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Delhi District Court

In Re vs State (Through Nct Of Delhi) on 25 August, 2022

          IN THE COURT OF MR. DHARMESH SHARMA
      PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
             PATIALA HOUSE COURTS : NEW DELHI
Criminal Appeal No. 130/2020
CNR No. DLND1­005637­2020

In re:
Jai Bhagwan
S/o Late Sh. D.S. Sharma,
R/o B­94, Vijay Nagar,
Bawana, Delhi­110039                                      .........Appellant

         Versus

State (Through NCT of Delhi)                              ........Respondent


         Date of Institution of Appeal                :   10.11.2020
         Date of hearing arguments                    :   02.07.2022
         Date of Judgment                             :   25.08.2022

Appearances:
Sh. Ankur Chhibber and Sh. Nikunj Arora, Advocates for the appellant.
Sh. Irfan Ahmad, Addl. PP for the State/respondent.

JUDGMENT:

1. This Judgment shall decide the present Criminal Appeal filed by the appellant in terms of Section 374 of the Code of Criminal Procedure, 1973 assailing impugned Judgment dated 07.03.2020 whereby he has been convicted for the offence punishable under Section 420 of the Indian Penal Code, 1860, followed by an order on sentence dated 14.10.2020 passed by the Court of Ms. Pragati, Ld. MM­01, New Delhi District, Patiala House Courts, New Delhi, CA­130/2020 Jai Bhagwan v. State Page 1 of 17

2. The appellant Jai Bhagwan S/o late Sh. D.S. Sharma has been arraigned for trial on the charges that between 15 th January, 2001 to 30th January, 2001, while being employed with the complainant company, namely PEC Limited ( a Government of India Enterprise), Hansalya, 15, Barakhamba Road, New Delhi (hereinafter referred as 'the complainant company'), he cheated the complainant company by concealing facts that he had already been employed with Excise and Taxation Department (Govt. of Haryana), Karnal, Harayana (hereinafter referred as the 'E&T Department') during the course of his employment with the complainant company while moving an application for voluntary retirement (for short 'VRS') from it, and thereby, dishonestly inducted the complainant company to accept his application for VRS and deliver the terminal benefits to him and thereby committed an offence punishable under Section 420 IPC within the cognizance of the Court. The charge was put to the appellant on 11.10.2013, to which he pleaded not guilty and claimed trial.

BRIEF FACTS:

3. Briefly stated, the present FIR was registered on 14.03.2003 at 5.20 p.m. vide DD No. 16A on the directions passed by the Ld. MM under Section 156(3) Cr.P.C. dated 08.01.2003 based on the complaint preferred by Sh. A.K. Saluja (PW­5), the Authorized Representative & Deputy Marketing Manager of the complainant company, which is Ex.PW­9/A, the gist of which is that he was authorized to institute the complaint by virtue of General Power of Attorney dated 11.10.2002 and CA­130/2020 Jai Bhagwan v. State Page 2 of 17 it was alleged that the appellant Jai Bhagwan was a permanent employee of the complainant company, who was earlier posted as Office Manager and was promoted to the post of Deputy Manager­II w.e.f., 01.01.2001 and that appellant joined the higher post on promotion on 11.01.2001. It was further stated that appellant Jai Bhagwan submitted an application dated 15.01.2001 for VRS under 'Voluntary Retirement Scheme', 1989/2001, which was accepted vide Office Order No. 25/2001 dated 16.01.2001 and he was relieved from the services by the complainant company vide Office Order No. 47A/2001 w.e.f. 17.01.2001; and since the appellant had opted for VRS, he was not required to serve 90 days notice and vide Office Order No. 40/2001 dated 17.01.2001, the appellant was paid a sum of Rs. 7,01,461/­ towards Voluntary Retirement Scheme including Rs. 4,82,045.20 Paisa on account of ex gratia payment and three months notice pay towards Voluntary Retirement Scheme Compensation amounting to Rs. 35,271.60, Gratuity amount of Rs. 1,23,377/­, leave encashment amount of Rs. 76,288.80 Paisa and Service Award of Rs. 14,250/­ besides Provident Fund Accumulation of Rs. 11,25,063/­ and thereby total amount of Rs. 11,25,063/­ was paid to the appellant at the time of retirement.

4. The grievance of the complainant company was that the appellant dishonestly and fraudulently concealed that while he was still under the employment with the complainant company, he joined another Government Office viz. E&T Department on 05.10.2000 by naming himself as 'Jai Bhagwan Parashar' and started claiming all the benefits CA­130/2020 Jai Bhagwan v. State Page 3 of 17 available with the post of Taxation Inspector including salary from the E&T Department and in the process also changed his signatures while at the same time attending the office of complainant company after 04.10.2000 till 17.01.2001 except on 30.10.2000, 01.11.2000 and 12.01.2001. It was further alleged that the appellant also availed Leave Travel Concession for himself and his family for visiting Jammu from 11.01.2001 to 14.01.2001 besides applying for medical facilities under the Post Retirement Medical Scheme by filing false affidavit duly attested by the Oath Commissioner on 30.01.2001 inter alia swearing on Oath that he had not taken employment in any company after the retirement, which fact was reiterated by him again on 25.01.2002.

5. It was further alleged that the appellant also filed a false affidavit sworn by him before the Executive Magistrate, Karnal on 05.02.2001 with the E&T Department stating inter alia that he had not rendered any service in any of the Government / Semi Government/ Private Institute during the period 06.10.2000 to 11.01.2001, and therefore, during such time the appellant not only availed double employment with two different Government offices but also availed all the benefits of being a Government Employee from two different offices of two different Governments.

6. It was further the grievance of the complainant company that it would not have considered the application of the appellant for VRS and would not have paid ex gratia and other benefits had he not concealed the fact that he was already under the employment of E&T CA­130/2020 Jai Bhagwan v. State Page 4 of 17 Department; and likewise E&T Department would not have permitted the appellant to join its office if he had disclosed of his employment with the complainant company but for the false affidavits filed by him. In the aforesaid facts and circumstances, it was claimed that the appellant committed not only acts of cheating but also filed false affidavits, and therefore, be proceeded under Section 420/409/467/471 IPC and other provisions of the IPC.

7. Needless to state that during investigation, the appellant was arrested on 14.07.2004 vide memo Ex.PW­2/A and his personal search was conducted vide memo Ex.PW­2/B, and on his interrogation and otherwise, various documents were seized from the two concerned department and on completion of investigation, the charge­sheet/final police report was filed and cognizance of the offence was taken and at the cost of repetition, charge was framed for committing offence punishable under Section 420 IPC on 11.10.2013, to which he pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE:

8. The prosecution in order to prove its case examined nine witnesses: The main witnesses for the prosecution were PW­1 Sh. A.S. Rajourya, Retired Chief Personal Manager, PEC Limited under the Ministry of Commerce, who deposed that he was posted in PEC Limited, New Delhi since 13.08.1975 till the date of retirement i.e. 31.12.2013 and he produced certified copies of order No. 40/2001 and office order No. 47A/01, both dated 17.01.2001, which were marked Ex.PW­1/A and CA­130/2020 Jai Bhagwan v. State Page 5 of 17 PW­1/B; PW­3 Praveen Kumar, Taxation Inspector from the office of Excise & Taxation Commissioner, Punchkula, Haryana. It is suffice to state that he deposed about the appellant joining with the E&T Department as Jai Bhagwan Parashar and he deposed about various documents, which are Ex.PW­3/A to Ex.PW­3/L that were marked exhibits in his evidence upon which I shall reflect later on in this judgment. Another witness was examined from the same department, namely PW­4 Paramjeet Singh, who produced the personal file of the appellant, named as Jai Bhagwan Parashar and deposed that the appellant joined as Taxation Inspector on 04.10.2000 and while joining he had filled­up Form No. M 40,which is Ex. PW­3/B, which was forwarded in original to the Prohibition, Excise and Taxation Commissioner, Haryana, Chandigarh. PW­5 was the Authorized Representative of the complainant company, namely Sh. Anil Kumar Saluja and he deposed about thte application for VRS filed by the appellant and the action taken by the department on such request with regard to which the deposition was made about various documents which are Ex.PW­5/A to PW­5/I, upon which I shall reflect later on in this judgment. PW­6 was Sh. Mahesh Kumar, Taxation Inspector from the office of DETC (ST), Karnal, Haryana. He produced the summoned record with regard to joining of appellant as Jai Bhagwan Parashar on the post of Taxation Inspector, which documents are Ex.PW­6/A to PW­6/D, upon which I shall delve later on in this judgment. PW­7 Ravi Prakash Ramzai, who CA­130/2020 Jai Bhagwan v. State Page 6 of 17 produced the certified copies of various documents, which were marked Ex.PW­7/A (colly) (total 20 documents). PW­8 was Sh. A.N. Kalra, who deposed about certified true copy of office order No. 25/2001 executed on 16.01.2001 marked Ex.PW­7/A. Lastly, only two police witnesses were examined viz., PW­2 HC Badan Singh who deposed that on 14.07.2004 the appellant was arrested and the last witness was Inspector Sanjeev Chahar from West Distirct, examined as PW­9 who investigation the whole case and filed the charge­sheet/final police report.

9. On the close of prosecution evidence, the appellant was examined in terms of Section 313 Cr.P.C. and on putting the incriminating facts and circumstances on the record by the prosecution including the voluminous documentary evidence, the appellant came with either denial or stating that documents were matter of record. On being asked as to why the witnesses have deposed against him, he stated that he had worked as General Secretary of the PEC Ltd. Employees Union for more than a period of 15 years and had exposed the corrupt practices of Senior officials of that company with certain outside agencies and hence the officials were filled up with revengeful attitude towards him. He further submitted that the complainant company had moved all the three Courts of Law at Delhi i.e. Tis Hazari Courts vide case No. S193/02, Delhi High Court vide case No. RFA 553/04 and then Hon'ble Supreme Court vide case No. CA 6934/09 and all the above three Courts decided in his favour and against the PEC Ltd. In the last he CA­130/2020 Jai Bhagwan v. State Page 7 of 17 submitted that he was innocent and he never received double benefits but has been falsely implicated in this case. The appellant also chose to come in the witness box and he was examined as DW­1. I shall reflect on the testimony of appellant/DW­1 later on in this judgment. IMPUGNED JUDGMENT:

10. Ld. Trial Court on appreciation of oral and documentary evidence led on the record, vide the impugned Judgment dated 07.03.2020 held that appellant was dishonest and he intentionally cheated the complainant company based on application dated 17.01.2001 Ex.PW­5/D as also Ex.D­20 and affidavit dated 31.01.2001 (Ex.D­21) whereby he applied for grant of medical facility with the complainant company in which he intentionally did not disclose that he had taken up employment with the E&T Department. It was found that appellant admittedly joined E&T Department on 04.10.2000 while on the other hand he had already applied for VRS with the complainant company on 15.01.2001 and was relieved therefrom on 17.01.2001; and that the appellant even submitted false affidavit dated 05.02.2001 Ex.PW­3/D before the E&T Department whereby he gave a false undertaking that during the period of his absence from the said department from 06.10.200 to 11.01.2001, he had not rendered any service in any Government/ Semi Government / private institution. Ld. Trial Court found that the prosecution had been able to prove the necessary elements of cheating against the appellant beyond shadow of reasonable doubt and accordingly he was convicted for the offence under Section 420 IPC.

Further, vide the impugned order on sentence dated 14.10.2020, the appellant was sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs. 3,000/­ and in default of payment of fine, he was directed to further undergo Simple Imprisonment for a period of 20 days.

GROUNDS OF APPEAL:

11. The impugned judgment on conviction followed by order on sentence are assailed in the present appeal inter alia on the grounds that the Ld. Trial Court failed to appreciate that the sole testimony of PW­5 Anil Kumar Saluja was unworthy of any credence being full of infirmities and improprieties; and that the Ld. Trial Court failed to appreciate that no charge of post retirement benefit had been framed and no specific question with regard to post retirement medical claim had been put under Section 313 Cr.P.C.; and that the impugned judgment was arrived at based on inadmissible evidence and merely on the basis of purported admissions of the appellant; and that the Ld. Trial Court failed to consider that the prosecution has failed to prove that any wrongful loss was caused to the complainant company; and that the Ld. Trial Court failed to appreciate that prosecution miserably failed to prove that no beneficial amount had been received by him while serving in E&T Department during the period 05.10.2000 to 30.01.2001 in terms of document Ex.PW­6/B; and Ld. Trial Court failed to appreciate that a suit for recovery of monies, injunction and declaration filed by the complainant company against him for recovery of Rs. 8,08,807/­ was CA­130/2020 Jai Bhagwan v. State Page 9 of 17 dismissed vide judgment dated 06.09.2004 and although the complainant company filed RFA No. 553/2004, the same was also dismissed vide order dated 27.05.2009; and that the Ld. trial Court failed to appreciate that appellant had placed on record 'No Objection Certificate' Ex.D/3/F1 dated 28.09.2000, which was duly signed by Sh. A.S. Rajoria, Personal Manager with the complainant company. DECISION:

12. I have given my thoughtful consideration to the submissions made by the Ld. Counsel for the appellant/convict and the Ld. Addl. PP for the State. I have also gone through the instant appeal file as well as evidence brought by the prosecution on the judicial record during the trial of the case.

13. The broad facts of this case are not in dispute. The appellant admittedly was in the employment with the complainant company since 09.11.1981 and he admittedly submitted an application for 'VRS' i.e. on 15.01.2001 Ex. PW7/A (also Ex. PW­5/D) after completing 19 years of service and it was conceded by PW5 that VRS had been rightly sought in terms of 1989/2001. It is also brought out that the application of the appellant for VRS was accepted vide office order bearing no. 47A/01 Ex. PW1/B (also Ex. PW7/A Collectively) by the Competent Officer of the complainant company and consequent thereto, the retirement benefits were made available to the appellant vide office order bearing no. 40/01 dated 17.01.2001 Ex. PW1/A (also Ex. PW­7/A Colly) and he was paid total amount of Rs.7,01,461/­ minus Rs.

1,19,298/­ towards recoverable charges. What is also brought out by the prosecution is that the appellant before applying for VRS vide letter dated 15.01.2001 with the complainant company, had already joined E&T Department, Government of Haryana, w.e.f. 05.10.2000 vide joining report Ex. PW6/A.

14. What further brought out by the prosecution is that the appellant had filed an affidavit Ex.PW3/D with the E&T Department dated 05.02.2001 to the effect that he was not employed with any government, semi­government or private institution. At the same time, what further stares on the face of the record is that no salary was claimed by or paid to the appellant from the E&T Department, Govt. of Haryana, which was only paid to him for the month of February 2001 in March, 2001, since it was testified by PW6 that appellant was not paid any salary from 06.10.2000 to 28.02.2001 as he had proceeded on medical leave soon after joining the office of E&T Department, Govt. of Haryana. Further, PW6 also testified that on coming to know about the double employment of the appellant, the Competent Authority directed that the salary paid to the appellant for the February 2001 to November 2001 in terms of certified copy of accounts Ex.PW6/B be recovered, for which office letters were written to the Competent Authority vide letter Ex. PW6/D.

15. If that is the evidence brought on the record, the prosecution case that the appellant was enjoying double benefits is on a slippery turf but the story does not end here. The Ld. Trial Court also held that the CA­130/2020 Jai Bhagwan v. State Page 11 of 17 appellant had filed a false affidavit with the complainant company dated 31.01.2001 Ex. D­1 while claiming medical benefits inter alia stating/deposing that "I have not taken up employment with any company after retirement." Well, he had certainly not taken any employment after his retirement but prior thereto. The appellant, who was examined as DW1, in his cross­examination deposed that no medical benefit was as such availed in the nature of reimbursement of medical treatment, which version too has not been controverted by the prosecution.

16. While apparently it looks that the appellant had taken employment with E&T Department, Govt. of Haryana, before seeking VRS from the complainant company by submitting a false affidavit dated 31.01.2001 Ex. D­21, what completely demolishes the foundation of the prosecution case is the finding rendered against the complainant company in the civil suit no. 193/2002 titled M/S PEC Limited vs Jai Bhagwan filed by the complainant company for recovery of Rs.8,08,347/­ from the appellant towards retirement benefits etc. paid to him, based on the same cause of action, which civil suit was dismissed vide judgment dated 06.09.2004 by the Ld. ADJ, Tis Hazari Courts, Delhi and the said judgment was affirmed, dismissing the appeal of the complainant/appellant company in RFA No. 553/04 vide judgment dated 27.05.2009 passed by the Hon'ble Judge, Delhi High Court so much so that Special Civil Appeal no. 6934/2009 was also dismissed by the Hon'ble Judges of the Supreme Court of India vide order dated 17th September, 2014.

17. Suffice to state that in the said judgment, it was brought out that the appellant (who was arraigned as defendant in that civil suit) had claimed that before applying to the post of Taxation Officer, E&T Department, Govt. of Haryana, he had applied for the grant of 'no objection certificate' on 28.09.2000 Ex.DW3/F1, which was duly sanctioned and 'no objection' was accorded vide letter dated 28.09.2000 Ex.DW3/F2. It would be expedient to refer to the relevant observation made by the Hon'ble Judge in the said judgment dated 27.05.2009, that read as under :

"11. It is an admitted case of the parties that respondent joined Haryana Government on 4th October, 2000 as Taxation Inspector. However, he did not draw any salary from Haryana Government from October 2000 to January 2001. Respondent got his salary in the month of February 2001, which fact has been corroborated by DW­2 Jai Bhagwan, Cashier, Office of Deputy Excise and Taxation Department, Karnal, Haryana, who in his statement stated that appellant joined the department of Excise Taxation on 4th October, 2000 and has signed the attendance on 5th October, 2000. Thereafter he marked his attendance on 19th January, 2001, for the period 6th October, 2000 to 18th January, 2001. This witness further deposed that the respondent has not drawn any salary from October, 2000 to January, 2001.

12. So, from the statement of DW­2, who is an official witness, it stands clearly established that respondent has not drawn any salary from Haryana Government for month of October to January, 2001. Thus, there is nothing on record to show that respondent received double benefit in respect of any item, from two different departments, for the same period.

16. So, from the pleadings of the parties, it stand clearly established, that the appellant has not specifically denied the CA­130/2020 Jai Bhagwan v. State Page 13 of 17 issuance of 'No Objection Certificate' & nor it took the plea that 'No Objection Certificate' issued by it, is a forged document.

17. Respondent has placed and proved on record his application, seeking 'No Objection Certificate' which is Ex.DW­3/F1 dated 28th September, 2000. In pursuance of this application, he was issued 'No Objection Certificate' vide letter dated 28th September, 2000, which is Ex.DW­3/F2, duly signed by A.S.Rajouria, Personal Manager of appellants' company, who has also been examined by the respondent, as his witness as, DW­4.

18. DW­4 A.S.Rajouria, in his examination­in­chief has stated that he has not issued any certificate/NOC to Sh. Jai Bhagwan certifying his date of joining dated 11th April, 2001 and Ex.DW3/F2 does not bear his signatures. However, in the same breath, he admitted, it as correct that this is a pad of PEC, which is Ex.DW3/F2 and on 28th September, 2000, he was working as personal manager, PEC.

19. When respondent appeared in the witness box, he proved this 'No Objection Certificate' Ex.DW­3/F2. It was no where put to the respondent that this 'No Objection Certificate', Ex.DW3/F2 does not bear signatures of Mr.A.S.Rajouria or the same has been forged by him (respondent).

20. Assuming for arguments sake, that signatures of DW­1 Mr.A.S.Rajouria on Ex.DW3/F2 are forged one, but he admits that, Ex.DW3/F2, is a pad of appellant company. There is no allegation that respondent has forged this pad."

18. At the cost of repetition, a bare perusal of the aforesaid observations would clearly demolish the entire foundation of the prosecution case. Not much can be read into the affidavit dated 31.01.2001 Ex. D­21, filed with the complainant company and the affidavit Ex. PW3/D dated 05.02.2001 submitted before E&T Department since it is but obvious that while applying for VRS or for submitting an application for reimbursement of medical facilities, such affidavits are standard proforma which are filled up by the employees CA­130/2020 Jai Bhagwan v. State Page 14 of 17 and assuming for the sake of convenience that such affidavits were indeed filed, the prosecution has miserably failed to bring home that the appellant had caused any wrongful loss to the department and thereby derived any pecuniary or financial benefits for such technical lapse.

19. In other words, the terminal benefits received by the appellant does not qualify to be wrongful as there is nothing on the record to even remotely suggest that appellant was not legally entitled for terminal benefits on availing 'VRS'. Avoiding the temptation to go on a long academic discussion, the three components of Section 420 IPC viz.

(i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person and (iii) mens rea of the accused at the time of making the inducement have not been proved by the prosecution as held in the case titled as N. Raghavender v. State of Andhra Pradesh, 2021 SC OnLine SC 1232. The prosecution has miserably failed to show that the appellant had any dishonest or fraudulent intention at the time when he applied for 'VRS' or at the time when he joined E&T Department. In view of the findings given by the Ld. Civil Court that he had applied for placement with E&T Department, Government of Haryana after obtaining 'No objection Certificate' from the complainant company, which finding was cemented upto the Hon'ble Supreme Court, there are no grounds to hold that the appellant committed cheating.

20. As to whether or not a finding rendered by a civil court is binding on the criminal court involving the same parties, reference can CA­130/2020 Jai Bhagwan v. State Page 15 of 17 be had to the decision in K.G. Prem Shankar v. Inspector of Police, (2002) VIII SCC 87, in which it was held as under :

"What emerges from the aforesaid discussion is -- (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. {paragraph 30}"

21. In view of the aforesaid observations by virtue of Section 40 of the Indian Evidence Act, it can be safely said that the core of the issue was as to whether or not the appellant had taken 'no objection certificate' from the complainant company before seeking employment with the E&T department, and at the cost of repetition, the same is clearly brought home by the appellant by virtue of decision rendered in the civil suit between the same parties. In other words, the issue that the appellant had rightly applied for VRS in terms of the relevant scheme and he was legally entitled to the terminal benefits creats an "issue estoppel" and in view of the said position, the prosecution miserably failed to lay down a foundation to a present criminal prosecution.

22. In view of the foregoing discussion, the present appeal is allowed and the impugned Judgment dated 07.03.2020 convicting the CA­130/2020 Jai Bhagwan v. State Page 16 of 17 appellant under Section 420 IPC is set aside and consequently the impugned order on sentence dated 14.10.2020 is also set aside.

23. The appellant shall furnish bail bond­cum­surety bond in the sum of Rs. 25,000/­ with one surety of the like amount in compliance of provisions of Section 437­A Cr.P.C. for a period of six months.

24. Trial Court record along­with copy of Judgment be sent back forthwith. File of appeal be consigned to the Record Room.

                                         DHARMESH Digitally       signed by
                                                          DHARMESH SHARMA

                                         SHARMA           Date: 2022.08.26 16:33:58
                                                          +0530

Announced in the open Court            (DHARMESH SHARMA)
     th
on 25 August, 2022          Principal District & Sessions Judge (NDD)
                                    Patiala House Courts, New Delhi




CA­130/2020                      Jai Bhagwan v. State                   Page 17 of 17