Jharkhand High Court
Sajal Chakraborty vs State Of Jharkhand Thr C.B.I on 3 August, 2012
Author: R.R.Prasad
Bench: R.R.Prasad
1
In the High Court of Jharkhand at Ranchi
Cr. App. (S.J) No.979 of 2008
Sajal Chakraborty ................................Appellant
VERSUS
State of Jharkhand through C.B.I...... Respondent
CORAM : HON'BLE MR JUSTICE R.R.PRASAD
For the Appellant: Mr.Abhay Kumar Singh, Sr.Advocate
For the C.B.I : M/s. Rakesh Kumar Samrendra, Kripa Shankar
Nanda and S.P.Singh
Reserved on 1.3.2012 Pronounced on 3 .8.12.
3.8.12. The appellant, who at the relevant point of time was posted as Deputy Commissioner, West Singhbhum at Chaibasa was put on trial along with other 63 accused persons to face charges under Sections 409, 420, 467, 468, 471/465 and 477A read with Section 120(B) of the Indian Penal Code and also under Sections 409, 420, 467, 468, 471/465 and 477A simplicitor as well as under Section 13(2) read with Section 13(1)(c)(d) of he Prevention of Corruption Act on the allegation that the appellant having nexus with other accused facilitated them to draw public money fraudulently to the extent of Rs.38,94,29,433/- from the Chaibasa Treasury and in lieu of that he received a Laptop/Computer and two Printers as reward.
The case of the prosecution is that the informant, Lal Shyama Charan Nath Sahdeo (P.W.103), the then Additional Deputy Commissioner, West Singhbhum, Chaibasa submitted a written report on 22.2.1996 alleging therein that Dr.B.N.Sharma, the then District Animal Husbandry Officer, Chaibasa during 1.4.1993 - 31.3.1994 without purchasing food, fodder, equipments, machines and other articles to the extent they claimed shown to have dispatched it to different centers of the Department and got the certificates relating to receipts of those materials procured from Mobile Veterinary Officer, Assistant Poultry Officer, Manager of State Veterinary Insemination 2 Area, Seraikella and draw huge amount fraudulently and shown to have made payments to different suppliers as many as 54 in number.
It has been further alleged that 3.86 lakh quintals of yellow maize and 94,500 quintals of ground nut cake (C.N.C) were shown to have been purchased, though only 3650 quintals/bags of yellow maize and only 1800 bags/quintals of C.N.C were required for the whole year.
Similarly, other materials which were shown to have been purchased, in fact were never required. On procuring false certificates of receipts, bills were raised, amount of which were allowed to be withdrawn by the Treasury Officials, who were in league with the officials of the Animal Husbandry Department and also the suppliers to whom the amounts were shown to have been paid.
Thus, it has been alleged that by adopting illegal means, a sum of Rs.38,94,79,433/- were fraudulently withdrawn by the District Animal Husbandry Officers, Chaibasa from Chaibasa Treasury.
On such allegation, Chaibasa Sadar P.S case no.14 of 1996 was registered under Sections 409, 420, 467, 468, 471/465 and 477A read with Section 120(B) of the Indian Penal Code against 64 accused persons including the appellant.
Subsequently, the C.B.I. took over the investigation under the order of the Patna High Court/Hon'ble Supreme Court.
On completion of investigation, charge sheet was submitted on the accusation that the accused persons having entered into criminal conspiracy withdrew a sum of Rs.38,94,29,433/- from the district Treasury, Chaibasa raising false bills showing purchase of food, fodder, equipments, machines and other articles without purchasing the materials to the extent to which they claimed.
Further it has been charged that this appellant, who at the relevant point of time was posted as Deputy Commissioner, Chaibasa, having gone in collusion with other accused persons did facilitate them 3 to withdraw the amount and in lieu of that, he did receive a Laptop/Computer and two Printers as reward.
Upon cognizance being taken of the offences the accused persons were put to trial.
The prosecution in order to prove the charges against the accused persons examined as many as 158 witnesses. Of them, number of witnesses were officials of the different Banks, who did prove the account opening form, paying-in-slips, drafts through which payment had been received etc. Other sets of witnesses are the officials/staffs of the Department of the Animal Husbandry itself, who testified that they were forced to grant certificates relating to receipts of the materials though materials/instruments/feed/fodder were being not supplied to them to the extent to which receipts were taken under pressure.
Apart from them, some of the staffs of the office of the Regional Director were also examined, who did disclose that the allotment letters were used to be typed at Ranchi instead of Patna and it was being done at the instance of Dr.S.B.Sinha and Dr.K.M.Prasad. P.W.72, Dipesh Chandak, P.W.104, Shailesh Prasad Singh and P.W.149, Shiv Kumar Singh, an Accountant of the office of the D.A.H.O, Chaibasa, on being granted pardon were examined as approvers. According to P.W.104, Shailesh Prasad Singh, fake bills were being prepared on the basis of which amounts were being withdrawn. The amounts which were being drawn was to be given to Dr.B.N.Sharma. According to P.W.149, Shiv Kumar Singh, Rs.10-50 lakhs were being drawn every day from the Treasury.
Other approver P.W.72, Dipesh Chandak, happens to be a star witness of the prosecution. According to him, 80% amount which used to be drawn on the basis of false bills without supplying the materials to the extent to which bills were being raised was being given either to S.B.Sinha or other officials including bureaucrats, politicians. Number of Investigating Officers, who were associated with the matter relating to 4 investigation and also the persons who granted sanction were also examined.
Defence also examined their witnesses. So far this appellant is concerned, he, in his defence, got the copies of evidences of Mr. V.S.Dubery, the then Finance Secretary given in R.C No.20(A) of 1996, Mr.Amit Khare, Deputy Commissioner, Chaibasa given in R.C.No.22(A) of 1996 and Mr.Rajiv Kumar, Deputy Commissioner, Ranchi given in R.C.No.32(A) of 1996 adduced which were as A/8, A/9 and A/10 respectively.
The trial court having found he accused persons guilty of the charges recorded the order of conviction and sentence.
So far this appellant is concerned, the trial court did not find the charges to be proved under Sections 409, 420, 467, 468, 471/465 and 477A of the Indian Penal Code simplicitor but found the appellant guilty for the offence under Section 120(B) read with Sections 409, 420, 467, 468,471/465 and 477A of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act on the circumstances given below allegedly appearing against him and was sentenced to undergo imprisonment for four years six months on each count. He was also sentenced to pay fine of Rs.3.50 lakh for an offence under Section 13(1)(c) 2(d) of the Prevention of Corruption Act. In default to undergo rigorous imprisonment for six months. A (I) In spite of having definite knowledge the appellant dishonestly did not exercise control to stop misappropriation.
(ii) the appellant did not take any step to find out the causes of heavy withdrawals of Rs.50.56 lakhs in a single day.
B the appellant having developed nexus with co-accused persons did facilitate other accused to draw the money from the Treasury illegally.
C the appellant obtained pecuniary gain of one Laptop and two printers.
5Being aggrieved with the judgment of conviction and order of sentence, this appeal was preferred which had earlier been ordered to be heard along with other connected appeals.
Subsequently, I.A. bearing no.1547 of 2011 was filed to segregate the appeal preferred by the appellant from other appeals so that it be heard and disposed of at the earliest for the reason that the appellant needs to undergo bariatric surgery for controlling his obesity which is being done only in U.S.A before having cardiac surgery so that the appellant may endure such surgery as in the present estate of his obesity it is quite likely that he may not endure cardiac surgery.
At the same time, it was also pleaded that in the facts and circumstances appearing in the case result of this appeal would not prejudice either the case of the prosecution or other accused persons. Regard being had to facts and circumstance of the case this court by invoking the principle of 'doctrine of necessity', ordered for segregating this appeal from the other appeals, vide order dated 11.11.2011.
Under the circumstances, the appeal was heard.
Mr.Abhay Kumar Singh, learned Sr. counsel appearing for the appellant submitted that though the learned trial court has held that the appellant dishonestly and knowingly did not exercise control to stop illegal withdrawal but under the provision of the Bihar Treasury Code and also Bihar Financial Rules, no mechanism was there for the Deputy Commission to check illegal withdrawal as copy of the allotment made either to Animal Husbandry Department or any other Department was never being made available to the office of the Deputy Commissioner which fact has been admitted by all the concerned witnesses.
It was further pointed out that under the aforesaid Code and Rules illegal withdrawal could have been checked either by the Head of the Department, Accountant General or the Public Accounts committee as the copy of the allotment and the statement of the accounts relating to withdrawal is used to be made available to them.
6
Under the circumstances, the responsibility of checking illegal withdrawal cannot or could not have been fastened against the appellant.
So far other incriminating circumstances relating to the appellant having developed nexus with the co-accused for facilitating them to withdraw the amount illegally from the Treasury is concerned, the trial court has based its finding on the evidences of Shyam Sunder Sharma (P.W.54) and the approver Dipesh Chandak (P.W.72) but their evidences even if are accepted in toto, are not sufficient to hold that the appellant had had nexus with the co-accused.
Similarly, the court has erred in recording the finding that the appellant did receive one Laptop/Computer and two Printers as reward from the co-accused on the basis of evidences adduced by P.W.132 and P.W.134 as from their evidences, it never gets established that any Laptop/Computer was installed at the official residence of this appellant nor does it get established that the appellant did receive two Printers.
Further, it was submitted that since the prosecution has utterly failed in establishing all the aforesaid three incriminating circumstances against the appellant, the appellant can certainly be said to have been convicted wrongly and hence, the order of conviction as well as sentence is fit tobe set aside.
As against this, learned counsel appearing for the C.B.I submits that under the provision of the Bihar Treasury Code the Treasury used to be under the general charge of the Collector who is responsible for its administration and working and is supposed to make inspection once in every six months so as to have have proper management of the Treasury but admittedly, the appellant did not make any inspection knowingly with a view to facilitate the other accused to draw the money from the Treasury illegally and that the factum of appellant being in league of other accused including kingpin of the scam gets established from the evidences of P.W.54 and P.W.72. Thus, the 7 court rightly did hold that this appellant facilitated illegal withdrawal from the Treasury and in lieu of that, he received one Laptop/Computer and two Printers which fact gets established from the evidences of P.W.132 and P.W.133 In the context of the submissions advanced on behalf of the parties, first and foremost point which needs tobe considered as to whether the prosecution has been able to establish the following incriminating circumstances upon which learned trial court has based its finding.
(i) In spite of having definite knowledge the appellant did not exercise control to stop misappropriation.
(ii) the appellant did not take any step to find out the causes of heavy withdrawals of Rs.50.56 lakhs in a single day. As per sub-rule (2) of Rule 4 of the Bihar Service Code read with Rule 43 of the Bihar Service Code, the Treasury happens to be under general charge of the Collector who would be responsible to the Government for its general administration and working. The responsibilities extend not only to the security and detection of irregular practice on the part of the subordinates but also to correctness of the prescribed accounts and returns and punctuality of its submission. At the same time, Rule 73 does prescribe that the Collector shall make systematic inspection of Treasury once in a week The aforesaid rules speaks about the general administration of the Treasury that accounts and returns are maintained correctly and that the returns are submitted in time. However, at the same time, it is also to be looked in to by the D.C as to whether officers or staffs of Treasury have been adopting irregular practice, i.e. practice which is against the rules or code or any other guidelines issued time to time. It is the case of the prosecution that the appellant knowingly did not make any inspection so as to give free hand to treasury officers/staffs and each other to get the amount drawn from Treasury fraudulently but the question does arise as to whether any mechanism was there under the Treasury Code or the Financial Rule for 8 the Deputy Commission to check illegal withdrawal from the Treasury ?
Answer to this question has been given by none other than the prosecution witnesses who have deposed that there was no such mechanism for the Deputy Commissioner to check the illegal withdrawal, particularly when copy of the allotment of different Departments including Department of Animal Husbandry never used to be made available to the office of the Deputy Commissioner, rather practice got developed of sending copy of the allotment to different Departments to the office of the Deputy Commissioner only when this scam was detected.
With reference to the aforesaid fact, I may refer to the evidence of P.W.103, the informant posted at the relevant point of time as Additional Deputy Commissioner, West Singhbhum, Chaibasa and P.W.130, retired Accountant, who was posted as Chaibasa Treasury at the relevant point of time, who have stated that in the year 1993-94, copy of the allotment was never being sent to the office of the Deputy Commissioner. P.W.103 has gone further to depose that there was no mechanism for the Deputy Commissioner at the relevant point of time to detect as to whether illegal drawl was being made from the Treasury. Apart from them, the other witnesses, namely, Amit Khare, D.C, Chaibasa, Rajiv Kumar, D.C, Ranchi and V.S.Dubey, the then Finance Secretary whose evidences were recorded in different cases of Fodder Scam but the copy of their depositions have been adduced in evidence on behalf of the defence as Ext. A/9, Ext. A/10 and Ext. A/8 respectively have deposed in the same line.
From Ext. A/9 (deposition of Mr.Amit Khare) and Ext.A/10 (deposition of Mr.Rajiv Kumar) it would appear that they had testified in other cases that the copy of the budget never used to be made available in the office of D.C. Mr. Amit Khare has gone to depose that it is the duty of the Government to look for as to whether there has been excess 9 withdrawal or not. Similarly, Mr. Rajiv Kumar has deposed that neither the Accountant General nor Public Accounts Committee had ever reported about the excess withdrawal. From Ext.A/8 (deposition of Mr.V.S.Dubey) it would appear that every department used to prepare the budget as per the Bihar Budget and Manual and that was being consolidated by the Department of Finance which used to be placed before the Vidhan Sabha for passing appropriation bill. Thereupon, copy of the budget used to be sent to the office of the Accountant General and also to different Head of the Department. On that basis, D.D.O used to draw the money from the Treasury by drawing the bills. Upon withdrawal, the Treasury Officer used to submit monthly statement of the withdrawal to the Accountant General along with vouchers.
Thus, from the evidences of the aforesaid witnesses, it becomes evidently clear that there was no means with the D.C to check illegal withdrawal, rather first check point appears to be there with head of department to whom D.D.O, used to submit monthly statement of all the Treasury withdrawals with whom there used to be copy of the allotment/ budget. The other check point seems to be at the level of Accountant General as on the following day of the succeeding month, the Treasury accounts of the preceding month along with all original vouchers were supposed tobe forwarded to the office of the Accountant General, who also used to have copy of the budget/allotment. The third check point seems to lies with the Finance Department as it was placed before this Court on behalf of the appellant that after the payment is made by the Bank, statement/scroll is required to be sent to the R.B.I, Nagpur Branch. The R.B.I in turn sends it to the Finance Department of the State Government and when it appears to the Finance Department that there has been excess withdrawal, the matter is referred to the Public Accounts Committee. Thus, under the prevalent system, it is not that the mechanism was not there to check excess withdrawal, rather it was there but it was lying either with the Head of the Department, Accountant 10 1 General or Finance Department/ Public Accounts Committee whereas at the cost of repetition, it be stated that no mechanism was there with the D.C to check illegal withdrawal of the money from the Treasury.
However, the trial court only on the ground that the appellant knowingly did not adhere to the provision of Treasury Code and Financial Rules did come to conclusion that the appellant having in league with other accused did facilitate the illegal withdrawal in spite of the fact as stated above that three was no mechanism for the D.C to detect illegal withdrawal and that there was no other evidence direct or circumstantial to establish or even to show that the appellant did do certain act for facilitating other accused to draw money illegally.
Under the circumstances, it can never be held that the appellant having definite knowledge of illegal withdrawal did not exercise control to stop misappropriation. Thus, the finding recorded against the appellant of facilitating other accused to draw the money illegally seems to be quite unjustified.
So far other incriminating circumstance that the accused had developed nexus with other co-accused persons is concerned, the prosecution in order to prove the same has relied upon the evidences of Shyam Sunder Sharma (P.W.54), and Dipesh Chandak (P.W.72), the approver.
Shyam Sunder Sharma (P.W.54) has deposed that while he was coming to Ranchi, one Amrendra Kumar Jha gave him a telephone number of one Sushil Kumar Jha and tolk him that Sushil Kumar Jha resides in the residence of D.C, Ranchi who will be getting his work done. Further, he says that he came to Ranchi in September, 1988 and rang up the number, when he desired to talk to Sushil Kumar Jha, Sushil Kumar Jha came on the line and asked him to meet in a Hotel where Sushil Kumar Jha came in a vehicle fitted with red beacon light. He has further stated that Sushil Kumar Jha had arranged a meeting 11 1 with the appellant who gave assurance to get the tender in his favour but he did not get tender.
On the aforesaid piece of evidence, the trial court did find that the appellant had had association with Sushil Kumar Jha, co-accused, ignoring the fact that the episode which the witness testified was of the year 1988 whereas the instant case relates to the year 1993-94 and that he did not favour in spite of intervention of mr.Sushil Kumar Jha. Moreover, truthfulness of the version of the said witness also appears to be in doubt, in view of further disclosure being made by him that Sushil Kumar Jha was residing with his family members of Guru Sadan Sahay. Moreover, it is not expected from the official like D.C to allow any private persons to reside with him. That apart, Sushil Kumar Jha, who has been examined as D.W.31 on behalf of the accused did not say anything about his nexus with the appellant nor did he say anything that he resided with the appellant while he was D.C, Ranchi.
The trial court seems to have committed error of record by holding that evidence of P.W.54 gets corroboration from the confessional statement of Sushil Kumar Jha. Moreover, even if it is accepted that this appellant had had association with Sushil Kumar Jha, that association was in the year 1988, while the appellant was D.C, Ranchi but none of the witnesses including P.W.54 has said anything about nexus being continued till 1993-94 when the appellant was D.C, Chaibasa and on account of that, he put Sushil Kumar Jha to any advantageous position.
Evidence of P.W.72 (Dipesh Chandak), an approver, is quite lengthy one but so far this appellant is concerned, it has been stated by him that Dr.S.B.Sinha got Mr. Rajiv Kumar posted as Ranchi, D.C, and Sajal Chakravorty as D.C, Chaibasa and that Md. Sayeed used to look after the interest of Mr. Rajiv Kumar whereas Dr. B.N.Sharma used to look after the interest of this appellant. He has also deposed that he saw this appellant at Hotel Hayat Regency, Delhi where he had come to 12 1 meet Dr. S.B.Sinha and also saw this appellant at the residence of Dr.S.B.Sinha at Saket Kilburn Colonu, Hinoo, Ranchi. This witness has stated that from the conversation of Dr.S.B.Sinha with other person, he came to know that Dr. B.N.Sharma used to look after the interest of the appellant but this piece of evidence is hearsay in nature can never be taken to be admissible.
Further there has been absolutely no evidence that this appellant had had nexus with Dr.B.N. Sharma or Sushil Kumr Jha to whom the appellant in any manner had shown favour. Moreover, the evidence of P.W.74, who is an approver never gets corroboration from any other witnesses and as such, the evidence of this witness, as stated above, is not worth reliable.
Under the circumstances, it can easily be said that the prosecution has also failed to establish that this appellant had developed nexus or association with other accused for facilitating them to draw money illegally.
Lastly, it is to be considered that as to whether the prosecution has been able to establish that the appellant received Laptop/Computer and two Printers as reward for putting the other co-accused to monetary gain.
The prosecution in order to prove the said charge has placed reliance on the testimony of P.W.32, Jitendra Kumar, a Field Engineer. The said Jitendra Kumar had also been examined on behalf of the prosecution in R.C.No.22(A) of 1996. The defence got his evidence recorded in R.C.No.22(A) of 1996 exhibited as Ext.A/11.
According to him (P.W.132), he on 29.3.1995 had come to Chaibasa for installing Computer. When he came to the residence of D.C, it was told to him that he is not at his residence. Then he went to D.A.V School. Again he came back and went inside the residence where he prepared a report, Ext.16/45. The same document has also been marked as Ext.36. However, the witness in his cross-examination has 13 1 deposed that when he had prepared the report outside of the residence, someone took it inside and got it signed as 'SC'. Further he says that when he had come to Chaibasa, he had not brought the Laptop/Computer with him. Again he says that since it was portable computer, it never required any installation and therefore, without seeing the computer, he prepared the report. When attention was drawn of this witness to his earlier evidence given in R.C No.22(A) of 1996, he did depose that in that case he had stated that report had been prepared at D.A.V School.
Thus, from his evidence it is quite apparent that he never saw laptop/Computer installed at the residence of D.C and without seeing the Laptop/Computer being installed at the residence of D.C, either he prepared the report outside of the residence or at D.A.V. School but he never saw Laptop/Computer being installed at the residence of D.C. The other witness is P.W.133, Ajay Kumar Jain, one of the partners of M/s. Computer Network. According to him, someone called from Jamshedpur that he needs computer. Thereupon one Kundanjee came to take delivery of computer and asked him to talk to Sajal Chakravorty. Having talked to him, he prepared rough order (Ext.32) which continues the name of Sajal Chakravorty along with Mahendra Kumar Kundan but at the same time, Ext.B which is also a rough order prepared by P.W.133 does not contain the name of Sajal Chakravorty, rather it contains the name of only Mahendra Kumar Kundan. On the basis of the same, Ext.32/1 as well as Ext. 32/2 (both order forms) were prepared which relates to purchase of two printers. Subsequently, the amendment orders were prepared in two copies which have been marked as Ext.32/3 and Ext.32/4. Further it has been disclosed that Kundanjee having placed the order asked him to send the Laptop/Computer to the residence of Sajal Chakravorty and he paid a sum of Rs.1 lakh. Thereupon two credit vouchers Ext.34 and 34/1 and three general vouchers Exts.34/2. Ext. 34/3 and 34/4 were prepared 14 1 and then entry was made in General Ledger (Ext.35). All these exhibits except Ext.16/45 contain the name of customer as A.Sharma.
P.W.133 has also disclosed that payment was made by Kundan Sharma who had placed the order in the name of Ajay Sharma. In his cross-examination, this witness has said that from original order, it does appear that Laptop/Computer was installed at the residence of Sajal Chakravorty to whom he never talked face to face, rather he had talked to a person to whom he guessed that it was Sajal Chakravorty. He has again deposed that he does not remember as to whether computer was taken from his shop by Ajay, Kundan or his service engineer.
Thus, if the testimonies of P.W.132 and P.W.133 are taken into account in its totality, it would appear that no one is sure that the Laptop/ Computer taken from the shop of P.W.133 was installed at the residence of Sajal Chakravorty. Even according to the P.W.132, service engineer, he had neither any occasion to see the computer at the residence of Sajal Chakravorty nor P.W.133 is sure that the Laptop/Computer was taken from his shop for its installation at the residence of Sajal Chakravorty. Moreover, the said Laptop/Computer never seems to have been seized from the residence of Sajal Chakravorty. It is there in the evidence of P.W.133 that payment was made by Mahendra Kumar Kundan,(a supplier and an accused in the present case) at the time of placing order for supply of Laptop/Computer. But there has been absolutely no evidence to establish that the appellant did act in the manner which facilitated Mahendra Kumar Kundan to draw money from the Treasury during 1993-94.
Thus, when none of the witnesses seems to have seen anyone installing or taking Laptop/Computer to the residence of Sajal Chakravorty nor anyone has seen Laptop/Computer being installed at the residence of Sajal Chakravorty. the trial court certainly erred in 15 1 holding that Sajal Chakravorty received Laptop/Computer and Printers from the co-accused as reward.
Thus, on the appraisal of the evidences adduced on behalf of the prosecution, the prosecution never seems to have established that the appellant knowingly facilitated the other accused to draw money from the Treasury and that the appellant had had nexus with the co-accused and from one of the co-accused, he received Laptop/Computer and two Printers as reward. In spite of that, the trial court did record the order of conviction and sentence and hence, it is hereby set aside. Consequently, the appellant is acquitted of all the charges levelled against him.
In the result, this appeal stands allowed.
( R.R.Prasad, J.) ND/