Punjab-Haryana High Court
Parkash Singh Sahota vs The State Of Punjab on 30 September, 2008
Criminal Appeal No. 188-SB of 1993 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.188-SB of 1993
Date of Decision : September 30, 2008
1. Parkash Singh Sahota, s/o Vir Singh, s/o Jiwan Singh, retired.
2. Karamvir Singh, s/o Parkash Singh, labourer,
both r/o Rama Mandi, Jalandhar.
...Appellants
Versus
The State of Punjab.
....Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Abhishek Sethi, Advocate,
for the appellants.
Mr. S.S. Bhullar, DAG, Punjab,
for the respondent-State.
****
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction and the order of sentence, dated 28.05.1993, rendered by the Court of Special Judge, Kapurthala, vide which, it convicted accused Parkash Singh and Karamvir Singh, and sentenced them as under:-
Parkash Singh accused No. 1.
Under Section 13(1) (C) punishable To undergo R.I. for two years under Section 13(2) of the Prevention and to pay a fine of Rs. 4000/-. of Corruption Act, 1988. In default of payment to fine to undergo further R.I. for six months.Criminal Appeal No. 188-SB of 1993 2
Karamvir Singh accused No. 2.
Under Section 420 IPC. To undergo R.I. for two years and to pay a fine of Rs. 1000/-. In default of payment of fine to undergo further R.I. for one month.
Under Section 467 IPC. To undergo R.I. for three years and to pay a fine of Rs. 2000/-. In default of payment of fine to undergo further R.I. for three months.
Under Section 468 IPC. To undergo R.I. for two years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo further R.I. for two months.
Under Section 471 IPC. To undergo R.I. for three years and to pay a fine of Rs. 2000/-. In default of payment of fine to undergo further R.I. for three months.
The substantive sentences were ordered to run concurrently. Accused Nand Parkash was, however, acquitted.
2. The facts, in brief, are that on 14.03.1989, Kashmir Singh, Inspector Vigilance Bureau, Kapurthala, received a secret information against the accused. He sent ruqa Ex. 19/A, on the basis whereof, formal FIR PW19/B was recorded, in Police Station Kotwali, Kapurthala. The allegations, contained in the FIR, were to the effect, that in the year 1981- 82, Parkash Singh Sahota, Horticulture Inspector, Kapurthala, had got issued bank drafts, in the name of the following persons, drawn from the Land Mortgage Bank, Kapurthala:-
i. Jit Singh, s/o Thakar Singh, r/o Rs. 6720/-
village Pakhowal.
ii. Nirmal Singh, s/o Waryam Singh Rs. 2250/-
r/o Dehankha.
Criminal Appeal No. 188-SB of 1993 3
iii. Bikar Singh, s/o Kartar Singh, Rs. 4950/-
r/o Village Daburji.
iv. Tara Singh, s/o Munsha Singh, Rs. 2250/-
r/o Village Ucha.
v. Rajinder Singh, s/o Bachan Singh, Rs. 2750/-
Kapurthala.
vi. Lahori Ram, s/o Paras Ram, Rs. 2750/-
r/o Village Phuewal. _________
TOTAL: Rs. 21620/-
The drafts of Rs. 21620/-, were got issued, on different dates, from the aforesaid bank, in the names of the aforesaid persons, in the name of M/s Kisan Nursery Fruit Garden, Malerkotla, whose proprietor was Karamvir Singh, his co-accused. Apart from the above amount, the accused got directly issued bank drafts, in the names of Lahori Ram s/o Paras Raj of village Phulewal for Rs. 4375/-, Gobind Ram s/o Ram Nath, r/o village Dohenkhe in the sum of Rs. 2185/- and Bikar Singh s/o Kartar Chand, r/o village Daburji in the sum of Rs. 7875/-, for the purpose of purchase of barbed wire, from the Land Mortgage Bank, Kapurthala, out of the amount of sanctioned loan. It was further stated that the drafts were got directly issued in the name of M/s Tek Chand & Sons, Kapurthala. The sanctioned amount of loan of the aforesaid persons, was to the tune of Rs. 36055/-. It was further stated that the accused, in connivance with the bank officials, misappropriated the loan amount, in the name of aforesaid persons. It was further stated that the said drafts were encashed by Karamvir Singh directly. It was further stated that the amount of these drafts was, however, not paid to the loanees. Lahori Ram, Gobind Ram and Bikar Singh were not supplied any barbed wire. The investigation of the case was conducted. The accused Criminal Appeal No. 188-SB of 1993 4 were arrested. After the completion of investigation, they were challaned.
3. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge was framed against the accused, which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case examined Bikar Singh, loanee (PW-1), Baldev Singh (PW-2), son of Tara Singh, loanee, who had died, Mohinder Singh (PW-3), Mr. A.S. Bhandari, Advocate, Oath Commissioner (PW-4), Vijay Kumar (PW-5), S.K. Verma (PW-6), Joginderpal Kohli (PW-7), Balbir Singh Clerk (PW-8), Lahori Ram (PW-
9), Nirmal Singh (PW-10), Ganesh (PW-11), Jit Singh (PW-12), Setu Raman (PW-13), Ram Parkash Accountant (PW-14), Mathimaran (PW-15), Mohammed Salim (PW-16), Inspector Sohan Singh (PW-17), Udham Singh, DSP (PW-18) and Kashmir Singh, Inspector (PW-19). Thereafter, the prosecution closed its evidence.
5. The statements of the accused under Section 313 Cr.P.C., were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication.
6. Parkash Singh, accused, in his statement, under Section 313 Cr.P.C., took up the plea, that the loanees had received their loan, in full. He further stated that he had not embezzled any amount, out of the loan, sanctioned to the loanees.
7. Karamvir Singh, accused, in his statement, under Section 313 Cr.P.C., stated that the loanees had received their entire amount. He further stated that no loan amount was embezzled either by him, or by his co- accused Parkash Singh Sahota. He further stated that they were falsely Criminal Appeal No. 188-SB of 1993 5 involved in this case.
8. Nand Parkash, accused (since acquitted) took up the plea, in his statement, under Section 313 Cr.P.C., that he was running Hero Tent House, Sat Narain Bazar, Kapurthala. Parkash Singh, accused, performed marriage of his two daughters, and had taken articles, from his shop. He further stated that, as such, he and his son Karamvir Singh, were known to him. It was further stated by him that he had gone to Indian Bank, Kapurthala, on 02.03.1982, for his personal work, where co-accused Karamvir Singh met him. He told him that he had already opened an account, with the bank, but introduction form was not furnished and the bank wanted to complete its papers. On his request for identification, which was a formality, he signed P13, as Karamvir Singh had promised to pay the amount of outstanding bill of Rs. 2600/- as hire charges of the articles, supplied by him, at the time of the marriage of his sisters, prior to that date, after receipt of the cheque in his account. Later on, Karamvir Singh, issued a cheque for Rs. 2600/- to him, for his outstanding due, which was got encashed by him. It was further stated by him, that he had got no knowledge about the case, except that he introduced him at the time of opening the bank account, as stated above. It was further stated by him, that he was falsely involved, in this case. He further stated that he had no concern with his co-accused, in the alleged business, or otherwise, as stated above. The accused did not lead any evidence in their defence.
9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused as stated above.
10. Feeling aggrieved, the instant appeal, was filed by the Criminal Appeal No. 188-SB of 1993 6 appellants.
11. Parkash Singh, appellant, died during the pendency of appeal on 31.12.2006, as stated by his Counsel. This fact was not disputed by the State Counsel.
11-A. I have heard the Counsel for the parties and have gone through the evidence and record of the case with their assistance.
12. The Counsel for Karamvir Singh, surviving appellant, at the very outset, submitted that no cogent and convincing evidence was produced by the prosecution that Karamvir Singh, accused, in any way, misappropriated the loan amount of the loanees. He further submitted that it was only Parkash Singh, his co-accused/appellant (since demised), who was responsible for recommending the applications of the loaness, being Horticulture Inspector, for the purpose of supply of plants to them. He further submitted that, whatever, the misappropriation of the amount, if any, was allegedly committed, it was by Parkash Singh. He further submitted that Karamvir Singh, being the son of Parkash Singh (since deceased) was falsely involved in this case. The submission of the Counsel for the appellant, in this regard, appears to be correct. Bikar Singh, PW-1, stated that it was Parkash Singh, who embezzled the amount, with the help of the bank officials. Baldev Singh, PW-2, loanee, Lahori Ram, PW-9, also a loanee, Nirmal Singh, PW-10, one of the loanees, and Jit Singh, PW-12, also one of the loanees, also made similar statements. They did not state even a single word, that it was Karamvir Singh, appellant, who committed misappropriation of the loan amount, sanctioned in their favour. If Parkash Singh, Horticulture Inspector, father of Karamvir Singh, accused, allegedly committed misappropriation of the loan amount, sanctioned in favour of the Criminal Appeal No. 188-SB of 1993 7 loanees, by not providing them plants or barbed wire then Karamvir Singh, could not be held responsible for the same. Had any of the loanees, made a statement, to the effect, that Karamvir Singh, committed misappropriation of any amount, the matter would have been different. Even Ram Parkash, PW- 14, proved the signatures of Parkash Singh Sahota, on the endorsements, on the applications of the loanees which are P25 to P38. No doubt, Ram Parkash, Accountant, Land Mortgage Bank, Kapurthala, stated that the cheques regarding Kisan Nursery were obtained by Karamvir Singh. However, he could not give the details of the cheques, which were allegedly received by Karamvir Singh. He also did not prove the signatures of Karamvir Singh, on any of the cheques, allegedly taken by him, on behalf of Kisan Nursery. His mere statement to the effect that cheques, on behalf of Kisan Nursery, were obtained by Karamvir Singh, were not sufficient to fasten his (Karamvir Singh) liability for the alleged embezzlement of the amount. From the evidence, on record, it was, thus, not proved that Karamvir Singh, accused, allegedly misappropriated any amount of loan, sanctioned, in favour of the loanees. Had it been so, then the loanees would have certainly made statements, in this regard. They only made statements, against Parkash Singh Sahota (since deceased) that he had misappropriated the loan amount, sanctioned in their favour. Under these circumstances, no offence of dishonest misappropriation of the loan amount, was committed by Karamvir Singh, appellant. The submission of the Counsel for the appellant being correct is accepted.
13. It was next submitted by the Counsel for the appellant, that the loan was sanctioned, in favour of the loanees in the year 1981-1982, and the FIR was lodged in 1989. He further submitted that had there been any Criminal Appeal No. 188-SB of 1993 8 misappropriation of the loan amount of the loanees, either by Parkash Singh or by Karamvir Singh, they (loanees) would not have sit silently for 8 long years. He further submitted that since there was no embezzlement of the loan amount, by the appellants, they did not complain against them. The submission of the Counsel for the appellants, appears to be correct. It was beyond imagination, that the victims will sit silently for 8 long years, if their loan amount had been embezzled. It, thus, appears that they got the plants and barbed wire against the sanctioned loan amount. They being satisfied, therefore, did not make any complaint. No reliance, on their statements, that they were not supplied the plants or barbed wire, against the loan amount could be placed. Even their statements that the loan amount was embezzled could not be believed for the aforesaid reasons. The trial Court, was wrong, in relying upon their statements, in holding the accused guilty. The submission of the Counsel for the appellants, being correct, is accepted.
14. No doubt, it was proved from the evidence of Setu Raman, PW-13, that the account in the name of Karamvir Nursery Fruit Garden, Kapurthala, was opened. Karamvir Singh was introduced by Nand Parkash. During the course of his cross-examination, it was stated by him, that the bank could open the account of any person, belonging even to the other district. He further stated that whether the alleged nursery was located at Malerkotla was not known to him. He further stated, during the course of cross-examination, that he did not obtain the initials of Karamvir Singh or put his own initials. He further stated, during the course of cross- examination, that he did not get any partnership deed, from Karamvir Singh, though the same was necessary. He further stated that he did not get any writing, that Karamvir Singh was the sole proprietor of the aforesaid Criminal Appeal No. 188-SB of 1993 9 concern, though the same was necessary. He further stated, during the course of cross-examination, that a person, who was having account, in their bank, could introduce any person, who wanted to open a new account. The mere fact that Karamvir Singh, opened the account on the introduction of Nand Parkash, in the name of Karamvir Nursery Fruit Garden, Kapurthala, did not mean that such an account was a forged one. By opening such an account, in the bank, Karamvir Singh, did not commit any forgery. The trial Court was wrong, in coming to the conclusion, that by opening the account, in the name of the aforesaid nursery, by Karamvir Singh, on the introduction of Nand Parkash, accused (since acquitted), he (Karamvir Singh accused), committed the offences, punishable under Sections 467, 468 and 471 of the Indian Penal Code.
15. Coming to the authority letter of Mohd. Salim, copy whereof is PB, it may be stated here, that same was not forged by Karamvir Singh. No doubt, Mohd. Salim, PW-16, stated that PB did not bear his signatures. He further stated that his signatures were forged, on the said document. During the course of cross-examination, by the accused, he stated that he knew Urdu. He further stated that he could sign in Urdu and English. However, his statement was belied by Mr. A.S. Bhandari, Advocate, Notary Public, PW-4. He stated that the affidavit of Mohd. Salim, proprietor, Kisan Nursery Fruit Garden, Malerkotla, was attested by him. He further stated that Parkash Singh Sahota, identified Mohd. Salim. He further stated that he knew Parkash Singh Sahota personally. In the first instance, exhibit PB, is photocopy of the authority letter. Forgery can only be, in respect of the original document. The original document was not brought and exhibited on the record. The photocopy PB of the affidavit did not fall within the ambit Criminal Appeal No. 188-SB of 1993 10 of a forged document. If Parkash Singh Sahota, identified alleged Mohd. Salim, then Karamvir Singh, accused, had no role, whatsoever, to play in the alleged commission of forgery of this document. The trial Court was, thus, wrong in holding that this document was forged by Karamvir Singh. No offence of forgery was allegedly committed by Karamvir Singh, in respect of photocopy PB, of the authority letter of Mohd. Salim.
16. The case of the prosecution was also to the effect, that accused Karamvir Singh made an extra judicial confession, before Ganesh, PW-11, confessing his guilt. Ganesh, PW-11, stated that he was a tea vendor, near the Vigilance Office, Kapurthala. He further stated that Karamvir Singh had come to him, and told him, that he had done a wrong thing, and he should introduce him to some Vigilance Officer. He further stated that he took him to Udham Singh, DSP, Vigilance, and, thereafter he came back. He further stated that he belonged to UP. He further stated that he did not know the residence of Karamvir Singh. He further stated that he never went to the house of Karamvir Singh. He further stated that he was not a Municipal Commissioner. So the statement of Ganesh, PW-11, does not prove, as to what sort of alleged extra judicial confession, was made by Karamvir Singh. The extra judicial confession should be in clear-cut terms. Even if, the statement of Ganesh, PW-11, is taken to be true, on the face of it, for the sake of arguments, the mere fact that Karamvir Singh, told him, that he had committed wrong, did not, in any way, indict him. Even otherwise, there was no occasion for Karamvir Singh to go to Ganesh, PW-11, who was neither a Municipal Commissioner, nor a respectable person, nor holding office of any organization, to make an extra judicial confession. Even Karamvir Singh did not know him earlier. They were not on visiting terms, Criminal Appeal No. 188-SB of 1993 11 with each other. They were not attending the functions together. They did not study together. The statement of Ganesh, PW-11, does not lead the Court, any-where. The statement of Ganesh, PW-11, to the effect that Karamvir Singh made an extra judicial confession, before him, that he had committed a wrong, is nothing but a tissue of lies. No reliance can be placed on his statement to hold Karamvir Singh, guilty. It is, therefore, held that no extra-judicial confession was made by Karamvir Singh, before Ganesh, PW-11.
17. No other point was urged, by the Counsel for the parties.
18. In view of the above discussion, it is held that the judgment of conviction and the order of sentence qua Karamvir Singh, are not based on the correct appreciation of evidence and law on the point. The judgment of conviction and the order of sentence qua Karamvir Singh, warrant interference, and are liable to set aside.
19. For the reasons recorded above, the appeal, filed by Parkash Singh Sahota, appellant, abates, on account of his death, during the pendency, thereof.
20. The appeal qua Karamvir Singh is accepted. The Judgment of conviction and the order of sentence, qua Karamvir Singh, appellant, are set aside. If, Karamvir Singh, appellant, is on bail, he shall be discharged of his bail bonds. If he is in custody, he shall be set at liberty, at once, if not required, in any other case.
30.09.2008 (SHAM SUNDER) Amodh JUDGE