Himachal Pradesh High Court
Mohinder Kumar Sharma vs State Of H.P on 21 May, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 337 of 2011
Judgment reserved on: 25.03.2015
.
Date of Decision : May 21 , 2015
Mohinder Kumar Sharma ...Appellant.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? 1 Yes.
For the Appellant : Mr. Anoop Chitkara , Advocate.
For the Respondent: Mr. R.S. Verma, Additional
r Advocate General for the
respondent-State.
Sanjay Karol, J.
In this appeal filed under Section 374 Cr.P.C., convict Mohinder Kumar Sharma has assailed the judgment dated 17.08.2011/18.08.2011, passed by Special Judge, (Additional Sessions Judge), Mandi, H.P., in C.C. No.2 of 2007, titled as State Versus Mohinder Kumar Sharma, whereby he stands convicted for having committed an offence punishable under the provisions of Section 13(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as the P.C. Act) and sentenced to undergo 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 2simple imprisonment for a period of two years and to pay fine of `50,000/- and in default thereof, further undergo simple imprisonment for a period of six .
months. Also he is convicted of having committed an offence punishable under the provisions of Section 409 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of two years and pay fine of `10,000/- and in default thereof, further undergo simple imprisonment for a period of two months.
2. In brief, it is the case of prosecution that during the tenure of his posting as Naib Teshildar in Sub-Tehsil, Kotli, appellant was entrusted with public funds meant for the construction of Panchayat Ghars.
Though entire money drawn by him but not fully utilized . In all he misappropriated `65,000/-, thus causing loss to the State. On receipt of a complaint, inquiry was conducted by the Sub Divisional Magistrate , who submitted his report (Ex.PW.6/B), which was forwarded by the Deputy Commissioner, Mandi, to the Superintendent of Police (Vigilance), on the basis of which FIR No.2/05, dated 02.02.2005 ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 3 (Ex.PW.19/A) was registered, under the provisions of Sections 13(1)(c), 13(2) of the Act and Sections 409, 467, 468 and 471 IPC at Police Station, AC Zone, .
Mandi, against the accused . Investigation was conducted by Gian Singh (PW.22) who seized the incriminating documents. With the completion of investigation , which revealed complicity of the accused to the alleged crime, challan was presented in the Court for trial.
3. The r accused was charged for having committed offences punishable under the provisions of Sections 409, 467, 468 and 471 of the Indian Penal Code and Section 13(2) read with Section 3(d)(i)(i) of the P.C. Act, to which he did not plead guilty and claimed trial.
4. In order to establish its case, in all, prosecution examined as many as twenty eight witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence:-
"The work was carried out in time and the money more than sanctioned was used. Office kanungo maintained the record. He used to issue the bills ".::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 4
In defence, accused examined one witness.
5. Trial Court framed the following points for consideration:-
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"1. Whether the accused being entrusted with Rs.40,000/- for the repair of Patwar Khana Khalanu, Khadkoh and Khad Kalyana and had committed criminal breach of trust in respect of this amount, had forged utilization certificate regarding repair of Patwar Khana Khalanu, Karkoh and Khad Kalyana intending that these shall be used for cheating and had used the utilization certificates for cheating knowing them to be forged and had misappropriated `40,000/- by abusing his position as a public servant?
2. Final order".
6. Appreciating the evidence on record, trial Court found the prosecution to have established its case, beyond reasonable doubt, against the accused only in relation to offences punishable under the provisions of Section 409 IPC and Section 13(2) of the P.C. Act. In relation to other offences, accused stands acquitted, to which there is no challenge.
::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 57. Assailing the findings of conviction and the sentence, accused has filed the present appeal. No appeal stands filed by the State.
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8. Having heard Mr. Anoop Chitkara, learned counsel duly assisted by Ms.Divya Sood, Advocate, on behalf of the appellant as also Mr. R.S. Verma, learned Additional Advocate General, on behalf of the State, as also minutely examined the testimonies of the witnesses and other documentary evidence, so placed on record by the prosecution, Court is of the considered view that trial Court erred in correctly appreciating the material on record. Contradictions and improbabilities which are glaring, rendering the prosecution case to be extremely doubtful, if not true, stand ignored.
9. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793, the apex Court, has held as under:
"7. This Court had ever since Its inception considered the correct principle to be applied by the Court in an appeal against an order of acquittal and held that the High Court has full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 6 acquittal should be reversed. The Privy Council in Sheo Swarup v. King Emperor, AIR 1934 P. C. 227, negatived the legal basis for the limitation which the several decisions of the High Courts had placed on the right of the State to .
appeal under Section 417 of the Code.
Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". He further pointed out at p. 404 that, "the High Court should and will always give proper weight and consideration to such matters as; (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses". In Sanwat Singh and others v. State of Rajasthan, AIR 1961 SC 715, after an exhaustive review of cases decided by the Privy Council as well as by this Court, this Court considered the principles laid down in Sheo Swarup's case (supra) and held that they afforded a correct guide for the appellate court's approach to a case against an order of acquittal It was again pointed out by Das Gupta, J., delivering the judgment of five Judges in Harbans Singh v. State of Punjab, AIR 1962 SC 439;::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 7
"In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on 'compelling and substantial reasons' .
and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. The State, (1952) SCR 194;
Ajmer Singh v. State of Punjab, (1953) SCR 418; Puran v. State of Punjab, AIR 1953 SC 459). The use of the words 'compelling reasons' embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words 'compelling reasons'. In later years the Court has often avoided emphasis on 'compelling reasons' but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.
(Vide Chinta v. The State of Madhya Pradesh, Criminal Appeal No. 178 of 1959 decided on 18-11-1960;
Ashrafkha Haibatkha Pathan v. The State of Bombay, Criminal Appeal No. 38 of 1960 decided on 14-12-1960) "...............On close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 8 deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only .
when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a 'compelling reason' for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."
[See: Aher Raja Khima Versus State of Surashtra , AIR 1956 SC 217].
10. Fact that appellant was entrusted with Government money and that he withdrew the same from the bank is not disputed before this Court. It be only observed that trial Court, failed to take into account entire material, so produced on record by the prosecution itself, more particularly the report of valuation (Ex.PW.22/M) .
11. It is undisputed that the accused withdrew a sum of `10,000/- for construction of Panchayat Ghar, Khad Kalyana; `45,000/-, in two installments, for construction of Panchayat Ghar , Khalanu; and `10,000/- for c onstruction of Panchayat Ghar, Karkoh.
::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 912. It needs to be examined as to whether these amounts were actually spent by the appellant for the construction of Panchayat Ghar or not.
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13. The appellant stands convicted for having committed an offence punishable under the provisions of Sections 409 of IPC and 13(2) of the P.C. Act. What needs to be considered is as to whether, in the light of the settled principles of law, prosecution has been able to establish the essential ingredients, so required for constituting an offence of criminal breach of trust and misconduct, as defined under the P.C. Act. Has the prosecution proved the essential ingredients, so required to constitute an offence of criminal breach of trust, which are :
dishonest intent, converting property to his own use, dishonestly using or disposing of the property in violation of law or agreement.
14. From the conjoint reading of testimonies of Chand Ram (PW.1), Durga Dass (PW.5), Balbir Singh (PW.10) and Gulab Singh (PW.23-A), it is evident that some money was spent for construction of Panchayat Ghar Khalanu. Balbir Singh and Chand ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 10 Ram have not supported the prosecution and despite extensive cross-examination, nothing fruitful could be elicited from their testimonies. Gulab Singh is the .
Investigating Officer and has no personal knowledge with regard to the money which was spent for the construction of Panchayat Ghar (s). According to Durga Dass, Panchayat Ghar was not habitable. Now the issue, which arises for consideration, is as to whether in view of utilization certificate (Ex.PW.16/D ) and valuation r report (Ex.PW.22/M) (wrongly marked /referred to by the trial Court as Ex.PW.20/M), so prepared by Sham Lal Sharma (DW.1), an employee of the Himachal Pradesh Public Works Department, can it be said that the appellant has misappropriated the amount in question.
Significantly valuation certificate itself reveals that more than `45,000/- was spent for the construction of Panchayat Ghar Khalanu. True it is that Durga Dass has deposed that the Panchayat Ghar is not in a habitable condition, but then this fact itself would not establish the guilty intent or the factum of appellant having misappropriated the amount in question. The ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 11 amount, so sanctioned for the construction of Panchayat Ghar, disbursed in two installments, was actually spent and utilized for such purpose.
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15. With regard to construction of Panchayat Ghar Khad Kalyanu, through the testimony of witnesses Prem Singh (PW.3 ) and Het Ram (PW.8), it is evident that an amount of `10,000/- was withdrawn by the appellant. These witnesses also state that the Panchayat Ghar could not be utilized for the reason that construction was not complete. But then Prem Singh also contradicts himself by stating that he has not visited the spot and as such, could not state with certainty the extent of construction carried out on the spot. Be that as it may, fact of the matter is that from utilization certificate (Ex.PW.16/C) and the valuation report (Ex.PW.22/M) (wrongly marked/referred to by the trial Court as Ex.PW.20/M), it is evident that the amount, so withdrawn was fully utilized even for construction of the said Panchayat Ghar.
16. In relation to Panchayat Ghar Karkoh, prosecution seeks reliance on the testimonies of ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 12 Roshan Lal (PW .9), Naresh Kumar (PW.12), Jai Singh (PW.13), Krishan Chand (PW.14), Gulab singh (PW.16), Jagdish Chand (PW.21), Gian Singh (PW.22) .
and Arun Kumar Sharma (PW.25). Naresh Kumar and Jai Singh have not supported the prosecution case and despite their extensive cross -examination, nothing fruitful could be elicited from their testimonies. Be that as it may, factum of withdrawal of a sum of `10,000/- even for construction of the said Panchayat Ghar, is not disputed by the present appellant. Roshan Lal does state that Panchayat Ghar could not be utilized as there were no doors, windows or roof, as only the room was plastered. But then, he states that repair was carried out prior to his inspecting the Panchayat Ghar. Record, so proved by him, is not prepared by him. It is not that the author of the report (Ex.PW.1/B), upon which reliance is sought by the prosecution, was not available. It is also not that report was prepared in the normal course of business and that Roshan Lal was successor in office. R eliance on the said report is thus not permissible in law.
::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 1317. Arun Kumar Sharma, SDM, only makes out a grievance that construction of Panchayat Ghar was not complete. He does not state that money .
withdrawn was not fully utilized for the construction of Panchayat Ghar. Testimony of remaining witnesses is also to similar effect. Noticeably even with regard to said Panchayat Ghar, there is utilization certificate (Ex.PW.16/B) and valuation report (Ex.PW.22/M), prepared by the officials of the Department, r proved, in accordance with law, evidencing the fact that the amount so withdrawn by the appellant was utilized for the construction of said Panchayat Ghar.
18. In Abdulla Mohammed Pagarkar Versus State (Union Territory of Goa, Daman and Diu), (1980) 3 SCC 110, the apex Court has c larified that suspicion, however strong, cannot be a substitute for proof.
19. In view of the ratio of law laid down by Hon'ble Supreme Court of India in Radha Pisharassiar Amma Versus State of Kerala, (2007) 13 SCC 410, it cannot be said that prosecution has been able to ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 14 prove that the appellant herein dishonestly misappropriated or converted to his own use or dishonestly used the government money, in violation .
of any provisions of law.
20. Thus, in view of the above discussion, it cannot be said that prosecution has been able to establish the essential ingredients of criminal breach of trust or misconduct, as required in law.
21. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence.
22. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 17.08.2011/18.08.2011, passed by ::: Downloaded on - 15/04/2017 18:13:37 :::HCHP 15 Special Judge, (Additional Sessions Judge), Mandi, H.P., in C.C. No.2 of 2007, titled as State Versus Mohinder Kumar Sharma, is set aside and accused .
Mohinder Kumar Sharma is acquitted of the charged offences. Accused is already on bail as such bonds are discharged. Amount of fine, if deposited by the accused, be refunded to him accordingly.
Appeal stands disposed of, so also pending application(s), if any.
(Sanjay Karol),
r Judge.
May 21 , 2015.
(Purohit)
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