Punjab-Haryana High Court
Ashok Kumar & Anr vs Ut Of Chandigarh on 9 March, 2018
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
CRA-S-971-SB of 2009 1
457
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-971-SB of 2009
Date of decision: March 09, 2018
Ashok Kumar and another
.....Appellants
Versus
U.T., Chandigarh
.....Respondent
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
Present: Mr. Anmol Rattan Sidhu, Senior Advocate with
Mr. Jasdev Singh Mehndiratta, Advocate and
Mr. Pratham Sethi, Advocate for the appellants.
Mr. Gautam Kaile, Advocate for
Mr. Rajive Sharma, APP for U.T., Chandigarh.
****
A.B. CHAUDHARI, J
Being aggrieved by the judgment/order dated
27.03.2009/30.03.2009, in corruption case No.151 passed by the
Special Judge, Chandigarh, by which, the appellants, namely Ashok
Kumar and Vinod Kumar, both brothers were convicted for
commission of offence punishable under Sections 120-B, 420 read
with Section 120-B, 468 read with Section 120-B and 471 read with
Section 120-B of the Indian Penal Code, 1860 (for short 'IPC') and
sentenced them to undergo Rigorous Imprisonment for five years plus
fine; and in default of payment of fine, to further undergo Rigorous
Imprisonment for one year, the present appeal was filed by them.
FACTS
In brief, the case of the prosecution was that the Director,
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Transport, U.T., Chandigarh had made a complaint to the Vigilance
Department stating that appellant No.2-Vinod Kumar working as an
Assistant Battery Attendant in Chandigarh Transport Undertaking,
Chandigarh had applied for getting his designation changed from
Assistant Battery Attendant to that of Clerk. An amount of `20,000/-
was to be paid by way of consideration to Rakesh Thakur, Senior
Assistant. The application was forwarded, examined and by report
dated 05.04.2000, the Director, Transport, Chandigarh recorded that
the request of appellant No.2-Vinod Kumar for the change as desired
by him could not be entertained. This letter was collected directly by
appellant No.1-Ashok Kumar, the real brother of Vinod Kumar and
was handed over to Rakesh Thakur. Rakesh Thakur then, prepared a
note, on 19.04.2000 favoring the change of designation of Vinod
Kumar. In the last line of the letter received by the office of Director,
Transport, Chandigarh, on 05.04.2000, it was found that there was
tampering and the words "cannot be entertained" were made as "may
be entertained". In the said allegation, investigation was made. The
allegations were made after completion of enquiry and thereafter,
charges were filed before the trial Court. The prosecution examined
number of witnesses to prove its case. The accused persons were
charged for commission of offence punishable under Sections 420,
461, 468, 471, 120-B of IPC and Sections 7, 13(1)(d) and 2 of PC Act.
The learned trial Court, thereafter, heard the entire evidence and
recorded the impugned judgment and order of conviction and sentence.
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In so far as the present appellants are concerned, they were not
convicted for offences punishable under Sections 7, 13(1)(d) and 2 of
PC Act, but were convicted as stated above.
ARGUMENTS
In support of the appeal, learned Senior counsel for the
appellants submitted that the impugned judgment and order made by
the learned trial Court is not based on evidence, but is based on the
inferences drawn which are totally wrong and highly improbable and
rather impossible. He submitted that the trial Court got impressed with
so called theory of prosecution that the proposed beneficiary in the
crime must necessarily be held guilty for offences in question and in
this case, appellant No.2-Vinod Kumar. In so far as appellant No.1-
Ashok Kumar is concerned, he being the real brother of Vinod Kumar
had carried the file directly to Rakesh Thakur and therefore, he was in
criminal conspiracy for getting the benefit to his brother Vinod Kumar.
Learned Senior counsel for the appellants submitted that the entire
approach of the trial Court in recording conviction on such theory of
prosecution is unknown to the criminal jurisprudence and the
appellants could not have been convicted. He then submitted that the
prosecution itself had examined PW5-Dr. Amar Pal Singh, the person
who was in full knowledge about the alleged tampering of letter dated
05.04.2000 and PW12-Ashwani Kumar Dhamija whose evidence has
been totally ignored by the trial Court, though, it has recorded the
arguments made by the learned counsel for the appellants. That could
not have been done merely because his evidence was favourable to the
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accused persons. He then submitted that no conviction can be based
merely because there is some proposed beneficiary without anything
further. He then submitted that the witness PW12 who was in custody
of the said document right from the beginning himself stated that he
had made corrections in the letter, though, he did not say about other
material of the letter that was corrected without putting any initial
thereon. It was, therefore, the case where the prosecution itself brought
the evidence on which there was serious doubt and merely because
Vinod Kumar was the alleged proposed beneficiary and further merely
because Ashok Kumar was his real brother, the impugned judgment of
conviction could not have been made. Learned Senior counsel for the
appellants then contended that there was no eye witness to the alleged
tampering of the document in the first place. Secondly, the report of
any expert for type print compare etc. was not obtained. The reason
given by the trial Court that it was not possible to obtain any such
report because there were several typewriters available in the office
and even outside office and from anywhere the forgery could be done
is faulty. The burden was on the prosecution to prove that it was
accused and none other who carried out the correction in the letter or
tampered with the letter. All the more so, PW12-Ashwani Kumar had
stated that he had made corrections in the letter. The learned Senior
counsel further submitted that a departmental inquiry was held against
Vinod Kumar and those documents have already been exhibited on
record of the trial Court through DW2. If the findings in the said
inquiry report are seen, though, not binding on the Court, the trial
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Court did not even touch that aspect of the matter. Such inquiry report
which was the basis for final order and the inquiry report were the
relevant evidence.
Per contra, learned State counsel opposed the appeal and
submitted that the trial Court has made a detailed judgment running
into number of pages and has given reasons for recording the
conviction. He, further submitted that there is ample evidence on
record that Vinod Kumar was the real beneficiary and therefore, none
other than him would tamper the evidence to gain favour to himself.
Learned State counsel, therefore, prayed for dismissal of the appeal.
In reply, learned counsel for the appellants submitted that
there is admitted evidence on record that the pay-scale of a Clerk is
lesser than that of an Assistant Battery Attendant.
CONSIDERATION
I have gone through the entire judgment and order made by
the learned trial Court. I have also gone through the entire evidence
with the assistance of the learned counsel for the rival parties. Upon
perusal of the reasons given by the trial Court, it clearly appears that
the trial Court found that it was Vinod Kumar who was the beneficiary
and therefore, none else except the beneficiary could commit the
offence of tampering of document. The trial Court has not relied on
any other evidence in support of the said inference drawn. In my
opinion, the finding is strange and cannot be countenanced. In so far as
Ashok Kumar is concerned, the only allegation against him is that he
had carried the said letter and that he is the brother of Ashok Kumar.
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This is again the finding which has resulted into miscarriage of justice
to Ashok Kumar for no reasons. The alleged angle of crime qua
conspiracy etc. stated in the impugned judgment is again not based on
evidence and is a perverse finding. The trial Court itself stated that it is
very difficult to prove forgery, but it is only the beneficiary who can
be held culpable. It is better to quote the relevant portion from the Para
17 of the impugned judgment which I quote hereunder:-
"......At this, Ashok Kumar, dispatcher told him to hand
over that letter to Ashok Kumar, Clerk and then obtained
his signatures on the office copy of the letter dated
5/4/2000. Thereafter, he had gone to his branch for
obtaining the file of this case. He then took the file to the
dispatch section of the office and thereafter, he gave the
letter in question to Ashok Kumar, Clerk of their office and
obtained his signatures on the office copy Ex.PK. He also
identified the signatures of Ashok Kumar, Clerk at point
'A' on Ex.PK. He further stated that thereafter, Ashok
Kumar, Clerk left the office alongwith the aforesaid letter.
At that time, the last line of the letter was having
recommendation "may not be entertained". After few
days, copy of that letter was shown to him by the police
and then he found that in the last line of original letter
Ex.PJ words "may be" entertained were written instead of
words "may not be entertained". Thus, with the statement
of this witness, it stands proved that the letter in question
was taken by Ashok Kumar accused to the office of Home
Secretary, UT, Chandigarh. Ashok Kumar is the real
brother of Vinod Kumar. Vinod Kumar is the beneficiary.
Since the culprits would not commit the crime in the
presence of stranger, therefore, it cannot be said that the
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serious crime of forgery would go unpunished. The
evidence as to in whose presence the offence of forgery
was committed is very difficult to be obtained. Even, if it is
not proved on the file as to who has committed the offence
of forgery, when and where and in what manner, if the
forgery is there at least the beneficiary of forgery is said to
be the one who is involved in the case. He is the one who
would do that or would get the same done. Without the
involvement of the beneficiary no other person would like
to commit the offence of forgery. As such, even in the
absence of clear cut evidence as to who committed the
forgery it is always there that the beneficiary of the
forgery is the one who had committed the offence of
forgery......."
In this connection, it is important to note that the pay-scale
of a Clerk is lesser than the pay-scale of an Assistant Battery
Attendant. The trial Court has simply ignored this aspect of the matter
which was relevant, and there is no plausible answer given by the trial
Court. In this connection, it would be appropriate to quote the
evidence of PW12-Ashwani Kumar, which I quote hereunder:-
"Vinod Kumar, accused was serving in the workshop in
August, 2000 as Asstt. Battery Attendant. It is correct that
at that time he was working at Computer. Till date he is
working in the same section on the computer. It is correct
that the salary of Asstt. Battery Attendant is more than that
of a clerk..."
In the backdrop of the above evidence, merely because an
application was made by Vinod Kumar for changing his designation,
one cannot jump the conclusion that he must have committed the
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forgery, in the absence of legal evidence. There is reason to believe
that he could not be the proposed beneficiary because post of Assistant
Battery Attendant on which he was working carries more pay-scale
than that of a Clerk. Therefore, that aspect of the matter was relevant
to discard the theory of proposed beneficiary.
The prosecution examined PW12-Ashwani Kumar who, in
fact, demolished the prosecution case, but then his evidence has not
even been considered by the trial Court. It would be appropriate to
extract the relevant evidence from his deposition:-
"On 01.08.2000 I was posted as Sr. Asstt., O/o Director
Transport, CTU, Chandigarh. I had put up the draft letter
dated 05.04.2000 for the approval of Director Transport,
CTU, Chandigarh. The Director Transport after making
some changes, approved the draft. Thereafter, the said
letter was handed over to Anil Kumar Sharma, Jr. Asstt.
for affixing dispatch number. I immediately called him
back to see the letter. I then saw the letter and since the
letter was to be sent to Higher Authority i.e. the Home
Secretary, Chandigarh as such I myself change the word
"can" into "may" in the last line of memo. I had made
this change in the draft itself. Thereafter, I had also made
this change in the letter (original) and in the office copy as
well. However, with the aforesaid change, the meaning of
the letter remained the same. At that time the word "not
be" was there in the draft as well as in the letter. I did not
interfere with the word "not be". I have not typed word
"be" in the draft or in the letter. Thereafter, I had handed
over the entire file to Anil Kumar, Jr. Asstt. for dispatch
and thereafter, I do not know as to where the file had
gone. After few days Director had called me. The Director
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was having original letter with him. Director had asked
me about the changes made in the letter, thereupon, I told
him that I had only changed the word "can" into "may".
At that time a white fluid was there whereupon the word
"be" was typed in the place of word "not be". I had told
the Director I had not made the aforesaid change in the
letter from word "not be" to "be". My statement was
recorded. I have seen the noting Ex.P-N which bears my
signatures at Point K, L, P, Q, R and O."
Reading of the evidence of Ashwani Kumar shows that he
was the custodian of the document and he had, in fact, stated that he
made changes in the original letter as well as office copy, but did not
make any initial. However, when, it came to material words regarding
"can be" and "not be", he stated that there was a white fluid on the
words and thus, could not say anything further. Fact of the matter
however, is that he admitted that he had made corrections in the letter.
There is no evidence to show that either Vinod Kumar or Ashok
Kumar had made any correction in the letter or had put white fluid on
the letter nor there is any eye witness to that effect. In my opinion,
such a candid evidence of PW12-Ashwani Kumar could not have been
ignored by the trial Court merely because the same was favourable to
the appellants. This was corroborated by the evidence of PW5-Dr.
Amar Pal Singh, in the cross-examination, which I quote hereunder:-
"It is correct that the official dak is sent after making entry
in the despatch register by the office. On my asking from
the staff concerned as to how there is a change in office
copy of letter from "cannot be entertained" to "may not
be entertained" to which Mr. Ashwani Dhamija official
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said that he has done it.........."
It is then significant to note that a departmental inquiry
was held against Vinod Kumar in the same subject matter. The defence
produced the inquiry report as well as final order before the trial Court
and those documents are exhibited. It is important to note that the trial
Court has not even looked into those documents. These evidences, in
the form of said documents, may not be binding on the trial Court, but
then in a criminal trial, the same is also relevant piece of evidence to
be considered, but that was not done. I have, therefore, myself gone
through all the relevant papers in the departmental inquiry regarding
the findings. I quote the relevant portion from the final order accepting
the inquiry report, which reads thus:-
".....The inquiry Officer submitted his Inquiry Report
wherein she came to the conclusion that tampered letter in
question has not been proved by an expert. Accordingly
the facts of tampering of the document of change the word
from 'Can' to May' cannot be relied upon. Moreover, no
eye witness has been produced to prove the facts of
alleged tampering of documents. Further the documents
on records do not support the fact that it was the
delinquent official who has tampered the letter in question.
It has also not been proved by any evidence that the letter
in question was ever handed over to his brother Sh. Ashok
Kumar, Clerk to be delivered to the office of Home
Secretary, Chandigarh Administration, Chandigarh. In the
absence of any corroborated evidence, oral or
documentary, the version of the department cannot be
relied upon and it is highly doubted that it is delinquent
official who has committed the offence charge through
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memo dated 18.12.2001. Accordingly, the version of
department is highly doubted and thus in such a situation
the charges leveled against Sh. Vinod Kumar, Asstt.
Battery Attendant vide memo no.
17810/DT/ECM/CTU/2001, dt. 18.12.2001 stands not
proved.
Now therefore, the undersigned being fully agreed
with the findings of the inquiry officer and in exercise of
powers conferred under Punjab Civil Services Rules
(Punishment & appeal) Rules, 1970 does hereby order to
file the case."
It is thus, clearly seen that the prosecution miserably failed
to prove its case against the appellants. It is then significant to note
that the prosecution did not examine any expert evidence and it has no
eye witness to say that any particular person had committed the
forgery of the document.
The upshot of the above discussion is that the present
appeal must succeed. In the result, I make the following order:-
ORDER
(i) CRA-S-971-SB of 2009 is allowed;
(ii) The impugned judgment/ order dated 27.03.2009/ 30.03.2009, in corruption case No.151 passed by the Special Judge, Chandigarh, by which, the appellants, namely Ashok Kumar and Vinod Kumar, both brothers were convicted for commission of offence punishable under Sections 120-B, 420 read with Section 120-B, 468 read with Section 120-B and 471 read with Section 120-B of IPC and sentenced them to undergo Rigorous Imprisonment for five years plus fine; and in default of payment of fine, to further undergo Rigorous 11 of 12 ::: Downloaded on - 06-05-2018 13:07:20 ::: CRA-S-971-SB of 2009 12 Imprisonment for one year, is set aside;
(iii) Appellants, namely Ashok Kumar and Vinod Kumar are acquitted of the charge that was framed against them;
(iv) Fine, if paid, be refunded to them.
(A.B. CHAUDHARI) JUDGE March 09, 2018 mahavir Whether speaking/ reasoned: Yes Whether Reportable: Yes 12 of 12 ::: Downloaded on - 06-05-2018 13:07:20 :::