Delhi District Court
Cbi vs Anil Kumar Dhyani on 29 May, 2013
CBI vs Anil Kumar Dhyani
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC Nos. 19/12 (Old CC No. 30/07)
RC No. DAI/2002/A0033/CBI/ACB/ND
U/S 420/477A/201 IPC; 13(1)(d) r/w 13(2) of PC Act 1988
Unique ID No. : 02403R0215012005
Central Bureau of Investigation
vs.
Anil Kumar Dhyani S/o Sh. Gajender Prashad Dhyani,
R/o 207B, Pocket1, Mayur Vihar, PhaseI, Delhi110091
Permanent address:
Village Sandli Talli, Post Office Degoli Khal Gujru,
District Pouri Garwal (Uttranchal)
Date of FIR : 30/05/2002
Date of filing of Chargesheet : 27/04/2005
Case received by transfer on : 03/07/2012
Arguments concluded on : 10/05/2013
Date of Judgment : 29/05/2013
Appearances
For prosecution : Sh Anil Tanwar, Ld. Public Prosecutor for CBI.
For accused : Sh Satish Tamta, Ld. Counsel for accused.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 1/84
CBI vs Anil Kumar Dhyani
JUDGMENT
FACTS GERMANE TO REGISTRATION OF CASE AND CONCLUSION OF INVESTIGATION The present FIR RC DAI 2002 A 0033 was registered against accused Anil Kumar Dhyani, Machinist working in 505, Army Base Workshop Delhi Cantt who had been assigned the task of preparing the pay and allowance of Industrial Workers of 505, Army Base Workshop Delhi Cantt for Check Rolls Nos. XI and XII during the period July 1998 onwards. It has been further alleged that accused used to feed the data in computer and get the print out of the said check rolls and had tampered with the total figures in summary of Check Rolls specifically to enhance the total figure under the head EOL, Miscellaneous Credit on credit side and correspondingly increase the net pay. The misappropriated excess credit amount so generated was siphoned by him either by increasing the net pay or by adding fictitious name in the payment sheets while assisting the Paying Officer in disbursement of pay to individual workers. The payment sheets as per the allegations were prepared after deducting unaudited deduction called regimental deduction from the net pay of the workers. By adopting this modus operandi, accused had misappropriated more than Rs 1.5 lacs during the period June 1999 to February 2001. It has further been alleged that the accused had caused the disappearance of Check Roll No. XII for the month of January 2000 and the Payment Sheets for the entire period generated with a view to screen the offence/offender. These acts of the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 2/84 CBI vs Anil Kumar Dhyani accused could not be detected for 21 continuous months because noone checked the cumulative total of each heads from the heads of individual pages; even the authorities of Finance Section and Audit had only checked the plus/minus of Summary Sheets presuming that the brought forward totals of Check Rolls sheets were correct.
2. Investigation had further revealed that the Check Roll Clerk (which was the duty assigned to the accused) was supposed to prepare payment details of all the workers listed in a particular check roll allotted to him by 25th of each month on the basis of attendance received from Time Keeper Section; he is supposed to prepare the pay detailed as per the pay scale, attendance and deduction like GPF, CGHS etc.; the check rolls were first prepared manually on the carbon copy of last month's check roll and thereafter given for final printing on computer; the computer operator used to feed data in the computer on assistance of concerned clerk by dictating the data; the total of all the pages of check roll was summerized in the shape of separate page called Summary Sheet Page in which total of individual head as well as gross and net pay etc were projected along with head wise recoveries; after getting the print out of check rolls and payment sheets from computer operator the Check Roll Clerk had to check the entries for its correctness, otherwise he had to get it corrected and get another print.
3. Investigation had further revealed that the accused used to RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 3/84 CBI vs Anil Kumar Dhyani correct the statements of his check rolls and payment sheets by himself and also maintained floppy of his file because he was well versed with the computer operations and often used to prepare his check rolls and payment sheets by himself and at times even used to help his colleagues.
4. In the instant case allegedly Check Roll No. XI had been falsified and the figure had been inflated and in this charge sheet there were three instances for the period December 2000 to February 2001 i.e., of Rs13,500+Rs10,592+Rs10,551(month wise) respectively under different heads of Misc. Pay, Basic Pay, CCA, DA & HRA totalling a sum of Rs 34,643/. Allegedly the accused had manipulated the last sheet of check roll on which head wise total of all the heads were shown and this sheet was called Summary Sheet; allegedly accused had enhanced the total figure in the summary of check roll under the head MISC PAY, BASIC PAY, CCA, DA & HRA on the credit side because of which gross as well as net amount of check roll got increased while the salary of all the workers remained correct as due drawn as shown in the check roll sheets so that no worker can claim salary more than the due drawn. Allegedly the inflation in the check rolls were done by accused himself as he has filled the net amount payable and recoveries in his own hand writing on the cyclostyled sheet pasted below the computerized summary sheet of check rolls and this had been confirmed by the report of GEQD.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 4/84 CBI vs Anil Kumar Dhyani
5. Allegedly from the evidence gathered in the course of investigation, it was borne out that accused was well versed in computers and in the absence of the computer operator, he often used to prepare his check rolls and payment sheets by himself and even as per the statement of PW V.K. Nagpal, the Accounts Officer before submitting the check rolls to him for approval it was the duty of the check roll clerks to check it for 100% correction before it was submitted to the office Superintendent. Had this been done fairly and honestly, the inflated figures in the check roll would not have appeared. Allegedly accused was responsible in siphoning of the enhanced funds and the inflated figures which had been shown by him in the summary sheets of all the check rolls. Allegedly all the payment sheets prepared by the accused were found destroyed whereas the payment sheets of the other check roll clerks were found intact and attached to the relevant check rolls. Allegedly the accused on false pretext collected the pay packets of other workers also who were absent on the trust reposed in him by the Paying Officer; the net amounts payable and the recoveries which were in the handwriting of the accused on the cyclostyled sheets pasted below the computerized summary sheets of the check rolls had been confirmed by the report of GEQD. Allegedly accused wrongfully gained pecuniary advantage of Rs 34,643/ himself accordingly putting 505, Army Base Workshop at corresponding wrongful loss, as per following particulars:
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 5/84 CBI vs Anil Kumar Dhyani Month/ Amount Amount Total Actual Inflated Pencil/ Net Final net Year inflated inflated inflated Net Net Regimen amount amount in in the in amount amount of amount of tal refunded actually which head addition/ due Check Check recovery by the disbursed Misc. of deletion to MISC Roll Roll amount DO by the Pay MISC of PAY (In Rs.) (In Rs.) (In Rs.) after DO was PAY fictitious & disbursement (In Rs.) inflated (In Rs.) name addition (In Rs.) (In Rs.) (In Rs.) of fictitious pay (In Rs.) Dec 5,605 Basic 13,500 4,98,429 5,11,929 40,149 6,158 4,65,622 2000 4500 CCA 200 DA 1845 HRA 1350 Jan 1,500 Basic 10,592 5,08,113 5,18,705 38,212 27,797 4,52,696 2001 5200 CCA 200 DA 2132 HRA 1560 Feb 1,500 Basic 10,551 4,99,132 5,09,683 42,630 21,865 4,45,188 2001 5171 CCA 200 DA 2120 HRA 1560 Total 8,605 26,038 34,643 15,05,674 15,40,317 1,20,991 55,820 13,63506
6. On completion of the investigation, chargesheet was filed by the investigating agency on 27/04/2005. The cognizance of the case was taken by my Ld. Predecessor on 18/08/2005 and accused was summoned. On appearance accused was enlarged on bail.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 6/84 CBI vs Anil Kumar Dhyani
7. Requirements under Section 207 Cr.P.C were complied with.
CHARGES
8. In terms of order of charge dated 06/03/2007 of my Ld. Predecessor, charges for offences under Sections (1) 420 IPC; (2) 477A IPC; (3) 201 IPC and (4) Section 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988 were framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
9. To connect the accused with the offences charged, prosecution has examined in all 44 witnesses namely Sh Kishan Dayal Hasija (PW1); Sh Anand Singh (PW2); Sh Om Parkash (PW3); Sh Praveen Kumar Sikka (PW4); Sh V.K. Tyagi (PW5); Sh Shyam Sunder Srivastava (PW6); Sh. Manoj Chaurasia (PW7); Ms. Naina Bakshi (PW8); Ms. Anupama Rani (PW9); Sh Anuj Kamal (PW10); Ms. Sunita Kumari (PW11); Sh Narender Kumar (PW12); Mrs. Kamlesh Bisht (PW13); Sh Vijay Singh Saini (PW14); Sh Krishan Kumar Kaushik (PW15); Sh Balwant Singh (PW16); Sh Harish Kumar Vashisth (PW17); Sh Asha Ram Yadav (PW18); Lieutenant Colonel Sachin Marwah (PW19); Sh Malkhan Singh (PW20); Sh Satya Prakash (PW21); Sh Virender Singh (PW22); Sh Kanwar Bhan Saini (PW23); Sh Hari Prakash Arya (PW24); Sh Yog Raj (PW25); Sh Manmohan (PW26); Sh Ved Prakash (PW27); Ms. Chitra (PW28); Sh Subhash Chander RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 7/84 CBI vs Anil Kumar Dhyani (PW29); Sh Devender Kumar (PW30); Sh Murli Ram (PW31); Sh Dheeraj Upadhayay (PW32); Sh Sunil Rai Aggarwal (PW33); Brigadier R.K. Singh (PW34); Sh Baldev Singh (PW35); Sh Rajeshwar Kumar (PW36); SI Parveen Ahlawat (PW37); Dr. Ravindra Sharma (PW38); Sh Ram Narayan Singh (PW39); Brigadier Bibhuti Bhushan (PW40); Lieutenant Colonel Mukesh Agrawal (PW41); Lieutenant Colonel Sandeep Mathur (PW42); IO/Inspector Naveen Kumar Jain (PW43) and Lieutenant General N.B. Singh (PW44). Partly examined PW30 was dropped as PW in terms of order dated 18/08/2011 of my Ld. Predecessor.
STATEMENT OF ACCUSED
10. Thereafter accused was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication. Accused further stated that his house was raided but no incriminating material was seized by the CBI; the Paying Officer used to report the Accounts Officer and thereafter the Check Roll Clerk who used to report; the check roll was put up before the Office Superintendent two days before the pay disbursement along with the change details; the office superintendent had sufficient time to pick up and check the random checking of all the check rolls. Accused stated that the cash was given to the disbursing officer in a bag for disbursement purpose; then the Disbursing Officer along with two Assistants and the Dealing Clerk were reaching at the counter; the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 8/84 CBI vs Anil Kumar Dhyani signatures of the individuals were taken in the presence of all the concerned persons; the details were prepared on the next day of disbursement of the salary while reconciliation of the cash; the name of the Paying Officer detailed for the disbursement of the salary and also the Officer for disbursement of salary to the absentee employees were published in the Daily Order PartI of the pay disbursement and the officer could be the same or different also. Accused admitted that initially he was given the work of diary dispatch and later of preparing check roll; the print out of the cumulative page totals was computer generated. Accused stated that he had never worked under Mr. S.R. Aggarwal. Accused stated that the check roll was never put up before Accounts Officer twice for his signing; there was no time prescribed for audit of the check roll; even though he (accused) was from the technical side, he had been given the duty for clerical work as per the directions of the Commandant, 505 Army Base Workshop. Accused stated that all the print out of all the heads were computer generated; there was no variation in any individuals net and gross salary in the check roll. Accused stated that his date of joining was 28/07/1997. Accused admitted that the ticket number of Manoj Chaurasia was 4829. Accused stated that no computer classes were held or any type of computer education was given by the institute namely Baba Saheb Ambedkar Polytechnic and he has no knowledge about Ex PW8/B and Ex PW18/E. Accused admitted that ticket number of Ms. Anupama Rani was in check roll no. XII and later to check roll no. XI but he did not RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 9/84 CBI vs Anil Kumar Dhyani know when her name was shifted to check roll no. V; the names of the disbursement officers, Paying Clerk and the location of the pay distribution was known on publication of the Daily Order PartI which was published 2/3 days prior to the date of disbursement of pay; the disbursement of the salary to the lady employees was done early and never at the end; the salary of Ms. Sunita Kumari was deposited with the cashier as an absentee employee for the month of May 2000 to August 2000 and the salary for the month of September 2000 was collected by her personally. Accused further stated that the check roll could be signed by the Paying officer and Senior Chargeman on the next date of pay disbursement; identifying the individual was the job of the Senior Chargeman (identifier and witness) and the Paying Officers. Accused stated that they had been given the diploma in lieu of the fee which the institute had already taken from them for part time diploma in Mechanical Engineering; no classes for computer course were held or any kind of training theoretical or practical was given by the institute namely Baba Saheb Ambedkar Polytechnic; the Court of Inquiry was ordered vide convening order dated 15/06/2001 under Army Rule 180 which was not applicable to the Central Government, Defence Civilian employee; the whole court of inquiry was conducted in violation of Army Rule 180. Accused stated that the marking of absentee employees on the check roll was done on the part of Paying Officer as per Daily Order Part I. Accused stated that when he was handed over the charge, Sh Virender Singh had already been posted out of the computer section.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 10/84 CBI vs Anil Kumar Dhyani Accused stated that the change details was generated by the computer automatically but he did not know if the payment voucher was also known as grand summary. Accused stated that the data of Pencil Recovery was directly fed on the computer by the Cashier or the Society Member; it was never prepared by the Check Roll Clerk; the date of appointment of PW24 Sh Hari Prakash Arya was 17/01/1998; PW24 Sh Hari Prakash Arya was specially detailed in the computer section for feeding the data and taking the print out from the computer of all the check rolls and pay bills. Accused stated that he never worked with Sh Ved Parkash nor ever executed any document in his presence. Accused stated that the net pay, gross pay and summary sheets were computer generated. Accused stated that so long as he remained posted in 505, Army Base Workshop, PW31 Sh Murli Ram had not joined. Accused stated that the payment sheets were unaudited documents and were kept in the custody of the Office Superintendent after the audit was done. Accused stated that during his tenure of service in 505, Army Base Workshop, Mr. Sunil Rai Aggarwal was not the Account Officer. Accused stated that the GEQD report of the expert was erroneous. Accused stated that there was no dibbi as such it was a wooden tray having small selve in which the pay packets of the individuals were placed; the authority letter for collecting the pay of the absentee employee was produced by the bearer of the authority letter at the time of disbursement of the pay; the pay packets of the absentee employee was deposited back with the cashier by the paying officer; only the office RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 11/84 CBI vs Anil Kumar Dhyani superintendent can tell about the payment sheets as after audit the record used to remain in his custody. Accused stated that as long as he was in 505, Army Workshop, Brig. Bibhuti was not the Colonel Administration. Accused stated that there was no fix time for audit of check rolls; name of Manphool was mentioned in documents as a clerical mistake while the correct name of the employee was Harphool. Accused stated that he never worked under Lieutenant Colonel Mukesh Agrawal. Accused stated that the sanction accorded was without application of mind and erroneous. Accused admitted that his signatures and specimen handwriting was taken. Accused also stated that he had been made a scape goat for the lapses committed by the Computer Operator, Office Superintendent, Accounts Officer, Paying Officer, Senior Chargeman, Audit and Test Audit Authority; he (accused) was pressurized by Colonel Vijay Kumar Tyagi, Presiding Officer of Court of Inquiry, Colonel Administration R.K. Sharma and Brgd. I.S. Cheema to deposit the amount from own pocket of accused and on his refusal to do so, this case was foisted on him.
DEFENCE EVIDENCE
11. Accused entered into his defence and examined Sh Naresh Kumar as DW1 and Colonel S.G Dilbagi as DW2.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 12/84 CBI vs Anil Kumar Dhyani ARGUMENTS
12. I have heard the arguments of Sh Anil Tanwar, Ld. Public Prosecutor for CBI, Sh Satish Tamta, Ld. Defence Counsel, the accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
13. Ld. PP for CBI argued that by the evidence of prosecution witnesses, the prosecution has been able to prove its case against the accused as laid. It was also argued that while working as Machinist in 505, Army Base Workshop, accused was assigned the duties of Check Roll Clerk for preparation of salary rolls of industrial workers and in course of his such duties, the accused inflated and falsified Check Roll No. XI for the months of December 2000; January 2001 and February 2001 and payment sheet and computation, deliberately with criminal intention to cheat and defraud his employer, in this case to the tune of Rs 34,643/, causing wrongful loss to his employer to that extent and causing wrongful gain to himself. It was also argued that even the accused caused disappearance of the payment sheets of the aforesaid check rolls of the aforesaid months though the payment sheets of other check roll clerks were found intact and attached to relevant check rolls. Also was argued that even on false pretext the accused collected the pay packets of some other workers who were absent on the trust reposed by him by the Paying Officer to put himself to wrongful gain. Also was argued that even the reports of GEQD, Ex PA38/1 and Ex PA38/2 RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 13/84 CBI vs Anil Kumar Dhyani confirmed the writings and signatures of the accused on the cyclostyled sheets pasted below the computerized summary sheets of the check rolls. It was also argued that by falsification of accounts, putting his employer to wrongful loss, putting himself to wrongful gain and causing aforesaid evidence of offence to disappear, the accused had by corrupt or illegal means not only obtained for himself the pecuniary advantage of Rs 34,643/ in this case but also had abused his position as a public servant and had put his employer to wrongful loss of Rs 34,643/ in this case and had committed criminal misconduct accordingly. Ld. PP for CBI has prayed for conviction of the accused for the offences charged.
14. Ld. Defence Counsel argued that accused had been made a scape goat for the lapses committed by the Computer Operater, Office Superintendent, Accounts Officer, Paying Officer, Senior Chargeman, Audit and Test Audit Authority. It was also argued that (1) accused was employed as Machinist and despite that he was assigned the task of Check Roll Clerk; (2) money was not handled by accused at all at any stage of collection, disbursement of salary or deposit of balance cash which was left after disbursement of salary, to the Cashier; (3) accused was not a computer literate nor had any knowledge to work in the GW Basic programme on computer of 505, Army Base Workshop, on which programme the data in sole computer of computer branch of 505, Army Base Workshop was fed by computer operator PW H.P Arya nor accused had any knowledge of the password necessary for access to such RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 14/84 CBI vs Anil Kumar Dhyani computer; even PW H.P Arya admitted that such password was known to him and his Incharge only; PW Manoj Chaurasiya, PW Anuj Kamal and PW Harish Kumar Vashishth were taught nothing at Baba Saheb Ambedkar Polytechnic from where they as well as accused had got only the certificate of a computer course though they had initially paid the fees for diploma in Mechanical Engineering on part time basis for which course said institute was found not recognized by AICTE, so to adjust the fees, the said institute gave the certificate of computer course without imparting any education, classes or practical training; (4) it was the payment sheet which reflected the money paid to the employee as monthly salary; it was the job of PW H.P Arya to prepare the payment sheet and not that of accused as Check Roll Clerk; there was no hand of accused in doing anything for generation of payment sheets; as per PW H.P Arya, payment sheet would generate automatically after data of check rolls and recoveries relating to the society were fed into the computer; even PW Kamlesh Bisht stated in deposition that unless one is trained in GW Basic Programme, he or she cannot prepare the pay package independently; (5) as per the charter of the duties and responsiblilities, it was the responsibility of the Accounts Officer to see that the prepared check rolls were in order, subsequent to which the payment procedure was to be followed; (6) PW Kanwar Bhan Saini had stated that the regimental recovery sheets used to be retained by the cashier but these regimental recovery sheets were not seized during the course of investigation; (7) PW Om Parkash, the then UDC in Finance RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 15/84 CBI vs Anil Kumar Dhyani Section of 505, Army Base Workshop who used to prepare the Check Roll Nos. IX and X in the years 19992001; DW1 Naresh Kumar, the then Check Roll Clerk, in Finance Section of 505, Army Base Workshop from 1993 to 2001 and PW V.K Tyagi, the then Colonel General Manager (Project), T72, 505, Army Base Workshop in their depositions had stated that the check rolls were in the custody of the Superintendent and not in the custody of Check Roll Clerk; PW Om Parkash further stated that Superintendent would further hand over the check rolls to the Daftari for audit; there was no movement register or record maintained for movement of the check rolls; DW1 stated that after audit check rolls used to remain in store; PW V.K Tyagi admitted that the over all custody of the payment sheets and check rolls was with the Accounts Officer in the Finance Section while the dealing clerk was supposed to handle them as far as they pertained to his responsibility; PW Ms. Chitra admitted that every check roll was audited montly and the check rolls were computer generated and no manual changes were therein; PW Yograj stated that after distribution of salary, concerned clerk used to deposit the check rolls with the accounts office; (8) whatever pay packets were taken by accused, they were taken by authority letter, as per the procedure followed in 505, Army Base Workshop; (9) no prosecution witness had deposed of having received money less in his monthly salary or not having received pay packet of his monthly salary nor any person whispered of any such grievance against accused; (10) as per Rule 182 of the Army Rules 1954 (as amended), the proceedings or confession in the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 16/84 CBI vs Anil Kumar Dhyani Court of Inquiry was not admissible against the accused, so the Court of Inquiry report Ex PW6/A, is inadmissible in evidence; (11) there is no admissible evidence on record that accused had destroyed any document much less then the payment sheet; (12) even the task of preparation of pay packets was of the Paying Officer, Chargeman and Identifier and not of the accused who did not handle any money in the course of collection or disbursement of pay or deposition of the balance pay packets after such disbursement of the pay. Ld. Counsel for accused has prayed for acquittal of the accused for the offences charged stating that the prosecution has failed to prove its case against the accused beyond reasonable doubt.
APPRECIATION OF EVIDENCE
15. PW27 Sh Ved Parkash, LDC in Establishment Section of 505, Army Base Workshop from 1998 to 2000 deposed that he used to maintain service record and leave record of the employees; at that time accused Anil Kumar Dhyani was posted as Machinist in Finance Section; service file of accused was Ex PW27/A, the employee/token number of accused was 4828. PW27 deposed that pages nos. 10,12,14,16,17,19,22, 26,27,28,29,30,31,32,33,34,35,38,39,40,42,49,50,52,57,58,60,61,62 and 63 of Ex PW27/A had signatures and writings of accused at point A which were identified by PW27 Sh Ved Parkash who stated of having got acquainted with writings and signatures of the accused in the course of his official duty. Ex PW27/A inter alia contains admitted writings A RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 17/84 CBI vs Anil Kumar Dhyani 52 to A61; A65 to A68; A70 to A78; A78/1; A79; A79/1; A80 to A84.
16. PW1 Sh Kishan Dayal Hasija, Assistant in 505 Army Base Workshop, deposed that he knew accused Anil Kumar Dhyani, as accused had worked under him (PW1) as a Clerk for about 23 years and PW1 Sh Kishan Dayal Hasija was told by Account Officer that accused Anil Kumar Dhyani was a Graduate and knew about the computer and will be helpful in preparing the Check Rolls; initially accused Anil Kumar Dhyani was given the duty of Diary Dispatch; after that accused was detained as a Check Roll Clerk by the Account Officer Sh V.K. Nagpal. In the course of his statement under Section 313 Cr.P.C, accused admitted that initially he was given the work of diary dispatch and later of preparing check rolls.
17. PW1 also deposed that he used to check the Check Roll and details of salary. PW1 stated that the Check Rolls were prepared by the dealing clerk concerned, which Check Rolls were 13 in number comprising as Check Roll nos. I to XIII; all these Check Rolls were checked by PW1 and then forwarded by him (PW1) to the Account Officer, Account Officer was also to check to the Check Rolls and used to sign it, then the Check Rolls used to come back to PW1 Sh Kishan Dayal Hasija to hand over such check rolls to concerned individual dealing clerks for payment to the unit employee; then the dealing clerk RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 18/84 CBI vs Anil Kumar Dhyani concerned used to report to the Payment Disbursing Officer; then the Payment Disbursing Officer used to report to the Account officer for withdrawing the amount for payment.
18. As per PW1, the Check Rolls were prepared by the dealing clerk 23 days earlier to the date of payment and then one day earlier (last day of the month) of the payment the details of cumulative page totals of all the 13 Check Rolls with change details form were put up to him (PW1) for checking. PW1 deposed that then he checked the totals and it was not possible for him (PW1) to check the details of each and every employee contained in 13 Check Rolls and he (PW1) used to sign after checking the cumulative page totals; the dealing clerk who had prepared the particular check roll also used to sign the Cumulative Page total in token of preparing the Check Roll. PW1 also stated that Account Officer used to sign after he (PW1) forwarded to Account Officer with the summary of change detail; after drawing the amount from the bank the Account Officer got the consolidated amount of all the 13 Check Rolls as per the change detail which was prepared by the Check Roll Clerk. PW1 deposed that summary sheets were prepared by him (PW1) on the last day of month on the basis of Change Details Sheet which were prepared by the Dealing Clerk; thereafter the Account Officer used to give the payment as per the Check Rolls to the Disbursing Officer as per Part I order of the Unit. PW1 stated that the cash was given to the disbursing officer in a bag for disbursement purpose; then the Disbursing RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 19/84 CBI vs Anil Kumar Dhyani Officer along with two Assistants and the Dealing Clerk were reaching at the counter, thereafter as per the details of the Dealing Clerk, the packets of the individual salary were prepared and in the packet the chit of the amount prepared by the Dealing Clerk was also put in the packet in which the payment was kept; thereafter employee one by one were called who was identified by the Assistant on the basis of identity card; both Assistants used to sign the Check Roll in the capacity of identifier and as a witness; the signatures of employee were obtained on the Check Rolls either in the presence of the Disbursing Officer or only in the presence of Dealing Clerk. As per PW1, after disbursement of the payment, balance amount of the absent worker was deposited by the Disbursing Officer to the Account Officer along with the details in the Change Detail Form; the summary sheet also was handed over to the Account Officer who used to sit along with the Cashier; summary sheet was always available with the Cashier. As per PW1, the Dealing Clerk used to prepare the details of the name of absentee worker containing the ticket number, trade, name and amount; these details were handed over to him (PW1) and then he (PW1) used to bind the details of absentee register. In his statement under Section 313 Cr.P.C accused stated that such details of the absentee register were prepared on the next day of disbursement of the salary while reconciliation of the cash. As per PW1, according to Absentee Register, the payment was made to the absentee industrial worker through the officer who was detailed by the Administration.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 20/84 CBI vs Anil Kumar Dhyani
19. As per PW1, the Internal Audit used to be conducted within three months; the Auditor had detected the over payment during the month of December 2000 and January, February 2001; Auditor raised objection and had put up the letter to the Commandant of the Unit; the Commandant directed the Account Officer and the Account Officer reported it to him (PW1) about the Over Payment. As per PW1, he could not understand how the over payment was made, then he (PW1) checked the details of payment in the Check Roll and Summary Sheet with the help of dealing clerk other than the dealing clerk who had prepared the check roll and he (PW1) found that the over payment actually had been made; he (PW1) checked the Check Rolls and summary sheets for the preceding period; he (PW1) submitted the details of the over payment to the Colonel Administration.
20. As per PW1, Check Roll No. XI, Ex PW1/N for the month of December 2000 of 505, Army Base Workshop, Delhi Cantt. contained 14 attendance sheets Ex PW1/N1 to Ex PW1/N14 of 109 employees, with which were 14 calculation sheets Ex PW1/N15 to Ex PW1/N28 and the signature / thumb impression of employees in token of receipt of salary; each attendance sheet and payment sheets were bearing signature of Account Officer Sh S.R. Aggarwal at point A; on page 35 Ex PW1/N29 of the said Check Roll cumulative net pay shown at point X is Rs 5,11,929/; but after the calculation the actual net pay shown in the red was Rs 4,98,429/ at point X1 and difference of Rs. 13,500/ is RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 21/84 CBI vs Anil Kumar Dhyani shown in the red at point X2; PW1 had signed this sheet Ex PW1/N29 at point A (Q18/3) and accused had signed at point B (Q18/4); Accounts Officer Sh V.K. Nagpal signed at point C (Q18/5).
21. As per PW1, Check Roll No. XI for the month of February 2001 Ex PW1/P had 14 attendance sheets of 109 employees Ex PW1/P 1 to Ex PW1/P14 and calculation sheets Ex PW1/P15 to PW1/P28 were bearing the signatures of Accounts Officer Sh S.R. Aggarwal at point A; the calculation sheets were bearing the signature and thumb impression of the employees in token of receipt of salary.
22. As per PW1, on page 34 Ex PW1/P29 of Check Roll XI Ex PW1/P, cumulative net pay mentioned is Rs 5,09,683/ at point X but the actual net pay was shown at point X1 in the red as Rs 4,99,132/; the difference of the amount of Rs 10,551/ is shown in the red at point X2; this sheet Ex PW1/P29 is bearing signatures of PW1 at point B1 (Q 20/5) and signatures of accused are at point B2 (Q20/4) and then Accounts Officer had signed at point B3 (Q20/6).
23. PW3 Sh Om Parkash deposed that in the years 19992001, he was posted as UDC in Finance Section of 505, Army Base Workshop and used to prepare pay Check Rolls No. IX and X. After preparation of check rolls, he (PW3) used to send them for the signatures of Account Officer; after signatures of the Accounts Officer, the check rolls would RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 22/84 CBI vs Anil Kumar Dhyani come back to him (PW3) through Office Superintendent; thereafter he (PW3) used to prepare summary of change details i.e., the requirement of currency notes of a particular denomination; the change details would again be sent for signatures of Account Officer through the Office Superintendent; after signatures of the Account Officer, the Superintendent would hand over the same to the Cashier; the Cashier would obtain the detail of the check rolls and would bring the payment from the bank; the Cashier would hand over the money for distribution to the Paying Officer; the Paying Officer would distribute the payment; the Paying Officer would send the check roll and the summary of payment back to the check roll Clerk; from the check roll and summary of payment, he (PW3) would find out the absentee employees and their payment would be deposited with the Cashier; the summary of payment would be pasted on the last page of the check roll, as it was part of that; thereafter check roll would be handed over to the Superintendent who would give it to the Daftari for audit and the same would then remain with him (PW3) for about a week; audit would be done within four to six months; ultimately the check rolls would be with the Daftari who would keep it in a room meant for that. PW3 stated that accused was working as Clerk, was from Technical side. As per PW3, check rolls could be summoned from Daftari in case of rectification of mistake or calculation of arrear.
24. PW15 Sh Krishan Kumar Kaushik, Chargeman in 505, RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 23/84 CBI vs Anil Kumar Dhyani Army Base Workshop stated that accused used to be Check Roll Clerk and used to look after mainly Check Roll No. XII; he (PW15) used to assist Paying Officer of Check Roll No. XII in making the payments; Check Roll No. XII for the month of June 1999, Ex PW1/A (which is common to all cases and is in CC No. 13/12) was bearing his (PW15) signatures at point A on last page which was so signed by him (PW15) as after payment the Paying Out Officer as well as the Assisting Officers had to sign the check roll; however, in some cases, when some of the employees did not come to collect their salary, their summary would be prepared by the Check Roll Clerk and in that case the check roll could be signed on the next date also.
25. As per PW15, Summary sheet was part of Check Roll No. XII for the month of June 1999, Ex PW1/A bearing his (PW15) signatures at point A; the name of the employee and the amount would be told by Check Roll Clerk, in the instant case by accused and the cash would be handed over by Paying Out Officer to the Assisting Officer for putting in the envelope of a particular employee; the envelope was bearing the token number of the employee, which was to be recorded by the Check Roll Clerk and in the instant case it was accused; he (PW15) would also assist the Paying Out Officer in the manner that whenever the number of a particular employee would come and he would be present, the envelope would be handed over to him; the employee would be identified by accused; the signatures of the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 24/84 CBI vs Anil Kumar Dhyani employee who had collected the salary, would be obtained by accused on the paper sheet available in the check roll and Ex PW1/A the signatures of the employees appear in the check roll as part of it; entire salary would not be disbursed in case some employees were absent; the balance amount would be tallied with the check roll and would be handed over by the Paying Out Officer to the Cashier and the check roll would be in the custody of accused.
26. As per PW15, the Check Roll No. XII for the month of August 1999, Ex PW1/G (which is common to all cases and is in CC No. 13/12) was bearing his (PW15) signatures at point A on the last page on the summary sheet as part of the check roll, which signatures were so done by him (PW15) as after payment the check rolls had to be signed by the Pay Out Officer as well as the Assisting Officers; the data recorded in Check Rolls Ex PW1/A and Ex PW1/G used to be recorded by accused; the envelope of salary would be collected by an employee on being identified by accused; in some cases, the signatures of the employee had appeared in the check roll in advance and accused used to tell that the concerned employee, whose signatures appeared in the check roll in advance, had told the accused to collect his salary and the concerned employee would collect it later on from the accused; in such cases, accused used to collect the envelope as everything used to be done in good faith.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 25/84 CBI vs Anil Kumar Dhyani
27. PW16 Sh Balwant Singh, Chargeman in 505, Army Base Workshop deposed that accused was looking after the clerical work in Finance Section and also used to look after the work of check roll. As per PW16, duties of accused inter alia included marking of attendance of industrial workers, preparation of salary bills and distribution of salary etc., prepare salaries in Check Roll No. XII; Check Roll No. XII for the month of June 1999 Ex PW1/A was bearing his (PW16) signatures at point B on the last page of the summary sheet, which summary sheet was prepared by accused; Check Roll No. XII for the month of July 1999 did not contain his (PW16) signatures on the last page at the end of summary sheet, his (PW16) purported signature appeared at point B which were not done by him (PW16); even word, "Balwant Singh" at point C was also not recorded by him (PW16); his (PW16) above referred signatures on the documents referred to above were appended by him (PW16) after final distribution of the salary; the salary was to be distributed by an officer assisted by an Assisting Officer and Check Roll Clerk; the check roll used to remain with the officer at the time of distribution of salary; the officer would count the salary of a particular employee himself and then pass on the same to the Assisting Officer for re checking and after rechecking, the Assisting Officer would put the cash in a pay packet; the packet to be given to a particular employee would be determined by the Check Roll Clerk and in this case it was accused; the Check Roll Clerk would record the ticket number of the pay packet; the amount of the salary used to be as per the check roll; in some RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 26/84 CBI vs Anil Kumar Dhyani cases Check Roll Clerk i.e., accused used to say that a particular employee had told accused to collect his pay packet and employee would collect it from accused later on; the officer would give the pay packet of that particular employee to accused; the undistributed salary would be counted and handed over to accused and accused would deposit the same with the Finance Section; the check roll used to be in the custody of Check Roll Clerk after distribution of the salary. Specimen writings and signatures collectively Ex PW16/A of PW16 were obtained by PW43 IO/Inspector N.K. Jain.
28. PW21 Sh Satya Prakash deposed that he was posted in Finance Section of 505, Army Base Workshop as LDC in the year 1999 to 2001 having duties to prepare check rolls; different employees used to prepare different check rolls; accused was working in Finance and Accounts Section, had duties to prepare Check Rolls Nos XI and XII; for preparing check rolls, first attendance sheet was received from Head Time Keeper Section; the names of the employees whose attendance was received were marked in the check roll by the concerned LDC in the Finance and Accounts Section on day to day basis; from the Establishment Section, leave record of the employees was received as per Daily Order Part II and that was also marked in the check roll; the payment of employees was prepared as per the number of working days of each employee; the record of the absentees was also marked in the check roll as well as that of late comers and since the employees of Army RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 27/84 CBI vs Anil Kumar Dhyani Base Workshop were industrial workers, salaries of late comers were also deducted; in the check roll there were many columns including that of PF, CGIS, CGHS, GPF, rent and allied charges etc. which were to be filled up in the check roll; at the end of the month, this data of each employees was fed in the computer in the Computer Section; Mr. Hari Prakash Arya was working in the Computer Section; he (PW21) used to collect the data and Mr. Arya used to feed the same in the computer. As per PW21, accused used to feed his data in the computer by himself pertaining to Check Roll No. XI and XII and used to do it either in the tea break, lunch break or in the absence of Sh Arya; officers used to be detailed for duty for the disbursement of salary at least one week before the pay day; the staff included one clerk, one identifier and one witness, who used to ensure that payment was being made to the correct person as per his identity papers; the payment used to be made in the presence of check roll clerk; after feeding the data in the computer, a print out was used to be taken to check out its accuracy; the officer used to ensure the payment to the correct individual; the print out taken from the computer used to be bound pagewise; on the back page of the bound pages, a cyclostyled page would be pasted regarding the absentees; in the check roll, total of the amount would be taken and that amount used to be collected by the Officer Incharge for the disbursement of the salary; after preparation of the check roll, feeding of the same into the computer and taking out of the print out and binding the same, the papers would go to the office Superintendent who used to check the same; thereafter, the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 28/84 CBI vs Anil Kumar Dhyani papers were sent to Accounts Officer and after his signatures the papers were sent to the officer who had to withdraw the money for disbursement; the disbursement of each check roll used to take place at a different place; the disbursement of pay was made by the Officer in the presence of the concerned clerk, identifier and a witness; on the date of disbursement of salary, an absentee sheet was received from the Head Time Keeper; the concerned clerk marked the absentees as absent with mark "A" in red/blue pen on the check roll; thereafter the total absentees were counted to prevent payment to a wrong person; the individual employee comes for collection of his pay with his pay slip/ chit and the same was checked by the identifier to ensure that correct amount was being paid; the salary amount was paid in net after making deductions like loans, society payment etc.; witness would check the I card of the individual who came to collect his payment; the net amount used to be paid to each individual by putting the same in an envelope on the spot itself; concerned clerk was required to take signatures of the person receiving the payment; by checking the number of absentees, balance cash would be cross checked to ensure that payment had been made correctly; after the payment an absentee certificate was affixed at the back of the check roll and if an absentee comes to the office to collect his salary on the pay day, he would have to take a gate pass from the gate and also required to be identified by the witness, identifier and his gate pass number was recorded in the check roll; the balance amount of pay was handed over to the Cashier by the Officer Incharge in the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 29/84 CBI vs Anil Kumar Dhyani presence of concerned clerk; the check roll remained with the concerned clerk; the check roll remained with the concerned clerk till the completion of audit and also to ensure that payment of the absentees was made; at the time of disbursement of pay, a payment sheet was prepared which was bound on the back of the check roll.
29. PW22 Sh Virender Singh, Machinist, 505 Army Base Workshop deposed that the Check Roll Clerk of Finance Section used to get the data fed in the Computer Section regarding payment of salary; accused was posted in the Finance Section of Army Base Workshop; the salary was being prepared in computer in the basic programme; Check Roll Clerk used to tell him (PW22) and others in Computer Section, when he (PW22) worked there, the details of pay and they used to feed the same in the computer; after feeding the data, a rough print used to be taken out to check out if there was any mistake; there used to be no error in the programme regarding calculation of salary, the error, if any, would be in the data supplied to him (PW22) and others in the Computer Section and not in the computer programme; accused used to come and work on the computer; when accused used to come to him (PW22) at that time accused was not posted on check roll but was looking after miscellaneous work; after feeding the data, first a pay slip would be generated by the computer system; thereafter a summary sheet would be generated which contained total of all payments; the payment sheet was prepared by Check Roll Clerk.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 30/84 CBI vs Anil Kumar Dhyani
30. As per PW23 Sh Kanwar Bhan Saini, Retired as Office Superintendent, 505 Army Base Workshop, accused was working as Check Roll Clerk of check rolls XI and XII in 505, Army Base Workshop, Delhi Cantt.
31. As per PW23, for the payment of cash regarding salary to industrial workers, change details prepared by Check Roll Clerk used to come to him (PW23) for giving the required cash and thereafter he (PW23) used to hand over the cash to Paying Officer against acknowledgment; entry was made in this regard in Daily Receipt and Payment Register Cashier's Cash Book; if some undisbursed cash was returned by the Paying Officer, the same was also entered in the said cash book; the office Superintendent used to give to him (PW23) the payment voucher regarding the disbursed amount on the basis of data supplied by the Check Roll Clerk; the payment voucher thereafter was accounted for by him (PW23) in the cash book after tallying the amount. PW23 also deposed that change details was the requirement of particular denominations of GC notes raised by the Check Roll Clerk; the payment voucher was also known as grand summary. As per accused in his statement under Section 313 Cr.P.C, the change details was generated by the computer automatically. As per PW23, Daily Receipt and Payment Register Cashier's Cash Book for the period 02/09/97 to 01/07/99 Ex PW12/A and Daily Receipt and Payment Register Cashier's Cash Book for the period 05/07/99 to 30/04/2001 Ex RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 31/84 CBI vs Anil Kumar Dhyani PW12/B were in respect of payment and receipt and cash in his (PW23) section. As per PW 23, change detail regarding Check Roll no. XI for the month of January 2001 was Ex. PW 23/M (which is common to all cases and is in CC No. 13/12). As per PW23, the cash against change detail Ex PW23/M was given by him on 01/02/2001; the entry in this regard was at point A to A on page no. 107 in the Cash Book Ex PW12/B; the entry of undisbursed amount was at point B to B on the same page at left side. As per PW23, the particulars of undisbursed amount for the concerned month was mentioned at the lower part in each change detail; change detail Ex PW23/M had been prepared by the then Check Roll Clerk i.e., accused; the names written at point A to A in Ex PW12/B were the names of Paying Officers who received/returned undisbursed cash from/to PW23 whose signatures were also affixed at point A to A in token of having received cash from PW23.
32. As per PW23, there were two types of recoveries known as standard recoveries and regimental recoveries; GPF, insurance etc., were in standard recoveries, whereas recoveries regarding societies, LIC, recurring deposit etc., were in regimental recoveries; the regimental recoveries used to be deducted on the basis of check rolls and were paid to the concerned society/LIC etc.; the regimental recoveries used to be paid to concerned society after disbursement of salary on the basis of recovery sheets; the recovery sheets were prepared by the concerned Check Roll Clerk and if undisbursed amount was received in respect of RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 32/84 CBI vs Anil Kumar Dhyani an individual worker, the regimental recovery would not be paid to the concerned society until the salary was disbursed to the concerned individual.
33. PW24 Sh Hari Prakash Arya, Telecom Mechanic deposed that he was in 505, Army Base Workshop since 17/01/99 and working as Computer Operator and knew accused as accused was working on check roll. PW24 also stated that accused used to bring some data for being fed into the computer and he (PW24) used to feed the same in the computer. As per PW24, any one who had basic knowledge of the computer could work as Computer Operator in 505, Army Base Workshop; no specific qualification was required for that. PW24 also deposed that accused used to work as his (PW24) standby as computer operator whenever he (PW24) was not available on account of any reason; accused used to do payment related work on the computer as well as other works; work of accused included preparation of check roll, payment sheet etc.; after preparation of the check roll on several occasions, he (PW24) saw accused working on computer on which accused told him (PW24) that he (accused) was rectifying some mistakes and after rectification of the mistakes accused would take out the final print. PW24 also stated that he never came to know about any error in the check rolls; however, he (PW24) came to know about it only after audit objections; Sh V.K. Nagpal was Accounts officer at that time; when audit objections were received, Sh Nagpal had asked him RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 33/84 CBI vs Anil Kumar Dhyani (PW24) to take out some fresh prints of the check rolls pertaining to the months of December 2000 to February 2001. PW24 stated that he had given the print out of the check rolls to accused on the directions of Sh Nagpal; there were no errors in the computer programme pertaining to the preparation of the check rolls; Ex PW20/A1 were the regenerated check rolls given by him (PW24) to accused on the directions of Sh V.K. Nagpal. As per PW24, as per old Check Roll Ex PW1/N the total payment for the month of December 2000 was Rs 5,11,929/ as was recorded in page no. 35 at point X; however, in the regenerated check roll Ex PW20/A1 (which is common to all cases and is in CC no. 13/12) at point X in page no. 15 the total was Rs 4,98,429/; the regenerated check rolls were bearing signatures of PW24 Sh Hari Prakash Arya at point B and payment sheets check rolls verification memo Ex PW20/A (which is common to all cases and is in CC no. 13/12) was bearing signature of PW24 Sh Hari Prakash Arya at point B on each page; as per PW24 Sh Hari Prakash Arya, this document was prepared as there was some error in the total and IO PW43 Inspector N.K. Jain got these check rolls regenerated and check rolls used to remain in the custody of check roll clerk.
34. PW25 Sh Yog Raj, Chargeman in 505, Army Base Workshop deposed that he used to help the distributing officer in the manner that salary of each individual used to be put in an envelope by them and thereafter to be distributed to each one; the salary used to be RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 34/84 CBI vs Anil Kumar Dhyani put in the envelope on the basis of the figures recorded in the check roll; one official used to work as identifier of the individual, who used to come to collect the salary. PW25 also stated that he used to append his (PW25) signatures after distribution of salary was over for the day. As per PW25, Check Roll No. XI for the month for the month of September 2000 Ex PW1/K was bearing his (PW25) signatures at point A (Q15/13) on the last page in token of distribution of salary while he (PW25) was present at the disbursement of salary; only salary amount used to be placed in the envelope, though employee number used to be recorded on the envelope; accused who was concerned clerk used to provide the particulars of salary and token number; after distribution of salary, concerned clerk used to deposit the check rolls with the Accounts Office.
35. PW26 Sh Manmohan deposed that he was Chargeman in 505, Army Base Workshop from 1999 to 2000. As per PW26, accused used to prepare check rolls; PW26 also used to help in salary distribution whenever their group incharge would depute him (PW26) for that duty; whenever he (PW26) was on such duty, Paying Officer would hand over salary of individual employee after counting the same, he (PW26) would count the same again and put the same in an envelope and the envelope of a particular employee would be put in an enclosure meant for it; the amount of salary to be counted and paid to an employee would be told by the Check Roll Clerk to the Paying Officer; since all those RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 35/84 CBI vs Anil Kumar Dhyani working on pay distribution duty would be knowing all the employees, the salary would be distributed accordingly; he (PW26) used to sign the check rolls also.
36. PW26 deposed that the Check Roll No. XI Ex. PW 9/A (for the month of January 2001) was bearing his (PW26) signatures on last page at point A (Q19/14) which signatures were done by him (PW26) in token of disbursement of salary; these check rolls were used to be kept by accused after disbursal of the salary; all these check rolls were prepared by accused; payment of absentee would remain with the Check Roll Clerk, who would send back after counting the same; accused used to take the pay packets of absentee employees by stating that the concerned employee had gone and asked accused to collect the same; he (PW26) never objected to the pay packet being retained by accused; accused used to prepare the payment sheets and small chits of employees; on the basis of payment sheets, the amount would be placed in the envelope of a particular employee and his chit would also be placed in the envelope; the payment sheets were also used to be kept by accused along with check rolls after disbursement of salary.
37. PW28 Ms. Chitra deposed that she was posted as Clerk in Defence Accounts Department in the office of LAO, 505, Army Base Workshop during the period 1999 to 2001. PW28 also deposed that towards November 1999 she (PW28) was entrusted with the duty of RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 36/84 CBI vs Anil Kumar Dhyani post audit of check rolls received from the unit i.e., 505, Army Base Workshop; the check rolls used to be received after the payments were made by the unit and her (PW28) duty was to check the leave account and PartII orders; she (PW28) was instructed by her senior officers that salary portion of the check roll was computer generated and there was not much need to check the same. As per PW28, she used to deal with check roll numbers X to XIII; in a particular check roll, the names of various employees were given in serial order; leave account was given on the left side and on the right side the salary account was given; on the right side page, i.e., the salary account, there were two portions; the first portion contained the details of credits in the form of basic pay, GPF, HRA, TA/DA,CCA etc; the second portion contained the details of debits in the form of GPF deductions, CGEIS deductions, CGHS deductions, miscellaneous deductions etc.; against each employee, the gross salary as well as net salary (after deductions) was shown; total of the gross salary as well as net salary (after deductions) paid to all employees in respect to a particular check roll was shown on the last sheet of the check roll, which was called summary sheet. As per PW28, Check Roll No. XI for the months of December 2000 Ex. PW 1/N; January 2001 Ex. PW 9/A,;February 2001 Ex. PW 1/P were checked by her (PW 28) in token of which she had put her initials there at point R1. PW 28 also deposed that Check Rolls No. XI for the months of June 1999, Ex PW28/A; October 1999, Ex PW28/B; September 1999, Ex PW28/C; August 1999, Ex PW28/D; July 1999, Ex PW28/E; December RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 37/84 CBI vs Anil Kumar Dhyani 1999, Ex PW28/F; November 1999, Ex PW28/G and Check Roll No. XII Exts PW1/G, PW1/K, PW1/N, PW1/T, PW1/Q, PW1/A (dated 17.05.2007) and PW1/D (dated 17.05.2007); Check Roll No. XII for the months of May 2000, Exts PW28/AA; April 2000, PW28/BB; August 2000, PW28/CC, February 2001, PW28/DD, December 2000, PW28/EE; July 2000, PW28/FF; September 2000, PW28/GG; October 2000, PW28/HH; February 2000, PW28/JJ; June 2000, PW28/KK; January 2001, PW28/LL; November 2000, PW28/MM; March 2000, PW28/NN; May 1999, PW28/PP; April 1999, PW28/QQ; check rolls pertaining to Check Roll No. XIII, Exts PW28/A1, B1, C1, D1,E1,F1,G1,H1,J1,K1,L1,M1,N1,P1,Q1,R1,S1,T1,U1,V1 and W1 were bearing her (PW28) signatures in token of having checked the same. PW28 deposed that initially because the salary side was computer generated sheet and since her (PW28) senior officers had told that there was less chance of error in respect of this sheet, she (PW28) had not checked the salary side and she (PW28) had only checked the leave account and PartII orders and increments; no fraud was detected at that stage; during later stages, she (PW28) checked the gross salary figure and net salary figure appearing against each employee on the various pages of the check roll, totaled these figures and tallied the said total figure with the figures "gross pay" and "net pay" appearing on the summary sheet; it was found that the figure of "net pay" appeared on the summary sheet was inflated. PW28 also deposed that Check Roll No. XI for the period June 2000, Ex PW1/H at page 27 contained the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 38/84 CBI vs Anil Kumar Dhyani calculations made by her (PW28); on totaling the net salary figure appearing against each employee on the various pages of this check roll, it was found that the total comes to Rs 5,06,806/; however, the total net pay mentioned under the head "net pay" in the summary sheet was Rs 5,11,306; in this manner an excess amount of Rs 4,500/ had been drawn by manipulating the figures; this kind of manipulations had been found in various check rolls; on coming to know about this manipulation, she (PW28) informed her senior officers about the discrepancies; the discrepancies continued for next two months; she (PW28) rechecked the previous check rolls which had been audited by her (PW28) earlier; it was found that these manipulations had been going on for about sixteen to seventeen months; an objection statement was prepared in the month of May 2001 for being sent to PCDA, Western Command, Chandigarh; these manipulations and discrepancies had arisen from the unit; whenever there was any need for calling someone for sorting out any such discrepancy, accused was used to be sent by the unit; Check Roll No. XI had the name of accused at serial no. 1.
38. PW33 Sh Sunil Rai Aggarwal deposed that he was working as Accounts Officer in 505 Army Base Workshop. PW33 also deposed that Check Rolls No. XI Ex. PW 1/N, Ex. PW 9/A, Ex. PW 1/P were bearing his (PW33) signatures at point A. As per PW33, all the employees of the industrial category were paid (monthly salary) through check rolls in cash; the non industrial employees were paid salary on RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 39/84 CBI vs Anil Kumar Dhyani monthly basis through the pay bills; in the case of industrial employees the check rolls were broadly divided into the groups of approximately 100 employees; in 505 Army Base Workshop there were approximately 1012 numbers of check rolls. PW33 also stated that accused was dealing with the check rolls.
39. PW34 Brigadier R.K. Singh, the then Colonel Administration, 505, Army Base Workshop deposed that he had issued certificate Ex S1 dated 19/06/2004 certifying that accused had been in possession for the safe custody of check rolls in original along with payment sheets for the period June 1999 to February 2001; accused had been assigned duties for preparation of Check Rolls No. XI and XII for the aforesaid period; during the course of unit Court of Inquiry, in reply to question no. 34 (page no.9) and question no.36 (page no.10), accused had admitted that he was not in possession of Payment Sheets as the same had not been preserved by him (accused); also was there mentioned in the certificate that except accused, no other Check Roll Clerk had destroyed the payment sheets.
40. PW35 Sh Baldev Singh deposed that he was posted as Chargeman II in 505, Army Base Workshop in November and December 2000 and he was deputed to assist in the disbursement of salaries to the workers by identifying the workers as the workers were known to him (PW35) being the Chargeman; he (PW35) identified his RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 40/84 CBI vs Anil Kumar Dhyani signatures (1) at point X (Q17/4) on page 44 of check roll register Ex PW1/M being identifier and (2) at point X (Q18/13) on page 37 of check roll register Ex PW1/N being witness.
41. PW36 Sh Rajeshwar Kumar deposed that the entry Ex PW1/G12 (in Check Roll XI of May 2000 at page no. 4, entry no. 9); entry Ex PW1/J12 (in Check Roll XI of August 2000 at page no. 4, entry no. 9) were not bearing his (PW36) signatures. PW 36 also stated that his signatures were there at point B at page 4 of Check Roll Register Ex PW1/N for the month of December 2000 and at point A at page 4 of Check Roll Register Ex PW9/A for the month of January 2001. PW36 stated that as per the established procedure, the payment of salary was disbursed to the workers in cash on the first day of succeeding working month; the salary could be received by the worker himself or by authorizing another employee in writing, otherwise the salary could be later on received from the office by the employee himself; wherever in the check rolls the relevant entry did not bear his (PW36) signatures, it meant that neither he (PW36) was present nor anybody was authorized by him (PW36) to receive the salary and salary would have been received by him (PW36) from the office on a later date; accused was the dealing clerk who was dealing with the work pertaining to the payment of salary to the check rolls and authorization to receive the salaries by the workers; he (PW36) did not remember exactly whether he (PW36) had authorized another worker to receive the salary in his (PW36) absence RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 41/84 CBI vs Anil Kumar Dhyani for the month of May and August 2000; generally, they used to inquire about the details of the salary or other problem related to the salary either from accused or from their senior officers; there was a procedure to fill a form in favour of the worker who was authorized to receive the salary in the absence of a particular worker and for identification this form was being signed by Group Officer.
42. PW39 Sh Ram Narayan Singh deposed that he was posted in 505, Army Base Workshop; from time to time was deputed for payment duty as per daily order. PW 39 also stated that Check Roll No. XI Ex. PW 9/A for the month of January 2001 was bearing his (PW39) signatures [at point B (Q19/12)], which signatures he (PW39) had done in the capacity of witness of payment by duty officer / identifier of the person. As per PW39, check rolls were prepared by Check Roll dealing Clerk who used to sit in the finance section of 505 Army Base Workshop, Delhi Cantt.. PW39 also deposed that he used to see the check rolls whenever he (PW39) was deputed on payment duty. As per PW39, payment sheet, on the basis of which the cash used to be received from the finance section for the purpose of disbursement to the employees, was used to be prepared by dealing clerk i.e., accused; after the disbursement of payment, few pay packets which remained left were taken by accused and paying officer and were supposed to deposit back in the finance section. As per PW39, in his presence such payments were not deposited back in the finance section; accused used to see the check RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 42/84 CBI vs Anil Kumar Dhyani roll and tell how much payment was to be given to individual employee. As per PW39, Payment Sheets were not there in the Check Rolls; for the missing of the payment sheets only the concerned clerk i.e., accused can tell; only the person to whom documents had gone could tell, so only accused can tell; payment sheets were prepared by accused being the concerned clerk, so he (accused) could only tell; when payments were being distributed, accused used to say that the individual had given the pay authority and so accused used to take payment of that individual and for that extra payment taken that individual had so told to accused.
43. PW40 Brig. Bibhuti Bhushan deposed that in October 2002 he worked as Col. Administration in 505, Army Base Workshop and then he (PW40) was incharge of all administration including Security, Establishment, Discipline, Accounts, etc. PW40 deposed that he knew accused. As per PW40, in the Accounts Section, at the bottom of hierarchy there is a Check Roll clerk, who was required to make the Check Roll of all the employees who were to be paid the salary; on preparation, the Check Roll Clerk gave the Check Rolls to Assistant; the said Assistant checks the prepared Check Roll and puts up them before the Accounts Officer; at the relevant time the aforesaid Assistant was known was Superintendent; Accounts Officer checked the correctness of the Check Rolls and prepared the cheques for withdrawal of the money from the bank; Paying Officer along with Check Roll Clerk then used to go to the bank for withdrawal of money by presenting the cheques; after RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 43/84 CBI vs Anil Kumar Dhyani the money had been received, Paying Officer paid the money to the individuals / employees based on the money mentioned in the Check Rolls by preparing separate packets; the said separate packets were prepared by the Check Roll Clerk; Check Roll Clerk as well as the Paying Officer used to put the money in the said separate packets; after the separate packets were prepared, the employees were called by names and their number and they were given their pay packets in token of which their signatures were obtained on the Check Rolls; the signatures were so obtained by the Paying Officer; the employees who did not turn up on calling of their names and number or those who were absent, did collected their pay packets from the Paying Officer on subsequent hours / day(s) on their arrival; pay packets of those employees who were absent as aforesaid were retained in Quarter Guards in the charge of Guard Commander and Duty Officer; to pay the said pay packets to those employees who were previously absent as aforesaid, the Paying Officer used to take the said pay packets from the Guard Commander and Duty Officer and made the such payment to those employees against signatures; the Check Roll Clerk and the Paying Officer both used to take the remaining pay packets of aforesaid absent employees to be deposited in the charge of Guard Commander and Duty Officer. As per PW40, the correctness of the Check Rolls was checked at various stages by Check Roll Clerk, Assistant (Superintendent) and Accounts Officer; the Local Audit Officer periodically checked the complete accounts including the Check Rolls periodically and as far as he (PW40) remembered these RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 44/84 CBI vs Anil Kumar Dhyani were so checked quarterly. As per PW40, on the asking of CBI Officials, he (PW40) had checked the office record and found that person namely Manphool was not on the Roll of 505 Army Base Workshop during the relevant period regarding which fact PW40 gave letter D6, dated 07/04/2004, Ex PA40/1 to Inspector CBI returning notice under Section 160 Cr.P.C, dated 26/03/2004 addressed to CM II Sh Manphool Singh.
44. PW41 Lieutenant Colonel Mukesh Agrawal deposed that he was posted in 505 Army Base Workshop w.e.f. May2000 to June 2002 as Workshop Officer (B Engine Group) and was looking after the overhaul of B Vehicles Engines. As per PW41, in Check Roll number XI, of January 2001, Ex. PW 9/A, at point Q19/16 (at point C) (at page
41) signatures of accused were there as the accused was then the Assistant to help the Paying Officer in disbursement of the pay. PW41 identified the signatures of accused as he had seen accused writing and signing in the course of his official duties. PW41 deposed that his signatures were at page 41 at point Q19/15 and at Q19/11 (at page 42) in Ex PW9/A.
45. As per PW41, the procedure which was followed for pay disbursement, the paying clerk detailed for a particular check roll was to report to the Disbursement Officer; Disbursement Officer along with the Paying Clerk was to report to the Office Superintendent and collect the amount from the Accounts Officer; thereafter, the pay was distributed as RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 45/84 CBI vs Anil Kumar Dhyani per the Check Roll, which was already made by the office staff and checked by the Paying Clerk for its correctness; during the distribution accused many a times used to collect pay of certain employees on reasons like the individual was busy or many a time accused used to say to PW41 that he (accused) will hand over the pay packet to the employee; the pay packets were made by accused; there were certain employees, who were absent, their amount was returned to the Office Superintendent in the Accounts Section; this was how the pay was distributed. PW41 also deposed that in his tenure accused was one of the paying clerk detailed; aforesaid Check Roll Ex. PW 9/A, inter alia amongst others were prepared by accused for which the pay packets were also prepared by accused; after handing over the payment accused used to obtain the signatures of the employee receiving payment on the check rolls; an Internal Court of Inquiry was ordered and then he (PW41) came to know that there was some misappropriation of payments in check rolls.
46. PW42 Lieutenant Colonel Sandeep Mathur deposed that he had worked in 505, Army Base Workshop from 2002 till October 2006 as Deputy Manager Rotables under Production and Planning Section besides being Officer Incharge in Computer Cell in 505, Army Base Workshop. PW 42 also stated that GW Basic software was available in the workshop, on which programmes were written; this was being used for preparation of Pay Rolls of civilian employees of 505, Army Base RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 46/84 CBI vs Anil Kumar Dhyani Workshop; when fraud was detected in the 505, Army Base Workshop, he (PW42) was called and told to examine the programme of GW Basic; he (PW42) took out the print out of said programme and studied it line by line and found that there were no errors in the programme / software. As per PW42, he was told that the programme was not behaving and sometime it was not giving correct output but he (PW42) did not find any logical / programming / mathematical error in the programme / software; first the programme was run and the line by line item of each individual was fed into the programme and then line by line item wise print out was taken and a summary print out of the same data was taken; the summary was prepared automatically from the line by line data and it tallied mathematically. As per PW42, on GW Basic, text file used to open; in the text file data used to be entered and if the wrong data was put, programme will give wrong line by line data and wrong summary; GW Programmes neither an executable file nor an encrypted file or password protected file; any body can amend the file containing data and take out the print out of wa the same; the GW Basic programme was installed in Accounts Section of 505, Army Base Workshop; GW Basic programme was run on monthly basis and the pay roll were generated at the end of the month; for the next month, the Accounts Section clerk used to copy the same file with data and saved it for that month with changing name of the file; only the data should have been changed and not the actual programme; on the programme, on the top the programming was there and after the programming the data was there;
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 47/84 CBI vs Anil Kumar Dhyani previous month file was stored in a separate folder; it was stored as a repository; there was no other programme used except GW Basic programme in 505, Army Base Workshop; the GW Basic programme was installed in one computer system in Accounts Section of 505, Army Base Workshop. As per PW42, he had compared the check rolls with the software and found that some of the check rolls were correct and some were incorrect; in the incorrect check rolls, they found that the summary did not tally with the line item wise print out for the same month; thereafter, they further analyzed and found that the column wise total in the summary did not tally when they added up the same column in the line wise print out; the modus operandi for committing fraud in the check roll was to put correct data in the programme and then take out the line item wise print out and the summary print out; then destroy the summary print out and in the line item wise print out make some different entries and now take only the incorrect summary print out and attach it with the initially taken out correct line item wise print out; at times they found that the amounts in the incorrect summary print outs were higher than what it should have been; for example, in Check Roll Ex. PW 1/H of month June 2000 the summary print out as at page 27 was incorrect and was higher than what it should have been as per the line wise print out of the check roll from page no. 1 to 26; the fraud had been detected in Check Roll No. XI and XII.
47. PW8 Ms. Naina Bakshi deposed that she was Deputy Labour RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 48/84 CBI vs Anil Kumar Dhyani Welfare Commissioner in 505, Army Base Workshop from July 2000 to April 2002 and was also given duties of Accounts Officer by the Commandant when the regular Accounts Officer was on leave and on tour; Sh Nagpal was the regular Accounts Officer.
48. PW 8 also deposed that in February 2001, she signed the check roll in the capacity of Accounts Officer; the check roll for the month of February 2001 was not bearing her signatures; she (PW8) was given the charge of Accounts Officer for a date being a Gazetted Officer; the money was withdrawn by the Captain Mukesh Aggarwal; as per the authorization of the Commandant, individual officer would distribute the salary by visiting different rooms, after taking the money from the cashier. As per PW8, her signatures were at (1) at point B3 (Q20/6) on page no. 34, Ex PW1/P29 of Check Roll Ex PW1/P; (2) at point B on page no. 37, Ex PW8/1 on the original Check Roll Register; wherein at point A were the signatures of Sh S.R. Aggarwal, Accounts Officer; before signing at aforesaid point B3 (Q20/6), she (PW8) had seen the entries but had not checked its contents personally as she (PW 8) was not the official concerned from accounts nor did she check the correctness of the entries as she was not the Accounts Officer and it was her additional charge. As per PW8, as per entry Ex PW8/1, total amount of Rs 5,09,683/ was given for disbursement, an amount of Rs 4,86,263/ was disbursed and Rs 23,420/ was refunded to the cashier being absentees' payment.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 49/84 CBI vs Anil Kumar Dhyani
49. PW43 IO/Inspector N.K. Jain deposed that he had gone through the details of each and every check roll and found some deviation in the summary sheet of check rolls as its amount was not tallying with the total amount of number of workers mentioned in the check roll. PW43 deposed that he had requested the officers of Army Base Workshop to send some officials who were well conversant with the preparation of check roll; PW4 Sh. Praveen Kumar Sikka and PW6 Sh. Shyam Sunder Srivastava reported in CBI office and thereafter he (PW43) had directed them to find out the difference of payment in each and every check roll; accordingly, they had prepared twenty number of sheets in his (PW43) presence in CBI office; these sheets were jointly prepared by aforesaid officials and were signed by them in his (PW43) presence. As per PW43, PW4 and PW6, these sheets pertained to details of payments and the differences of check roll no. XII from June 1999 to December 1999 and check roll no. XI from February 2000 to February 2001; these sheets depicted the actual payments to be made in Blue Ink and the inflated payment made, which were shown in the summary sheets in check rolls, were written in Red Ink; the differences of amounts had been encircled with pencil. PW6 deposed that summary reports Ex PW5/B, Ex PW7/A, Ex PW7/B were in his writing and were prepared after comparing check rolls with individual items and thereafter with the total on each page as well as the summary attached and in some cases they found the difference; the figures shown in circles at point X on each page showed the figures which did not tally and the difference thereof.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 50/84 CBI vs Anil Kumar Dhyani
50. PW31 Sh Murli Ram, the then Establishment Officer in 505, Army Base Workshop was responsible to maintain the personal and service records of all the employees thereon on regular basis and in ordinary course of duties. Vide letter Ex P1 (D4), dated 12/03/04 the documents/records (certified copies) Ex P2 (colly) (D4) inter alia containing the duties of Computer Operator, duties and responsibilities of Machinist, Charter of duties and responsibilities of Check Roll Clerk, Standing Orders 2001 of 505, Army Base Workshop; vide letter Ex P3 (D8) the service documents and leave records of accused, the service dossier / file Ex PW27/A of accused; vide letter Ex P4 (D9), requisite information regarding basic pay drawn by individual persons during the period from June 1999 to February 2001; vide letter Ex P6 (D4/26) dated 28/12/2004 the document Ex P7 (colly) inter alia including movement order of PW Sh H.P Arya for training to Chennai from 01/01/2001 to 05/01/2001 and to leave the unit accordingly on 29/12/2000 were handed over by PW31 Sh Murli Ram to IO Inspector N.K Jain PW43. Documents Ex P1 to Ex P7 (Colly) are common to all cases and are in CC No. 13/12.
51. PW43 also deposed that during investigation on 02/12/2004 he (PW43) had visited 505, Army Base Workshop, Delhi Cantt along with two independent witnesses namely PW20 Sh Malkhan Singh and Ravi Kumar for the purpose of investigation and to check the status of payment sheets in the check rolls for the period January 1999 to June RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 51/84 CBI vs Anil Kumar Dhyani 2001 of all the employees of 505, Army Base Workshop, Delhi Cantt.; during verification of aforesaid check rolls, it was revealed that the payment sheets, which were prepared by accused were missing but the payment sheets prepared by all other check roll clerks were found intact with their respective check rolls; the verification memo / Panchnama in respect of payment sheetcheck roll verification, as above, was prepared in presence of independent witnesses as well in presence of officers of 505, Army Base Workshop; all the signatories to the said memos (D27) had signed in his (PW43) presence and his (PW43) signatures were there at point D on each sheet; the said Panchnama Ex PW20/A and Annexures Ex PW20/A1 consisted of verification memo, chart of checking of payment sheets in various check rolls; other check roll No. XI for the month of December 2000 and Check Roll No. XII for the month of October 1999 along with respective payment sheets showing corrected regimental payment and also manipulated payment sheets of regimental recoveries.
52. PW 44 Lieutenant General N.B. Singh, the then Brigadier and Commandant of 505, Army Base Workshop deposed that he was the authority competent to remove the accused and that after going through the documents, statements of the witnesses, etc. submitted by the CBI, he (PW44) had accorded sanction under Section 19 Prevention of Corruption Act, 1988 vide order Ex. PW46/PS7, dated 30/03/2005 for prosecution of accused under Section 420, 477A, 201 IPC and Section RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 52/84 CBI vs Anil Kumar Dhyani 13 (2) r/w 13 (1)(d) of P.C. Act, 1988 in this matter.
53. PW29 Sh Subhash Chander, the then UDC in 505 Army Base Workshop was witness of the specimen writings on sheets Ex PW16/A (colly) (Mark S57 to S84) given on 08/04/2004 by PW16 of his own free will without any coercion to PW43; similarly, on 17/04/2004 in his (PW29) presence, specimen signatures/ initials Exts PW29/A and PW29/B (Mark S106 to S111 and S116 to S123) respectively were given by PW36 voluntarily to PW43; also on 17/04/2004, specimen signatures/initials, Exts PW8/B1 to PW8/B5 (Mark S124 to S128) were voluntarily given by PW7 to PW43; again on 12/07/2004, specimen signatures/initials collectively Ex PW29/C (colly), S257 to S264, were given of his free will by Lt. Colonel Jeffery Mario Joseph Valentine to PW43.
54. PW7 Sh Manoj Chaurasia, PW10 Sh Anuj Kamal and PW17 Sh Harish Kumar Vashisth were fellow employees of accused in 505, Army Base Workshop and during MayJune 1998 along with the accused they had joined a training course for diploma in Mechanical Engineering on part time basis in institute named Baba Saheb Ambedkar Polytechnic, Uttam Nagar New Delhi. During the course of study in said course, it came to known that the institute /diploma was not recognized by AICTE, so PW7, PW10 and PW17 as well as accused left the said course and met Director/management of said institute and RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 53/84 CBI vs Anil Kumar Dhyani requested for refund of fees, which Director/management declined and instead suggested all aforesaid persons to join a computer course against the fees already deposited by said all aforesaid persons; thereon all said persons aforesaid were given admission in the computer course to adjust aforesaid fees and these persons were given the certificates for passing the computer course. PWs 7, 10 and 17 deposed that neither they had attended any classes for said computer course nor they were taught anything in said computer course but simply were awarded the certificates of passing the computer course/diploma. Per contra to the aforesaid versions of PWs 7,10 and 17; PW18 Sh Asha Ram Yadav, Executive Officer in Dr. Baba Saheb Ambedkar Institute of Technology and Management deposed that accused as well as PW7, PW10 and PW17 had taken admission in advance diploma in Computer Application course and had completed their said course; all aforesaid four persons were physically trained in computer in the institute, after which their examination was conducted and on being declared successful, all aforesaid four persons were awarded the certificate; at page 78 of register of mark sheets and diplomas Ex PW18/C, at point A entries were regarding issuance of certificate to all aforesaid four persons on being declared successful; certificate for all aforesaid four persons were received by accused in token of which signatures of accused were at point B on page 78 of Ex PW18/C. PW18 also deposed that all aforesaid four persons attended the evening classes in the said institute for the training of computer; photocopies Ex PW18/E, Ex PW18/F and PW18/G RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 54/84 CBI vs Anil Kumar Dhyani bearing certificate no. 849, 847 and 846 respectively were of certificate of the computer course issued to PW7, PW17 and PW10; certificate no. 848 was issued to accused.
55. PW12 Sh Narender Kumar, Assistant Cashier in 505, Army Base Workshop deposed that in the absence of Cashier, he (PW12) used to work in his place; day cash book was maintained by PW12 Sh Narender Kumar and the Cashier; the entries regarding payment and receipt of the cash was done in the day cashbook. As per PW12, he maintained the day cashbooks (1) Ex PW12/A for the period 02/09/97 to 01/07/99; (2) Ex PW12/B for the period 05/07/99 to 30/04/2001; entries on left hand side on these pages were regarding receipt of cash and on the right hand side were regarding payment of cash; the payment had been made in respect of monthly salary; the signatures appearing with each entry of payment was of the concerned Paying Officer, who received the payment for disbursement; the payment had been made according to change details as sent by the Department which had prepared the check rolls; the change details were first sent to Office Incharge of Finance Section and in turn, the Office Incharge sent these change details to Cashier and according to these change details, the payment was made to Paying Officer for disbursement of salary; the receipts shown on the concerned pages were in respect of the amount returned by the Paying Officer which was not disbursed; the Check Roll Clerk in respect of these entries was accused who prepared the change RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 55/84 CBI vs Anil Kumar Dhyani details.
56. PW11 Ms. Sunita Kumari, Telecom Mechanic, 505, Army Base Workshop deposed that she was drawing salary through Check Roll No. XII which was being dealt by accused working in her (PW11) office; token number of PW11 was 4849. PW11 deposed that in May 2000 when she (PW11) was pregnant, as her salary was paid about a distance of about half kilometer from their office and there used to be a lot of crowd there, she (PW11) requested her senior Colonel Murthy that she may be allowed to sign her (PW11) check roll and she (PW11) was allowed to do so; she (PW11) used to sign her check roll by visiting the table of accused, dealing with her (PW11) check roll; the salary used to be paid by putting the cash in an envelope and that was done by accused who used to hand over the envelope to her (PW11); she (PW11) continued with this practice for about three to four months; her (PW11) pregnancy period was from September 1999 to May 2000; she (PW11) used to sign the check roll at the table of accused before May 2000. As per PW11, accused used to work on computer.
57. PW9 Ms. Anupama Rani deposed that as Civilian Staff in Army Base Workshop she used to get salary as per check rolls; initially her (PW9) name was in the Check Roll No. XII and subsequently her name was transferred to Check Roll No. XI and later to Check Roll No. V. As per PW9, normally, about a couple of days before the salary day, RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 56/84 CBI vs Anil Kumar Dhyani they used to get information as to where the salary would be distributed and who shall be the Officer and the Check Roll Clerk concerned who would distribute salary in respect of a particular check roll; all of them used to get salary in cash and in token of receiving the salary, they were required to sign against their name on the check roll itself after receipt of the cash. PW9 identified her signature at point B on sheet Ex PW1/N25 of Check Roll XI Ex PW1/N whereby she (PW9) had received Rs 4499/ in respect of salary for the month of December 2000. PW9 also identified her signature at point A on sheet Ex PW9/B of Check Roll XI Ex PW9/A whereby she (PW9) had received Rs 4477/ in respect of salary for the month of January 2001. PW9 identified her signature at point B on sheet Ex PW1/P25 of Check Roll XI Ex PW1/P whereby she (PW9) had received Rs 4477/ in respect of salary for the month of February 2001. As per PW9, the procedure for distribution of pay on the spot was that the Pay Officer used to announce the name of Check Roll Clerk who was to distribute the pay packets; accused was the Check Roll Clerk who had distributed the pay packets to her (PW9) and to others; there used to be lot of rush at the place of distribution of pay as the number of persons coming for receiving the pay was large and for convenience and courtesy sake, lady employees including she (PW9) used to be given salary either in the beginning or in the last and as such, they could avoid the inconvenience of standing in queues; accused would bring pay packets and delivered the same to the employees; the name of the employee RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 57/84 CBI vs Anil Kumar Dhyani used to be announced by the officer for taking the salary packet and thereupon the salary packet would be handed over to the employees by accused; there used to be a separate queue for the ladies on the side.
58. DW1 Sh. Naresh Kumar deposed that he was Check Roll Clerk in 505, Army Base Workshop. As per DW1, there was no movement register which carries entries of movement of check roll from Finance Section to Audit Department or any other Department; there was no time limit for audit of check rolls; after the audit of the check rolls, the check rolls as well as payment sheet used to go to the store for which the Superintendent was having the knowledge; whenever there was need of any check roll after audit, they as Check Roll Clerks used to take them out for their work and it was again given back; after the audit, the check rolls used to remain in the store and it was under the custody of Office Superintendent; payment sheets were in the end of the check rolls and it were sent along with the check rolls when check rolls were sent for audit; check rolls were audited while payment sheets were not audited; there was no record maintained as to what check rolls were sent in the record room. DW1 in his cross examination further elicited that Check rolls remained with them i.e., the Check Roll Clerks and after the payments were made to employees, check rolls used to come back to Check Roll Clerks for sometime for about month or one and half months and thereafter they used to go for audit and sometime they used to go in Record Room. DW1 also deposed that the Check Rolls and Payment RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 58/84 CBI vs Anil Kumar Dhyani Sheets were prepared by the Check Roll Clerk on duty. As per DW1, Check Roll Clerk used to call concerned employee who was to be given payment and signatures of such employee was obtained on check roll and his pay in hand, after recovery, was handed over to concerned employee. DW1 had no knowledge of what all registers were maintained in the Record Room.
59. DW2 Colonel S.G. Dilbagi, Colonel Administration in 505, Army Base Workshop brought on record the attested copy of the circular dated 13.12.1997, Ex DW2/A and Finance Section letter no. 51310Fin OBJ dated 19.12.1997, Ex DW2/B. DW2 also brought on record the copy of the Board proceedings Ex DW2/C finding mention of the details of the files of destruction. DW2 was not aware of any certificate of merit issued to accused. DW2 also brought on record attested copy Ex DW2/E of confirmation Daily Order PartII No. 523/Est (Ind.) dated 30.08.2000. The name of the accused appeared there at S.No. 16. DW2 also brought on record the attested copy Ex DW2/F of Daily Orders PartII No. 46/Est. (Ind)/2000 dated 29.01.2000. The name of the accused appeared there at S.No. 31. DW2 also brought on record the copies Ex DW2/G of Interview Register of the period from May 1992 till March 2009 as per which at S.No. 23 Telecom Mechanic Sh. Hari Prakash Arya, ticket No. 4865, was recommended for computer cell of Finance Section. As per DW2, in terms of said entry the individual Sh. Hari Prakash Arya was detailed to perform duties in Computer Cell; initially, the interviewing RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 59/84 CBI vs Anil Kumar Dhyani officers recommended an individual to perform duties in a particular section; the same was confirmed / denied by the GM Production; in Ex DW2/G, Sh. Hari Prakash Arya had been detailed to perform duties in Computer Cell by GM Production. DW2 also brought on record Ex DW2/J, the attested copy of Office Order No. 7 dated 31.01.2000 regarding detailment of individuals to perform duties as dealing clerk for various check rolls; in terms thereof, machinist Sh. Anil Kumar i.e., the accused was detailed as Dealing Clerk for check roll no. XI from 4828 to 4938 and check roll no. XII from 4939 onwards. DW2 also brought on record Ex DW2/K, the attested copy of Page No. 11 of Unit Standing Order for the year 2001 in which duties of GM (Pers & Adm) had been given; in terms thereof, the Colonel Administration was empowered to give the duties to any Civilian / Combatant on behalf of Commandant and 325(f) embodies such powers / duties of GM (Personnel and Administration) for detailing such persons as aforesaid.
60. Rule 182 of The Army Rules, 1954 reads as follows:
"182 Proceedings of court of inquiry not admissible in evidence The proceedings of a court of inquiry, or any confession, statement, or answer to question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to the Act, nor shall any evidence respecting the proceedings of the court be given against any such person except upon the trial of such person for willfully giving false evidence before that court.
Provided that nothing in this rule shall prevent the proceedings from being used by the prosecution or the RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 60/84 CBI vs Anil Kumar Dhyani defence for the purpose of crossexamining any witness."
61. As per Rule 182 of The Army Rules 1954 aforesaid, the proceedings or confession in the Court of Inquiry were not admissible against the accused in this criminal trial, so the Court of Inquiry report Ex PW6/A, is inadmissible in evidence. The testimonies of PW5, the Presiding Officer of Court of Inquiry; PW19, the member of Court of Inquiry are of no help to the prosecution in this matter.
62. True that in terms of elicited evidence on record, it was also the responsibility of Pay Disbursement Officer and Account Officer to check the accuracy of the Check Rolls; it was the responsibility of the officials conducting Audit to check and verify the accuracy of the Check Rolls in respect of all its entries therein and to ascertain and pin point the discrepancies at the earliest to bring them to the logical conclusion. Yet, failure of Pay Disbursement Officer, Account Officer and officials conducting Audit to discharge such responsibility in itself would not suffice for accused to furnish grounds for acquittal herein.
63. PW14 Sh Vijay Singh Saini, LDC Archaeological Survey of India, Safdarjung Tomb deposed that on 01/12/2004 in his presence, the specimen signatures and writings of accused Ex PW14/A (S272 to S278) (D24), Ex PW14/B (S296 to S305) (D25), Ex PW14/C (S279 to S288) (D5/22) and Ex PW14/D (S289 to S295) (D6/21) were taken by PW43 RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 61/84 CBI vs Anil Kumar Dhyani IO/Inspector N.K. Jain. PW43 IO/Inspector N.K. Jain deposed that he had obtained specimen signatures and handwriting S134 to S208 (D17 to D21), Ex PW45/E (colly) of accused.
64. By the elicited evidence on record, it has been proved and even admitted by accused that in 505, Army Base Workshop accused was initially employed as Machinist but was later deployed as Check Roll Clerk. Ex P2 (colly) (D4) inter alia contains the duties of Computer Operator, duties and responsibilities of Machinist, Charter of duties and responsibilities of Check Roll Clerk, Standing Orders 2001 of 505, Army Base Workshop. In terms thereof, as per charter of duties and responsibilities of Check Roll Clerk, accused was under duty and responsibility inter alia to prepare the pay allowances (Ind Pers) and preparation of arrears of Pay and Allowances due to promotion, marking of Attendance/Leave in Check Rolls. In the course of their evidence, PWs 1,15,16,26,39 and 41 have proved on record that the Check Rolls no. XI (1) Ex PW1/N for the month of December 2000; (2) Ex PW9/A for the month of January 2001 and (3) Ex PW1/P for the month of February 2001 were prepared by the accused as Check Roll Clerk. Reports Ex PA38/1 and Ex PA38/2 of Forensic Document Expert PW38 Dr. Ravindra Sharma, AGEQD inter alia embody that (1) writings Q 18/1, Q18/2, signatures Q18/4 on Ex PW1/N29, part of Check Roll XI Ex PW1/N; (2) writings Q19/1, Q19/2, Q19/6, signatures Q19/4 on page 39 of Check Roll XI Ex PW9/A and (3) writings Q20/2, Q20/3, RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 62/84 CBI vs Anil Kumar Dhyani Q20/11, Q20/12, signatures Q20/8 and Q20/10 on Check Roll XI Ex PW1/P were of accused, after they were compared with the specimen writings S134 to S208, S272 to S305 of accused and admitted writings A50 to A61, A65 to A68, A70 to A78, A78/1, A79, A 79/1 and A80 to A84. The said reports of the Forensic Document Expert accordingly corroborate the version of PWs 1,15,16,26,39 and 41, elicited herein above. As per Check Rolls XI Ex PW1/N, Ex PW9/A, (1) actual net pay should be Rs. 4,98,429/ in the cumulative page total sheet Ex PW1/N29 part of Ex PW1/N though in the writing of accused at Q18/1, the amount of net pay mentioned is Rs 5,11,929/ in Ex PW1/N29 part of Ex PW1/N; (2) actual net pay should be Rs. 5,08,113/ in the cumulative page total sheet of Ex PW9/A though in the writing of accused at Q19/1, the amount of net pay mentioned is Rs 5,18,705/ in said sheet of Ex PW9/A. As per calculations, the actual net pay in the cumulative page total sheet of Ex PW1/P should be Rs. 4,99,132/. In token of preparation of the Check Roll Ex PW1/P, the accused had appended his signatures at certificate at point Q20/10, which certificate inter alia embodied the correctness regarding the entries and the amounts therein shown by the accused being the Check Roll Clerk. Besides that the accused had also mentioned at portion Q20/11 at page 37, in the Payment Certificate of Check Roll Ex PW1/P, that the sum of Rs. 5,09,683/ as passed vide cheque slip D.V no. CRXI dated Feb 2001, also wrote sum of Rs 4,86,263/purportedly for disbursing officer to certify of it having been disbursed while the sum of Rs 23,420/ was of RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 63/84 CBI vs Anil Kumar Dhyani absentees. Such writings Q20/11 aforesaid were so perse prepared by the accused for obtaining the signatures of disbursing officer at Q 20/12A on Payment Certificate at page 37 of Check Roll Ex PW1/P. Even overleaf page no. 35 of Check Roll Ex PW1/P at portion Q20/12 in the writing of accused, "Rs. Four Lakh eighty six thousand two hundred and sixty three only" is mentioned depicting in the certificate the said sum to have been correctly disbursed. Rs 4,86,263/ when is added with the total of the payment of the absentee workers i.e., Rs. 23,420/ deposited back being not disbursed would make out the total as Rs 5,09,683/ i.e., the total sum of "Net Pay" of the Check Roll XI Ex PW1/P. Cumulative effect of the writings Q20/2, Q20/3, Q20/11, Q 20/12, signatures Q20/8 and Q20/10 on Check Roll XI Ex PW1/P along with the elicted version of PWs 1,15,16,26,39 and 41 prove on record that accused was the maker of the Check Roll XI Ex PW1/P. Being Check Roll Clerk, it was the primary duty of the accused to prepare, get printed and present correct facts and figures inter alia in respect of the net pay in the cumulative page totals sheet of the Check Roll so as to get the salary disbursed correctly. Per contra to his said duty, inflated figures of net pay were prepared and presented by the accused to his superiors for disbursement of salary to the workers in the months of December 2000, January 2001 and February 2001 in the Check Rolls no. XI and such acts of the accused perse were not the cases of mere negligence or carelessness but deliberate acts on the part of accused for inflating figures of the net pay in the check rolls in question by falsification of RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 64/84 CBI vs Anil Kumar Dhyani accounts acting in the capacity of the Check Roll Clerk. The modus operandi of accused for such falsification of account has been brought on record and made vivid in the elicited evidence of PW42 read with the elicited evidence of PW24 who stated that it was the accused who used to work as his (PW24) standby as Computer Operator whenever PW24 was not available and even accused used to do payment related work on the computer including preparation of check rolls, payment sheets while even after preparation of the check rolls on several occasions accused was seen by PW24 while working on computer on which accused used to tell PW24 that he (accused) was rectifying some mistakes and after rectification of the alleged mistakes, accused would take the final print. On the basis of said inflated figures of the net pay, change details were so prepared by the accused for obtaining of the cash by the officials concerned for disbursement of the salary to the workers leading to disbursement of the salary accordingly.
65. Check Roll XI Ex PW1/N of December 2000 at pages 38 to 43 has the chart of , "PENCIL RECOVERIES FOR INDUSTRIALS PAY BILL: 11 DEC 2000" with details of 109 workers. Similarly, Check Roll XI Ex PW9/A of January 2001 at pages 33 to 38 has the chart of , "PENCIL RECOVERIES FOR INDUSTRIALS PAY BILL: 11 JAN 2001" with details of 109 workers. Similarly, Check Roll XI Ex PW1/P of February 2001 at pages 40 to 45 has the chart of , "PENCIL RECOVERIES FOR INDUSTRIALS PAY BILL: 11 FEB 2001" with RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 65/84 CBI vs Anil Kumar Dhyani details of 109 workers. When aforesaid pages 40 to 45 of Ex PW1/P were shown to PW39 in his cross examination, PW39 initially said he did not know what these pages are for; again PW39 said that these pages appear as payment sheets; again PW39 stated that he did not know what actually these pages were. PW39 thereafter stated that he cannot admit or deny these pages to be the payment sheets. It would not be out of place to mention that in the examination in chief of PW39 the aforesaid pages 40 to 45 of Ex PW1/P were not shown to him. The charge sheet in this matter finds mention that the payment sheets available with the Check Rolls were those payment sheets which were got generated by accused with the help of computer operator as required by the Local Audit office for the Income Tax requirements. Computer operator PW24 Sh H.P Arya inter alia deposed that when audit objections were raised then on the asking of Accounts Officer Sh V.K Nagpal, he (PW24) had given the print out of the Check Rolls pertaining to the months of December 2000 to February 2001; on being shown Ex PW20/A1, PW24 stated that the same were those regenerated check rolls given by him to the accused on the directions of Accounts Officer Sh V.K Nagpal. Nowhere in his examination PW24 stated of pages 38 to 43 of Check Roll XI Ex PW1/N of December 2000; pages 33 to 38 of Check Roll XI Ex PW9/A of January 2001 and pages 40 to 45 of Check Roll XI Ex PW1/P of February 2001 to be those regenerated pages of the Check Rolls given by him (PW24) to Accounts Officer Sh V.K Nagpal or these pages were those which were regenerated by him on or after the audit objections nor RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 66/84 CBI vs Anil Kumar Dhyani these pages were shown to him in the course of his examination. PW20 Malkhan Singh who joined raiding party on 02/12/2004 had inter alia deposed of taking out of print outs of Ex PW20/A1 during investigation. PW1, PW20, PW26, PW28 and PW35 were neither shown nor they deposed in their examination of (1) pages 38 to 43 of Check Roll XI Ex PW1/N of December 2000; (2) pages 33 to 38 of Check Roll XI Ex PW9/A of January 2001 and (3) pages 40 to 45 of Check Roll XI Ex PW1/P of February 2001 being the regenerated pages of the Check Rolls on or after the audit objections as what is mentioned in the charge sheet aforesaid. Even IO PW43 did not whisper of (1) pages 38 to 43 of Check Roll XI Ex PW1/N of December 2000; (2) pages 33 to 38 of Check Roll XI Ex PW9/A of January 2001 and (3) pages 40 to 45 of Check Roll XI Ex PW1/P of February 2001 to be the regenerated pages of the Check Rolls on or after the audit objections as what is mentioned in the charge sheet aforesaid. PW43 deposed that Sh Vijay Kumar Tyagi and Sh Sachin Marwah (PW19) were witnesses of fact of destruction of records by accused. Amongst them, PW5 Sh Vijay Kumar Tyagi (V.K.Tyagi) did not whisper of any fact of destruction of records by accused, except of having presided over the Court of Inquiry and having given report Ex. PW 6/A(colly). In his crossexamination PW19 stated that three payment sheets for months of December 2000, January and February 2001 of Check Roll XI were produced during Court of Inquiry. PW19 did not say that those three payment sheets were not original or were regenerated by accused/anyone else at any point of time. PW19 did not RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 67/84 CBI vs Anil Kumar Dhyani depose any fact of when and how payment sheets were destructed by the accused. It is accordingly proved on record that (1) pages 38 to 43 of Check Roll XI Ex PW1/N of December 2000; (2) pages 33 to 38 of Check Roll XI Ex PW9/A of January 2001 and (3) pages 40 to 45 of Check Roll XI Ex PW1/P of February 2001 were the payment sheets of these Check Rolls. At page 40 of Check Roll XI Ex PW1/P at Sr. no 107 the "Net Pay" of Dharam Singh mentioned is Rs.1,705/ though the correct "Net Pay" of Dharam Singh as per entry at page 32 of Check Roll XI Ex PW1/P should have been Rs.1,746/ where after said sum signatures of said worker are appended in token of receipt of said sum. Due to mention of said sum of Rs.1705/at page 40 of Check Roll XI Ex PW1/P at Sr. no 107, the "Net Pay" of workers from Sr. no 101 to 109 on said page is corresspondingly Rs.35615/. Manual totalling of "Net Pay" of all workers mentioned in pages 40 to 45 (payment sheets) of Check Roll XI Ex PW1/P of February 2001 shows the total to be Rs.4,99,091/. Adding Rs.41/ (less amount of net pay of Dharam Singh, as aforesaid) to Rs.4,99,091/ would lead to sum of actual Cumulative "Net Pay" of Check Roll XI Ex PW1/P i.e., Rs 4,99,132/. On sheet wise totalling of the amounts of "Net Pay" mentioned in each sheet of Check Rolls XI Ex PW1/N, Ex PW9/A and Ex PW1/P it is proved that at the end of each sheet in the row of totals the amount shown as total of "Net Pay" of the workers detailed in the said sheet was printed correctly but at the same time the calculations prove that the "Cumulative Total" of "Net Pay" shown as (1) Rs 5,11,929/ at page 43 (payment sheet) and at page RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 68/84 CBI vs Anil Kumar Dhyani 35 of Check Roll XI Ex PW1/N is incorrect total whereas the correct total should be Rs 4,98,429/; (2) Rs 5,18,705/ at page 38 (payment sheet) and at page 39 of Check Roll XI Ex PW9/A is incorrect total whereas the correct total should be Rs 5,08,113/ and (3) Rs 5,09,683/ at page 40 (payment sheet) and at page 34 of Check Roll XI Ex PW1/P is incorrect total whereas the correct total should be Rs 4,99,132/. The "Cumulative Totals" of "Net Pay" aforesaid are inflated and incorrect instead of the correct totals which should have been shown by the accused being the Check Roll Clerk as he was the person who provided all data and prepared these documents. The modus operandi of accused for such falsification of accounts has been brought on record and made vivid in the herein before elicited evidence of PW42 read with the herein before elicited evidence of PW24. However, the prosecution has failed to prove on record that accused had caused disappearance of any evidence of any offence, while the payment sheets of the Check Rolls in question are placed on record, as elicited herein before.
66. "Wilfully" as used in Section 477A means "intentionally" or "deliberately." There can be no difficulty in holding that inflated figures of net pay aforesaid were made by accused wilfully. Indian Penal Code does not contain any precise and specific definition of the words "intent to defraud." However, it has been settled by a catena of authorities that "intent to defraud" contains two elements viz., deceit and injury. A person is said to deceive another when by practising "suggestio RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 69/84 CBI vs Anil Kumar Dhyani falsi" or "suppressio veri" or both he intentionally induces another to believe a thing to be true, which he knows to be false or does not believe to be true. Injury has been defined in Section 44 of IPC as denoting "any harm whatever illegally caused to any person, in body mind, reputation or property."
67. Aforesaid deliberate acts on the part of accused of inflating figures of the net pay in the check rolls in question by falsification of accounts acting in the capacity of the Check Roll Clerk were accordingly done by practising "suggestio falsi" as well as "suppressio veri" as he intentionally induced his superiors and others to believe the aforesaid inflated amounts of net pay, to be true, which he knew to be false or did not believe them to be true. With such intent to defraud, the accused falsified the accounts by projecting inflated sums of net pay to be the actual sums of net pay, as aforesaid.
68. It had been held in the case of Ram Narain Poply Vs. CBI, AIR 2003 SC 2748 that deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, need not be by express words, but it may be by conduct or implied in the nature of the transactions itself.
69. In facts of this case, from the elicited conduct of the accused RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 70/84 CBI vs Anil Kumar Dhyani and by necessary implication from the nature of the transactions itself, it is borne out and proved on record that by such falsification of accounts and projecting inflated sums of net pay to be the actual sums of net pay, as aforesaid in the Check Rolls in question, the accused practiced deception on his superior officials and others to deliver the cash equivalent to the such inflated sums of net pay for disbursement to the employees as salary. Such acts of the accused caused wrongful and avoidable loss to the employer of the accused to the extent of Rs. 34,643/.
70. The word, "dishonestly" as defined in Section 24 of IPC implies a deliberate intention to cause wrongful gain, or wrongful loss and when this is coupled with cheating and delivery of property, the offence is punishable under Section 420 of IPC. In the case of Tulsi Ram Vs. State of UP, AIR 1963 SC 666, it was held that there are two facets of the definition, "dishonestly", namely the intention of causing wrongful gain to one person or wrongful loss to another, and it is enough to establish the existence of one of them; the law does not require that both should be established.
71. It also could not be ascertained as to whose pay packet(s) amongst employees including accused contained sums excess to their actual pay in respect of the Check Rolls in question. The sums in the pay packet of employees were put at the instance of the accused, the Check RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 71/84 CBI vs Anil Kumar Dhyani Roll Clerk, as per the elicited evidence on record.
72. There is a famous legal maxim "nullus commodum capere potest de injuria sua propria", which means that no man can take advantage of his own wrong. It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong. This maxim is based on elementary principles and has gained status in law and equity.
73. 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 becomes a trespasser ab initio.
74. Since accused was the maker of (1) writings Q18/1, Q 18/2, signatures Q18/4 on Ex PW1/N29, part of Check Roll Ex PW1/N; (2) writings Q19/1, Q19/2, Q19/6, signatures Q19/4 on page 39 of Check Roll Ex PW9/A and (3) writings Q20/2, Q20/3, Q20/11, Q 20/12, signatures Q20/8 and Q20/10 on Check Roll Ex PW1/P embodying inflated sums of net pay instead of actual pay, elicited herein above, so accused cannot claim shelter behind lapses on the part of Disbursing Officer, Accounts Officer, Auditing officials for earlier non RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 72/84 CBI vs Anil Kumar Dhyani detection of excess pay of sum total of Rs. 34,643/ in respect of the Check Rolls in question nor can feign ignorance of such inflation of net pay. Having depicted inflated amounts as, "Cumulative Total" of net pay in the payment sheets aforesaid and the, "Net Pay" in the Cumulative Page Totals of the Check Rolls XI Ex PW1/N, Ex PW9/A and Ex PW1/P, accused cannot take advantage of his own wrong. 505, Army Base Workshop was put to wrongful loss by excess payment of aforesaid sums totaling Rs 34,643/, from the sums paid as salary as per Check Rolls XI Ex PW1/N, Ex PW9/A and Ex PW1/P on the basis of falsification of accounts by the accused. Such deception practiced by accused for release of excess sums of net pay by his employer through other employees is proved on record by the conduct of accused and by necessary implication in the nature of transactions itself.
75. In Criminal Appeal Nos. 482/02, 509/02 & 536/02 titled Runu Ghosh vs C.B.I.; P. Rama Rao vs C.B.I; Sukh Ram vs C.B.I, it was inter alia held by Hon'ble Mr. Justice S. Ravindra Bhat and Hon'ble Mr. Justice G.P. Mittal on 21/12/2011 that "A new offence (or subspecies, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else ("any person") benefitting by getting a valuable thing or pecuniary advantage, ―"without any public interest." There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 73/84 CBI vs Anil Kumar Dhyani means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else - not necessarily by abusing his office, or using corrupt or illegal means - pecuniary advantage or a valuable thing - without public interest."
Also was held that "161. This Appeal was received upon a reference to the Division Bench, as regards the true interpretation of Section 13 (1) (d) (iii). We have indicated the test applicable, i.e. when the decision or an act of a public servant, (which results in another obtaining pecuniary advantage or valuable thing) be without public interest, namely, if that action of the public servant is the consequence of her or his manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted."
The test applicable was indicated as "However, the test always in such cases is whether the decision was such as someone acting reasonably, on the basis of the materials available, would have taken. The test of public interest is paramount; if it appears that the decision is taken without public interest in mind, and unreasonably or manifest disregard to the consequence that such act would be severe undermining of public interest, and that such decision would result in a third party obtaining pecuniary advantage, without public interest, the decision maker has to take responsibility for the consequences."
76. Neither in the course of the investigation nor in the course of the trial, it has been brought to light and proved that it was only the accused who wrongfully gained the sums of money whose corresponding loss was suffered by the employer of accused i.e., 505, Army Base RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 74/84 CBI vs Anil Kumar Dhyani Workshop. Be that as it may, it is proved on record that by falsification of accounts as aforesaid, accused had put 505, Army Base Workshop, his employer to wrongful loss to the tune of Rs 34,643/ while others, may be including accused, correspondingly wrongfully gained. Accused was holding office as a public servant and was duty bound as Check Roll Clerk to prepare, get printed and put up the Check Rolls with actual and correct sums of salary payable to employees of 505, Army Base Workshop but instead he had put up the Check Rolls XI Ex PW1/N, Ex PW9/A and Ex PW1/P, inflating the net pay therein to the extent of Rs 34,643/ in total and by such unlawful means, not only abused his position as a public servant, caused wrongful loss to his employer 505, Army Base Workshop but also caused correspondingly wrongful gain to others, may be including himself, which acts were of course without public interest. Such acts committed by the accused squarely come within the parameters of criminal misconduct as defined in Section 13(1)
(d) of Prevention of Corruption Act, 1988.
77. The contentions of Ld. Counsel for accused do not hold water nor suffice to secure acquittal of accused for offences excepting under Section 201 IPC. Non seizure of regimental recovery sheets, computer and printer of 505 Army Base Workshop during the course of investigation and non examination of Account Officer Sh.V.K.Nagpal, who was reportedly abroad so could not be served for want of his abroad address, cannot be termed fatal to the prosecution case.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 75/84 CBI vs Anil Kumar Dhyani
78. All documents elicited in this judgment, excepting Check Rolls no. XI Ex PW1/N, Ex PW9/A and Ex PW1/P are common to all seven cases against accused and are in the first case CC No. 13/12.
79. In view of foregoing discussions, I am of the considered opinion that prosecution has failed to prove the case against the arraigned accused Anil Kumar Dhyani for offence under Section 201 IPC for which offence the accused is held not guilty and acquitted. However, the prosecution has been successful in proving the case beyond reasonable doubt against arraigned accused Anil Kumar Dhyani for offences under (1) Section 420 of IPC; (2) Section 477A of IPC; (3) of criminal misconduct, as defined in Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988, for which offences, the said accused is held guilty and convicted accordingly. Let he be heard on sentence.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 29/05/2013. Patiala House Court, New Delhi. Deepika RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 76/84 CBI vs Anil Kumar Dhyani IN THE COURT OF SH. GURVINDER PAL SINGH, SPECIAL JUDGE (PC ACT) (CBI)6, PATIALA HOUSE COURT, NEW DELHI CC Nos. 19/12 (Old CC No. 30/07).
RC No. DAI/2002/A0033/CBI/ACB/ND U/S 420/477A IPC; 13(1)(d) r/w 13(2) of PC Act 1988 Unique ID No. : 02403R0215012005 Central Bureau of Investigation vs. Anil Kumar Dhyani S/o Sh. Gajender Prashad Dhyani, R/o 207B, Pocket1, Mayur Vihar, PhaseI, Delhi110091 Permanent address:
Village Sandli Talli, Post Office Degoli Khal Gujru, District Pouri Garwal (Uttranchal) ORDER ON SENTENCE:
Having convicted Anil Kumar Dhyani under (1) Section 420 of IPC; (2) Section 477A of IPC and (3) of criminal misconduct, as defined in Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988; I have heard the Ld. PP for CBI, the Ld. Defence Counsel and the convict and have perused the record.
2. Sh. Anil Tanwar, Ld. Public Prosecutor for CBI has prayed RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 77/84 CBI vs Anil Kumar Dhyani for maximum prison term on the premise that corruption has reached phenomenal level and deterrent sentence would meet the ends of justice as is required in the interest of the society.
3. Sh Satish Tamta, Ld. Counsel for convict in his submissions has prayed for lenient view for the convict submitting that (1) the convict is the first offender; (2) the convict is one of the two bread earners in his family consisting of his working wife having two minor children i.e., a daughter of age of 7 years and a son of age 2½ years beside aged parents;
(3) the convict had lost his job on 23/01/2013. The convict himself submitted that he is of age 39 years plus and a Commerce Graduate and has never been involved or accused of any other criminal case/offence excepting what had been complained in the present FIR and not even involved in any civil litigation as well. The convict has submitted that his wife is employed as a Computer Operator in a Private Limited Company. The convict has also prayed for leniency.
4. In the case of "State of U. P. v. Kishan," AIR 2005 SC 1250, it was held that "Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (AIR 1991 SC 1463).
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 78/84 CBI vs Anil Kumar Dhyani The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal."
5. In the case of "A.Wati A.O. vs. State of Manipur," 1996 Cri. L. J. 403 (SC), it was held that "The fact that the appellant is a senior IAS Officer really requires a serious view of the matter to be taken, instead of soft dealing. The fact that he has a number of dependents and is going to lose his job are irrelevant considerations in as much as in almost every case a person found guilty would have dependents and if he be a public servant, he would lose his job. The present being the first offence is also an irrelevant consideration. Though the delay has some relevance, but as in cases of the present nature, investigation itself takes time and then the trial is prolonged, because of the type of evidence to be adduced and number of the witnesses to be examined, we do not think that the fact of delay of about five years could have been a ground to award the sentence of imprisonment till rising of the Court, which really makes a mockery of the whole exercise."
6. In view of the law laid in the case of A. Wati A.O. (Supra), in the cases of corruption the age, family, responsibilities, previous records of convict and the loss of job cannot be considered as mitigating RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 79/84 CBI vs Anil Kumar Dhyani circumstances in sentencing of the convict.
7. Corruption fundamentally is perversion and infectious. An individual perversity can become a social evil. There is rampant corruption in society. Corruption is indeed one of the major roadblocks in India's journey from a developing to a developed economy. There is an urgent need to have a comprehensive framework that would help curtail corruption. Need of the hour is to sacrifice selfish approach for the sake of the society and nation. Corruption needs to be eradicated from the nation. Task is arduous but not unachievable. To achieve that, one has to rise above his vainglorious interest and to raise his moral standards. Public persons need to resist to such illegitimate insistence and rather should act as whistleblowers. Only with collective efforts, corruption can be eradicated.
8. If corruption is sought to be eliminated, all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 80/84 CBI vs Anil Kumar Dhyani reflection of Parliament's resolve to meet corruption cases with very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that due to delay in trial, he may have the advantage of getting a very light or flee bite sentence even if the case ends in conviction, then I am afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with impunity. Sentencing to higher fine and awarding imprisonment of a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means.
9. In the fact of the matter, Convict had the job profile of Check Roll Clerk in 505 Army Base Workshop and as public servant Convict was duty bound as Check Roll Clerk to prepare, get printed and put up the Check Rolls with actual and correct sums of salary payable to employees of 505, Army Base Workshop but instead, consequences were kept at bay by the convict while he had put up the Check Rolls, in question in this matter, inflating the net pay therein to the extent of Rs 34,643/ in total and by such unlawful means, not only abused his position as a public servant, caused wrongful loss to his employer 505, Army Base Workshop. The proved acts amounting to criminal RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 81/84 CBI vs Anil Kumar Dhyani misconduct were committed by the convict, a public servant, with cool calculation and deliberate design regardless of the consequence to the Government Exchequer and/or Community. Convict had put the Government Exchequer at wrongful loss to the tune of Rs 34,643/. No glimpse of remorse was visible on the face of the Convict. Over all entire nation is suffering on account of misdeeds of such offenders who put Government Exchequer to such loss compromising with the economy of the nation. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book and suitably punished.
10. Grant of probation to convict would be like granting license to such offenders to usurp Government/ public money in detriment to public interest. Cry of society is that such convict is to be suitably sentenced. Grant of probation to convict is passe part not made out. Cheating by falsification of accounts and committing criminal misconduct by a public servant putting the Government Exchequer at loss are certainly serious offences calling for a deterrent sentence in the interest of nation as well as society, lest it would send wrong signals to public at large that by fleebite sentence, such offenders can be let off, which would encourage such like offenders to commit similar offences and enhance misery of society and nation, which are infact presently reeling under the evil of corruption.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 82/84 CBI vs Anil Kumar Dhyani
11. Be that as it may, I cannot be oblivious of the fact that the convict has no bad antecedents and has already undergone agony of trial for period of about 8 years. Keeping in mind overall facts and circumstances of the case, the Convict Anil Kumar Dhyani is sentenced to:
(i)Rigorous Imprisonment for four years and fine of Rs. 20,000/ in default thereof he would undergo Simple Imprisonment for a further period of 12 months under Section 420 of IPC;
(ii)Rigorous Imprisonment for four years and fine of Rs. 10,000/ in default thereof he would undergo Simple Imprisonment for a further period of six months under Section 477 A of IPC;
(iii)Rigorous Imprisonment for four years and fine of Rs. 10,000/ in default thereof he would undergo Simple Imprisonment for a further period of six months under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988.
The sentences of Rigorous Imprisonment shall run concurrently. The sentences of Simple Imprisonment in default of payment of fine shall run consecutively.
RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 83/84 CBI vs Anil Kumar Dhyani
12. The convict was on bail since filing of the case and during trial. The convict has been sent to jail on 29/05/2013 after the judgment of conviction in this case. Needless to say, the convict would be entitled to benefit of Section 428 Cr.P.C.
13. A copy of judgment and order on sentence be given to the convict free of cost.
14. Let the convict be sent to jail under appropriate warrant for which the Reader is directed to do needful.
15. The convict has also been made aware about the fact that he has right to file appeal.
16. Ahlmad is directed to page and bookmark the file as per the latest circular so as to enable digitization of the entire record.
File be consigned to record Room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 30/05/2013. Patiala House Court, New Delhi. Deepika RC No. DAI/2002/A0033/CBI/ACB/ND CC No. 19/12 84/84