Rajasthan High Court - Jodhpur
Jaswant Singh vs State Of Rajasthan on 11 March, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:10331]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No. 751/2019
Jaswant Singh S/o Sh. Hanuman Singh, Aged About 45 Years, B/
c Rajput , R/o Village Post Sanwalpura, Tehsil Neem Ka Thana ,
Distt. Sikar , The Then Platoon Cmmander , Home Security
Training Center , Bhilwara (Confined In Distt. Jail , Bhilwara)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. B.S. Rathore
For Respondent(s) : Mr. Anil Joshi, GA cum AAG assisted
by Mr. Mukesh Trivedi
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment Order Reserved on : 26/02/2024 Date of pronouncement: 11/03/2024 REPORTABLE By way of impugned judgment dated 30.05.2019, the learned Special Judge (Prevention of Corruption Act), Bhilwara (for short, hereinafter referred to as 'learned trial Court') convicted the appellant for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in Sessions Case No. 55/2015 and sentenced him as under :-
OFFENCE PUNISHMENT Section 13(1)(d) r/w Two years R.I. and fine of Rs.50,000/-, in 13(2) of P.C. Act default of payment of fine to further undergo six months R.I. (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (2 of 21) [CRLAS-751/2019] Succinctly stated, the facts apposite are that a complaint was received by the office of Anti corruption Bureau, Bhilwara to the effect that huge amount of money is being embezzled at Home Guard Training Centre, Bhilwara on the basis of false and fabricated documents by putting attendance of guards without actually conducting the duty. On verification, the complainant was found to be true and accordingly, an inspection was conducted by the Anti Corruption Bureau headed by Goverdhan Singh Dhabai, Additional Superintendent of Police at Home Guard Training Centre, Bhilwara. On inspection of records, it was found that the officers of the Home Guard Training Centre namely Vikram Singh, Personnel Member, Nathu Singh, Dy. Commandant, Jaswant Singh, Platoon Commander had prepared false and fabricated duty bills of persons who actually did not perform any duty and obtained the amount causing financial loss to State Exchequer.
The police registered a case being FIR No. 92/2009 for offence under Sections 467, 468, 471, 477A, 120B IPC and Section 13(1)(c)(d) of Prevention of Corruption Act and investigation commenced. Upon completion of investigation, Anti Corruption Bureau, submitted charge-sheet against accused appellant Jaswant Singh and Shanti lal for offence under Section 13(1)(c)(d), 13(2) of Prevention of Corruption Act and Section 120B IPC before court of Special Judge, Prevention of Corruption Act, Bhilwara where charges of the case were framed. The accused denied the charges. Upon denial to all the charges, the learned trial Court put them on trial.
(Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (3 of 21) [CRLAS-751/2019] The prosecution in support of charges, examined 47 witnesses. Besides ocular evidence, various documents were produced by the prosecution, which were exhibited. In defence, accused-appellant did not produce any evidence.
After conclusion of the evidence, learned trial Court heard final arguments and while acquitting the accused Shanti lal, convicted the appellant Jaswant Singh for the offence under Section 13(1)(d) read with 13(2) of Prevention of Corruption Act with sentence mentioned above.
Mr. B.S. Rathore, learned counsel for the appellant strenuously urged that the learned trial Court has failed to appreciate and scrutinize the evidence available on record in correct perspective. Learned counsel contended that initially FIR was lodged against four persons for offence under Sections 467, 468, 471, 477A, 120B IPC and Section 13(1)(c)(d) of Prevention of Corruption Act but the police after thorough investigation completely discharged two persons and chargesheeted appellant Jaswant Singh and Shanti lal for offence under Section 13(1)(c)(d) of Prevention of Corruption Act and 120B IPC and finally convicted only the appellant Jaswant Singh for offence under Sections 13(1)
(d) r/w 13(2) of Prevention of Corruption Act. Thus, when the charges against the appellant as well as co-accused Shanti lal were same and once, the co-accused Shanti lal has been acquitted on the basis of evidence on record, the conviction of appellant is not sustainable on the basis of same set of evidence. It is further argued that FIR was lodged against the appellant as well as co- accused Shanti lal for offence under Section 467, 468, 471, 477A IPC also but the police did not find the said offences proved and (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (4 of 21) [CRLAS-751/2019] chargesheeted the appellant and co-accused Shanti lal only for offence under Section 13(1)(c)(d), 13(2) of Prevention of Corruption Act. Thus, when the offence of forgery against the appellant and co-accused was not made out, no conviction could have been passed for offence under Section 13(1)(d) r/w 13(2) of Prevention of Corruption Act. No departmental enquiry was initiated against the appellant for any irregularity. It is further argued that no Home guard/employee claimed that the appellant demanded money from them or accepted any money. Thus in absence of proof about demand of bribe and acceptance, his conviction for offence under Prevention of Corruption Act is not sustainable. It is vehemently argued that the so called witnesses whose statements were recorded under Section 161 Cr.P.C. in support of prosecution case have not deposed and corroborated the story put forth by the prosecution and they have been declared hostile. Therefore, learned trial Court has committed grave and serious error in convicting the appellant on the strength of testimony of prosecution witness PW/14 Nathu Singh, Dy. Commandant who himself was named as an accused in the FIR. So far as witness PW/38, PW/40, PW/41, PW/44, PW/45 are concerned, their evidence stands on same footing against the present appellant and other co-accused who have been acquitted. They state with regard to recognising the signatures of appellant, however, the sample of signatures were not sent to FSL for comparison and therefore, in absence of FSL report, it cannot be said that the signatures were that of appellant Jaswant Singh. PW/45 Goverdhan Singh has categorically stated that the duty attendance vouchers used to be prepared by co-accused Shanti lal (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (5 of 21) [CRLAS-751/2019] and thereafter it was signed by Jaswant Singh and finally approved by Nathu Singh. The investigating officer did not file any chargesheet against Nathu Singh. It is also argued that even if there was some act contrary to the departmental norms and some irregularities in preparation of bills, the Hon'ble Apex Court in catena of judgments has held that mere conduct and action of the accused contrary to rules and departmental norms would not amount to criminal misconduct by a public servant Therefore, on this ground also, the conviction of the appellant for offence of Prevention of Corruption Act is liable to be set aside.
Per contra, learned Additional Advocate General submits that learned trial Court after considering the evidence meticulously convicted and sentenced the appellant, therefore, no interference with the impugned judgment is called for. Learned Public Prosecutor contended that from the documents and record received from the Home guard training centre, it is proved that forged documents/bills were prepared under the head of salary of Home guard who did not actually perform any duty and thus received financial benefits. Learned Additional Advocate General has urged that the learned trial Court, in the backdrop of facts and circumstances of the case and available incriminating material against the appellant, has rightly convicted the accused appellant, therefore, no interference is called for with the impugned judgment.
I have given my thoughtful consideration to the arguments advanced by learned counsel for the appellant, learned Public Prosecutor, and meticulously examined the impugned judgment alongwith material available on record.
(Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (6 of 21) [CRLAS-751/2019] In order to ascertain legality and propriety of the findings and conclusion of the learned trial Court, it is necessary to re- appreciate the evidence adduced by the prosecution. The prosecution case is that the appellant had passed forged orders of duty of certain Home guards and prepared their fraudulent attendance register and bills. The allegation is that a sum of Rs. 94,570/- was deposited in the account of DDO by way of false and fabricated bills. PW/1 to PW/33 are the Home guards in whose name bills were prepared, however, these witnesses have denied that the appellant or co-accused Shanti lal ever demanded any bribe nor they know whether any fraudulent bills were prepared or not. Further the honorarium used to be credited directly in their Bank accounts.
PW/34 Narayan Singh Chundawat is a witness of checking and seizure. PW/35 Dalpat Singh is the constable of ACB department who was part of the checking team. PW/36 Sanjay Jha was part of the team which inspected the records and seized the documents. PW/37 Shyam Lal is a constable in ACB, Bhilwara. PW/38 Shiv Shankar, was working as cashier at Home Guard Training center and he has stated that his staff includes Nathu Singh (Dy. Commandant) who was the DDO and Jaswant Singh (Platoon Commander). According to him, Jaswant Singh used to pass the duty orders so also sanction of payment, which used to be signed by Nathu Singh (DDO) and then it was sent to him for payment. He further states that the documents Ex. P/4 to P/9 consisted of signatures of both Jaswant Singh as well as Nathu Singh. In the initial part of his statement, he mentioned that he recognizes the initial as well as full signatures but in the latter part (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (7 of 21) [CRLAS-751/2019] of his statement, he says that he can guess and recognize the initials. PW/39 is Kuljeet Singh, he is the retired Director General of Police who gave the prosecution sanction. PW/40 Raju Singh was the Assistant Office Superintendent at the relevant time, he has stated that the duty chart used to be prepared by appellant Jaswant Singh and the payment order also used to be issued by appellant Jaswant Singh. He also recognizes the handwriting and signatures of appellant Jaswant Singh. He asserts that he recognizes the signatures of Jaswant Singh on the documents viz. Ex. P/4, Ex. P/5, Ex. P/6, Ex. P/7 to Ex. P/10. However, these documents Ex. P/2, Ex. P/3, Ex. P/4, Ex. P/5, Ex. P/6 and Ex. P/7 to Ex. P/10 also bear the signatures of Nathu Singh. PW/41 Gopal Joshi was the constable in ACB, Bhilwara. PW/42 Himmat Singh, was also a Head constable in ACB, Bhilwara at the relevant time. PW/43 Lokesh Tripathi was the Police Inspector in ACB, Bhilwara who conducted the search and seizure. PW/44 Nathu Singh, was the Dy. Commandant at the relevant time who in his statement, stated that the bills used to be prepared on the basis of attendance given by Jaswant Singh and that he never received any complaint regarding duty or non-payment from any Home Guard. PW/45 Goverdhan Singh Dhabai was the Addl. Superintendent of Police in ACB, who stated that Jaswant Singh used to prepare the bills which were then signed by Nathu Singh and Shanti lal used to verify the documents and duty charts. Thus, according to him, Nathu Singh, Jaswant Singh and Shanti lal all the three persons drew fraudulent payments. PW/46 Devi Lal was the clerk in ACB office, Bhilwara. PW/47 Heera Singh was the (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (8 of 21) [CRLAS-751/2019] Police Inspector in ACB Chowki, Ajmer. These all are the prosecution witnesses.
At this stage, it is also relevant to refer to the provisions of Section 13(1)(d) of the Prevention of Corruption Act prior to amendment made in the year 2018, which reads as under :-
"13. Criminal misconduct by a public servant.(1) A public servant is said to commit the offence of criminal misconduct,
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."
It is clear from a reading of clause (d) that all the three wings of clause (d) of Sec. 13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of the word 'or' at the end of each clause. Thus, under Sec.13 (1) (d) (i) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act 1988. On the same reasoning "obtaining a valuable thing or pecuniary advantage merely by abusing official position"
as contemplated under Section 13(1)(d)(ii) in itself would satisfy the ingredients of criminal misconduct under Section 13(1)(d) of (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (9 of 21) [CRLAS-751/2019] the Act, 1988. However, a charge under Sec. 13(1)(d) has to be fairly specific in respect of the offence, the accused is required to face in a criminal trial. It would not be enough to say that the accused committed criminal misconduct punishable Under Sec.
13(1) (d) of the Prevention of Corruption Act. The offence of Criminal misconduct is one contemplated in all or any of the four clauses (a) to (d) of Sec. 13(1) of the act and where the accused is sought to be made guilty only under clause (d), it must be specified. The prosecution has to prove that the Public Servant intentionally, dishonestly, fraudulently made any efforts in obtaining pecuniary advantage either for himself or others. The element of dishonesty is implicit in Clauses (i) & (ii) of Sec. 13(1)
(d) of P.C. Act 1988.
In the background of aforesaid settled legal position, this Court would now refer to the relevant part of the evidence and discuss them in the succeeding paras :-
(A) Dis-honest intention/Criminal misconduct -
It is settled proposition of law that so far as the offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act is concerned, the necessary ingredient for constituting aforesaid offence is that public servant has used corrupt or illegal means or otherwise abused his position as public servant and obtained a valuable thing or pecuniary advantage for himself or any other person. The intention of the legislation is not to punish a public servant for erroneous decision, but to punish for corruption. To fall within the four corners of sub-clause (ii) of Clause (d) of sub-section (1) of Section 13 of the PC Act, the (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (10 of 21) [CRLAS-751/2019] decision/conduct of the public servant must be dishonest, amounting to corruption.
To attract the term 'abuse' as contained in Section 13(1)(d) of the PC Act, the prosecution has to establish that the official concerned used his position for something it is not intended. The sum and substance of the discussion is that dishonest intention is the gist of the offence under Section 13(1)(d) of the PC Act.
In the present case, the Home Guards in whose name the bills were allegedly prepared have categorically denied that any demand was ever made by the appellant Jaswant Singh or he obtained any valuable thing by preparing the fraudulent bills of duty. Thus, these witnesses have not supported the prosecution case on main ingredients of obtaining any valuable thing or pecuniary advantage and were treated hostile. In cross- examination also, they have not supported the prosecution version on demand or acceptance of the amount.
A fundamental principle of criminal jurisprudence with regard to the liability of an accused is the element of mens rea. On the principles of actus reus and mens rea, the learned author Sri.Glanville Williams in the 'Textbook of Criminal Law' [Third Edition, Dennis.J. Baker, page 95] comments thus:
"The mere commission of a criminal act (or bringing about the state of affairs that the law provides against) is not enough to constitute a crime, at any rate in the case of the more serious crimes. These generally require, in addition, some element of wrongful intent or other fault. Increasing insistence (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (11 of 21) [CRLAS-751/2019] upon this fault element was the mark of advancing civilization."
Hon'ble Apex Court in the case of C.K. Jaffer Sharief Vs. State (through CBI) reported in 2013(1) SCC 205 while considering the question of criminal liability, has observed as under :-
"17. It has already been noticed that the appellant besides working as the Minister of Railways was the Head of the two Public Sector Undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the Rules or Norms (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (12 of 21) [CRLAS-751/2019] applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar vs . State of Kerala' while considering the provisions of section 5 of Act of 1947. If the totality of the materials on record indicate the above position, we do not find any reason to allow the prosecution to continue against the appellant. Such continuance, in our view, would be an abuse of the process of court and therefore it will be the plain duty of the court to interdict the same."
In the present case, the prosecution failed to produce any material to show that the appellant, with dishonest intention, committed any acts and obtained any valuable thing or pecuniary advantage.
Even the trial court in the impugned judgment dated 30.05.2019 has observed as under :-
"bl laca/k esa vfHk;kstu dh vksj ls izLrqr xokgksa esa ekSf[kd lk{kh dh gSfl;r ls tks Lo;alsod ¼gksexkMZ½ mifLFkr gq;s gSa] muesa ls dksbZ Hkh vfHk;kstu dh dgkuh dk leFkZu ugha djrk gS rFkk os ;gh vfHkdFku djrs gSa fd mudh lqlaxr varjky esa M~;wfV;ka n"kkZdj tks Hkqxrku Lohd`fr vkns"k ikfjr fd;s x;s gSa] oks iw.kZr% lR; gSa o vkjksih tloar flag o "kkafr yky (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (13 of 21) [CRLAS-751/2019] }kjk mUgsa fdlh izdkj dk izyksHku ugha fn;k x;k gS rFkk vkjksih "kkafryky o tloar flag nksuksa gh bZekunkjh o lR;fu'Bk ls viuk drZO; ikyu djrs FksA bl izdkj leLr gksexkMZ ekSf[kd lk{; esa vfHk;kstu dh dgkuh dk leFkZu ugha djrsA"
(B) Discharge/acquittal of co-accused-
Admittedly, the FIR was initially lodged against four persons for offence under Sections 467, 468, 471, 477A, 120B IPC and Section 13(1)(c)(d) of Prevention of Corruption Act but the police after thorough investigation completely discharged two persons including Nathu Singh, Dy. Commandant and chargesheeted appellant Jaswant Singh and Shanti lal for offence under Section 13(1)(c)(d) of Prevention of Corruption Act and 120B IPC and finally convicted only the appellant Jaswant Singh for offence under Sections 13(1)(d) r/w 13(2) of Prevention of Corruption Act. The allegation against the appellant Jaswant Singh is that he prepared fake duty charts and attendance charts and prepared FVC bills which were then signed by Nathu Singh, Dy. Commandant who was the Drawing and Disbursing authority without whose signatures, bills could not have been drawn. However, said Nathu Singh, Dy. Commandant has not even been chargesheeted by the police.
Apart from Nathu Singh, there were other officials who were involved in the entire process of payment of honorarium i.e right from putting duties, preparing attendance chart, verification of attendance from concerned police stations, preparation of bills etc, therefore, even if there was an alleged irregularity/misconduct on (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (14 of 21) [CRLAS-751/2019] the part of appellant Jaswant Singh as per prosecution, all other accused except the appellant have been exonerated.
As stated above, the FIR was initially lodged against various persons for offence under Sections 467, 468, 471, 477A, 120B IPC and Section 13(1)(c)(d) of Prevention of Corruption Act. Thus, the allegation was that all the accused persons entered into a criminal conspiracy to cause wrongful loss to State exchequer and wrongful gain for themselves. Now, when all other accused persons stand discharged/acquitted, how a single person can be held guilty of the misconduct/pecuniary advantage.
Hon'ble Apex Court in the case 'A. Srinivasulu Vs. State rep. by the Inspector of Police' reported in MANU/SC/0723/2023 while considering the question of criminal conspiracy has held as under :-
"103. In fact, the only person found by both the Courts to be guilty of the offence under Section 120B was A-1. Therefore, an argument was advanced that a single person cannot be held guilty of criminal conspiracy. But this contention was repelled by the Courts on the ground that PW-16 was the second person with whom A-1 had entered into a conspiracy. In other words, the reasoning adopted by the Trial Court and the High Court was that only A-1 and PW-16 were part of the conspiracy. Such a reasoning was a huge climbdown from the original charge that A-1 to A-7 entered into a criminal conspiracy, to cause wrongful loss to BHEL and to confer a wrongful gain to A-5 to A-7. Once an offence of Section 120B is not made out against A-5 to A-7, the very foundation for the prosecution becomes shaky. Therefore, we are of the view that the conviction of A-1 for the offences under Section 120B read with Sections 420, 468, Section 471 read with Section 468 and Section 193 IPC and Section 13(2) (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (15 of 21) [CRLAS-751/2019] read with Section 13(1)(d) of the PC Act cannot be sustained."
The learned trial court has also raised question mark upon the investigation conducted by the Investigating officer in its judgment in the following terms :-
";gka ;g Hkh mYys[kuh; gS fd vuqla/kku vf/kdkjh o vkdfLed fujh{k.k vf/kdkjh] nksuksa }kjk Hkh gLrxr izdj.k esa vius nkf;Roksa ds izfr f"kfFkyrk cjruk vfHkys[k ls izdV gks jgk gS] D;ksafd muds }kjk Hkqxrku Lohd`fr vkns"k ftl vf/kdkjh }kjk gLrk{kfjr Fks] mlds ek= bl vfHkdFku ds vk/kkj ij fd mlus vius v/khuLFk deZpkjh vkjksih tloar flag ds fo"okl esa Hkqxrku Lohd`fr vkns"kksa ij gLrk{kj fd;s] mldks vijk/k esa vkfyIr ugha ekuk] ijUrq mudk ek= bl vk/kkj ij fMIVh dekaMsUV dks vkjksih u cuk;k tkuk mudh dk;Z"kSyh ij lansg mRiUu djrk gS] ;fn IykVwu dekaMj ds gh bl lanHkZ esa nkf;Ro Fks] rks fMIVh deakMsUV ds mijksDr Hkqxrku Lohd`fr ds vkns"kksa ij gLrk{kj dh dksbZ vko";drk ugha Fkh] ;fn dksbZ foHkkxh; vf/kdkjh fdlh nLrkost ij gLrk{kj djrk gS rks fu"p; gh mldk] ml nLrkost ds lanHkZ esa nkf;Ro gS] og ml nkf;Ro ls bl vk/kkj ij cp ugha ldrk gS fd mlus ek= v/khuLFk deZpkjh ds fo"okl esa vkdj] mu ij gLrk{kj fd;s rFkk vfHkys[k ls mldk bl voS/k iz;kstu esa vkfyIr gksuk Hkh izdV gks jgk gSA"
(C) Receipt of consideration/pecuniary benefit -
The whole allegation against the appellant Jaswant Singh is that he prepared forged and fabricated duty charts, attendance charts and prepared bills but whether he actually received any valuable thing or pecuniary benefit in return or not.
It has come on record that bills of duties of the Home guards were prepared by the officials of the Homeguard Training Centre signed by appellant Jaswant Singh and Nathu Singh and the (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (16 of 21) [CRLAS-751/2019] payment used to be credited directly in the bank accounts of the Home guards. Even if it is presumed that the fraudulent bills were allegedly prepared by the appellant, then too the payment was supposed to be credited to the bank account of concerned Home Guards and none of the Home Guards have stated that the appellant ever demanded any share or consideration in return. Thus, the conduct of the appellant Jaswant Singh, even if accepted to be that of preparing bills on the basis of fraudulent duty charts, show that at the most, the act of the appellant could be termed as irregular. However, there was nothing on record to show that such irregularities were committed willfully with an intent to defraud and obtain benefit.
It is also important to note that there is absolutely no allegation in the prosecution case that the appellant obtained any pecuniary advantage. There is nothing to show that the amount due to the Home Guards as honorarium was not paid or that the appellant unlawfully obtained money by preparing false bills, which can be treated as pecuniary advantage within the mischief of Section 13 of the PC Act. The trial court in the judgment has also suggested that since FVC bills of certain employees during the period were prepared who were absent from duties at the relevant time, it seems that the appellant and other officers of the Home Guard Training Centre were supposed to gain some financial benefits. The relevant lines are quoted herein below :-
"/kkjk 13 ¼1½ ¼Mh½ Hkz'Vkpkj fuokj.k vf/kfu;e ds lanHkZ esa vfHkys[k ij miyC/k lk{; ls ;g lqLi'V :i ls izekf.kr gS fd vkjksih tloar flag }kjk yksd lsod ds :i esa inLFkkfir (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (17 of 21) [CRLAS-751/2019] gksrs gq;s gksexkMZ dk;kZy; esa dk;Zjr Lo;alsodksa dh QthZ gktfj;ka n"kkZdj o M~;wVh pkVZ ds feyku ds vuqlkj Hkqxrku Lohd`fr vkns"k u cukdj] ,sls Lo;alsodksa ds mDr varjky ds Hkqxrku Lohd`fr vkns"k tkjh fd;s] tks rRle; vuqifLFkr Fks o ftl vuqØe esa ,Qohlh fcy Hkh cus] ftlls fuf"pr gh Lo;alsodksa dks o muds ek/;e ls Lo;a vkjksih tloar flag o x`g j{kk izf"k{k.k dsUnz] HkhyokMk esa dk;Zrj vf/kdkfj;ksa ds /ku laca/kh ykHk izkIr gksuk Fkk] vU;Fkk muds }kjk QthZ Hkqxrku Lohd`fr vkns"k ugha tkjh fd;s tkrsA"
Thus, the finding of the trial court for conviction is also based on surmises and conjectures rather than facts.
Moving on to the concept of standard of legal proof, the well entrenched principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt is required to be considered here.
In Sujit Biswas vs. State of Assam: : (2013) 12 SCC 406, the Hon'ble Apex Court has held as under:
"The reiteration of the golden principle runs through the web of the administration of justice in criminal cases has been done. It has further been held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmises or conjectures. Thus, on the material on record when judged on the touch stone of legal principles adumbrated hereinabove, leave no (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (18 of 21) [CRLAS-751/2019] manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification."
(D) Discharge under Sections 467, 468, 471, 477A, 120B IPC -
One of the arguments of counsel for the appellant was that when the appellant as well as other co-accused who were booked under Sections 467, 468, 471, 477A, 120B IPC have been discharged from the aforesaid offences, the conviction of only appellant under Section 13(1)(d), 13(2) of Prevention of Corruption Act is not sustainable on the basis of same set of evidence. There is strength in the argument of counsel for the appellant. When the very basis for alleged criminal misconduct i.e. forgery, preparing false documents has not been proved, at best, the conduct of the appellant can be said to be irregular and not actuated by a dishonest intention.
Hon'ble Apex Court in the case of 'N. Raghavender Vs. State of Andhra Pradesh, CBI reported in AIR 2022 SC 826 has observed as under :-
"70. We are also constrained to observe that in this case the CBI has either adopted a casual and callous approach or there was some hidden pressure to derail a fair investigation. The resultant effect is that though there is a strong suspicion of criminal breach of trust, cheating and/or fabrication of the Bank records against the Appellant, but such suspicion falls short of a conclusive proof to hold him guilty of the criminal charges. The best evidence having been withheld by the prosecution, the benefit of doubt must be extended to the Appellant, for no conviction can be sustained on the basis of conjectures and surmises.(Downloaded on 12/03/2024 at 08:40:13 PM)
[2024:RJ-JD:10331] (19 of 21) [CRLAS-751/2019] Non-production of the records of the Bank also adversely comments on the fairness and independence of the investigation conducted in the instant case.
71. To sum-up the above-stated discussion, the following incontrovertible factors have emerged in the present appeal:
First, no financial loss was caused to the Bank. Second, the record before us does not indicate that any pecuniary loss was caused to B. Satyajit Reddy or to any other customer of the Bank.
Third, the material before us does not disclose any conspiracy between the accused persons. In the absence of any reliable evidence that could unfold a prior meeting of minds, the High Court erred in holding that Appellant and other accused orchestrated the transactions in question to extend an undue benefit to Accused No.3.
Fourth, the Appellant committed gross misconduct by misusing his position as the Branch Manager. Notwithstanding the final outcome, the Appellant's abuse of powers clearly put the Bank at the risk of financial loss.
Fifth, despite dereliction of his duties, none of the acts proved against the Appellant constitute 'criminal misconduct' or fall under the ambit of Sections 409, 420 and 477-A IPC.
CONCLUSION:
72. We face no difficulty in holding that the prosecution has failed to prove the charges under Sections 409, 420 and 477A IPC against the Appellant beyond reasonable doubt. As a necessary corollary thereto, his conviction under Section 13(2) read with Section 13(1)(d) of the PC Act can also not be sustained. However, the benefit of doubt being extended to him on account of a thin margin between 'strong suspicion' and 'conclusive proof', shall not (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (20 of 21) [CRLAS-751/2019] entitle him to initiate a second round of lis to seek his reinstatement or to claim other service benefits from the Bank. We have already held that the Appellant is deemed to be guilty of gross departmental misconduct, for which the punishment of dismissal from service has been adequately awarded. It requires no repetition that standard of proof to establish a misconduct in a domestic enquiry i.e. even preponderance of evidence, is drastically different to those of proving a 'criminal charge' beyond any reasonable doubt. The Appeal is accordingly disposed of in the above terms. Bail bonds, if any, furnished by the Appellant stand discharged."
The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that appellant, with dishonest intention, committed any acts and obtained any valuable thing or pecuniary advantage.
In view of foregoing discussion, the appeal is allowed. The impugned judgment dated 30.05.2019, the learned Special Judge (Prevention of Corruption Act), Bhilwara is set aside and the accused-appellant is acquitted of the offences by extending benefit of doubt. Appellant is on bail, therefore, his bail bonds are discharged.
Keeping in view, however, the provisions of Section 437-A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount before the learned trial court within a period of one month, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against (Downloaded on 12/03/2024 at 08:40:13 PM) [2024:RJ-JD:10331] (21 of 21) [CRLAS-751/2019] the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.
(MANOJ KUMAR GARG),J 217-BJSH/-
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