Allahabad High Court
Shyam Babu vs State Of U.P. And Anr. on 16 February, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 27 Case :- CRIMINAL APPEAL No. - 1194 of 2013 Appellant :- Shyam Babu Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Jitendra Pal Singh,Birendra Kaushik Counsel for Respondent :- Govt. Advocate, Pranay Krishna Connected with Case :- CRIMINAL APPEAL No. - 699 of 2013 Appellant :- Puneet Kumar Respondent :- State Of U.P. & Another Counsel for Appellant :- Shyam Kishore Yadav, Birendra Kaushik, Virendra Kumar Counsel for Respondent :- Govt. Advocate, Anurag Khanna, N.I. Jafri, Pranay Krishna CORAM: Hon'ble Mrs. Ranjana Pandya,J.
1. Since both the afore-captioned criminal appeals have been filed by the appellants challenging the judgment and order dated 14.01.2013 passed in the Special Case No.14 of 2009 (CBI vs Shyam Babu and another) arising out of the same case crime number, hence they are being decided by this common order.
2. Challenge in these appeals is to the judgment and order passed by Special Judge, Anti Corruption (C.B.I.), Ghaziabad on 14.1.2013 in Special Case No. 14 of 2009, (C.B.I. Vs. Shyam Babu and another), arising out of Crime No. 0072008A0010, under sections 120-B, 420 I.P.C. and Section 13(2) read with section 13(1)(d) Prevention of Corruption Act, Police Station C.B.I. S.P.E., Dehradun, whereby the accused Puneet Kumar was acquitted for the charges punishable under Section 13(2) read with Section 13 (1) (d) Prevention of Corruption Act. Accused Shyam Babu and Puneet Kumar were found guilty under sections 120-B, 420 I.P.C. The appellant Shyam Babu was further found guilty under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act and he was sentenced to three years' rigorous imprisonment and Rs.3,00,000/- fine under section 120-B I.P.C.; five years' rigorous imprisonment and Rs.5,00,000/- fine under section 420 I.P.C. and seven years' rigorous imprisonment and Rs.4,00,000/- fine under section 13 (2) read with Section 13(1)(d) Prevention of Corruption Act. The accused Puneet Kumar was found guilty and sentenced to three years' rigorous imprisonment and Rs.3,00,000/- fine under section 120B I.P.C.; five years' rigorous imprisonment and Rs.5,00,000/- fine under section 420 I.P.C. with default stipulation.
3. As per the prosecution case, sometime in the year 1998, a consignment of NSCs/KVPs was reportedly lost from Hawrah Junction. In the same way, in 1999, a huge consignment of NSCs/KVPs was reportedly lost from a railway wagon at Railway Gauhati. In the year 2007, postal stamps, NSCs/KVPs and several other valuable securities were looted from Khair Post Office, District Aligarh. The NSCs and KVPs, which were looted/stolen at various places in India, were notified by the Directorate of Postal Services, New Delhi through a negative list, which was circulated to all the post offices in India including the post office Gabhana. Sri Shyam Babu the then SPM, Post Office, Gabhana had knowledge that these NSCs/KVPs figured in the negative list, and therefore, were not to be discharged or entertained. In order to defraud the Postal Department, a modus operandi was adopted by Shyam Babu with some unknown persons and he conspired to cheat the Postal Department by procuring and encashing NSCs/KVPs. Shyam Babu procured the stolen/looted KVPs/NSCs from some criminals whose names have not been revealed. After procuring blank KVPs/NSCs, he manipulated the records of the post office and showed them to be issued from the said post office in which he was posted, i.e., Post Office, Gabhana. The said KVPs/NSCs were said to have been issued to various fictitious/non-existent persons with fictitious/sketchy addresses mentioned in them purportedly residing in various localities of District Aligarh. Forged applications from the said fictitious holders of NSCs/KVPs were created and Shyam Babu encashed the said NSCs/KVPs either through cash payment or through account payee cheques. The account payee cheques were encashed by opening saving bank accounts at various banks/post offices at Aligarh and adjoining areas in the names of persons in whose names the NSCs/KVPs were fraudulently issued. The postal records including the order of discharge of securities was authorized by Shyam Babu who was under suspension at the time of lodging the F.I.R. The list containing the details of saving certificates were enclosed with the F.I.R.
4. Fraud had assumed multiple dimensions over the period of time involving number of districts. Further it was suspected that a racket was in operation with All India Ramification and the above named suspect was part of the said racket. The aforesaid fraud had assumed operation of a scam in which not only the employees of the Postal Department were involved but also some unknown criminals had hands in operating the scam. The names and addresses of persons shown as holders of NSCs/KVPs have been found fictitious/non-existent. Hence, the matter was reported. List as annexed is as follows:-
Date of Payment Regn No & Date Office of issue Denomination Particulars Name of holders Amount By Cash By Cheque Detail of Cheque Location in negtive list 26.03.08 1741/14.02.00 Patiala City 10000 46 CC 962801,900 Shyam Sunder 41216 41216 31.03.08 2333/03.03.00 Gabhana 10000 46CC 980070 to 72 Manju Rani & Mukesh Kumar 63150 63150 01/04/08 2333/03.03.00 Gabhana 10000 46 CC 980073 Manju Rani & Mukesh Kumar 21050 21050 02/04/08 2328/02.03.00 Gabhana 10000 46 CC 980020 to 29 Sunil Kumar & Radha Rani 211080 '' 2329/02.03.00 Gabhana 10000 46CC 980030 to 39 Radha Rani & Sunil Kumar 211080 22160 400000 W886432 '' 2330/02.03.00 Gabhana 10000 46CC 980040 to 49 Vinod Kumar & Seema 211080 '' 2331/02.03.00 Gabhana 10000 46CC 980050 to 59 Seema & Vinod Kumar 211080 22160 400000 W886433 '' 2332/02.03.00 Gabhana 10000 46CC 980060 to 69 Mukesh Kumar & Manju Rani 211080 11080 200000 W886434 04/04/08 1154/12.05.00 BSF Jodhpur 5000 35BB 931051 to 70 Ramchandr & Seema 209320 '' 1155/12.05.00 BSF Jodhpur 5000 35BB 931071 to 90 Seema & Ramchandr 209320 '' 1156/12.05.00 BSF Jodhpur 5000 35BB 931091 to 1100 Ramchandr & Mukesh Kumar 104660 1450 521850 W88664,47, 48 05/04/08 2333/03.03.00 Gabhana 10000 46CC 980075, 76 Manju Rani & Mukesh Kumar 42216 42216 07/04/08 2338/09.03.00 Gabhana 5000 35BB 931137 to 156 Mukesh Kumar & Manju 21000 '' 2339/09.03.00 Gabhana 5000 35BB 931157 to 76 Manju & Mukesh Kumar 21000 22000 400000 W886750 '' 2333/03.03.00 Gabhana 10000 46CC 980074 Manju Rani & Mukesh Kumar 21108 21108 '' 2334/03.03.00 Gabhana 10000 46CC 980080 Rahul Gupta & Sangeeta, Sasni Gate, Aligarh 189972 '' 2334/03.03.00 Gabhana 5000 35 BB 931101 Rahul Gupta & Sangeeta 10554 10526 190000 W887651 '' 2336/09.03.00 Gabhana 10000 46CC 980099,100 Sunil Kumar & Radha Rani 42100 '' 2336/09.03.00 Gabhana 5000 35 BB 931103 to 116 Sunil Kumar & Radha Rani 147355 '' 2337/09.03.00 Gabhana 5000 35 BB 931117 to 136 Sunil Kumar & Radha Rani 211000 450 400000 W887652 Total 2790416 278566 2511850
5. During the course of investigation, it came into light that the accused Shyam Babu in connivance with Puneet Kumar, Post Office Assistant, Bulandshahr Division opened false saving bank accounts bearing account no. 392629 in the name of Sushil Kumar and Sunil Kumar; account no. 392584 in the name of Manish Kumar and Vinod Kumar; account no. 392639 in the name of Ajay Gupta and Rahul Gupta; account No. 393000 in the name of Mukesh Kumar and Surendra Kumar; account No.392997 in the name of Mukesh and Ram Chandra and many others were also opened and amounts were transferred. Some more saving bank accounts were opened and an amount of Rs.1 lakh was credited to the accounts. During the course of investigation, it was revealed that the photo copy of the bill regarding to Tata Indicom No. 921252070 was fake. The Ids were fake. The accused Shyam Babu fraudulently discharged the KVPs which had not at all been issued. The details of KVPs discharged fraudulently by Shyam Babu are as under:-
Date of payment Regn No & Date Name of Post Office as shown in the KVPs Denominations Particulars Name of holders & address Total Amount Paid Amount Paid in cash Amount paid through Cheque issued from Head Post office Account Where Cheque Deposited 26.03.08 1741/14.02.00 Patiala City 10000 46 CC 962801,900 Shyam Sunder 41216 41216 31.03.08 2333/03.03.00 Gabhana 10000 46 CC 980070 to 72 Manju Rani & Mukesh Kumar Dream City, Aligarh 63150 63150 01/04/08 2333/03.03.00 Gabhana 10000 46 CC 980073 Manju Rani & Mukesh Kumar Dream City, Aligarh 2150 2150 02/04/08 2328/02.03.00 Gabhana 10000 46 CC 980020 to 29 Sunil Kumar & Radha Rani Khair, Aligarh 211080 02/04/08 2329/02.03.00 Gabhana 10000 46 CC 980030 to 39 Radha Rani & Sunil Kumar, Khair, Aligarh 211080 22160 400000 vide cheque no. W886432 dated 31-3-2008 Cheque No. W886432 for 4 lac in the name of Sunil Kumar was deposited in saving account No.7381530002268 in the name of Sunil Kumar at HDFC Bank, Khurja.
'' 2330/02.03.00 Gabhana 10000 46 CC 980040 to 49 Vinod Kumar & Seema Khair Aligarh 211080 '' 2331/02.03.00 Gabhana 10000 46 CC 980050 to 59 Seema & Vinod Kumar, Khair Aligarh 211080 22160 400000 vide cheque no. W886433 dated 31-3-2008 Cheque No. W886433 for 4 lac deposited in saving accountNo.392584 of Manish Kumar & Vinod Kumar at Post Office Saving Bank, Aligarh.
'' 2332/02.03.00 Gabhana 10000 46 CC 980060 to 69 Mukesh Kumar & Manju Rani Dream City, Aligarh 211080 11080 200000 vide cheque no. W886434 dated 31-3-2008 Cheque No. W886434 for 2 lac deposited in saving accountNo.393000 of Mukesh Kumar & Surendra Kumar at Post Office Saving Bank, Aligarh.
04/04/08 1154/12.05.00 BSF Jodhpur 5000 35BB 931051 to 70 Ramchandra & Seema 209320 '' 1155/12.05.00 BSF Jodhpur 5000 35BB 931071 to 90 Seema & Ramchandra 209320 '' 1156/12.05.00 BSF Jodhpur 5000 35BB 931091 to 1100 Ramchandra & Mukesh Kumar 104660 1450 521850 vide 3 cheque nos. W886646, 47, 48 dated 03-04-08 Cheque no. W886646 for Rs. 1,56,555/-, Cheque no. 886648 for Rs. 198303/- deposited in saving account no. 392997 of Ramchandra at Post Office Saving Cheque No. 886647was not available during the course of investigation.
05/04/08 2333/03.03.00 Gabhana 10000 46 CC 980075, 76 Manju Rani & Mukesh Kumar Dream City, Aligarh 42216 42216 07/04/08 2338/09.03.00 Gabhana 5000 35BB 931137 to 156 Mukesh Kumar & Manju Dream City Aligarh 211000 '' 2339/09.03.00 Gabhana 5000 35BB 931157 to 76 Manju & Mukesh Kumar Dream City Aligarh 211000 22000 400000 vide cheque no. W886750 dated 05-04-08 Cheque No. W886750 dated 05.04.08 for Rs. 4 lac in the name of Mukesh Kumar was deposited in saving account No.7381530002295 at HDFC Bank, Khurja in the name of Mukesh Kumar.
'' 2333/03.03.00 Gabhana 10000 46 CC 980074 Manju Rani & Mukesh Kumar Dream City, Aligarh 21108 21108 '' 2334/03.03.00 Gabhana 10000 46 CC 980080 to 980088 Rahul Gupta & Sangeeta, Sasni Gate, Aligarh 189972 '' 2334/03.03.00 Gabhana 5000 35BB 931101 Rahul Gupta & Sangeeta, Sasni Gate, Aligarh 10554 10526 190000 vide cheque no. W886751 dated 05-04-08 Cheque No. W886751 for Rs. 1,90,000/- deposited in saving accountNo.392639 of Ajay Gupta & Rahul Gupta at Saving Bank Post Office, Aligarh.
'' 2336/09.03.00 Gabhana 10000 46 CC 980099, 100 Sunil Kumar & Radha Rani Khair, Aligarh 42100 '' 2336/09.03.00 Gabhana 5000 35BB 931103 to 116 Sunil Kumar & Radha Rani Khair, Aligarh 147350 '' 2337/09.03.00 Gabhana 5000 35BB 931117 to 136 Sunil Kumar & Radha Rani Khair, Aligarh 211000 450 400000 vide cheque no. W886752 dated 05-04-08 Cheque No. W886752 dated 05.04.08 for Rs. 4 lac deposited in saving account no. 7381530002268 of HDFC Bank, Khurja in the name of Sunil Kumar.
Total in Rs.
2790416 278566 2511850
6. During the course of investigation, the report of the hand writing expert was obtained. After investigation, the Investigating Officer submitted charge sheet against the accused. The charges were framed against the accused under Section 120B, 420 I.P.C. Section 13(2) read with Section 13(1)(d) Prevention of Corruption Act. The accused denied the charges and claimed trial.
7. The prosecution examined as many as 36 witnesses. P.W. 1 being P.S. Verma, P.W.2 Pramod Kumar Garg, P.W.3 Sanjiv Kumar Jain, P.W.4 Ranjit Agarwal, P.W. 5 Mohd. Mohsin, P.W. 6 Pankaj Kumar, P.W.7 Chandra Shekhar, P.W.8 Balu Singh, P.W. 9 Lal Mani Ram, P.W.10 Ratnakar Deo, P.W.11 Lalita, P.W. 12 Rajendra Singh, P.W. 13 Bahadur Singh, P.W.14 Ashwani Kumar Upadhyay, P.W.15 Javed Salmani, P.W.16 Girish Singh Bist, P.W.17 Kayam Singh, P.W.18 Mukesh Kumar, P.W. 19 Chhitar Mal, P.W.20 Ram Narayan Singh, P.W.21 Gopal Singh, P.W. 22 Mathura Das, P.W. 23 Bhagwat Prasad Sharma, P.W.24 Ashok Kumar Panchal, P.W.25 Gautam Gaba, P.W.26 Satendra, P.W. 27 Vivek Sinha, P.W.28 D.K. Tripathi, P.W.29 Nihal Singh, P.W. 30 Suresh Chandra Baghel, P.W. 31 Sumnesh Kumar, P.W. 32 Anil Kumar Singh, P.W. 33 S.S. Atwal, P.W. 34 Dr. S. Ahmad, P.W. 35 Sunil Kumar and P.W. 36 Anil Chandaula.
8. P.W. 1 has proved the prosecution sanction. P.W.2 has proved letter written by the Assistant Superintendent Post Office, Aligarh (Ext.Ka-2), negative list (Ext.Ka-3), seizure memo (Ext.Ka-4). P.W.3 has proved the complaint addressed to C.B.I. (Ext.Ka-5), KVP material (Ext. 1 to 195), NSC material (Ext.196 to 220), discharge journal was proved as Ext. Ka-5A, Ka-5B, Ka-5C and Ka-5D P.W. 3, proved the seizure memo Ext. 48 Ka/1 to 48Ka/3. KVP discharge journal (Ext. 48 Ka/4 to 48 Ka/11). He also proved four books of the post office. P.W. 4 proved the seizure memo (Ext. 49 Ka/1), 11 cheques, letter (Ext.49Ka-2), seizure memo. P.W. 5 proved seizure memo paper no. 46Ka/1 (Ext. Ka-39), copy of the D.L.I. (Ext. Ka-40), application relating to registration (Ext. Ka-41 to Ka-52), the NSC purchase application (Ext. Ka-53 to Ka-57). P.W.6 proved seizure memo 58, 59, 60 to 64 and 65. P.W.8 proved Ext. Ka-66, seizure memo purchase applications (Ext. Ka-67 to Ka-70, stock register Ext.Ka-71. P.W. 9 proved Ext. Ka-72 to Ext. Ka274. Likewise, defence witnesses have proved different papers.
9. After close of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which the accused Shyam Babu admitted that he was on deputation on his post from 24.3.2008 to 7.4.2008. Ext. 447 to 448 were sent from Gabhana Sub Post Office to Aligarth Head Post Office. During this period, P.W.1 was the competent authority to remove him. He denied the remaining evidence and stated that he has been wrongly charge sheeted. He did not gain any financial loss from the transaction. Accused Puneet Kumar in his statement under Section 313 Cr.P.C. denied the occurrence and stated that he had been falsely implicated.
10. The learned Trial Judge after hearing the counsel for the parties passed the Judgment as stated in para 2 of the aforesaid Judgment. Feeling aggrieved appellants Puneet Kumar and Shyam Babu have filed this appeal.
11. I have heard Shri Birendra Kaushik, learned counsel for the appellants and Shri N.I. Jafri, learned counsel appearing on behalf of the C.B.I. and perused the trial court record.
12. Learned counsel for the appellants has submitted that it has not been proved by legal evidence that the Kisan Vikas Patra and National Saving Certificates alleged to have been discharged by Shyam Babu, their negative list was ever handed over to the Gabhana Sub-post Office and since the accused Shyam Babu was never handed over or informed about the negative list, hence, by no stretch of imagination, it could be said that he discharged the Kisan Vikas Patra and National Saving Certificates fraudulently. It has further been submitted that even PW-2 Pramod Kumar Garg has admitted in his cross-examination that a letter dated 14.10.2005 with which the negative list was said to have been attached, he has not got proved the same and there is no proof on record to show that when the letter was received. It has also been submitted that even PW-6 Anil Chandaula has admitted that he was ignorant that any list was submitted to the Sub-Post Office by the Aligarh Post-Office prior to 30.04.2005 or not. He did not investigate as to how the negative list was circulated and who was the official, who received the negative list at Gabhana Sub-Post Office and on what date it was received. Thus, the trial court has based its conviction on inadmissible evidence. It is a case of no evidence and the conviction is liable to be set aside.
13. Per contra, Shri N.I. Jafri, learned counsel appearing on behalf of the C.B.I. has submitted that it is fully proved by record that the accused Shyam Babu fraudulently discharged the Kisan Vikas Patra and National Saving Certificates, which were in the negative list. He further prepared fraudulent purchase applications and the accused-appellant Puneet Kumar while conspiring with accused-appellant Shyam Babu open forged accounts in the names of Mukesh Kumar and Sunil Kumar, who were imaginary persons and transferred Rs.12,00,000/- (rupees twelve lakh) in the aforesaid account pertaining to Kisan Vikas Patra and National Saving Certificates of the negative list. It has further been submitted that the present matter involves embezzlement of a huge amount of Rs.32,98,966/- and causing loss to the public exchequer. The case is fully proved beyond reasonable doubt. The conviction is well based and the appeal deserves rejection.
14. It is well settled that the courts trying and hearing criminal matters are burdened with heavy responsibility, in other words a criminal trial is not a fairy tale where story is narrated on one's imagination and fantasy. Infact, the trial court has to see whether the accused arrayed in the FIR and during investigation he is guilty of the crime, for which he has been charged. Crime is an event in real life and is produced of an interplay of different human emotions. Thus, the court has to judge the evidence also by yardstick of probabilities, its intrinsic worth and the animus of the witnesses and each case would depend on its own facts, but the court should not reject evidence, which is otherwise trustworthy and reliable just on technical or fanciful grounds. Obviously a criminal trial cannot be equated with a mock scene from a stunt film and the court cannot adopt a hypertechnical approach in the matters because court should adopt rational, realistic and genuine approach for administering justice in a criminal trial. It is trite law that proof beyond reasonable doubt does not mean that degree of proof must be beyond shadow of doubt as has been laid down in Iqbal Moosa Patel vs State of Gujarat, reported in 2011 Cr.L.J. 1142 (Supreme Court) and just smelling doubts for the sake of giving benefit of doubts is not the law of the land.
15. This case relates to the Prevention of Corruption Act and corruption is an insidious plague that has a wide range of corrosive effects on society. It is undermines democracy and the rule of law, leads to violation of human rights, distorts markets, erodes the quality of life and it allows organized crime, terrorism and other threats to human security to flourish. This evil phenomenon is found in all countries, big and small, rich and poor, but it is in the developing world that its effects are more destructive. Corruption hurts the poor disproportionately by diverting funds intended for development. Thus, any action failure to take in the performance of duty by a Government Servant for personal advantage is corruption.
16. The criminal misconduct by a public servant is punishable under section 13(2) of Prevention of Corruption Act.
17. Section 13(1) of Prevention of Corruption Act states that a public servant is said to commit the offence of criminal misconduct. Section 13(1)(d)(iii) of Prevention of Corruption Act reads as follows:
"13.Criminal misconduct by a public servant.--
(1)(d)(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."
18. Thus, the appellant Shyam Babu will be guilty under the Prevention of Corruption Act, if he gains pecuniary advantage for himself or any other person by abusing his position as a public servant or while holding office as a public servant obtains any valuable thing without public interest.
19. Keeping in view the aforesaid defence in the case of M. Narayanan Nambiyar vs State of Kerala, reported in AIR 1963 Supreme Court 1116, the Hon'ble Apex Court has held that that the preamble indicates that the Act was passed as it was expedient to make more effective provision for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. Bribery is a form of corruption. The fact that in addition to the word 'bribery' the word 'corruption' is used shows that the legislation was intended to combat also other evils in addition to bribery. The existing law i.e. penal code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under sections 161 and 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well known principles of criminal jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the government or other appropriate officer a precondition for their prosecution As it is a socially useful measure conceived in Public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them.
20. The accepted meaning of corruption is the act of corrupting or of impairing integrity, virtue, or moral principle; the state of being corrupted or debased; loss of purity or integrity; depravity; wickedness; impurity; bribery, due to which in civilized society, corruption has always been viewed with particular distaste to be condemned and criticized by everyone. Thus, precise meaning of corruption is illegal, immoral or unauthorized act done in due course of employment. Broadly speaking, it may be termed to be an inducement, which is divisive and makes a significant contribution to social inequality and conflict. There is no doubt that this is a crime against society.
21. The prosecution witness Pramod Kumar Garg, PW 2 has stated before the court that the Assistant Post Superintendent, Aligarh vide his letter dated 14.10.2005 had specifically directed that the National Saving Certificate and KVP should not be discharged whose list was attached with the letter, but a presumption of certain facts can be drawn as has been provided under illustration (g) to section 114 of Indian Evidence Act, which runs as follows:
"(g)- That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
22. The accused appellant Shyam Babu was posted on a responsible post in the Gabhana post office and prosecution evidence has proved that he was in the knowledge of the negative list about the KVP, which was stolen from the post office department. Even otherwise it was the bounded legal duty of the appellant Shyam Babu to have verified these KVPs and NSCs as per the office saving manual to have verified them before they were being discharged. It was his duty to have obtained the negative list from the Head Post Office, Aligarh before discharging them. Obviously, always a word is given to official and officer dealing with financial matters, but the accused appellant Shyam Babu willfully did not so and his conduct is thus, relevant under the provisions of Indian Evidence Act. 31(11) of the Post Office Saving Bank Manual specified that all the post office will sealed the negative list and after being satisfied circulation will be sent to the Divisional Office. The accused has failed to explain the circumstance which appeared before him although he was given complete opportunity to explain the same. Although, it is the duty of the prosecution to prove the case beyond reasonable doubt, but the accused failed to state any such circumstance that the negative list was not at all handed over to him. Post Office Saving Bank Manual Second Edition has laid down the precaution and the safety measure which have to be taken by the officials while ensuring payment, which have been referred to by the learned counsel for the C.B.I. It has come in the prosecution evidence that the accused failed to adhere to the rules and conspire with accused Puneet Kumar to make payments in false and fictitious names and accounts. Even PW-36 Anil Chandaula has stated that the KVP bearing registration Nos. 1745 dated 19.02.2000 were not at all issued from the respective Post Office, but they were discharged by the accused fraudulently. Even Shri D.K. Tripathi, PW-28 has stated that he had sent a copy of the concerned purchase application to S.P., C.B.I., which related to registration No. 1741. The KVP was sold to Sushil Kumari through agent Smt. Raj Gupta for a sum of Rs. 5000/-. He has proved that in the year 2000, no KVP bearing the series No. 46 CC was received at the Patiyala City Sub-post Office. The accused Shyam Babu fraudulently in order to usurp the public money did not also get it verified in form No. NC 32 before discharging them, which shows that the accused Shyam Babu fraudulently discharged the KVPs. Even material Exts. 57 to 106 were fraudulently discharged by Shyam Babu. Although, there were mention in the negative list and were never issued to the BSF, Training Centre, Jodhpur. It has also come in the evidence of PW-8 Balu Singh that KVP No. 35 BB 931051 to 931100 were not issued. Infact other KVPs were issued on these registration numbers. He has verified that KVP bearing Registration No. 1154 was issued to Nirmala Sankhla, bearing Registration No. 1155 was issued to Suraj Kunwar, bearing registration No. 1156 was issued to Shravan Kumar and Mulchand, which were not issued from the aforesaid Post Office. It has also been proved by the record that the seal of BSF, Training Centre, Sub Post Office, Jodhpur is forged and fabricated because the seal mentions only Sub Post Office, BSF, Jodhpur, whereas the original seal scribe Sub Post Master, BSF Training Centre, Jodhpur. He has submitted the applications containing the correct seal during the course of investigation. KVPs bearing No. 35 BB 931051 to 35 BB 931100 were included in the negative list and there discharge was debarred. All the KVPs material Exts. 57 to 106 bear registration Nos. 1154, 1155 and 1156, which are said to have been issued on 12.05.2000, but none of the number was verified by Form No. NC 32 by the accused Shyam Babu as per rules. In the same way KVPs material Exts. 3 to 56 total 54 each valuing Rs. 10,000/- and material Exts. 107 to 195 total 89 valuing Rs. 5,000/- and 10,000/- respectively were said to have been issued from the Gabhana Sub-post office on 02.03.2000, 03.03.2000 and 09.03.2000, whose registration numbers shown to be 2328 to 2339. In the same way NSC material Exts. 196 to 220 valuing Rs. 5000/- each were said to have been issued from Gabhana post office on 23.02.2000 and 25.02.2000 bearing registration Nos 301 to 305. All the above documents bore the seal of Gabhana sub-post office which were discharged by the accused Shyam Babu under his own handwriting and signatures as has been proved by the prosecution evidence.
23. The duty of PW 22, Mathura Das was to compile the discharge KVPs and NSCs received from the sub-post office. He used to make entries in the computer. The accused appellant Shyam Babu has mentioned paper Nos. 48 Ka- 203 to 48 Ka 207. The NSC purchased applications have been discharged and this endorsement has been written and signed by the appellant Shyam Babu, which has put the seal of Gabhana sub-post office.
24. Lal Mani Ram, PW-9 was posted as Post Assistant since 07.04.1998 to 17.07.2002, who has stated in his statement that he identifies the signature of Laxman Singh, Post Master. All the applications to credit the amount except those bearing Nos. 2328 to 2339 bore the signatures of Laxman Singh. Likewise he has identified the signatures of Laxman Singh on NSC Guard File Nos. 48 Ka/237 from serial Nos. 1 to 207 bearing those having registration Nos. 301 to 305.
25. In 2001 (6) SCC 584 K.C. Sareen vs CBI, Chandigarh the Hon'ble Apex Court has held as under:
"Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fall out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.
26. It has been specified by the Hon'ble Apex Court that the Prevention of Corruption Act was intended to make effective provisions for combating bribery and corruption amongst the public servants. The provisions of corruption act is a social legislation intended to do illegal activities of the public servants and is design to public liberally construed so as to advance its object.
27. The prosecution has also produced Ranjeet Agrawal, PW-4, who has stated that all the registrations mentioned in the statement were prepared during ordinary course, has not been rebutted by the accused. Even PW-36 has stated that he received the KVPs and NSCs stock register from PW-4 Ranjeet Agrawal, but this witness has specifically stated that material Exts. 3 to 56 and 107 to 196 NSCs and material Exts. 196 to 220 were never received at the Gabhana Sub Post Office and it reveals that the applications Ka 41 to 52 were pasted in the Guard File subsequently along with other applications, which appear to have been pasted recently in comparison to the other papers available on the guard file.
28. Learned counsel for the appellants has submitted that there is no evidence of conspiracy against both the accused and the learned lower court has incorrectly convicted both the accused.
29. Per Contra, Shri N.I. Jafri, learned counsel appearing for the CBI has relied upon the decision in 2002 SCC 334, Mohd Khalid vs State of West Bengal, the Honb'le Apex Court has held that proof of conspiracy can be by direct evidence though the same is rarely available or by circumstantial evidence. It has further been held that as under:
"For an offence punishable under section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or caused to be done illegal act; the agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means. Thus, the ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal."
30. Dr. S. Ahmad, Assistant Legal Examiner, who has examined the disputed documents has proved that the signature on the disputed documents and specimen signatures are identical. There is nothing on record to discredit his testimony and there was no reason even for the court below to discard his evidence. All the witnesses have verified the fraudulent names under which fraudulent accounts were opened.
31. It has been submitted that local people were not made witnesses, but I do not think this can in anyway shattered the prosecution case, inasmuch as PW-35 Sunil Kumar Pandey has submitted that he assisted the Investigating Officer Anil Chandaula after obtaining permission from the court. On his request, Sumnesh Kumar, Assistant Superintendent Post Office, Aligarh was sent. He also taken the post man of Beat. They went to the address of House No. 75 third floor Swarn Jayanti Nagar, Aligarh where it was learnt that such address was not in existence and no person in the name of Naresh Sharma and Sanjay Gupta live in the locality. In the same way, the other fake persons and addresses were verified, which were found to be fake and fabricated. Respective memos were prepared and proved by the prosecution.
32. PW-7 Chandra Shekhar also verified the name and address of Sunil Kumar, which was found to be fake, fraudulent and fabricated. None of the persons shown to be residing at the given address were found to be identified or were found that they were ever resided. The introduction form to open the account of Mukesh Kumar and Ram Chandra was filled by the accused Shyam Babu, whose handwriting and signature was verified by PW-11 Chhitar Mal, who stated that the accused appellant Shyam Babu had gone to the house of his witness along with SB 3 form which reflects that the appellant Shyam Babu had purposely got the account opened to commit forgery with intend to cheat. 33. In the same manner, PW-18 Kayam Singh has stated that several other accounts were opened in the fake names. The evidence of the prosecution clearly shows that the aforesaid payments were obtained by the accused appellant Shyam Babu because all the alleged beneficiaries were imaginary. The learned lower court has correctly concluded that the payment of some of the KVPs and NSCs were obtained by cash and some payments were received by cheques.
34. As far as the involvement of the appellant Puneet Kumar is concerned, accused Puneet Kumar is said to have been posted in District Bulandshahr. In this regard, the evidence of PW-14 Ashwani Kumar Upadhyay, PW-15 Javed Salmani, PW-18 Mukesh is important. No enmity of the appellant Puneet Kumar with these witnesses has been alleged. It is not necessary that to constitute criminal conspiracy, there should be actual meeting of the accused persons, but in fact they can be living and working at distant places and criminal conspiracy can be hatched by meeting of minds and criminal inducement. PW-14 Ashwani Kumar Upadhyay has admitted that he knows that appellant Puneet Kumar, his wife and daughter because they had opened account in the HDFC Bank Khurja, when this witness was posted as Sales Executive. The appellant Puneet Kumar introduced two imaginary persons Sunil Kumar and Mukesh Kumar. PW-18, Mukesh Kumar was Team Leader in HDFC Bank, Khurja, whereas PW-15 Javed Salmani was also the Team Leader at HDFC Bank, Khurja. It has been stated that Puneet Kumar accompanied with two customers, who were alleged to have to be Mukesh Kumar and Sunil Kumar came and account opening form was filled and cheque book, ATM card and password etc. were handed over to them. The figures on the ID proof and pass book were not identical and the account opening form were not identical. The papers relating to Mukesh Kumar were also forged. PW-24 Ashok Kumar Panchal and PW-5 Gautam Gaba have stated about the conspiracy of both the accused.
35. Thus, there is nothing in the cross-examination of the witnesses, which could discredit their testimony. Thus is is proved that Rs. 12,00,000/- was withdrawn even by the accused appellant Puneet Kumar from the HDFC Bank, Khurja in imaginary, false and impersonated names and addresses.
36. The accused persons in their statements under section 313 Cr.P.C. denied the occurrence, but the case has been proved beyond reasonable doubt against the accused persons.
37. Finally, the learned counsel for the appellants has submitted that the accused persons are in jail since 09.08.2012 and 09.06.2008 respectively. The sentence imposed on the accused is too harsh and even the fine imposed is excessive. Hence, the sentence and the fine imposed may be reduced.
38. Per contra, Shri N.I. Jafri, learned counsel appearing on behalf of the CBI has submitted that a loss of Rs. 32,98,966/- has been caused to the public exchequer due to the appellants Shyam Babu and Puneet Kumar and imposition of just and proper sentence is a cry of the society.
39. The Hon'ble Apex Court in Criminal Appeal No. 1264 of 2015, K.P. Singh vs State of NCT of Delhi decided on 28th September, 2015 has laid down as under:
"Determining the adequacy of sentence to be awarded in a given case is not an easy task, just as evolving a uniform sentencing policy is a tough call. That is because the quantum of sentence that may be awarded depends upon a variety of factors including mitigating circumstances peculiar to a given case. The Courts generally enjoy considerable amount of discretion in the matter of determining the quantum of sentence. In doing so, the courts are influenced in varying degrees by the reformative, deterrent and punitive aspects of punishment, delay in the conclusion of the trial and legal proceedings, the age of the accused, his physical/health condition, the nature of the offence, the weapon used and in the cases of illegal gratification the amount of bribe, loss of job and family obligations of accused are also some of the considerations that weigh heavily with the Courts while determining the sentence to be awarded. The Courts have not attempted to exhaustively enumerate the considerations that go into determination of the quantum of sentence nor have the Courts attempted to lay down the weight that each one of these considerations carry. That is because any such exercise is neither easy nor advisable given the myriad situations in which the question may fall for determination. Broadly speaking, the courts have recognised the factors mentioned earlier as being relevant to the question of determining the sentence."
40. Thus, what has been stated above, I think the sentence imposed on the appellants are just and proper. The conviction and sentence passed by the learned lower court are justified, just and proper and the judgment under appeal needs no interference and is liable to be confirmed.
41. The appeal is accordingly dismissed. The conviction and sentence of the appellants as awarded by the learned Special Judge, Anti-Corruption (CBI), Ghaziabad is confirmed.
42. The accused-appellants are in jail. They shall serve out the remaining part of their sentence.
43. Let certified copy of this order be transmitted to the trial court concerned for compliance.
Order Date :- 16.02.2016 Ram Murti/Sazia