Madhya Pradesh High Court
State Of M.P. vs Hari Singh Khairwar on 3 March, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
SINGLE BENCH
G.S. AHLUWALIA J.
Cr.A. No. 959 of 2013
State of M.P., through S.P.E.
Vs.
Hari Singh Khairwar & Anr.
_______________________________________
Shri Ajay Chaturvedi Counsel for the Appellant/State
Shri B.B. Shukla Counsel for the Respondents
Date of Hearing : 17-02-2022
Date of Judgment : 03-03-2022
Approved for Reporting :
Judgment
03 - March -2022
Per G.S. Ahluwalia J.
1. This Criminal Appeal under Section 378 of Cr.P.C. has been filed against the judgment of acquittal dated 29-7-2011 passed by Special Judge (P.C. Act) Gwalior in Special S.T. No. 1/2010 by which the respondent no.1 has been acquitted of charges under Section 15 of Prevention of Corruption Act read with Section 120B of I.P.C., whereas the respondent no.2 has been acquitted of charges under Sections 467,468,471,420 and 120B of IPC.
2
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
2. The necessary facts for disposal of the present appeal in short are that one Sudhir Singh, resident of Tansen Nagar, Gwalior, made a complaint against Vivek Singh, the then Commissioner, Municipal Corporation Gwalior, that forged files of work worth Rs. 2 Crores have been prepared in the name of maintenance work of water supply. In the name of sanctioning the work and forged payment, illegal gratification in lacs has been taken. Accordingly, on the orders of Lokayukt, an enquiry was conducted by Commissioner, Municipal Corporation and Divisional Vigilance Committee and prima facie allegations were found proved and accordingly, the matter was handed over to Special Police Establishment (Lokayukt), Bhopal. Shri Kaptan Singh Nagar was appointed as investigating officer, and looking to the large number of files, Virendra Singh Tomar and Anil Kumar Agrawal, Inspectors were also authorized to investigate.
3. The investigating officer recorded the statements of the witnesses. Sanction to prosecute respondent no.1 Hari Singh Khairwar was obtained and accordingly, charge sheet was filed against the respondents and other accused persons.
4. By order dated 6-3-2010, the Trial Court refused to take cognizance against R.N. Karaiya, K.K. Shrivastava, Narendra Singh Bhadoria, Ajay Pandvia and R.B. Shrivastava in absence of sanction for prosecution, however, took cognizance against the respondents.
5. By order dated 13-9-2010, the Trial Court framed charges 3 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) against the respondent no.1 for offence under Section 15 of Prevention of Corruption Act read with Section 120B of IPC, whereas against the respondent no.2, charges under Sections 467,468,471,420,120B of IPC were framed.
6. The respondents abjured their guilt and pleaded not guilty.
7. The prosecution examined Hari Singh Yadav (P.W.1), Rajendra Singh Dixit (P.W.2), M.L. Batham (P.W.3), Kusumlata Sharma (P.W.4), V.K. Soni (P.W.5), K.K. Shrivastava (P.W.6), M.R. Godia (P.W.7), M.M. Khera (P.W.8), Devendra Singh Chauhan (P.W.9), Arvind Chaturvedi (P.W.10), Anil Kumar Agrawal (P.W.11), and Veerendra Singh Tomar (P.W. 12).
8. The respondents did not examine any witness in their defence.
9. The Trial Court by the impugned judgment, has acquitted the respondents of all the charges.
10. Challenging the judgment of acquittal passed by the Court below, it is submitted by the Counsel for the State that the Trial Court has erred in fact as well as in law by holding that the prosecution has failed to prove that no work was done in Rangiyana Colony. It was wrongly held that the work of removing submersible pump and cleaning of bore was not to be done, and only the hand pump was to be installed. The Trial Court has wrongly relied upon the Affidavits of the witnesses for holding that the prosecution has failed to prove that no work was done in Rangiyana Colony. The findings recorded by the Trial Court are perverse and contrary to record. 4
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
11. Per contra, the Counsel for the respondents have supported the reasoning given by the Trial Court, but failed to justify as to how, the Trial Court can rely on the affidavits of the persons, specifically when they did not enter in the witness box as defence witnesses.
12. Heard the learned Counsel for the parties.
13. Before considering the submissions made by the Counsel for the parties, this Court would like to appreciate the law governing the consideration of appeal against acquittal.
14. The Supreme Court in the case of Sambhaji Hindurao Deshmukh v. State of Maharashtra, reported in (2008) 11 SCC 186 has held as under :
13. The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt (vide Ganesh Bhavan Patel v. State of Maharashtra, Babu v. State of U.P., Awadhesh v. State of M.P., Thanedar Singh v. State of M.P. and State of Rajasthan v. Raja Ram).5
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
15. The Supreme Court in the case of Bhim Singh Vs. State of Haryana reported in (2002) 10 SCC 461 has held as under :
9. Before concluding, we would like to point out that this Court in a number of cases has held that an appellate court entertaining an appeal from the judgment of acquittal by the trial court though entitled to reappreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine. In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the appellate court comes to the conclusion that the view taken by the trial court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any material on record, it should not merely because another conclusion is possible reverse the finding of the trial court. (See: Mohanlal Hargovind Dass v. Ram Narain, State of Punjab v. Balraj Singh, State of Maharashtra v. Wasudeo Ramchandra Kaidalwar and Ram Kumar Pandey v. State of M.P.)
16. The Supreme Court in the case of State of Punjab v. Ajaib Singh, reported in 2005) 9 SCC 94 has held as under :
10. This being an appeal against acquittal, we have with the assistance of counsel for the parties gone through the evidence on record with a view to find whether the view favourable to the accused taken by the High Court is based on the evidence on record and is reasonable. It is well settled that in an appeal against acquittal, the appellate court is entitled to reappreciate the evidence on record, but having done so it will not interfere with the order of acquittal unless it finds the view of the court acquitting the accused to be unreasonable or perverse. If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed.
17. Thus, the facts of the present case as well as the arguments advanced by the Counsel for the parties shall be considered by keeping the above proposition of law in mind.
18. As per the prosecution case, the file contains an undated letter 6 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) written by Govind Verma, Councilor, Ward No. 9 Rangiyana Colony, Chaar Shahar Naka, Gwalior, pointing out that because the underground water level has gone down, therefore, water is not coming out of the tube-well installed in Rangiyana Colony and accordingly, it was prayed that in place of submersible pump, hand pump may be installed. A note sheet was prepared by the then Sub- Engineer namely Shri Narendra Singh Bhadoria that "due to scarcity of water in Rangiyana Colony, submersible pump has been removed and bore has been cleaned, so that hand pump can be installed". It was also mentioned that looking to the shortage of water and summer season, the estimate of work would be Rs. 9,940/-. Accordingly, it was mentioned that quotation may be called. The note sheet was forwarded to Asstt. Engineer. It is not out of place to mention here, that there is no reference of letter allegedly written by Councilor nor the note sheet contains any date. Similarly an estimate of Rs. 9,940/- was prepared by Sub-Engineer Narendra Singh Bhadoria and Asstt. Engineer Ajay Pandvia but no date has been mentioned below their signatures. Thereafter, Asstt. Engineer Ajay Pandvia prepared a note sheet dated 24-7-2003 proposing for calling of quotation and accordingly, Executive Engineer R.N. Karaiya granted approval for calling quotation. This note sheet is dated 27-7-2003. Thereafter on 13-8-2003, a notice addressed to three contractors including respondent no.2 was affixed on the Notice Board and the last date for submission of quotation was 19-8-2003, however, the said letter 7 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) doesnot contain the date of issuance, although it was signed by Asstt. Engineer Ajay Pandvia. On 19-8-2003, three quotations by those three Contractors were submitted. On 19-8-2003, the quotations were opened by Asstt. Engineer Ajay Pandvia by mentioning "Open by" whereas he was not authorized to do so. The quotations are alleged to have been received by Asstt. Engineer as it contains the seal of Asstt. Engineer and all the three quotations were entered into at serial no. 4888,4889 and 4890 in the inward register. None of the quotation bears any date. Further more, the quotations were called from three contractors only and the quotations were never invited from general public/contractors. On 19-8-2003 itself, the Sub- Engineer Narendra Singh Bhadoria wrote a note sheet mentioning that quotations of three firms were received, and the quotation of respondent no.2 was the lowest one. The said note sheet was forwarded to Asstt. Engineer. Asstt. Engineer Ajay Pandvia forwarded the note sheet for approval by Executive Engineer on 19- 8-2003 itself. The Executive Engineer granted approval on 3-9-2003. Thereafter, the legible copies of the work order were placed for signatures and the seal of approval dated 24-12-2003 by M.I.C. is affixed. It has been signed by Executive Engineer Karaiya. The work order was issued on 30-12-2003 to the respondent no.2. The work order was issued by Executive Engineer R.N. Karaiya and a copy was endorsed to Asstt. Engineer, Water Supply Maintenance Block No. 1. On the said letter it is mentioned that Technical 8 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) sanction was granted on 9-10-2003. Although a seal to the effect that it has been approved by MIC is affixed but there is no date on it. Although the work order was issued on 30-12-2003, but the respondent no.3 submitted the bill on 2-1-2004 i.e., just two days after the work order was issued. On the basis of bill, a seal has been affixed to the effect that work was inspected and it was found satisfactory and is in accordance with quality control. The measurement book no. 912 Page no. 2 is mentioned. It is also mentioned that the bill of Rs. 9,940 is presented for payment. The said note sheet has been signed by Sub-Engineer Narendra Singh Bhadoria on 6-1-2004 and it has been certified by Asstt. Engineer Ajay Pandvia on 15-5-2004. On the same page, a recommendation was made for payment of Rs. 9,940/-. However, there is no order by the Commissioner, Municipal Corporation. The investigating officer had also carried inspection on the spot, and found that submersible pump was not replaced and hand pump was never installed.
19. Hari Singh Yadav (P.W.1) is the Constable who delivered the Dehati Nalishi in the office of S.P.E. (Lokayukt) in Bhopal and on the basis of said Dehati Nalishi, the S.H.O., Satish Kumar Verma lodged FIR, Ex. P.1.
20. Rajendra Singh Dikshit (P.W.2) is working on the post of Asstt. Draftsman. He has stated that investigating officer had shown him the file regarding installation of hand pump in Rangiyana Colony. He found that the said file was never sent to technical branch, but the 9 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) Asstt. Engineer had sent it to the Executive Engineer. The procedure is that after the quotations are received, the file is sent to Technical branch for estimate, lowest rates etc. but the file was never sent. He further stated that the respondent no.2 had submitted the bill, which was approved by M.I.C., however, the payment could not be made due to pendency of enquiry. This witness was cross-examined.
21. In cross-examination, he stated that it is his duty to prepare the map of the spot where work is to be carried out, but the file doesnot contain any such map/sketch. He further stated that he is a draftsman and it is his duty to send proposal for issuing Notice Inviting Tender, to prepared comparative chart, to send for approval after verifying the spot map etc. He further admitted that in the file in question, he had never seen any map. He further stated that as the file was never placed before him, therefore, it doesnot contain his signatures.
22. M.L. Batham (P.W.3) has stated that he was posted as Incharge Executive Engineer. He had sent the information to the investigating agency regarding the posting of the employees. The letter is Ex. P.1, information regarding posting is Ex. P.2,3 and 4. Attested service book of respondent no.1 is Ex. P.5 and 6.
23. Kusumlata Sharma (P.W.4) has stated that She was posted in Technical branch and her duty was to draw map/sketch being the Asstt. Of Draftsman. The file pertaining to hand pump was received in technical branch. At that time, Shri Dikshit was the Draftsman and as per procedure the file is placed before the Executive Engineer by 10 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) the Draftsman. The file was received by post and it was entered in the inward register. Thereafter, the file was placed by her before the Executive Engineer. Thereafter, She did not support the prosecution case, therefore, She was declared hostile. However, in cross- examination, She claimed that since three years have passed, therefore, She doesnot recollect that what statement was given by her to the investigating officer. In cross-examination by the defence, this witness stated that She had not done anything except by writing at B to B in document, Ex. D.1. She admitted that She had not prepared the sketch/map.
24. Vimal Kumar Soni (P.W. 5) has stated that he had provided the information to the investigating officer, regarding the duties and liabilities of Executive Engineer, Asstt. Engineer, Sub-Engineer, Treasurer, and Divisional Treasurer, vide Ex. P. 8.
25. K.K. Shrivastava (P.W.6) has stated that he had sent the information to the investigating officer, regarding service conditions of respondent no.1. He had also sent the measurement book and filling register vide letter Ex. P.10 and P.11.
26. M.R. Godia (P.W. 7) has stated that he had sent the attested photo copy of the approval by MIC, Ex. P.12.
27. M.M. Khera (P.W. 8) has stated that he had given sanction for prosecution of respondent no.1, Ex. P.13 as he is the competent authority to remove the respondent no.1. In cross-examination, this witness stated that he had granted permission after going through the 11 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) file. He had not seen the spot, and permission was granted only on the basis of documents.
28. Devendra Singh Chauhan (P.W. 9) has stated that he had sent the report of the Committee constituted by order dated 20-9-2005 by Commissioner, Municipal Corporation, Ex. P.14/P.14-C and Ex. P.15/P. 15-C. This witness was cross-examined. In cross- examination, this witness admitted that in the letter it is not mentioned that at which place and which pipe line was to be repaired.
29. Arvind Chaturvedi (P.W. 10) has stated that he was nominated as a member of the Committee constituted by the Commissioner, Municipal Corporation, Gwalior by order dated 20-9-2005. He further stated that on inspection of the file, he found that Technical branch had not granted sanction. The place where work was to be done was not clearly mentioned. The assessment also doesnot contain the place where work was to be done. A consolidated permission of different files was given. Measurement was not mentioned in M.B. Book. The enquiry report is Ex. P.16. This witness was cross-examined. In cross-examination, this witness admitted that they had not inspected the spot. The enquiry report is in relation to 5357 files. He denied that false enquiry report was prepared at the instance of senior officers. He admitted that the order constituting committee is not produced. He also admitted that it is also not mentioned that for how may days, the enquiry continued. He clarified on his own, that it is mentioned that the enquiry report was 12 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) submitted on 20-9-2005. He admitted that rough noting was done on the spot. He also admitted that rough notes are not produced. He further stated that no written information was given by the Chairman of the committee to visit the spot. He admitted that while preparing the enquiry report, the spot map was not prepared. He admitted that no statement of an independent witness was recorded. He admitted that in enquiry report, Ex. P.16, the name of respondent no.1 is not mentioned. He further stated that he cannot say that on which date he had received the file for enquiry. He further stated that an order was issued on 20-3-2005 for conducting an enquiry and enquiry report was submitted on 20-9-2005.
30. Anil Kumar Agrawal (P.W. 11) is the investigating officer. He has stated that he had collected information regarding budget from the office of Commissioner, Municipal Corporation, Gwalior. On 11- 10-2007 he had recorded the statements of Govind Verma, on 16-11- 2007, he had recorded the statements of Suresh Sikarwar and Madan Baba, on 28-1-2008, he had recorded the statement of Mohan Singh Chandel, on 23-1-2008 he recorded the statements of Yogendra Pal Singh Sisodiya, and Rajendra Singh Dikshit, On 8-1-2008 he recorded the statements of Surendra Kumar Juneja, on 7-1-2008 he recorded the statement of Rajesh Sharma, on 5-1-2008 he recorded the statement of Sharad Chandra Garg, on 4-1-2008 he recorded the statements of Kaushlendra Buddhiraja, on 3-1-2008 he recorded the statements of Mohd. U. Siddique and on 6-1-2008 he recorded the 13 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) statement of Kusumlata Sharma. He filed the charge sheet after obtaining sanction for prosecution of respondent no.1.
31. Virendra Singh Tomar (P.W. 12) is also the investigating officer. He has stated that he had inspected the spot and prepared the panchnama, Ex. P.21. The witnesses had informed that hand pump has not been installed. He tried to search out the complainant Sudhir Singh, but could not locate him. After the allegations made in the complaint were found correct, then he lodged Dehati Nalishi against Vivek Singh, R.N. Karaiya, A.K.Shrivastava, Ajay Pandviya, Narendra Singh and Contractor Kamal Kishore Puniyani as well as Auditor and Treasure posted in the office. This witness was cross- examined. In cross-examination, this witness stated that after conducting investigation, he had submitted the files in the office. He re-iterated that he had carried out the spot inspection. He denied that he did not record the statements of the witnesses.
32. The Trial Court acquitted the respondents mainly on the following grounds :
(i) Arvind Chaturvedi (P.W.10) neither conducted any spot inspection nor recorded the statements of independent witnesses.
(ii) Devendra Singh Chauhan (P.W.9) has admitted that in the letter, Ex. P.15C, the place where maintenance/repair work was done or where pipeline was repaired is not mentioned.
(iii) The Chairman of the Enquiry Committee has not been examined.14
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
(iv) The map/sketch of the spot of Rangiyana Colony, where the hand pump was to be installed has not been filed.
(v) Although the witnesses have stated that the file was not sent to Technical branch, but the respondents are not concerned with that.
(vi) The Respondent no.2 submitted his bill after completing the work. Although the prosecution has alleged that the bill was presented within 2 days of work order, but only hand pump was to be installed and therefore, the respondents cannot be convicted only on the ground that the bill was presented just after 2 days of issuance of work order.
(vii) The payment of bill has not been done.
(viii) The respondents have filed affidavits of Babu Singh Patel, Samir Gupta, Gulab Singh Bhadauria, Arvind Singh Bhadauria, Munnalal Yadav, Narayan Singh Kushwaha which are to the effect that work was done. Rangiyana Colony and Kaith Wali Bagia are two different places which has not been clarified by the prosecution.
33. Now the moot question for consideration is that whether the prosecution has proved the guilt of the respondents beyond reasonable doubt or not?
34. The entire proceedings done by the accused persons can be summed up as under :
(a) An undated application was made by Govind Verma, Councilor, Ex. D.1, to the effect that water level has gone down in 15 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) the water bore situated in Rangiyana Colony, therefore, hand pump may be installed after getting the bore cleaned. It is not out of place to mention here that since, Govind Verma had expired, therefore, he could not be examined.
(b) Thereafter, Narendra Singh prepared an undated note sheet to the effect that as the water level in Rangiyana Colony has gone down, therefore, the motor installed in the water bore has been removed and the bore has been cleaned so that hand pump can be installed and looking to the summer season and scarcity of water, the estimate of the work is Rs. 9,940/-.
(c) Asstt. Engineer, Ajay Pandvia, forwarded the file to Executive Engineer, R.N. Karaiya, who by his note sheet dated 27-7 permitted to call quotations.
(e) Quotations were called from three Contractors only including the respondent no.2 and all the quotations were received on 19-8-
2003 in sequence i.e., at serial no. 4888,4889 and 4890 of inward register.
(f) All the three quotations were opened by Ajay Pandvia, Asstt. Engineer on 19-8-2003 itself, although he was not competent to do so and it was for the Technical Department to open the Quotations and to prepare the comparative chart.
(g) Thereafter, on 19-8-2003 itself, Sub-Engineer Narendra Singh prepared a note sheet mentioning that as per the order, three quotations were received and the quotations submitted by respondent 16 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) no.2 is the minimum being of Rs. 9,940/-.
(h) Asstt. Engineer Ajay Pandvia placed the proposal for approval on 19-8-2003 and it appears that Executive Engineer R.N. Karaiya granted permission on 3-9-2003.
(i) Thereafter, the legible typed copy of work order was placed, but the note sheet doesnot contain any date. Below said noting a rubber seal has been affixed to the effect that MIC has granted approval on 24-12-2003.
(j) Work order was issued on 30-12-2003.
(k) A rubber stamp has been affixed to the effect that work has been completed in his presence, work was satisfactory and as per the specification, the measurement of the work is mentioned in M.B. 912 page no. 2 and the bill of Rs. 9,940 is presented after the completion of work. This seal is signed by Sub-Engineer Narendra Singh and Asstt. Engineer Ajay Pandvia. Sub-Engineer Narendra Singh has put the date 6-1-2004, whereas Ajay Padavi has put the date 15-5-2004.
(l) Accountant / Auditor /Divisional Accountant/ Executive Engineer made recommendation for payment, but the file doesnot contain the approval by Commissioner, Municipal Corporation.
(m) The Accountant affixed the rubber seal for payment, however, it appears that since, complaint was made therefore, the payment was stopped.
35. The office file containing the above mentioned note sheets as well as the letter of Govind Verma have been exhibited as Ex. D.1. It 17 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) appears that the entire file (containing note sheets as well as documents) was seized. Although the note sheets have been exhibited as Ex. D.1, but it appears that the documents which are the part of the office file were not exhibited.
36. It is submitted by the Counsel for the respondents, that it is well established principle of law that if any prosecution document is not exhibited, but if it is in favor of the accused, then the accused can take advantage of the same. Accordingly, the attention of this Court was drawn towards the un-exhibited documents which are part of File No.1.
37. Un-exhibited documents which are part of File No.1 contains following documents :
(a) Un-dated application of Govind Verma in original;
(b) The Original Note Sheets:
(c) Index of the Office of the Asstt. Engineer, Maintenance
Sub.Dn. Gwalior, Estimate
(d) Notice inviting quotations
(e) Quotation submitted by respondent no.2.
(f) Envelop containing quotation by respondent no.2.
(g) Quotation submitted by Tarun Traders
(h) Envelop containing quotation by Tarun Traders
(i) Quotation by Surendra Kumar Juneja
(j) Envelop containing quotation by Surendra Kumar Juneja
(k) Proforma of comparative chart
18
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
(l) Work order dated 30-12-2003
(m) Bill containing an endorsement that cheque of Rs. 9940/- has been issued and ultimately on the recommendation of the Enquiry Committee the file was closed and payment was not released.
38. It is submitted by the Counsel for the respondents that notice inviting quotations was issued. The respondent no.2 and two more persons submitted their quotations. Since, the quotation of the respondent no.2 was lowest, therefore, it was accepted. The work order was issued 30-12-2003 and bill dated 2-1-2004 was submitted after completing the work. However, the payment could not be released. Thus, it is incorrect to say that any attempt was made to misappropriate the amount.
39. Per contra, the Counsel for the Appellant submitted that undated application for removal of submersible pump was obtained and notice inviting quotations was issued to only three persons. The quotations were opened by unauthorized person. No work was done. A false bill was presented and even the cheuqe was issued, but since, complaint was made, therefore, the payment was not made. Thus, it is clear that the respondents are guilty. It is further submitted that even the Trial Court has crossed all the permissible limits, by relying upon the affidavits of the defence witnesses. There is no provision in Cr.P.C. for relying on the affidavits of the witnesses. The deponents who sworn affidavits never entered in the witness box. Thus, even the Trial Court has adopted a procedure which is foreign and stranger 19 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) to the Criminal Procedure Code.
40. Heard the learned Counsel for the parties.
41. As per the documents relied upon by the Appellants, an Estimate of Rs. 9940 was prepared by Narenda Singh, Sub-Engineer. This estimate was for removing Submersible Pump, for supply of India Mark II Handpump, Supply of 1 ¼ inch G.I. Pipe, Installation of Hand pump, and construction of platform. Accordingly, the notice inviting quotations was issued. The said quotation is dated 13-8- 2003 and it was addressed to respondent no.2, Tarun Traders and Surendra Kumar Juneja only. The notice inviting quotation is as under :
dzekad 1889 Xokfy;j fnukad 13-8-2003
loZJh 1- dey fd'kksj iqfu;kuh
2- r:.k VzsMlZ
3- lqjsUnz dqekj lqustk
4- lwpuk iVy
fo"k; foHkkx dk lkeku iznku @ ejEer dk;Z djus ds laca/k esa bl foHkkx }kjk fuEufyf[kr vk;Veksa @ dk;Z ds dqV's ku vkef=ar fd;s tkrs gSA d`i;k vki viuh U;wur njsa bl dk;kZy; es fnukad 19-8-2003 dks cts rd Hkstus dk d"V djsaA vki tks njsa bl dk;kZy;k es izLrqr djs os lc VsDlksa lfgr gksuk pkfg; rFkk ;fn dksbZ VsDl vyx ls ysosa rks mldk fooj.k vafdr djsaA ;g eky tks vki iznku djsxsa ;g dk;kZy;hu Lvksj es fy;k tkosxk A vkns'k feyrs gh eky 3 @ 7 fnol ds vanj iznku djuk vko';d gS nj izLrqr djrs le; lkeku tks vki iznku djsxs mldk LisflfQds'k DokfyVh es dk fooj.k vo'; nsaA 1- 150 ,e ,e O;kl ds cksj es ls lefoZcy eksVj iIi lsV 20 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) fudkykuk & ,d dk;Z 2- gS.MiEi ls bf.M;k ekdZ 2 iznk; & ,d dk;Z 3- 1 ¼ th vkbZ ikbZi iznk; djuk & ,d dk;Z 4- gS.MiEi yxkuk & ,d dk;Z 5- IysVQkeZ cukuk & ,d dk;Z
42. The last date for submission of quotation was 19-8-2003 and surprisingly, three quotations were received on 19-8-2003 which were received at serial no. 4888, 4889, and 4890 of inward register. Whether it was co-incidence that all the three quotations were received at one time or it was manipulation, shall be considered in the later paragraphs.
43. It is surprising that although the quotations were addressed to Commissioner, Municipal Corporation and the file was to be sent to Technical branch for opening of quotations, but Ajay Pandvia, Asstt. Engineer, opened the quotations on his own on 19-8-2003 itself and opined that the quotation submitted by respondent no.2 is the lowest.
44. As already pointed out, the proposal was placed before R.N. Karaiya, Executive Engineer, who without verifying the facts, approved the same by his note sheet dated 3-9.
45. Thereafter, a typed copy of work order was presented and the note sheet contains the rubber stamp of approval by MIC on 24-12- 2003 and the work order was issued on 30-12-2003. The respondent no.2 submitted his bill on 2-1-2004 i.e., just 2 days after the work order was issued and Narendra Singh, Sub-Engineer prepared the following M.B. on 6-1-2004 :
21
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) fooj.k ek=k nj :Ik;s 1- 150 ,e ,e O;kl ds cksj es ls lcejflcy 1 925 925 eksVj ,oa lsV fudkyuk 2- gS.MiEi bf.M;k ekdZ 2 iznk; djuk 1 3695 3695 3- 1 ¼ th vkbZ ikbZi iznk; djuk 1 99 2970 4- gS.MiEi yxkuk 1 400 400 5- IysVQkeZ cukuk 1 1950 1950 9940
46. This Measurement Book was attested by Ajay Pandvia, Asstt. Engineer on 15-5-2004.
47. It is really interesting that while seeking permission to call quotations, Narendra Singh, Sub-Engineer in his undated note sheet had given the estimate in which he had mentioned as under :
mijksDr fo"k; es ys[k gS jax;kuk eksgYyk es ikuh dh deh gks tkus ds dkj.k mDr uydwi dh eksVj fudky nh xbZ gSA rFkk mDr uydwi es vLi"V ds }kjk lQkbZ djk nh xbZ gSA ftlls mDr uydwi es gS.iEi LFkkfir fd;k tk lds mDr dk;Z xzh "e dky ,oa bykds es is;ty dh deh dks ns[krs gq, mDr dk;Z vko';d dk;Z dh vuqekfur ykxr 9940 A vr% mDr dk;Z gsrq dqVs'ku cqyk, tkus dh vuqefr nsus dk d"V djsA
48. It is really surprising that when the submersible pump was already removed and the bore was already got cleaned, then why the cost of removing submersible pump was included in the Estimate? 22
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) The estimate which was prepared by Narendra Singh Sub-Engineer was as under :
OFFICE OF THE ASSISTANT ENGINEER Maintenance Sub. Dn.
GWALIOR (M.P.)
ESTIMATE
S.No. Detail Quantity Rate Amount
Rs. P, Rs. P.
-1 150 ,e ,e O;kl ds cksj es 1 dk;Z 925/- 925/-
lcejflcy eksVj iEi lsV
fudkyuk
2- gS.MiEi ls bf.M;k ekdZ 2 1 dk;Z 3695/- 3695/-
iznk; djuk
99/- 2970/-
3 1 ¼ th vkbZ ikbZi iznk; 1 dk;Z
djuk
400/- 400/-
4 gS.MiEi yxkuk 1 dk;Z
1950/- 1950/-
5 IysVQkeZ cukuk 1 dk;Z
9940/-
49. Thus, it is clear that Narendra Singh, Sub-Engineer had prepared false note sheet based on false declaration that the submersible pump has been removed and bore has been cleaned, whereas it is clear from the Estimate itself that nothing was done.
Without comparing the undated Note Sheet and the Estimate, R.N. Karaiya, Executive Engineer, also directed for calling the Quotations.
50. Although in the undated note sheet, it was mentioned that due to summer season and scarcity of water, the work is of urgent nature, but R.N. Karaiya approved the note sheet and directed for calling the 23 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) quotations on 27-7 (must be 27-7-2003). Thus, it is clear that by that time, the summer season was already over and rainy season had started. It is really surprising that according to the officials due to poor availability of water, submersible pump was required to be replaced by handpump, whereas submersible pump is always installed below the water level and it throws the water from inside whereas the handpump is installed at the top of the bore and above the land and is operated by hand. Submersible pump is always more effective then hand pump. Why submersible pump was being replaced specifically when there is nothing on record that the submersible pump had gone out of order? Even if the submersible pump already installed in the bore had become un-operational, then why it was not repaired or replaced ?
51. Under these circumstances, the undated application made by Govind Verma, Councilor appears to be suspicious and similarly undated note sheet prepared by Narendra Singh, Sub-Engineer also becomes suspicious. Further, the submersible pump which was already installed in the bore was the property of Municipal Corporation, Gwalior. There is nothing on record to show that what happened to the said submersible pump. On the contrary, as per the spot panchnama, Ex. P.21, the submersible pump was found in the bore itself. Thus, it is clear that in fact, the submersible pump was never removed from the bore.
52. According to Rajendra Singh Dikshit (P.W.2) the procedure is 24 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) that after the quotations are received, they are sent to Technical branch, where they are opened, place of work, estimate etc. is examined. The Finance Department sanctions the money in accordance with budget. But the file was never sent to Technical branch. The quotations were opened by Ajay Pandvia, Asstt. Engineer and the file was sent to Executive Engineer, R.N. Karaiya who sanctioned the same.
53. Further, from the evidence of Kusumlata Sharma (P.W.4), who is posted in Technical branch, the file was sent to her by post and accordingly, She had prepared the clear copy of work order. Thus, it is clear that the file was never sent to Technical Branch for examination of quotations, estimate, work place etc.
54. Thus, it is clear that under the garb of scarcity of water during summer season, an undated application from Govind Verma, Councilor was obtained. It is not out of place to mention here that since, Govind Verma had expired, therefore, he could not be examined. Thereafter, Narendra Singh, Sub-Engineer, prepared an undated note sheet, thereby mentioning that the submersible pump has already been removed and the bore had been got cleaned and also prepared the estimate, but also included the cost of removal of submersible pump. When the submersible pump was already removed by the Corporation, then under what circumstances, the contractor was to be paid the cost of removal is also not clear. Without verifying the above mentioned anomaly, R.N. Karaiya, 25 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) Executive Engineer, granted permission to call quotation on 27-7, whereas the summer season was already over. The Executive Engineer R.N. Karaiya also did not verify that submersible pump is more effective then hand pump, then why hand pump was being installed after removing submersible pump. Thereafter, quotations were invited only from three contractors and no Notice Inviting Tender/Quotation was issued. Thereafter, on 19-8-2003, all the three quotations were submitted in sequence and on the very same day, Ajay Pandvia, Asstt. Engineer, opened the quotations, whereas the file should have been sent to Technical branch for doing the needful. Further, Narendra Singh, Sub-Engineer also prepared the note sheet regarding lowest quotation on 19-8-2003 itself. Ajay Pandvia, Asstt. Engineer, in his turn forwarded the file to R.N. Karaiya, Executive Engineer, who granted sanction on 3-9-2003. It appears that thereafter, a consolidated file was prepared including all work orders and the matter was placed before MIC, which granted approval. It is not out of place to mention here that during the course of arguments, it was submitted by the Counsel for the respondents that trial for other files are still pending. Thus, it is clear from the file which was placed before the MIC that R.N. Karaiya, Executive Engineer, had granted approval of work worth Rs. 1.75 Crores approximately. Thereafter, the work order was issued on 30-12-2003 and on 2-1- 2004, the respondent no. 2 submitted the final bill also. No spot inspection report is annexed in the file. Even Virendra Singh Tomar 26 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) (P.W. 12), who is the investigating officer, had carried out the spot inspection, and did not find any hand pump on the spot. Thus, it is clear that without doing any work, the bills were submitted by respondent no.2 and the respondent no.1 forwarded the file for payment. Even the cheques were prepared, but before the payment could be made, a complaint was made, and therefore, the payments were immediately stopped and ultimately after enquiry, the file was closed and no payment was released.
55. Accordingly, it is held that the un-exhibited documents donot support the defence of the respondents and the note sheets Ex. D.1 indicate the preparation of false note sheets and forged documents by the respondents and other co-accused persons.
56. It is submitted by the Counsel for the respondents, that the Trial Court has found that the prosecution has failed to prove that no work was carried out by the respondents, therefore, even if there was any irregularity in the procedure, still no criminal act would be made out against the respondents, because the respondent no.2 had carried out the work and he had submitted the bill for the same.
57. Considered the submissions made by the Counsel for the respondents.
58. For coming to a conclusion that the prosecution has failed to prove that no work was carried out, the Trial Court has adopted a very strange method which is completely unknown to criminal jurisprudence.
27
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
59. In Para 29 of the Judgment, the Trial Court has observed as under :
vkjksih dh vksj ls vius cpko es bl eksgYYs ds lk{kh ckcw flag iVsy] lehj xqIrk] xqykc flag HknkSfj;k] vjfoan flag HknkSfj;k] eqUukyky ;kno] ukjk;.k flag dq'kokgk ds 'kiFk i= izLrqr fd;s gS ftlesa xksfoan oekZ ds /kj ds ihNs eafnj ds ;gka mudh f'kdk;r ij dey fd'kksj iqfu;kuh Bsdns kj ds ek/;e ls uydwi dk dk;Z fd;k tkuk crk;k gSA jafx;kuk eksgYyk dSFk okyh cfx;k nksuks vyx vyx iEi gS ftlds laca/k es vfHk;kstu dh vksj ls dksbZ [kqyklk ugh fd;k x;k gSA
60. There is no provision in Cr.P.C., which permits the accused to lead evidence by filing affidavits of defence witnesses. As per Section 5 of Prevention of Corruption Act, the Trial has to be conducted as Warrant case. Section 243 of Cr.P.C. reads as under :
243. Evidence for defence.-- (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.
61. Thus, it is clear that the accused persons cannot give evidence 28 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) by filing affidavits of defence witnesses, but either they have to produce the defence witness on their own, or at the most they can seek issuance of process for appearance of witnesses. Further more, the prayer for issuance of process for appearance of witnesses is subject to rider mentioned in Section 243(2) of Cr.P.C.
62. Now the next question for consideration is that whether the above mentioned mistake committed by Trial Court was bonafide or not?
63. Even assuming that for the purposes of trial, an affidavit can be treated as an Evidence under Section 3 of Evidence Act, but still, no affidavit in the shape of evidence can be filed unless and until, it is permitted by the Court. The Supreme Court in the case of Khandesh Spinning and Weaving Mills Co. Ltd. Jalgaon Vs. Rashtriya Grini Kamgar Sangh, Jalgaon reported in AIR 1960 SC 571 has held as under :
9. For the purpose of holding an enquiry or a proceeding under the Bombay Industrial Relations Act,1946, S. 118 of the said Act confers on the Industrial Court the same powers as are vested in Courts in respect of (a) proof of facts by affidavits; (b) summoning and enforcing the attendance of any person and examining him on oath; (c) compelling the production of documents; and (d) issuing commissions for the examination of witnesses. In Courts facts have to be established either by oral evidence or by documentary evidence proved in the manner prescribed by law. But Order XIX of the Code of Civil Procedure empowers the Court to have particular facts proved by affidavits. Under rule 1 thereof, "any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable". But it is subject to the proviso 29 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit. Under rule 2, "upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-
examination of the deponent." A combined effect of the relevant provisions is that ordinarily a fact has to be proved by oral evidence, but the Courts, subject to the conditions laid down in Order XIX, may ask a particular fact or facts to be proved by affidavits. Industrial Courts may conveniently follow the said procedure. In view of the importance of the item of rehabilitation in the matter of arriving at the surplus for fixing the bonus, principles of equity and justice demand that tribunals should weigh with great care the evidence adduced by the management as well as by the labour to ascertain every sub-item that goes into or is subtracted from the item of rehabilitation. If the parties agree, agreed figure can be accepted. If they agree to a decision on affidavits, that course may be followed. But in the absence of an agreement, the procedure prescribed in Order XIX of the Code of Civil Procedure may usefully be followed by the tribunals so that both the parties may have full opportunity to establish their respective cases.
64. Although the provisions of CPC are not applicable to Criminal Trial, but even if the facts of the present case are considered in order to find out as to whether the Trial Judge had mistakenly applied the provisions of CPC or not, it is necessary to go through the order sheets of the Trial.
65. From the order sheet dated 27-6-2011, it is clear that the prosecution closed its case and the case was taken up in the afternoon for examination of accused persons. The statements of the respondents under Section 313 of Cr.P.C. were recorded on the very same day and the respondent no.1 expressed that he doesnot wish to give any evidence in his defence, whereas the respondent no.2 30 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) expressed that he wants to examine defence witnesses and accordingly the case was adjourned to 28-7-2011 for examination of defence witnesses as well as for final arguments.
66. On 28-7-2011, the respondent no.2 also expressed that he doesnot wish to lead any defence evidence and filed his written arguments. The order sheet dated 28-7-2011 reads as under :
jkT; @yksdk;qDr dh vksj ls Jh ch ,l dkSjo vf/koDrk vkjksih dey fd'kksj lg Jh jktho tSu ,M vkjksih gfjflag lg Jh vthr tSu ,oa Jh 'kqDyk vf/k vkjksihx.k dh vksj ls cpko lk{kh mi ughA mUgksus cpko lk{; u nsuk O;Dr fd;k gSA mHk; i{k ds rdZ Jo.k fd;s x;sA vkjksih dey fd'kksj dh vksj ls fyf[kr cgl is'k udy vfHk;kstu dks nh tkosA izdj.k fu.kZ; gsrq 29-7-2011-
67. There is no reference in the order sheets that the respondent no.2 had ever sought permission to lead defence evidence by filing affidavits. No permission for the said purposes was also given. From the record it appears that the respondent no. 2 along with his written arguments, also filed the affidavits of the persons mentioned in para 53 of this Judgment and the Trial Court very convincingly, took cognizance of those affidavits without there being any authority or power under law. In absence of any provision in Cr.P.C. by which an accused can be permitted to lead evidence by filing affidavits, the Trial Court should not have accepted the affidavits but not only that was done, but a finding was also given that work was carried out. Thus, this conduct of the Trial Judge is indicative of extraneous considerations, because even after applying the provisions of CPC., 31 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) the Trial Court could not have taken cognizance of the affidavits of witnesses which were filed along with written arguments and that too without leave of the Court. Further, without permitting the prosecution to cross-examine the affiants, the Trial Court should not have taken note of contents of affidavits.
68. The respondent no.1 Hari Singh Khairwar had taken a stand in his statement under Section 313 of Cr.P.C., that he had merely acted on the instructions of his superior officers, and thus, his act was bonafide.
69. Considered the defence of respondent no.1.
70. Section 52 of Indian Penal Code, reads as under :
52. "Good faith".--Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
71. According to respondent no. 1 himself, his duty was to compare the amount. As already pointed out, when the work of removal of submersible pump was already done, much prior to calling of quotations, then why the cost of removal was included in the Estimate which was payable to the respondent no.2? Why most of the important documents were undated? When the file was speaking a lot, then merely acting on the instructions of the Superior Officers cannot be said to be an act done in Good Faith/bonafide.
72. The Trial Court has also given a finding that since, only the hand pump was to be installed, therefore, if the work was completed within a period of 2 days, then no infirmity can be found. 32
State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013)
73. The aforesaid observation made by the Trial Court is contrary to record. As per the Estimate as well as the Bill, the submersible pump was also to be removed. A platform was to be build. The bore was to be cleaned only then the hand pump could have been installed. The platform itself would have taken sufficient time to dry down. Thus, the findings recorded by the Trial Court regarding the possibility of completion of work within 2 days is not only contrary to the record but is also based on surmises and conjunctures. The Trial Court also failed to see that there is nothing on record to suggest that where the removed submersible pump was kept. There is nothing on record to suggest that it was returned back to the Municipal Corporation. Virendra Singh Tomar (P.W.12) who is the investigating officer has specifically stated that he had prepared spot Panchnama, Ex. P.21. The spot panchnama Ex. P.21 reads as under :
ge iapku rLnhd djrs gS fd jafx;kuk eksgYyk dSFky okyh cfx;k es ,d lceflZcy iEi yxk gSA ftles ikuh ugh vk jgk gSA ik"kZn Jh xksfoUn oekZ th us o"kZ 2003 twu tqykbZ es bl lceflZcy iEi dks fudky dj lQkbZ dj gSaM iEi yxkus dk izLrko uxj ikfydk dks Hkstk FkkA lceflZcy iEi vHkh rd cksj es Myk gSA fctyh dh ykbu dkV nh gSA gSaM iEi vHkh rd ugh yxk gSA iapukek rLnhd gsrq ekSds ij gekjs le{k cuk;k x;k tks lgh gS A ckn iapukek i<dj gLrk{kj fd;s
74. The Trial Court has given a finding that Rangiyana Colony and Kaithal Wali Bagia are two different places, but no question in this regard was asked to the investigating officer.
75. So far as the non-examination of Sisodiya, Chairman of the Enquiry Committee is concerned, it is sufficient to mention that the 33 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) quality of the evidence is to be considered and not the quantity.
75. Accordingly, this Court is of the considered opinion, that the Trial Court has travelled beyond the record to acquit the respondents. The findings recorded by the Trial Court are not only perverse but are also contrary to the well known procedure of Criminal Procedure Code. Accordingly, the acquittal of the respondent Hari Singh Khairwar for offence under Sections 15 of Prevention of Corruption Act, read with Section 120-B of IPC and acquittal of Kamal Kishore Puniyani for offence under Sections 467,468,471,420 and 120B of IPC is hereby set aside. The respondent no.1, namely Hari Singh Khairwar is hereby held guilty of committing offence under Section 15 of Prevention of Corruption Act, 1988 read with Section 120-B of IPC, whereas respondent no.2 Kamal Kishore Puniyani is held guilty of committing offence under Sections 467,468,471,420 and 120-B of IPC.
76. As the Trial Judge had travelled beyond the settled principles of law by relying on the affidavits of the witnesses which were filed by the respondent no.2 along with his written arguments, the registry is directed to place the matter before Hon'ble the Chief Justice of High Court of Madhya Pradesh for taking action against the Trial Judge, namely Ms. Shobha Porwal, the then Special Judge (P.C. Act), Gwalior, on administrative side .
76. Accordingly, the judgment of acquittal dated 29-7-2011 passed by Special Judge (Prevention of Corruption Act), Gwalior in Special 34 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) Sessions Trial No. 01/2010 is hereby set aside.
77. The respondents Hari Singh Khairwar and Kamal Kishore Puniyani are on bail. Their bail bonds are cancelled.
78. The hearing of this case is deferred on the question of sentence.
(G.S. Ahluwalia) Judge Later on (Dtd. 03.03.2022) :-
Heard learned Counsel for respondents on the question of sentence.
The Trial Court while convicting the co-accused K.K. Shrivastava, R.B. Shrivastava and Ajay Pandvia had awarded the jail sentence for rigorous imprisonment of six months and a fine of Rs.10,000/- for offence under Section 15 of Prevention of Corruption Act and for offence under Section 120-B of IPC respectively.
This Court while deciding the Criminal Appeals filed by the co-accused persons has disapproved the flea bite sentence awarded by the Trial Court but has also held that looking to the fact that no notice for enhancement of sentence was given at the time of admission of appeal, therefore, no useful purpose would be served by issuing notice for enhancement of sentence.
Under these circumstances, this Court is of the considered opinion that it would not be appropriate to award a different sentence to the present respondents Hari Singh Khairwar and Kamal Kishore 35 State of M.P. Vs. Hari Singh Khairwar & Anr (Cr.A. No. 959/2013) Puniyani.
Accordingly, the respondent No.1-Hari Singh Khairwar is awarded six months R.I and a fine of Rs. 10,000/- for offence under Section 15 of Prevention of Corruption Act and sentence of rigorous imprisonment of six months and a fine of Rs. 10,000/- for offence under Section 120-B of IPC, with default imprisonment of one month R.I on each count.
So far as respondent No.2 - Kamal Kishore Puniyani is concerned, the Trial Court has not awarded separate sentence to the co-accused persons for offence under Section 420 of IPC, for the reason that it is lesser offence of Section 468 of IPC. Accordingly, no separate sentence is awarded for offence under Section 420 of IPC.
Two years R.I and a fine of Rs.15,000/- each for offence under Sections 467, 468, 471 of IPC and six months R.I. & a fine of Rs.
10,000/- for offence under Section 120-B of IPC is awarded, with default imprisonment of two months R.I on each count.
The sentences shall run concurrently.
The respondents are on bail, their bail bonds are hereby cancelled. Respondents are hereby directed to surrender before the Trial Court on or before 31.03.2022 for undergoing the jail sentence.
Let the record of Trial Court be immediately sent back to the Trial Court.
The appeal filed by the State is hereby allowed.
(G.S. Ahluwalia) Judge ARUN KUMAR MISHRA 2022.03.03 17:06:43 +05'30'