates should not be counted together and it seems that there was some irregularity in counting the cash, but I consider that once this Court had already held that accused persons were in conspiracy with each other, alone mixing of cash would not come to the rescue of the accused persons. It is correct that inspecting officials could have been more careful, but that would not absolve the accused persons from their offences. CBI has also alleged that cash of 3/10/96, 5/10/96, 6/10/96, 9/10/96, 10/10/96, 17/10/96 and 18/10/96 had not been deposited in the bank. The prosecution witnesses have made a consistent and corroborative CBI Vs. RC Kala & Ors. CC No. 17/11 Page 77 of 6 78 statement on oath that Branch Incharge was supposed to prepare the daily sales report and such sale report alongwith 'Z' slip and the cash memos, if any, is required to be submitted to the RDC alongwith cash deposit slip. The prosecution has successfully proved on record the daily sales report of above said dates as Ex.PW5/U1 to U7. These daily sales report are not accompanied with any cash deposit slip. It is also a matter of record as per Ex.PW11/A that there was cash shortage of Rs.20,319.70 in the surprise checking done on 25/10/96. The prosecution has also proved on record the ledger Ex.PW12/A which specifically indicates the sales shortage / theft pertaining to October 1996 in the sum of Rs.3,36,291.72. The trial balance Ex.PW5/P1 & P2 of the relevant period has also been proved on record by the prosecution which also shows the cash shortage. Even at the cost of brevity, it may be reiterated that the accused persons have not been able to deny the non deposit of cash. They have merely tried to pass the bucks on each other. The defence taken by the accused persons is simply improbable, unreliable and liable to be rejected at the outset. The sale proceeds which had come to the accused persons in neutral way has been misappropriated by the accused persons. While appreciating the evidence in the criminal case, the Court is required to separate the grain from the chaff. It may not be always possible to find direct evidence and therefore, sometime the veil has to be lifted so as to find out the real intention of the accused persons. In Sec. 13(1) CBI Vs. RC Kala & Ors. CC No. 17/11 Page 78 of 6 79

(c), the legislature has specifically mentioned the word "dishonestly" or "fraudulently". "Dishonestly" has been defined in Sec. 24 of Indian Penal Code. In order to make a person liable for dishonesty there must be some advantage gained by one person with a corresponding loss to the other person. In order to make a person liable for dishonest or fraudulent act, there has to be mensrea or criminal intention. However, in order to ascertain this intention, which is a mental element, the Court is to look into the acts, omission or conduct of the parties. The accused persons in the present case had either been not depositing the sale proceeds or depositing it after some delay. This act on th part of the accused persons cannot be taken within the purview of negligence or dereliction of duties. The retention of huge cash with the accused persons unerringly indicates towards the malicious intent to deprive the actual owner i.e., the Government, in the present case. The accused persons came into the possession of the cash of sale proceeds for a specific purpose and they were required to deposit it in the bank or RDC and therefore, they were entrusted with the same and required to apply in accordance with the regulations and norms. It is a settled proposition that the expression "entrustment" would have to be interpreted in a liberal manner to cover all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which the possession has been handed over. The accused persons herein were merely CBI Vs. RC Kala & Ors. CC No. 17/11 Page 79 of 6 80 an agent who had received the cash on behalf of their principal had fraudulently misappropriated the same. The accused persons in the present case were merely authorised to collect money on behalf of the Super Bazar and they were entrusted with the money when they collected the sale proceeds and therefore, the management of Super Bazar on whose behalf the sale proceeds was collected became the owner as soon as the amount was handed over against the sale of goods to the person, accused herein so authorised to collect on their behalf. Similarly, in respect of stock shortage found out on different dates, the prosecution has duly proved on record the inventory sheets No. 10151 to 10175 prepared at the time of stock taking on 26/3/96 as Ex.PW7/A1 to A25. In respect of the stock taking on 26/3/96, the prosecution has proved on record, the inventory sheet Ex.PW3/A3 wherein the quantity and value of the palmolin oil has been changed. In respect of this interpolation though the CBI has not been able to pin down the forger, but PW3 Sandeep Kumar who had authored Ex.PW3/A3 has specifically stated on oath that he had shown the balance of palmolin oil as 5 litres which has been changed to 1500 litres by forging his signatures. In this regard, the prosecution has not been able to prove the actor who had done this forgery but this is also one of the chain of the fact which prove that the accused persons were in conspiracy with each other, had been manipulating the record for the purpose of misappropriation of goods and articles. The CBI Vs. RC Kala & Ors. CC No. 17/11 Page 80 of 6 81 prosecution has also alleged that cash memo No. 4721 and 4722 were handed over to A3 BS Negi. The register Ex.PW14/C has been duly proved on record. The copies of the cash memos Ex.PW14/A and Ex.PW14/B have also been proved on record by the prosecution. These cash memos were handed over to A3 BS Negi and the case of the prosecution is that A3 BS Negi sold the material of Super Bazar vide these cash memos and did not deposit the amount of the sale proceeds in the bank or the RDC. It is interesting to note that A3 BS Negi had not disputed the issuance of such receipt books i.e. Ex.PW14/A and Ex.PW14/B. He has taken a very vague defence and has not come clear on the same. The FSL report has also proved that such cash memos were issued by BS Negi. The total sale amount of these cash memos are in the sum of Rs.41,103.25 which were not deposited in the bank or RDC. Thus, the prosecution has successfully proved that accused persons in conspiracy with each other had misappropriated the sale proceeds collected from the cash memo 4721 and 4722. The prosecution has also alleged that stock shortage in the sum of Rs. 89,318.16 was found in the stock taking on 25/10/96. The prosecution had duly proved on record the final statement prepared by PW11 NK Goel as Ex.PW11/B. During stock taking, inventory sheet No. 96951 to 97000 Ex.PW5/A1 onwards has been proved on record. It is pertinent to mention here that these inventory sheets duly bear the signature of the accused persons. The prosecution has duly CBI Vs. RC Kala & Ors. CC No. 17/11 Page 81 of 6 82 proved on record the document Ex.PW5/D duly signed by all the three accused persons certifying that the entire stock held by the branch has been taken into inventory sheet No. 96951 to 97000 while conducting the physical stock taking and nothing is left. It was also certified that the rates shown in inventory sheets is as per store demand issue vouchers issued by Trilokpuri RDC. The document on record Ex.PW11/B specifically indicates the opening balance, the stocks received from 16/10/96 to 25/10/96, the stock as per management information system on 15/10/96 and the sale conducted during this period and this proves that there was stock shortage of Rs. 89,318.16. As I have discussed above, the goods were supplied to the Super Bazar branch by the RDC on the basis of demand sent by the branch and such articles are meant for the purpose of sale at the Super Bazar branch. By necessary implication, the goods used to be entrusted to the officials of the Super Bazar branch for the purpose of the sale. If any shortage is found in that, then it is the fact which is in the special knowledge of such employees and in case, they fail to explain the same by necessary implication they have to be held to have misappropriated such goods. How it can happen that the articles which have been sent to a branch for the sale are lost? How it is possible that there is stock shortage of such a huge amount? Can accused persons be allowed to take the plea of shifting of onus on each other and not accounting for such costs. This Court is of the considered opinion that this CBI Vs. RC Kala & Ors. CC No. 17/11 Page 82 of 6 83 was for the accused persons to explain that how and in what manner there was shortage of stock. The prosecution has duly proved on record, the inventory sheets showing the shortage of stock and then there was the fact which was in the special knowledge of the accused persons which was for them to explain. The stock shortage found on 13/11/96 in the sum of Rs. 67,055.95 for the period 26/10/96 to 13/11/96 have also been proved by the prosecution. It is pertinent to mention here that in pursuance to a complaint the stock taking was done on 25/10/96 and at that time, the stock in the sum of Rs.89,318.16 was found short and thereafter, again stock taking was done on 13/11/96 and this time again the stock for Rs.67,055.95 was found short. It shows the audacity of the accused persons that despite having been found and caught, there is again huge shortage found and again for this time also no plausible explanation came forth. Here, I would like to remark upon the careless and negligent approach of the senior officer of Super Bazar. On 25/10/96 they had come to know about the serious fraud having been committed but it took them around 03 weeks even to change the staff and it took around good 78 months for them to lodge a case against them with the CBI. This fact shows the casual approach even of senior officers of such a big enterprise. The public money has been dealt with in a callous manner. Subordinate officials were given a immunity to play with the public fund to the detriment of the common man of this country. It is beyond understanding CBI Vs. RC Kala & Ors. CC No. 17/11 Page 83 of 6 84 that why immediate action was not taken against the erring officials. I have gone through the record. Even some of the notings are suggesting that the accused persons have been trying to influence the senior officers. Even why such an opportunity has been afforded to them. Again the stock taking on 13/11/96 and the inventory sheet 97001 Ex.PW5/G1 to 97038 Ex.PW5/G38 was prepared. The result of the physical stock taking Ex.PW5/I was duly proved by PW19 Harvinder Singh. The statement showing cash sale and other material was also prepared. I have also found a document where in accused A1 RC Kala has duly certified that all the goods lying in the branch are taken in the inventory sheets. The CBI has also proved on record the consolidated receipt and issued certificate for the period ending March 1995 as Ex.PW6/A wherein allegedly the figure was changed from Rs. 21,17,086.50 to Rs.21,10,086.50 as Ex.PW6/A. This document had duly been signed by A1 RC Kala. The witness has duly come in the witness box and has stated that the interpolation was done lateron after this signatures. The changing of figure has also been proved by the handwriting expert. Thus, the prosecution by way of detailed evidence, both oral and documentary has proved on record that the goods and cash which were entrusted to the accused persons was dishonestly and fraudulently misappropriated by the accused persons.

CBI Vs. RC Kala & Ors. CC No. 17/11 Page 84 of 6 85 EXTRA JUDICIAL CONFESSION:

10.0 Accused persons have also alleged to have made extra judicial confession on 25/10/96 and 26/10/96. The prosecution has proved the extra judicial confession made by A2 Vijay Sharma as Ex.PW6/D and Ex.PW6/E and A3 BS Negi as Ex.PW6/H. A1 RC Kala also made an extra judicial confession Ex.PW6/F on 25/10/96. A3 BS Negi also made another extra judicial confession in his own handwriting Ex.PW6/G on 25/10/96. The accused persons have disputed the extra judicial confessions. A2 Vijay Sharma and A3 BS Negi have stated that they were forced to make those statements and this is not their voluntary statement. A1 RC Kala has stated that in his so called extra judicial statement, he has merely stated his negligence and on the basis of this, he cannot be held liable. The law regarding extra judicial confession is very well settled.

The basic test to find extra judicial test is whether the confession was primarily volunteered. If so, whether it is true or trustworthy.

If the confession is not voluntary, it must be excluded or rejected brevi manu. In such a case, the question of proceeding further to apply the 2nd test does not arise. However, if first test is satisfied, the court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece evidence, there is no rigid canon CBI Vs. RC Kala & Ors. CC No. 17/11 Page 85 of 6 86 of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the 2nd test. Reference can be made to S. Arul Raja Vs. State of Tamil Nadu, 2010 [4] JCC 2451.

10.1 It is a settled principle that the concept of extra judicial confession is primarily a judicial creation and must be used with restraint. Such a confession must be used only in limited circumstances and should also be corroborated by way of abundant caution. The evidentiary value of the extra judicial confession must be judged in the facts and circumstances of each individual case. Extra judicial confession, if voluntarily made and fully consistent with the circumstantial evidence, no doubt, establishes the guilt of the accused. The extra judicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. However, the extra judicial confession cannot ipso facto be termed to be tainted. An extra judicial confession, if made voluntarily and proved, can be relied upon by the courts. Similarly, in Sanjay Vs. State, 2009 [3] JCC 2337, it was inter alia CBI Vs. RC Kala & Ors. CC No. 17/11 Page 86 of 6 87 held as under :

"Law is well settled. An extra judicial confession is on the face of it a weak piece of evidence and in the absence of corroboration on material particulars rule of caution demands that it should not be relied upon. Courts are reluctant in the absence of chain of cogent circumstances to rely on this piece of evidence for the purpose of recording conviction."

In Hemraj @ Baba Vs. State, 167 (2010) DLT 734 (DB), it has been inter alia held as under :

"Since as held in the decision reported as Shankaria Vs. State of Rajasthan, AIR 1978 SC 1248, confessions, if voluntarily and truthfully made, are an efficacious proof of guilt, therefore, when in a capital case prosecution demands a conviction of the accused, primarily on the basis of his confession, the Court must apply a doubt test :

(i) Whether the confession was perfectly voluntary ? (ii) If yes, whether it was true and trustworthy ?

Satisfaction of the first test i.e. the confession being completely and perfectly voluntary is a sine qua non for its admissibility in evidence. If the first test is satisfied, the Court must, before acting upon the confession, reach the finding that what is stated therein is true and reliable. For judging the reliability of a confession, no rigid canon of universal application can be prescribed. While dealing with reliability of a confession and in particular an extra judicial confession, three factors have to b e kept in mind. Firstly, (i) to whom it is made ; (ii) the time and place of CBI Vs. RC Kala & Ors. CC No. 17/11 Page 87 of 6 88 making it ; and (iii) the circumstance, in which it was made. Some decisions have highlighted a fourth factor to be kept in mind ; being the credibility of the witness who speaks to such a confession."

The accused persons A2 Vijay Sharma and A3 BS Negi in their extra judicial confession have unequivocally spelled out their role. I have gone through the same. The extra judicial confession does not seem to have been made under any force, threat or allurement. These extra judicial confession seems to have been made to a proper person, the language of the extra judicial confession also indicate the voluntary nature of the same. I find that there is nothing on record to disbelieve the extra judicial confession. In any case, I am only taking support of the extra judicial custody. Otherwise, the prosecution has been able to prove its case on the basis of their documentary evidence on record. However, this extra judicial confession has come as a strength to my finding that accused persons in conspiracy with each other had dishonestly or fraudulently misappropriated or otherwise converted for their own use the property entrusted to them or under their control as a public servant or allowed any other person to do so. SANCTION:

11.0 The accused persons have challenged the sanction. It has been argued that the sanction in this case has been granted mechanically without CBI Vs. RC Kala & Ors. CC No. 17/11 Page 88 of 6 89 any application of mind. Section 19 of Prevention of Corruption Act provides that the previous sanction is necessary for prosecution for the offence u/S 7, 10, 13 and 15 PC Act. However, it is interesting to note that legislature in clause (3) and clause (4) of Section 19 has specifically laid that merely on technicalities pertaining to some omission or irregularity in grant of sanction, the conviction or sentence should not be set aside. The bare perusal of subsection (3) & (4) would reveal that the same are applicable to a finding, sentence or order passed by a Special Judge during the trial after taking cognizance of the offence. Ld. PP has argued in the present case that the accused persons have not taken any objection as to the validity of sanction at the time of taking of cognizance and therefore, now it does not lie in their mouth to challenge the sanction on the ground of it having been accorded mechanically or without any application of mind.

It is a matter of record that during the course of trial, the accused persons have not taken a plea that there has been any failure of justice. On the ground that accused persons have not been given an opportunity of hearing during the proceeding of grant of sanction, Ld. PP has cited Superintendent of Police (CBI) Vs. Deepak Chowdhary, AIR 1996 SC 186. In this case, the Apex Court inter alia held as under:

"5... The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a CBI Vs. RC Kala & Ors. CC No. 17/11 Page 89 of 6 90 Court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being administrative act the need to provide an opportunity of hearing the accused before according sanction does not arise..."

It is a matter of record that accused persons have not taken any plea regarding failure of justice during the course of trial. It seems that the accused persons have taken the plea only for the sake of plea. I have gone through the sanction order Ex.PW1/A. The sanction order has been duly proved by PW1 SP Pathak, Managing Director, Super Bazar. It is a composite sanction order granted against all the accused persons. All the facts have been discussed in the sanction order. There is nothing to suggest that the sanction has been granted mechanically or without any application of mind. Hence, I do not find any flaw in the sanction order. 12.0 I consider that in view of the discussions made herein above, I find that accused persons A1 RC Kala, A2 Vijay Sharma and A3 BS Negi are liable to be convicted for the offence u/S 120B IPC and for the CBI Vs. RC Kala & Ors. CC No. 17/11 Page 90 of 6 91 offence u/Ss 471 IPC, Sec. 13(1)(c), 13(1)(d) r/w 13(2) of the PC Act in RC No. 25(A)/97.

Accused A4 Shiv Prasad acquitted of the charges u/Ss 120B r/w 409/420/467/468 r/w Sec. 471 IPC and Sec. 13(2) r/w 13(1)(c) & 13(1)

(d) of PC Act in RC No. 25(A)/97.

Accused A4 Shiv Prasad is on bail. His bail bond is cancelled. Surety is discharged. Original documents, if any, on record be returned to the surety against proper acknowledgment.

12.1 In terms of section 437(A) Cr.P.C., accused Shiv Prasad is directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.

Announced in the open court                                  (Dinesh Kumar Sharma)
today on 31.1.2012                                    Spl. Judge(PC Act) CBI: N. Delhi
 




CBI Vs. RC Kala & Ors.                          CC No. 17/11                         Page 91 of 6

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Central Bureau Of vs . 1. Rc Kala on 7 February, 2012