Madhya Pradesh High Court
Shankerlal Vishwakarma vs State Of Madhya Pradesh on 27 November, 1990
Equivalent citations: 1991CRILJ2808
JUDGMENT S.K. Chawla, J.
1. The judgment in this Criminal Appeal shall also govern the disposal of Criminal Appeals 53/85. 94/85, and 925/85. This appeal as also Appeals 53/85 and 94/85 are by convicted accused persons, numbering five. Appeal No, 925/85 is by the State against acquittal of two other accused persons.
2. Between October, 3967 to July, 1968 i.e. during an interval of about. 10 months, pay bills of teachers, of the total amount of Rs. 27,555/- of the establishment of District Education Officer Raipur, marked Exs. P-6 to P-13, were encashed from Raipur Treasury. The amount of those bills was obtained for the purpose of disbursement by Shankerlal Vishwakarma, who was at the relevant time, Assistant District Inspector of Schools, working in the office of District Education Officer, Raipur. Those pay bills were written out by Nand Kumar, a teacher attached to that office. One Premchand Bagh was a Section Clerk in that office who had checked those pay bills. Another official named Ramesh Shanker was also a Clerk who had written note-sheets with respect to those pay bills. Dattatreya Deshpandey was an Accountant in that office who had initialled and forwarded those bills along with note-sheets to his officer viz. District Education Officer. Rameshwar Dayal and Mahesh Chandra Bose were the District Education Officers who had worked during the relevant period in different times.
3. The prosecution story briefly stated was that those bills were got prepared by Shankerlal Vishwakarma, A.D.I.S. through his clerk Nand Kumar. They were false and forged bills in the names of teachers who had not at all worked. The money obtained by Shankerlal Vishwakarma on the basis of those bills was defalcated by him instead of being disbursed to the teachers, who in fact, did not exist. Premchand Bagh, Ramesh Shanker and Dattatreya Deshpandey who belonged to the clerical staff, knew that those bills were false and forged and yet allowed those bills to be passed, by putting their own initials in token of checking or re-checking or by writing note-sheets. Rameshwar Dayal and Mahesh Chandra Bose who worked at different times during the relevant period as District Education Officers passed bills, knowing those bills to be false and fabricated. One Pyarelal Pandey who was an Auditor from A.G.M.P. attached to that office also helped in the conspiracy by his failure to point out the dubious character of the bills. It is the prosecution case that a conspiracy of wide remification had taken place between all the aforesaid officials to commit various offences. They had also committed the offence of Criminal misconduct under Section 5(1)(d)(2) of the Prevention of Corruption Act, 1947.
4. All the aforesaid 8 persons were prosecuted Pyarelal, however, died during trial. The learned special Judge, Raipur, who tried the case, found the prosecution story to be established against all but two accused. He convicted accused Shankerlal Vishwakarma under 5 counts; i.e. under Sections 120B, 409, 467 and 420, I.P.C. and S.5(1)(d)(2) of the Prevention of Corruption Act, 1947 and sentenced him to rigorous imprisonment for 2 years, 4 years, 3 years, 3 years and 1 year respectively and a fine of Rs. 5,000/-, in default rigorous imprisonment for one year under the second count. The substantive sentences of imprisonment were directed to run concurrently. Accused Nandkumar was convicted under three counts, i.e. under Sections 120B and 467, I.P.C. and Section 5(1)(d)(2) of Prevention of Corruption Act and sentenced to rigorious imprisonment for 2 years, 3 years and 1 year respectively, all the sentences to run concurrently. Accused Premchand Bagh, Ramesh Shanker and Dattatreya Deshpandey were convicted under three counts under Sections 120B and 471, I.P.C. and Section 5(1)(d)(2) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for 2 years, 2 years and 1 year respectively, with direction that all those sentences will run concurrently. Accused Rameshwar Dayal and Mahesh Chandra Bose were, however, acquitted. The five convicted accused are appellants in the three appeals under consideration while the acquitted two accused are respondents in the State appeal.
5. Assailing the conviction of the five accused persons found guilty by the trial Court, Shri Datt, learned counsel for them, argued that the prosecution had not produced proper material to show that the pay bills Exs. P-6 to P-13 were false and forged. He drew our attention to the evidence of Bodhan Prasad (P.W. 3) who was Head Clerk at the relevant time in the office of the District Education Officer, Raipur and Accountant in that office at the time of giving evidence. This witness stated in paragraph 71 of his evidence that the possibility that teachers whose names appeared in the pay bills (Exs. P-6 to P-13) were appointed by some order besides the appointments made in Ex. P-53 could not be ruled out. It was argued on this basis that the names of teachers mentioned in the pay bills in question were not fictitious or imaginary.
6. Even assuming that the names given in the questioned pay bills were not fictitious, that would not go to show that those bills contained genuine claims. There was the evidence of this witness Bodhan Prasad (P.W. 3) in paragraph 67 that the bills in question contained false claims because those very teachers had already been paid and their pay was being drawn twice and there lay the falsity in the bills.
7. A perusal of the bills in question (Exs. P-6 to P-13) would show that first four pay bills (Exs. P-6 to P-9) contain 24 identical names of teachers. Two more bills (Exs. P-11 and P-12) contained another set of 18 identical names. The 6th bill (Ex. P-10) contains 6 names and the last bill (Ex. P-13) contains 34 names. This brings to a total of 82 names in all, in the bills. The prosecution examined a large number of teachers with the names mentioned in the questioned bills, who all deposed that during the relevant time they had not worked in the schools within the jurisdiction of accused Shankerlal Vishwa-karma, the A.D.I.S. and had never received the pay mentioned in those pay bills and further had not signed in the Acquitance Roll Registers Exs. G-5 to G-7. In this category fall prosecution witnesses from P.W. 13 to P.W. 37, P.W. 39 to P.W. 105, P.W. 107 to P.W. 112, P.W. 115 to P.W. 119 and P.W. 121. The truth of their evidence was specifically admitted by accused Shankerlal Vishwakarma in his examination under Section 313, Cr.P.C. in answer to questions 56 and 57. It is, therefore, not open to speculate that there might be different teachers of the same names as those examined by the prosecution, who might have been paid the salary mentioned in the pay bills (Ex. P6 to P.-13) by A.D.I.S. Shankerlal Vishwakarma. It may be mentioned here that this accused had admittedly received the amounts of the pay bills in question and he, therefore, alone had special knowledge if he had made any payment (disbursement) and if so to whom? If any payment (disbursement) had really been made, there could be no difficulty on the part of this accused in examining some persons to whom payment had been made of the salaries mentioned in the pay bills in question. But this accused did not examine even a single soul to prove the alleged payment. What is more, he admitted in his examination that he had not made any payments to those prosecution witnesses whose names appear in the pay bills in question. There is, therefore, no getting away from holding that the bills in question contained false claims in the names of teachers, some of whom might have been even imaginary, in view of the fact that the names of schools and places were not mentioned against some of the names in the pay bills. It is further pertinent to oberve that the particulars of alleged disbursement of the amount of the pay bills in question was not, on the admission of this accused, entered by him in Cash Book (Article-1). We have no hesitation in holding that the bills in question were false in the sense that false claims had been made therein, explaining the further circumstance why no payments had been made. Shankerlal Vishwakarma had devoured the entire money of those pay bills.
8. But it would be wrong to say that those pay bills were forgery. It will be noticed that Shankerlal Vishwakarma or his alleged accomplices had not made signatures or writings of another or had not unauthorisedly altered the pay bills in material particulars. The definition of a "false document" contained in Section 464, I.P.C., would show that aperson is said to make a false document under Clause (1), if any signature, mark, writing etc. of another is made with requisite mens rea, or under Clause (2) if a document is materially altered unauthorisedly or under Clause (3) if a document is got executed from a person of unsound mind or intoxicated person or a person who from deception practised on him does not know the contents of the document. Keeping this definition in mind, the Acquittance Registers Ex. G-5 to G-7 containing signed receipts may be said to be forged, but that was not the charge against accused persons. The charge was that the pay bills were forged by them. What is to be noted here is the fact that the pay bills in question were written or signed by the accused persons on their own behalf and therefore, those could not be false documents and hence not forgery.
9. The question is what offences have been brought home to the accused person or persons. Accused Shankerlal Vishwakarma was the main accused who had got the pay bills in question prepared, containing false claims for salaries of teachers who had not worked within his jurisdiction or some of whom, for ought one knows, were imaginary, inasmuch as names of schools and places were not even mentioned below some of the names of teachers in the pay bills in question. It was this accused who had admittedly got the bills encashed from the treasury. There is no doubt that he did not disburse any of the moneys of the pay bills in question. He got false Acquittance Rolls Exs. G-5 to G-7 prepared and got signatures forged on the receipts contained in them. He devoured the entire money of Rs. 27,555/-.
10. Was there entrustment when accused Shankerlal Vishwakarma got the money from the treasury? Shankerlal Vishwakarma entertained dishonest intention, if not from the very beginning, at least from a stage much prior to obtaining money from the treasury. Such a man when he tricks another to deliver money to him is not a trustee of that money. Such a man by subsequent misappropriation touching that money does not commit criminal breach of trust because the money was not initially entrusted to him but was tricked by him from another. In such a case, the offence committed would be cheating and not criminal breach of trust. Reference may here be usefully made to page 1605 of Ratanlal's 'Law of Crimes' 1968 (23rd) Ed. under the caption "Cheating and Criminal Breach of Trust and Criminal Misappropriation". The observations in an M.P. case of State of Madhya Pradesh v. D. N. Pandya, 1983 MPLJ 778, to the following effect are also pertinent:
"The notion of trust ordinarily speaking, presupposes the existence of a person who is a trustee or to whom some property is entrusted in confidence reposed by another. This relationship presupposes that the confidence has been freely given. But a person who tricks another into delivering him property does not partake of the nature of a trustee. His intention from the beginning is to trick the person, who entrusts him that property....... If, therefore, the property is acquired by trick or by any other unlawful means, there is no entrustment and if the acquirer ir these circumstances appropriates that property to his own use (for consents to any other person retaining that property) he cannot be said to have committed an offence of criminal breach of trust because in that case there is practically no trust created by the owner of the property. In such a case he commits cheating."
11. The trial Court held accused Shankerlal Vishwakarma guilty of both the offences of cheating and criminal breach of trust. Considering the nature of those offences, they cannot, in our view, co-exist. It is clear to us that Shankerlal Vishwakarma committed cheating and not criminal breach of trust. As the pay bills in question (Exs. P-6 to P-13) were not forged, although they contained false claims, the offence committed was not forgery. Shankarlal Vishwakarma of course committed the offence of criminal misconduct, punishable under Section 5(1)(d)(2) of the Prevention of Corruption Act, 1947, inasmuch as being a public servant he, by corrupt or illegal means, and by abusing his position as a public servant, obtained for himself pecuniary advantage of sum of money mentioned in the pay bills in question. His conviction for criminal conspiracy under Section 120B of the Indian Penal Code cannot also be maintained unless other accused are also convicted with him.
12. Turning now to accused No. 2 Nand Kumar, it appears that he was a teacher, who had been attached to work under A.D.I.S. Shankerlal Vishwakarma. He was supposed to write out the pay bills on the basis of pay data supplied to him by Shankerlal Vishwakarma. Being a clerk, he could not have taken upon himself the task of finding out whether the data given to him was correct. In this connection, Bodhan Prasad (P. W. 3) a senior official working in the office of the District Education Officer, Raipur stated in paragraph 85 of his deposition that it was the duty of the A.D.I.S. to check the correctness of the pay data received from various Headmasters. Little do we know that incorrect data might have been given to Nand Kumar by Shankerlal Vishwakarma resulting in the preparation of the pay bills in question. It is wrong to fasten criminal liability on Nand Kumar because he failed to get those data produced in the Court. That is so because it has appeared in the evidence of Bodhan Prasad (P.W. 3) in paragraph 78 that pay data are preserved only for some time and are thereafter destroyed. Accused Nand Kumar had done only clerical work with respect to the preparation of the pay bills in question. No law punishes a person for just doing clerical work. There is nothing to show that accused Nand Kumar shared the dishonest intention of Shankerlal Vishwakarma or had his finger in the pie. No offence has been proved against him.
13. The case of accused Premchand Bagh, a Section Clerk, and Ramesh Shankar, another Clerk attached in the office of the District Education Officer, Raipur may now be taken up. A Section Clerk also used to check the bills on the basis of pay data. If on the basis of wrong pay data, Nand Kumar could be tricked into writing out false pay bills, so could Premchand Bagh, the Section Clerk, be tricked into checking them. The pay data are not before us to verify whether they tallied with the pay bills. There is evidence to show that Section Clerk used to have also with him list of teachers duly appointed. As he was the person who primarily checked the bills, it is proper to suppose that he must be having the necessary record to enable him to properly check the pay bills. In our opinion, he could, if he was so minded, have found if the claims made in the pay bills were genuine. But the possibility that he did what he calls, routine checking, which is euphemism for mechanical checking, and was therefore, not able to smell the rat cannot be ruled out. This is not to reward negligence on his part. If negligence is statutorily made an offence, the offender will have to be punished. But it is not possible to punish possible negligence for the kind of offences charged against this accused. No offence has been brought home against this accused.
14. The other Clerk Ramesh Shankar used to write note-sheets and place the bills before the Accountant of the office. He had no means to check the truthfulness of the claims being made in the bills. There is absolutely no material to indicate that he was in any way party or privy to dishonesty that was committed by Shankerlal Vishwakarma. His defence that he was mainly concerned with checking of mathemetical inaccuracies, cannot be rejected out of hand. No offence is brought home also to this accused Ramesh Shankar.
15. Coming now to Accountant of the office, namely, Dattatriya Deshpandey, he was having two kinds of duties. It is the evidence of Bodhan Prasad (P.W. 3) in paragraph 56 that as an Accountant, Deshpandey was drawing establishment bills and also taking them to the treasury for encashment. This was itself a big job. Nearly 60,000/- rupees used to be drawn and disbursed on account of the establishment. Besides this, Deshpandey had the other job of checking the bills of teachers of the district. During the relevant period, some eight thousand teachers were working in Raipur District. The pay bills of teachers used to be given to the Accountant along with note-sheets. The Accountant could at best make only a cursory checking, which was in reality re-checking. He used to submit the pay bills along with note-sheets, to his officer i.e. District Education Officer. In these circumstances, accepting the fact that accused Deshpande as Accountant has re-checked the pay bills in question, it does not follow therefrom that he was aware of the false nature of the claims made in those bills. He too could, and might have, put his initials honestly. No offence is brought home to him.
16. Coming last to the cases of District Education Officers who worked at the relevant time, they were Rameshwar Dayal and Maheshchandra Bose who worked at different times. It has appeared in the evidence of Bodhan Prasad (P.W. 3) in paragraph 63 that in the year 1967-68, which is the relevant year, there were 280 Middle Schools and 1700 Primary Schools. About 8,000 teachers were working in those schools. There were 45 ranges and for each range there was A.D.I.S. On an average 200 bills of all sorts used to be prepared in a month in the office of the D.E.O. Bodhan Prasad admitted that the District Education Officer used to be so much burdened with work that he had little or no time to look to the bills. Hence, the District Education Officer after satisfying himself that the bills had been checked and rechecked and were accompanied by note-sheet, used to sign the bills. He was relying, and was also entitled to rely, on his subordinate staff. In this background, it is difficult to fasten any kind of criminal responsibility on the District Education Officers concerned, merely because they happened to sign the pay bills which upon investigation were found to be false. No offence was brought home to either Rameshwar Dayal or Maheshchandra Bose. The State appeal against their acquittal deserves to be dismissed.
17. This leaves for consideration the question of proper sentence that may be visited upon accused-appellant Shankerlal Viswakarma. It was urged on his behalf by his learned counsel that the alleged crime was committed in the year 1967-68 and after a lapse of nearly 23 years it would now be too harsh to send him to jail. He is also no longer in service. We find from the service book, Ex. P-22, proved in this case that the date of birth of this appellant is 14-9-1931. In other words, he has completed 59 years of age. The learned counsel Shri Datt cited number of rulings to support his contention that a lenient sentence may be imposed upon the appellant. It may at once be stated that in the matter on the question of proper sentence to be passed there can be no rulings. The matter entirely lies in the discretion of the Court unless fettered by legislature. The only principle that can be spelt from the cases is that punishment should be individualised to the particular accused and should be commensurate with the enormity of crime. Even so, the rulings cited by Shri Datt would be briefly noticed.
18. In the case of Vishnu v. State of Madhya Pradesh, AIR 1979 SC 825 : (1979 Cri LJ 65), the accused was sentenced for an offence under Section 409, I.P.C., with two years, R.I. and a fine of Rs. 1,000/-. The Supreme Court taking into consideration the fact that the accused was likely to lose his service and further had also undergone 61/2 months of imprisonment, reduced the sentence to already undergone. This case is of no help to the appellant. The appellant in the present case has remained in jail only for two days. Further more in the present case, the appellant cheated the Government of a large sum of Rs. 27,555/-. It is not known as to what was the amount involved in the case of Vishnu (supra).
19. Another ruling Vasant v. State of Maharashtra, AIR 1979 SC 1008 : (1979 Cri LJ 885) was cited. In that case, Tehsildar had committed temporary defalcation of small sums of Rs. 824.20 and Rs. 1195.00. In those circumstances, the Supreme Court while upholding the conviction of the Tehsildar, reduced the sentence to the period of imprisonment already suffered but maintained the setence of fine. It is not clear from the ruling as to how much sentence of imprisonment had already been suffered by Tehsildar. It is also not clear from the ruling as to what was the sentence of fine imposed. The present case is not a case of temporary defalcation. Moreover, the amount of which the Government was cheated in the present case was very large.
20. Yet another ruling Bhagwan v. State of Maharashtra, AIR 1979 SC 1120 : (1979 Cri LJ 924), was cited in which sentence of three years of an accused convicted under S.409, I.P.C., who had already undergone five months imprisonment, was reduced by the Supreme Court to already undergone but the sentence of fine was maintained, considering the circumstances, that the accused was a new and inexperienced hand who had been made a scapegoat. In that ruling also it is not clear as to what was the amount defalcated or what was the sentence of fine. The appellant Shankerlal Vishwakarma in the present case was not a new or inexperienced official but was a pretty senior and responsible officer and it did not at all behove him to commit the kind of offences committed by him.
21. Two more rulings Dilbag Singh v. State of Punjab, AIR 1979 SC 680 : (1979 Cri LJ 636) and State of Madhya Pradesh v. Sarman, 1964 MPLJ 367 : (1965 (1) Cri LJ 511) concerning offence involving bodily injury offence under Section 34 Excise Act respectively, were cited, which are not apposite. One more case of the Supreme Court Ved Prakash v. Delhi Administration, AIR 1974 SC 2336 : (1975 Cri LJ 31), was cited. That was a case in which the accused had defalcated a sum of Rs. 8898/38 and who had during the pendency of appeal before the Supreme Court deposited Rs. 9,000/-. In those circumstances the Supreme Court while affirming the conviction of the accused under Section 409, I.P.C. had reduced the sentence from one year to the period already undergone and further the Supreme Court sentenced the appellant to a fine of Rs. 2,000/- in default, to further R.I. for three months. It is not known from the report of the ruling as to how much sentence the appellant had already undergone. Moreover, in the present case, the appellant has not deposited nor offered to deposit any money.
22. Yet another ruling of the Supreme Court Tarsem Lal v. State of Haryana, AIR 1987 SC 806, was cited in which a Patwari who had accepted a bribe of Rs. 150/- and who had been sentenced to R.I. for 1 year and fine of Rs. 100/- under Section 161, I.P.C. and to R.I. for 2 years and fine of Rs. 150/- under Section 5(2) of the Corruption Act, was given relief in the sentence by the Supreme Court because appeal was being disposed of 14 years after the incident. The Supreme Court reduced the sentence to already undergone but maintained the sentences of fine. That was a case of petty official in which the bribe alleged to have been taken also small. In the present case the appellant, occupying a reasonable position of A.I.D.S., devoured a large sum of Rs. 27,555/-.
23. Considering the circumstances of the present case, where appellant Shankerlal Vishwakarma has undergone just 2 days' imprisonment, it is not possible to take any lenient view by reducing the sentence to already undergone. The appellant was a responsible officer and he cheated the Government of a large sum of money. The appellant never made any deposit of the money or even part thereof regarding which cheating was committed nor was such an offer made at the time of hearing of the appeals before us. It is also doubtful if the appellant would be in a position to pay back the sum of Rs. 27,555/-. No purpose would be served by visiting the appellant with some fine with a view to only reduce apart of the jail sentence. The jail sentence imposed on the appellant of one year for the offence under Section 5(1)(d)(2) of the Prevention of Corruption Act and of three years for offence under Section 420, I.P.C. appears to us to be adequate and proper.
24. For the forgoing reasons, criminal appeals 53/85 and 94/85 are allowed. The convictions and sentences of appellants Premchand Bagh, Ramesh Shankar, Datta-triya Deshpandey and Nand Kumar is these appeals are set aside and they are acquitted. Cr. Appeal No. 925/85 against the acquittal of respondents Rameshwar Dayal and Mahesh Chandra Bose is dismissed. The acquittals of these respondents are maintained.
25. The present appeal (Cr. Appeal No. 48/85) is partly allowed. The conviction and sentences of the appellant Shankerlal Vishwakarma for offences under Sections 120B, 409 and 467, I.P.C. are set aside. Conviction of this appellant for the offences under Sections 420, I.P.C. and 5(1)(d)(2) of the Prevention of Corruption Act, 1947 and sentence of R.I. for three years and 1 year respectively thereunder are maintained. He shall surrender and serve out the remaining sentence.