Delhi District Court
State (Cbi) vs S.S.Naik on 7 August, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI NEW DELHI DISTRICT,
NEW DELHI
CC No.18/2011
RC No.DAI/2002/A0065/CBI/ACB/ND
In re:
STATE (CBI)
VS
1. S.S.NAIK
S/O SHRI P.NAIK
R/O 331, SECTOR IX,
RK PURM, NEW DELHI.
2. YP SHARMA,
S/O KL SHARMA,
R/O BLOCK NO.12,
QUARTER NO.536, LODHI ROAD,
NEW DELHI.
3. CHANDRESHWAR MANJHI,
S/O SHRI JN MANJHI,
R/O H.NO100 (OLD),
D174 (NEW) SAURAV VIHAR,
HARI NAGAR EXTENSION,
JAITPUR ROAD, BADARPUR,
NEW DELHI.
4. SK AGGARWAL,
S/O SHRI KL AGGARWAL,
R/O 139, SFS, SHAKTI APARTMENTS,
ASHOK VIHAR, PHASEII,
NEW DELHI.
5. NATHA RAM SUMAN,
S/O KALI RAM SUMAN,
R/O QUARTER NO.773, SECTOR - III,
RK PURAM, NEW DELHI.
State (CBI) v. S.S.Naik (CC No.18/11) Page No.1/26
2
Date on which charge sheet was filed - 31.03.2006
Date on which charges were framed 02.11.2007
Date on which judgment was reserved 10.07.2012
Date on which judgment was Pronounced - 03.08.2012
APPEARANCES:
Mr. S. C. Sharma, Ld. PP for CBI.
Mr. Jaswinder Singh, Ld. Counsel for A1.
Mr. R. K .Verma, Ld. Counsel for A2.
Mr. P. N. Dhar, ld. Counsel for A3.
Mr. Amit Goel, Ld. Counsel for A4.
Mr. Vineet Kumar, Ld. Counsel for A5.
03.08.2012
JUDGMENT
1. This case was registered on the basis of source report on 29.11.2000 on the allegations that one Shri S.S.Naik (A1), Section Officer in Central Water Commission (CWC) with some unknown officials in the Accounts Section of CWC entered into a criminal conspiracy to defalcate government funds by raising fictitious bills in the name of non existing officials and getting such bills encashed deriving unlawful gain.
2. It is the case of the CBI that investigation revealed that A1 in pursuance of criminal conspiracy submitted a false medical bills under his signatures in respect of the treatment of his wife Mrs. B.P.Naik for a sum of Rs.55,330/ at Lady Harding State (CBI) v. S.S.Naik (CC No.18/11) Page No.2/26 3 Medical Collect (for short LHMC) and Sucheta Kriplani Hospital (SSKH), New Delhi accompanied with necessary Essentiality Certificate 'B' purportedly signed by Dr.T.P.Kaur, photo copy of discharge summary of case no.44614, ten cash receipts of purchase of medicines from various chemists and cash receipt no.39013 dated 07.01.1999 for Rs.2200/ as room rent for the Nursing Home.
3. The case of the State (CBI) is that medical bill no,.1242II dated 20.01.1999 for Rs.55,330/ was prepared and passed by YP Sharma ( A2) , working as Professional Assistant (Statics) in CWC, although the bill was not accompanied with sanction for treatment and reimbursement.
4. It is further the case of State (CBI) that coaccused Chandreshwar Manjhi (A3) , Section Officer working as DDO in CWC without obtaining sanction of the competent authority forwarded the bills to the Pay & Accounts Office for passing of the bill and payment thereupon in criminal conspiracy with coaccused Natha Ram Suman (A5) who was the PAO. A4 SK Aggarwal as Senior Accounts Officer in the P&AO, CWC is alleged to have ignored the glaring irregularities with other co accused in passing the bill and issued cheque no.236501 dated State (CBI) v. S.S.Naik (CC No.18/11) Page No.3/26 4 25.01.1999 for Rs.55,330/ in favour of A1 that was deposited by A1 in his bank account no.32333 with SBI, RK Puram, New Delhi on 25.01.1999 and was credited on 27.01.1999. It is also the case of State (CBI) that the details of cheque no.236501 dated 25.01.1999 issued in favour of A1 was not reflected in the Cheque Acquaintance Register or Reimbursement Register of CWC and this was done in connivance with other co accused persons.
5. It is the case of State (CBI) that investigation revealed that Smt. BP Naik, wife of A1 was admitted in the alleged LHMC and Sucheta Kriplani Hospital (SSKH) for treatment of DVB and Adenomyosis in Gynae Ward, UnitB, Nursing HomeI and 29.12.1998 and operated on 01.01.1999 by Dr. T.P.Kaur and remained in the hospital till 07.01.1999; and that investigation revealed that Rs.2200/ were received by the cashier of the hospital but on scrutiny of cash receipt register, no payment of Rs.50,000/ had towards operation charges been made and rather LHMC and SSKH being Central Govt. Institutions did not charge any amount from its patients.
6. It is alleged that when the amount of cheque was credited in the account on 27.01.1999 , Rs.42,000/ were withdrawn vide State (CBI) v. S.S.Naik (CC No.18/11) Page No.4/26 5 self cheque by A1, while Rs.6,000/ and Rs.7,000/ were utilised on clearance of cheques issued by A1 on 29.01.1999 and 30.01.1999.
7. CBI obtained sanction for prosecution against the A1, A2 and A5 from the competent authority who were serving public servants and after completion of investigation present charge sheet was filed. Sanction was not taken against A3 and A4 as they had retired from service on reaching the age of superannuation.
CHARGE
8. The accused persons were charged on various counts of offences u/s. 120B r/w 420 Indian Penal Code and further 13(2) r/w 13 (1)(d) of Prevention of Corruption Act and for substantive offences. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
9. The prosecution in order to prove its case examined 20 witnesses. The witnesses who were examined from the CWC were as under :
10. PW1 was Robert Charles Tully. He was posted as DDO, CWC w.e.f. 22.01.2004. It is suffice to state that the witness State (CBI) v. S.S.Naik (CC No.18/11) Page No.5/26 6 deposed about organizational set up in the Accounts Section of CWC in regard to disbursement of pays, salaries and other bills and the role of DDO and Pay & Account Office besides deposing about various registers for clearance/passing of various bills. PW1 further deposed about bill no. P1242/II dated 20.01.1999 in the name of S.S.Naik for Rs.55,330/ vide Ex.PW1/A and I shall dwell on his evidence in detail later in my judgment.
11. PW2 was B.S.Yadav, who joined Pay & Accounts Office in CWC on 31.10.2002. He deposed about issuance of cheque 236501 dated 25.01.1999 for Rs.55,330/ Ex.PW2/A and proved the cheque book containing leaves from 236501 to 23660 vide Ex.PW2/B. He also deposed about photo copy of register Ex.PW2/C, whereby the cheque was cleared on 27.01.1999 and its entry in the ledger Ex.PW2/D.
12. PW6 was P.K.Rooprai, Principal Accounts Officer in the Ministry of Water Resources, Govt. of India, who deposed about the discrepancies in the medical reimbursement bill Ex.PW1/A and about non authentication of cash memo Ex.PW4/1 to Ex.PW4/4 vide Ex.PW5/A.
13. PW9 was B.V.Jagdish Kumar, who worked in the State (CBI) v. S.S.Naik (CC No.18/11) Page No.6/26 7 Accounts Section of CWC from 1998 to 2000. He identified the signatures of YP Sharma(A2) on document Ex.PW1/A and also at Q26 point C. he also identified the signatures of accused C.Manjhi (A3) at point A in Ex.PW1/A and the handwriting of A2 at point B on Q25 besides his initials on Q26A. He also identified the signatures of A3 at points A and and D on the reverse of the impugned cheques.
14. The following witnesses were examined about the medical claim :
15. PW3 was S. Lakra, who during the relevant time was working in Administrative Block of LHMC. He produced the medical reimbursement register maintained during the relevant time Mark PW3/1 for the period 30.08.1996 till 27.03.2000 kept at LHMC and SSKH and he deposed that during the period 28.12.1998 till 21.02.1999 no entry was recorded in the register Mark PW3/1 in the name of Mrs. B.P.Naik towards reimbursement of medical charges. He further deposed regarding the procedure that was being adopted by the hospital in regard to claim for reimbursement of medical charges and the manner it was dealt by the Addl. Medical Superintendent.
State (CBI) v. S.S.Naik (CC No.18/11) Page No.7/26 8
16. PW4 was Anubhav Bhatnagar from Sidharatha Plus Medical Store, Panchkuian Road, New Delhi, who deposed about 4 cash memos Ex.PW4/1 to Ex.PW4/4 in regard to purchase of medicines for patient Mrs. B.P. Naik.
17. PW5 was Ashok Mohan Saxena, proprietor of M/s. Dayal Medical Store, Shop no.8, Sector 8, RK Puram, New Delhi, who deposed about cash receipt dated 28.12.1998 for Rs.31/ regarding purchase of medicines in the name of Mrs. B.P.Naik vide Ex.PW5/A.
18. PW8 was Yogesh Kumar, Medical Record Technician of SSKH. He deposed that he delivered the file (D8) running into 21 leaves in regard to treatment of Mrs. B.P. Naik Ex.PW7/E colly seized by the CBI vide Ex.PW8/A.
19. PW11 was Dr. G.K.Sharma, working as Principal and Medical Superintendent, LHMC June 2004. He deposed that vide letter Ex.PW11/A he supplied the specimen certificate B in regard to treatment of any patient in the hospital and proved the same as Ex.PW11/B.
20. PW14 was Dr. S.C.Mahapatra. He deposed that he was posted as Medical Superintendent in CGHS Hospital, Timarpur during the period 199899 and deposed about the procedure State (CBI) v. S.S.Naik (CC No.18/11) Page No.8/26 9 that was being followed in regard to reimbursement of medical claim and brought out certain discrepancies and irregularities in the encashment of bills in this case, corroborating the contents of letter to the IO dated 01.10.2003 Ex.PW14/A inter alia to the effect that no operation charges of Rs.50,000/ were claimed by the patient.
21. PW7 was Tarlochan Joshi, GEQD, Shimla, who in his testimony deposed about questioned documents viz. Specimen handwriting S1 to S6 of A1, S11 to S13 of A4 and S14 to S16 of A5 and proved his report Ex.PW7/H.
22. PW10 was IPS Bhatia, Deputy Manager, SBI, RK Puram Branch, New Delhi. He deposed about encashment of cheques for Rs.55,330/ in favour of A1.
23. PW12 was Brij Mohan Sharma, Senior Clerk of DTC, who deposed that specimen signatures of A5 SK Aggarwal were taken in his presence in December, 2004 which sheets are Ex.PW12/A.
24. PW13 was Naresh Kumar, Peon in Ministry of Home Affairs, who deposed that specimen signatures of A1 S.S.Naik were taken in his presence vide sheets Ex.PW13/A.
25. PW15 was Inspector Sri Bhagwan. He was assigned the State (CBI) v. S.S.Naik (CC No.18/11) Page No.9/26 10 investigation of this case and he deposed that he obtained the sanction for prosecution against accused SS Nayak, YP Sharma and NR Suman and after completion of investigation filed the charge sheet in the court.
26. The investigation of this case was conducted by PW16 R.S.Bedi. Further witnesses are as under;
27. PW17 was Ambrish Kumar,Director (Administration) in CWC. He deposed that he accorded sanction for prosecution against accused A2 YP Sharma vide order dated 03.10.2005 Ex.PW17/A.
28. PW18 was C.R.Sundaramurti, Addl. Controller General of Accounts in Ministry of Finance, Govt. of India. He accorded sanction for prosecution against accused NR Suman vide order Ex.PW18/A.
29. PW19 was J.Hari Narayan, Secretary, Ministry of Water Resources, new Delhi, who deposed that he accorded sanction against A1 vide order dated 28.09.2005 Ex.PW19/A.
30. PW20 was CL Dhar, Director, CWC. He deposed that he had received a cheque no.230075 for Rs.50,000/ dated 29.05.1998 as arrears in terms of recommendations of Vth Pay Commission and put his signatures on the same Ex.PW20/A. State (CBI) v. S.S.Naik (CC No.18/11) Page No.10/26 11 STATEMENT OF ACCUSED PERSONS
31. On the close of the prosecution evidence, each of the accused was separately examined u/s. 313 Cr.P.C., and they were put the incriminating facts and circumstances brought on the record. It is suffice to state that A1 denied the case of the prosecution that he submitted bogus claim with CWC and stated that his wife had been duly treated in the hospital and he raised a valid claim with CWC.
32. A2 YP Sharma also denied the prosecution case and stated that he has been falsely implicated by the CBI.
33. Suffice to state that A3 Chandreshwar Manchi, A4 SK Aggarwal and also A5 Natha Ram Suman denied the prosecution case and stated that they have been falsely implicated by the CBI.
ARGUMENTS
34. I have heard Ld.Sr.PP for the State (CBI) and Ld. Defence Counsel for the accused. I have perused the record carefully and minutely.
PROCEDURE FOR APPROVAL OF BILLS AND ISSUANCE OF CHEQUES
35. First thing first, it would be expedient to look into the relevant rules/guidelines about the accounting practices and State (CBI) v. S.S.Naik (CC No.18/11) Page No.11/26 12 procedures. Chapter IV of the Civil Accounts Manual (Revised First Edition - 2002) Volume I issued by the Ministry of Finance, Department of Expenditure, Controller General of Accounts, New Delhi prescribes "Principle and Procedures of pre check and post check to be conducted by the Pay & Accounts Office". The general checks that are required to be conducted are prescribed under the Head 4.10 enumerated in 4.10.1 as under :
(a) that bills are prepared in the prescribed form, signatures are genuine and that the bills are in original; that a brief abstract is given in the official language authorised for the purpose under the signature of the drawing officer on all vouchers prepared in any other language; that signatures, if not in the authorised script, are transliterated and that sub-vouchers contain notes of of dates of payment;
(b) that the details work up to the totals and that the totals are in words as well as in figures,
(c) that they bear a 'pass order' signed by the drawing and disbursing officer;
(d) that there are no erasures, and that any alterations in the total are attested by the officer concerned as many times as they are made,
(e) that no payment is made on a bill or order signed by a subordinate instead of head of the office himself or on a voucher or order signed with a stamp, and that copies of sanctions are certified by the sanctioning officer or by an authorised gazetted Government servant,
(f) to (k) omitted as not relevant
36. Evidence of PW1 regarding the procedure that was being followed in the office of DDO and Pay & Accounts State (CBI) v. S.S.Naik (CC No.18/11) Page No.12/26 13 Office and drawing of various bills and issuance of cheques has not been challenged. The duties of the DDO involved drawing of all the pay bills and other bills before they are sent to the Pay & Accounts Office and admittedly DDO was being assisted by the establishment staff and in the present case, there were four account sections which were dealing with different categories of employees. It is admitted that the bills that were scrutinized and passed by the establishment used to be placed before the DDO, who after verifying and signing the same used to send it to the Pay & Accounts Office. The Pay & Accounts Office was also enjoined to scrutinize the bills and then issue cheques as rfserred in the Manual. It is in evidence that bill transit register was used for recording the payment to be sent to Pay & Accounts Office and on receipt of bills in Pay & Accounts Office a token number used to be issued for every bill; the bill was given a number and entered in the bill register and the token number was incorporated in the register so maintained.
37. It is also in the evidence that when particular bill was passed by the Pay & Accounts Office, it used to be sent back State (CBI) v. S.S.Naik (CC No.18/11) Page No.13/26 14 to the DDO or in favour of the individual concerned. Before disbursement of cheque, an entry used to be made in the "Cheque Acquaintance Roll" or "Cheque Delivery Register"
containing details viz. Bill no., name and designation of the employee to whom cheque is issued to be signed by the DDO or the beneficiary of the bill. Once this was done, the details of the bill used to be entered into a register known as the "Pay Bill Register". This register contained separate page of each individual employee wherein all financial transactions within the relevant financial year used to be recorded. It is also admitted case that bills used to be prepared only on the basis of financial sanction granted by the establishment section dealing with the category of employees in whose case the sanction has been issued invariably containing head of the account to which the expenditure was to be debited.
APPRECIATION OF EVIDENCE
38. In the background of the said general practices, coming to the instant case, there is no denying the fact that Smt. BP Naik, wife of A1 had been admitted in LHCM on 26.12.1998 and discharged on 01.01.1999 in term of State (CBI) v. S.S.Naik (CC No.18/11) Page No.14/26 15 discharge summary Ex.PW14/DC (also Ex.PW7/1 to 21). There is not much dispute about the medicines that were purchased vide memo Ex.PW4/1 to 4/4 and beside Ex.PW5/A besides Rs.2,200/ that were charged for the Nursing Home vide receipt Ex.PW14/DA. The only dispute pertains to Rs.50,000/ that appear to have been claimed by A1 vide bill dated 20.01.1999 vide Ex.PW1/A. As per the report of PW7 GEQD, the writings and signatures Q24 in Ex.PW5/A and Q27 , Q28 and Q29 on the accompanying application forming part of Ex.PW1/A are attributed to A1 brought out in his report Ex.PW7/H and reasoning Ex.PW7/J.
39. It is in evidence that bill Ex.PW1/A was accompanied with an application for reimbursement of Rs.55,329.55p accompanied with Essentiality Certificate - B Ex.PW14/DD, which contain handwriting at Q30 attributable to A1 as per report Ex.PW7/J and statement of reason Ex.PW7/H and Ex.PW7/J. Now, PW14 Dr. S.C.Mahapatra deposed that if a CGHS card holder purchases medicines from outside for the same being not available in the dispensary, the bills are required to be submitted to the concerned doctor for State (CBI) v. S.S.Naik (CC No.18/11) Page No.15/26 16 verification, which are then counter verified by the Medical Superintendent of the concerned dispensary/hospital. On being put Ex.PW14/DD he stated that the same had not been verified at portion A to A meant for comments and signature by the Medical Superintendent. PW14 Dr. S.C. Mahapatra was subjected to a grueling cross examination by ld. counsel for A1 and he stood his ground to the effect that amount of Rs.50,000/ as reflected in Ex.PW14/DD was not charged by the hospital from the patient. He deposed that there was a provision for special care in the nursing home of the hospital, for which the patient was to pay separately but on seeing the discharge summary Ex.PW14/DC (Ex.PW7/1 to 21), he deposed that no special request had been made by the patient or his relative/husband for such special care. At the cost of repetition, PW14 was categorical that he personally verified the claim from the Accounts Branch and although the figure of Rs.3129/ was correct the figure of Rs.50,000/ claimed by the patient was wrong as it was never charged by the hospital.
40. Much dispute is raised by ld. Counsel for A1 that State (CBI) v. S.S.Naik (CC No.18/11) Page No.16/26 17 Essentiality Certificate 'B' Ex.PW14/DD had been signed at point X by Dr. T.P.Kaur and she was not examined by the IO. IO PW16 Inspector R.S.Bedi's version is that the said doctor had left the service of the hospital to Dubai. PW 14 however on being put the certificate Ex.PW14/DD denied that it contained the signatures of Dr.T.P.Kaur at point X. He had no reason to depose falsely against the accused persons.
41. Be that as it may, PW14/DD has not been signed by the Medical Superintendent. It is pertinent to mention here that bare perusal of Ex.PW14/DD would show that amount of Rs. 50,000/ has been squeezed inside the totaling figures vide item no.19 with remarks "operation etc" and PW3 S.Lakra deposed that medical reimbursement register Ex.PW3/1, that was being maintained in the ordinary course of business, had no entry recorded in the name of Mrs. B.P. Naik from 30.08.199 to 27.03.2000. Judicial cognizance of the fact can be taken that LHMC is a hospital fully funded by the Central Govt. to provide free medical treatment to members of the public and it could never be that a staggering amount of Rs.50,000/ was claimed by the hospital for operation charges in the year 1999. There was State (CBI) v. S.S.Naik (CC No.18/11) Page No.17/26 18 filed no receipt of such charges either by A1 with the bill Ex. PW1/A. There is nothing in the defence of A1 to suggest that any provision was there for payment of additional charges in the manner it has been claimed by A1. Further, report Ex.PW7/H read with Ex.PW7/J bring out that the writing no.19 "operation etc" and Rs.50,000/ besides figure of "5" to 3129.55p mark encircled red Q31 in Ex.PW14/DD were added/ written subsequently with an ink of different tint visavis tint of the previous writing which finding has not been challenged by the defence.
42. Thus, the defence of A1 that it was a genuine claim is blown to pieces and the prosecution is able to bring home that claim for Rs.50,000/ towards operation charges claimed by A1 was a bogus or false one. It is also in evidence that Rs.42,000/ were withdrawn by A1 by issuing a self cheque on 27.01.1999 and an amount of Rs.7,000/ and Rs.6,000/ were utilized by him by issuance of cheques on 29.01.1999 and 30.01.1999. The fact that A1 had an account with SBI, Rk Puram, New Delhi is not disputed and PW10 IPS Bhatia brought this fact home for the prosecution. The cheque was deposited by A1 vide pay in slip dated State (CBI) v. S.S.Naik (CC No.18/11) Page No.18/26 19 25.01.1999 Ex.PW2/C.So far so good for the prosecution case. While the sole beneficiary appears to be A1, the issue that needs to be addressed is whether the accused persons were acting in concert?
CRIMINAL CONSPIRACY
43. In the case of Hardev Singh v . State of Bihar AIR 2000 SC 2245 it was observed that" To establish the charge of conspiracy there is required cogent evidence of meeting of two minds in the matter of commission of an offence in the absence of which the charge cannot be sustained".
44. On the law on conspiracy, I may just refer to observations in State v. Nalini (1999) (5) SSC 253, wherein the issue was dis cussed in reference to section 10 of the Indian Evidence Act and it was observed as under :
"In reaching the stage of meeting of minds, two or more per sons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omis sions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first en tertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspira tors. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a le State (CBI) v. S.S.Naik (CC No.18/11) Page No.19/26 20 gal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. "One who commits an overt act with knowledge of the conspir acy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
45. In the light of such proposition of law, it is in evidence that bill was cleared by accused Chandreshwar Manjhi, who signed at Q248 & Q249 Ex.PW1/A. The evidence brought on record clearly demonstrate that the bill was cleared without there being requisite documents filed viz., in the nature of reference by a medical practitioner of the CGHS Dispensary or otherwise any certificate as to the grave emergency, the patient Mrs. B.P.Naik was admitted in the hospital. At the cost of repetition, the Essentiality Certificate
- B Ex.PW14/DD and the cash receipt towards purchase of medicines ex.PW4/1 to Ex.PW4/4 and Ex.PW5/A had not been verified and signed by the doctor concerned. There was no receipt filed in regard to alleged operation charges. It is also in the evidence of PW6 PK Ruprai that there was no sanction for expenditure taken from the Controlling Officer of A1 regarding medical treatment in the manner it was claimed.
State (CBI) v. S.S.Naik (CC No.18/11) Page No.20/26 21
46. At this stage, we also assume in view of evidence of PW9 that it was accused Y.P.Sharma, who filled up application form Ex.PW1/A at encircled in red at pointB (Q25) ; and it is his initials at point C (Q26) and Q26A. Further evidence of PW 2 B.S.Yadav brings out that cheque for Rs.55,130/ was issued out of the cheque book leaf Ex.PW2/B and deposited in the SB Account No.32333 of A1 on 25.01.1999 in SBI, RK Puram, New Delhi vide cheque book register Ex.PW2/C and the cheque was cleared on 27.01.1999 as per entry in red ink Ex.PW2/D.
47. We also assume although no direct evidence is led that the cheque for Rs.55,130/ was issued on approval given by A5 and signed by A4. To my mind, merely because accused YP Sharma (A2) filled up certain portions in the bill Ex.PW1/A that were hardly consequential and merely because the bill was approved and signed by A3, approved by A5 and impugned cheque issued by A4 do not make them culpable in any manner. There is no direct or circumstantial evidence whatsoever on record, which would suggest that A2 to A5 had been acting in concert with A1 . There is no evidence that there was any meeting of mind as State (CBI) v. S.S.Naik (CC No.18/11) Page No.21/26 22 amongst accused persons. There is no evidence that A2, A3, A4 and A5 entertained any dishonest intention so as to result in wrongful pecuniary gain to A1. Indeed the act of commission and omission on the part of A3 besides A5 or for that matter A4 smacks of gross negligence in as much as they failed to take due care that the bills must be processed and approved in the prescribed manner. They failed properly scrutinized the relevant documents and had they been diligent they could have easily found out that the bill submitted was not genuine. All the same it is difficult to discern that there was enact of cheating or deception of their part.
48. The ingredients of Section 420 of the Penal Code are as follows :
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
The word 'dishonestly ' has been defined to mean that whoever does anything with the intention of causing wrong ful gain to one person or wrongful loss to another person, is State (CBI) v. S.S.Naik (CC No.18/11) Page No.22/26 23 said to do that thing dishonestly. The word 'fraudulently' has been defined to mean that a person is said to do a thing fraudulently if he does that thing with the intent to defraud but not otherwise. Section 13(1) (d) (i) of the PC Act on the other hand defines criminal misconduct by a public servant to mean if he corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advan tage.
49. The said provision came up for explanation in the case of L. Chandraiah v. State of A.P., 2004 CRI. L. J. 365. It was a case where large number of withdrawals were alleged to have been made during the relevant period from recurring deposit ac counts in post office in a clandestine manner pursuant to a conspiracy between the accused, employees of post office and others. It was the case of the prosecution that fabricated vouchers were prepared with forged signatures and forged seal of the management of account holders and payment was made on the basis of the said forged vouchers. The vouchers were prepared by A3. The appellants accused who functioned as SubPost Master during the relevant period did not take requi State (CBI) v. S.S.Naik (CC No.18/11) Page No.23/26 24 site care before passing the vouchers and did not care to verify whether the vouchers were genuine or forged. In this manner they permitted a larger number of fraudulent withdrawals on the basis of forged vouchers. It was held:
"Even though it could be said that the appellants accused acted in a negligent manner and if they had taken due care they would have detected the fraud, but that by itself would not constitute an offence under S. 409, IPC though it may expose the appellants to disciplinary action under the relevant rules.
50. In the case of S. P. Bhatnagar v. The State of Maharash tra, 1979 CRI. L. J. 566(SC), relied upon by Shri P.N.Dhar ld de fence counsel for A3, it was observed that :
The abuse of position in order to come within the mischief of S.5 (1)
(d) must necessarily be dishonest so that it may be proved that the ac-
cused caused deliberate loss to the department. It is for the prosecu- tion to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
FINAL ORDER
51. Coming back to the instant case, I find that the prosecution fails to miserably prove its case against A2, A3, A4 and A5 that they deliberately and/or dishonestly or by adopting corrupt or illegal means caused loss to the Department. They were indeed negligent in the discharge of State (CBI) v. S.S.Naik (CC No.18/11) Page No.24/26 25 their duties for which they can be dealt with departmentally but there can not be fastened any criminal liability for their misdemeanors. All the same, the ingredients of offence u/s. 420 IPC are clearly made out as against accused A1 SS Naik. The accused was a public servant occupying a senior position and he played deception or to say lodged a fraudulent claim and thereby enjoined wrongful pecuniary gain and caused wrongful loss to his department. As a public servant, he adopted corrupt and illegal means to obtain pecuniary benefit and thus committed criminal misconduct is also held guilty liable for committing an offence u/s. 13 (1)
(d) r/w 13 (2) of the PC Act, 1988.
52. I, therefore, convict the accused SS Naik (A1) u/s. 420 IPC and 13 (1) (d) r/w 13 (2) of the PC Act, 1988. Accused persons namely Y. P. Sharma (A2), C. Manjhi (A3), S. K. Aggarwal (A4) and N. R. Suman (A5) are hereby acquitted of all the charges. Their personal bonds and surety bonds are cancelled.
53. Let the accused S.S.Naik (A1) be heard on the State (CBI) v. S.S.Naik (CC No.18/11) Page No.25/26 26 point of sentence on 06.08.2012.
ANNOUNCED IN THE OPEN COURT TODAY: ON 03.08.2012 (DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI DISCTRICT .....
State (CBI) v. S.S.Naik (CC No.18/11) Page No.26/26 27 CC No. 18/11 State v. S. S. Naik & Ors.
03.08.2012 Present : Mr. S. C. Sharma, Ld. PP for CBI.
Mr. Jaswinder Singh, Ld. Counsel for A1. Mr. R. K .Verma, Ld. Counsel for A2.
Mr. P. N. Dhar, ld. Counsel for A3.
Mr. Amit Goel, Ld. Counsel for A4.
Mr. Vineet Kumar, Ld. Counsel for A5.
Vide separate judgment of even date, I, convict the accused SS Naik (A1) u/s. 420 IPC and 13 (1) (d) r/w 13 (2) of the PC Act, 1988.
Accused persons namely Y. P. Sharma (A2), C. Manjhi (A3), S. K. Aggarwal (A4) and N. R. Suman (A5) are hereby acquitted of all the charges. Their personal bonds and surety bonds are cancelled.
So far as accused S.S.Naik (A1) is concerned, he is convicted u/s 420 IPC r/w Section 13 (1) (d) r/w section 13 (2) of Prevention of Corruption Act.
Let the accused S.S.Naik (A1) be heard on the point of sentence on 06.08.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI DISCTRICT ....
State (CBI) v. S.S.Naik (CC No.18/11) Page No.27/26 28
IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE03 CBI NEW DELHI DISTRICT, NEW DELHI CC No.18/2011 RC No.DAI/2002/A0065/CBI/ACB/ND In re:
STATE (CBI) VS S.S.NAIK S/O SHRI P.NAIK R/O 331, SECTOR IX, RK PURM, NEW DELHI.
APPEARANCES: Mr. SC Sharma, Ld.PP for CBI.
Mr. Jaswinder Singh, Ld.Counsel for the convict S.S.Naik 07.08.2012 ORDER ON THE POINT OF SENTENCE.
1. Heard on the point of sentence and perused the record.
36. It is submitted that convict SS Naik is about 61 years of age, and he had put in 27 years of unblemished service with the CWC when this case was slapped upon him; that his family consists of his wife aged about 57 years of age who has undergone two major surgeries. It is stated that the convict has two married sons. It is urged that the convict has suffered the agony of trial for about 8 State (CBI) v. S.S.Naik (CC No.18/11) Page No.28/26 29 years now and was in Judicial Custody from 07.02.2002 to 09.05.2002 in CC no. 26/2011 in RC no. 16A/2001.
37. It is further urged that the convict has been under suspension since the time present FIR was lodged and he had been surviving on meager subsistence allowance. It is urged that on conviction in this matter, he would be deprived of his terminal benefit and there would be loss of pension as well. It is, therefore, requested that a lenient view may be taken in favour of the convict.
38. Per contra, Mr. SC Sharma, Ld. Special PP for the CBI has urged that no mitigating circumstance exists in this case so as to take a lenient view in favour of the convicts and it is urged that exemplary punishment be awarded under the law.
39. The detail facts and circumstances under which the convict submitted forged and bogus medical bills for reimbursement with his department i.e. CWC and got it passed have already been detailed in judgment dated 03.08.2012. The facts and circumstances proved on the record by the prosecution is a stark illustration of the lure of easy money in the mind of the convict who was a public servant and had a duty to discharge his duties in a fair and honest manner and ensure that no financial loss is occasioned to his department.
40. It is pertinent to refer to the observations of the Apex Court in the case of State of Madhya Pradesh v. Shambhu Dayal Nagar, State (CBI) v. S.S.Naik (CC No.18/11) Page No.29/26 30 2007 A.I.R. (SC) 163 :: 2006(8) S.C.C. 693 : 2007(1) SCC(Cri), observed that "Efficiency in public service would improve only when the public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post".
41. There is no gain saying that punishment must be befitting the crime committed and in the instant case, the manner in which the convict fabricated the medical claims and obtained the reimbursement and misappropriated the amount exhibits his diabolic state of mind. The offence committed by the accused is of highly serious nature as a public servant and I do not see as to how a lenient view could be taken in a case like this.
42. In the totality of the facts and circumstances of the case, I sentence the convict S.S.Naik to undergo rigorous imprisonment for a period of 3 years u/s 420B IPC and also to pay a fine of Rs.
25,000/ in default to further undergo RI for a period of six months.
43. I further sentence the convict S.S.Naik to undergo rigorous imprisonment for a period of 3 years u/s 13 (2) r/w 13 (1) (d) (i) of PC Act and also pay fine of Rs.25,000/ in default to further undergo RI for a period of six months.
44. All the sentences shall run concurrently. Convict S.S.Naik remained in judicial custody w.e.f 07.02.2002 to 09.05.2002. Benefit u/s. 428 Cr.PC. for the period they remained in judicial custody, State (CBI) v. S.S.Naik (CC No.18/11) Page No.30/26 31 shall be given to the convict.
45. Copy of the judgment dated 03.08.2012 and order on sentence dated 07.08.2012 be given free of cost to the convict.
46. Vide separate detail order in the order sheet, the applicant/convict S.S.Naik has been admitted to bail till tomorrow i.e. 08.08.2012 to pay the balance fine as per Section 389 Cr.PC.
47. File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY: ON 07.08.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. S.S.Naik (CC No.18/11) Page No.31/26 32 CC No. 18/11 CBI v. S. S. Naik 07.08.2012 Present : Mr. SC Sharma, Ld.PP for CBI.
Mr. Jaswinder Singh, Ld.Counsel for the convict S.S.Naik Vide separate order on sentence of even date, the convict S.S.Naik is sentenced to undergo rigorous imprisonment for a period of 3 years u/s 420B IPC and also to pay a fine of Rs. 25,000/ in default to further undergo RI for a period of six months.
I further sentenced the convict S.S.Naik to undergo rigorous imprisonment for a period of 3 years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.25,000/ in default to further undergo RI for a period of six months.
All the sentences shall run concurrently. Convict S.S.Naik remained in judicial custody w.e.f 02.02.2002 to 05.05.2002. Benefit u/s. 428 Cr.PC. for the period they remained in judicial custody, shall be given to the convicts.
Copy of the judgment dated 03.08.2012 and order on sentence dated 07.08.2012 be given free of cost to the convicts.
Fine of Rs.20,000/ is paid today by the convict S. S. Naik vide receipt no. 0461415 dt.07.08.2012. Ld. Counsel for the convict requests that convict will pay the balance amount of fine by tomorrow i.e 08.08.2012. Convict S. S. Naik is admitted to bail on furnishing PB & SB in the sum of Rs.25,000/ till tomorrow i.e 08.08.2012.
File be consigned to record room.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI State (CBI) v. S.S.Naik (CC No.18/11) Page No.32/26