Delhi District Court
Cbi.... vs ....Tejinder Singh on 4 January, 2007
IN THE COURT OF SHRI G.P. MITTAL : SPECIAL JUDGE :
DELHI.
CBI....VS....TEJINDER SINGH
RC NO 1/82/CBI/CIU(C).
CC No. 27/04
CC No. 28/04
CC. No.29/04
JUDGMENT.
On the basis of complaint dated 3.2.1982, (Ex.P.W.29/A)
made by one Gajanan Wakankar, Director (Establishment) and Chief
Vigilance Officer, Ministry of External Affairs (herein after referred
to as the MEA), a case FIR No.1/82 CIU(C)/CBI/ND dated 4.2.1982
was registered by the CBI for commission of offence U/s. 120-B IPC
read with Sections 420/409IPC and Section 5(2)read with 5(1)(c)&(d)
of the PC Act and Sections 420, 409, 467, 468 IPC and 5(2) read with
5(1)(c) (d) of the PC Act, 1947 .
2. As per the allegations made in the complaint, various stationery
items were being received in the Stationery Section of MEA, Govt. of
India from its(a) Regional stationery Depot, Netaji Nagar, New
Delhi, (b) Govt. of India Stores Office, Calcutta and © from Local
Purchases. An audit of the stationery stores was conducted for the
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(CBI v. Tejinder Singh )
period 1977 to 1980 and audit party from Directorate of Audit,
Central Revenues reported pilferage and embezzlement of stationery
stores to the tune of Rs.20 lacs. The audit party had found that
Ministry had placed orders for supply of stationery articles worth
Rs.97 lacs during the years 1977-78, 1978-79 and 1979-80, but the
receipt, examination, account and issue of these stores was not being
done in the manner prescribed. It was reported that records have
been tampered with to show the inflated issue of stationery on the
requisitions placed by different sections. Many additions, alterations
have been made in the issue register, which do not tally with the
requisitions. It was also noticed that the requests of stationery items
of different sections were tampered with alongwith the records in the
stationery branch of the ministry and huge quantities of stationery
articles, specially costly ones viz. stencils, duplicating papers,
duplicating ink tubes, typing papers, carbon papers, packing papers,
craft papers, perforating tape rolls, typewriter ribbon etc. have been
incorrectly charged off in the accounts. As many as 2052 instances of
tampering of records indicating the involvement of fraudulent
inflation of more than Rs.10 lacs have been noticed. In some cases,
double entries have been made for a single transaction. Huge
quantities of stationery received during these years had not been
accounted for in the Stock Register. It was also noticed that higher
quantity of articles were indented for as compared with the average
consumption of the same during the last 4 years.
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(CBI v. Tejinder Singh )
3. It was also mentioned in the complaint that on the basis of the
stationery indents of the Ministry for the year 1979-80 , Govt. of
India Stationery Office, Calcutta inter-alia placed an order for supply
of 900 Reams of stencils by M/s. Kores (India) Limited on 28.3.80 in
the Stationery Section. The office copy of the inspection note signed
and acknowledged by Shri B.N.Sharma, the then Section Officer,
indicating the delivery of 900 Reams of stencils by M/s. Kores (India)
Limited on 28.3.80 in the stationery section. The entries made in the
Stock register of the stationery store by Shri Tejinder Singh, the then
LDC at page no.10 item no.108 also indicate the receipt of these
stencils. Physical checking of stocks of stencils of this lot on 25.8.81
revealed availability of 180 Reams only. During the period 28.3.80
to 25.8.81 not more than 20 to 70 Reams were actually removed from
this lot, which would show that only about 250 Reams could have
been issued to different sections of the ministry and rest of the Reams
had been misappropriated, which valued at Rs.5 lacs. Similarly 500
Reams of stencils were received by accused Tejinder Singh vide item
no.108 of page 24 of stock register on 14.10.80. On physical
checking of stocks of stencils of this lot, on 25.8.81, only 75 Reams
of stencils were found, to be present. It is mentioned in the
complaint that the inquiries revealed that a very few stencils were
removed from this lot of supply during the period 14.10.80 to
25.8.81, which would lead to an inference that there was fraudulent
entry of 500 Reams and the Govt. of India was cheated to the extent
of Rs.2.5 lacs on this count.
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(CBI v. Tejinder Singh )
4. On registration of the case, investigation was taken up. It was
found that accused Tejinder Singh was working as LDC in Stationery
Store of MEA, New Delhi during the period 1.8.77 and 31.12.79. As
per duties assigned to him, he was to receive the stationery items
from different stores to be issued against stationery indent from
different sections of the MEA and to faithfully maintain the receipt
and issue registers maintained at the said stationery store.
5. It was found that the accused was having domain and control
over all the stationery items issued from the store. The modus
operandi as found by prosecuting agency was that the accused used to
add some additional stationery items in the indents and used to show
them as issued to the indenters. He also used to show them as issued
in the issue registers of the stationery stores by means of false entries.
6. As per the case of the prosecution, in Charge Sheet No.1,
additions of various quantities of items, as mentioned in column No.5
was made by the accused in his own handwriting whereas these items
had not been issued to the Indenter. In order to cover up the
misappropriation, he falsified the issue register.
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(CBI v. Tejinder Singh )
Sl. Details of the Stationery Name of the Name of the Quantity of the added
No. Indents persons under person who was items.
whose signature theshown to have
indent was issued. received the
added items of the
stationery.
1Stationery indent dt.11/5/78 Sh. D.R. Raju, Sh. D.R.Raju One Ream of stencil
relating to Fin.III, Sec. of Section Officer Section Officer
MEA, New Delhi. (Fin.II) MEA, New (Fin.II) MEA,
Delhi. New Delhi.
2Stationery indent dated 5.5.78 Sh. S.K.Nangia, Sh Edward , Two packets of
relating to Historical division PA to the DDHD.II Peon, with US stencil and one T/W
of MEA, New Delhi. MEA , New Delhi. (Wana) MEA Ribbon.
New Delhi.
3Stationery indent dated 1/5/78 Shri Sarwan Singh, Shri Darshan 12 packets of stencils
relating to Southern Division, then Section Singh, Daftri,
of MEA New Delhi. Officer (SDR) MEA, New Delhi.
MEA, New Delhi.
4Stationery indent dated Shri G.S.Khora, II Shri G.S.Khora, 10 packets of stencils
6/10/77 relating to nd Secretary, EI. IInd Secretary,
T.G.Section of MEA New Rabat. E.I. Rabat.
Delhi.
5Stationery indent dated 6/5/78 Shri MM Issar, PA, Shri Tarachand, 4 packets of stencils
relating to US (S.W.)'s HCI, Colombo. Peon,
Office, MEA, New Delhi. S.W.Section of
MEA, New Delhi.
6Stationery indent dated Shri G.D.Grover, Shri G.D. Grover, One Ream of stencils.
11.5.78 relating to attaché Steno, EI Kabool. Steno, EI Kabool.
(Property) Office, MEA, New
Delhi.
7Stationery indent dt.1.5.78 Mrs. E.Brown, Shri Bhanwar Two Reams of
relating to Telegraph Section retired Section Singh, the then stencils.
of MEA, New Delhi. Officer, MEA, the Peon, Telegraph
then SO, Telegraph Section MEA,
Section MEA, New New Delhi.
Delhi
8Stationery indent dated Shri KS Mathew, Shri Babu Ram 2 packets of stencils
25.5.78 relating to PP Section the then LDC, PB Peon with
of MEA, New Delhi Section of MEA at Director (ADP)
present with EI MEA, New Delhi.
Conakary.
9Stationery indent dated 2.5.78 N.Narsihman, Shri Govind 5 packets of stencils.
relating to PV-I, Section Section Officer, PB Prasad, Security
MEA, N. Delhi Section of MEA, Guard, HCI,
New Delhi. Lusaka
10Stationery indent dated 1.5.78 Shri Daljit Singh, Shri Tara Chand, One Ream of stencils.
relating to SW Section of IInd Secretary, Peon, S.W.Sec. of
MEA, N. Delhi HCI, Accra. MEA, New Delhi.
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(CBI v. Tejinder Singh )
11Stationery indent dated 1.8.77 Shri S.R.Iyengar, Shri S.R. Ivengar, 50 packets of stencils.
relating to issue (s) Section of Attache, AHC Attache, AHC,
SMEA, N. Delhi Kandy. Kandy.
12Stationery indent dated 1.5.78 Shri Bimal Sehgal, Shri Bimal Singh, 12 packets of stencils.
relating to TG Sec. of MEA, Asstt. E.I. Ciaro Asstt. E.I. Ciaro.
N. Delhi.
7. In Charge sheet no.I, it is alleged that accused has
misappropriated the Govt. stationery to the tune of Rs.5869.93p.
8. In Charge sheet no.II , the accused is alleged to have added the
items/quantities as mentioned in the 5th Column of the report U/s. 173
Cr.PC., which is reproduced hereunder :-.
Sl. Details of the Stationery Name of the persons Name of the person Quantity of the
No. Indents under whose who was shown to added items.
signature the indent have received the
was issued. added items of the
stationery.
1Stationery indent dt. 7.5.79 Sh. S.K. Tewari, Sh. Hari Singh, 2 Reams of stencils
relating to Indian Overseas Research Officer LDC, C.C.B. Sec.
Cell of MEA, New Delhi. Indian Overseas of MEA, New
Cell of MEA.. Delhi.
2Stationery indent dated Sh. I.S. Ailawadi, Sh Sardar Singh, 2 Reams of stencils.
25.9.78 relating to Cash 1 Section Officer, Daftri, Cash I
Sec. of MEA, New Delhi. entitlement Section Section of MEA
of MEA , New New Delhi.
Delhi.
3Stationery indent dated Shri S.K. Shri S.K. 6 packets of stencils
3.7.79 relating to DS (FW)'s Chakrabarty, Chakrabarty,
Office, MEA New Delhi. Section Officer, Section Officer,
Hydrabad House, Hydrabad House,
MEA, New Delhi. WEA, New Delhi.
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(CBI v. Tejinder Singh )
4Stationery indent dated Shri Sarwan Singh, Shri Darshan Singh 2 packets of stencils
7.8.78 relating to Registrar, the then Section Daftri, MEA, N.
South Asia Division, MEA Officer, Southern Delhi
New Delhi Division MEA, New
Delhi
5Stationery indent dated Shri Sarwan Singh, Shri Darshan Singh 9 packets of stencils
6/12/78 relating to Southern the then Section Daftri, MEA, N.
Division of MEA, New Officer, Southern Delhi
Delhi Division MEA, N.
Delhi
6Stationery indent dated Shri G.K. Sharma, Shri Kundan Lal, Jr. 2 Reams of stencils.
28.11.78 economic division P.S., Embassy of Gestetner operator,
of MEA, New Delhi. India, Bangkok.. CCB, MEA,
N.Delhi.
7Stationery indent dt. 3.11.78 Sh. B.K. Gupta, Sh. Tara Chand 50 sheets of
relating to SW Section of Attachi, High Peon, then posted in packing papers, one
MEA, New Delhi. Commission of SW Section MEA, bottle of inkaudha
India, Dares Salem. New Delhi.
8Stationery indent dated Sh. B.K. Gupta, Sh. Bachitter Singh, 2 packets of stencils
2.8.78 relating to Issue 'B' Attachi, High Peon, PD Sec. of
Section of MEA, New Delhi Commission of MEA, New Delhi.
India, Dares Salem.
9Stationery indent dated T.N. Raghavan, T.N. Raghavan, 2 Reams of stencils,
2.5.79 relating to SRO (ED- P.S., EI, Beirut. P.S., EI Beirut. 250 sheets of
I),MEA, N. Delhi packing papers
10Stationery indent dated Mrs. B. Brown, the Shri Bhanwar 4 Reams of stencils.
2.9.78 relating to Telegraph then Section Singh, the then
Section of MEA, N. Delhi Officer, Telegraph Peon, Telegraph
Section, MEA, N. Section MEA, N.
Delhi. Delhi
11Stationery indent dated Mrs. B. Brown, the Shri Bhanwar 24 packets of
1.11.79 relating to Telegraph then Section Singh, the then stencils.
Section MEA, N. Delhi Officer, Telegraph Peon, Telegraph
Section, MEA, N. Section MEA, N.
Delhi. Delhi
12Stationery indent dated Mrs. B. Brown, the Shri Bhanwar 1 Ream of stencils.
2.5.79 relating to Telegraph then Section Singh, the then
Section, MEA, N. Delhi. Officer, Telegraph Peon, Telegraph
Section, MEA, N. Section MEA, N.
Delhi. Delhi
13Stationery indent dated Shri J.P. Singh, Shri J.P. Singh, 1 Ream of stencils
4.7.79 relating to OSD Stenographer, E.I., Stenographer, E.I.,
(Iran), MEA New Delhi. of Moscow. of Moscow.
14Stationery indent dated Shri A.K.P. Shri Girdhari Lal, 5 packets of stencils
6.11.78 relating to PB Choudhuri, IInd the then peon, PB
Section of MEA N. Delhi Secretary, E.I., Section of MEA N.
Budapest. Delhii
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(CBI v. Tejinder Singh )
15Stationery indent dated Shri U.S.K. Bist, Shri Bihari Lal, 2 Reams of stencils
5/5/79 relating to Cashier UDC, Pension Cell Peon, Cashier Cell,
Cell of MEA, New Delhi of MEA, New MEA, N.Delhi.
Delhi.
16Stationery indent dated Sh. D.S. Bhutiani, Sh. D.S. Bhutiani, 4 Packets of
5.5.79 relating to Director PA, E.I., Budapest. PA, e.i., Budapest. stencils.
(AD)'s MEA, New Delhi.
17Stationery indent dt. 2.8.78
Sh.Daya Nand, PS Sh. Rampal Driver, 4 packets of
relating to Director (CXP),to J.S. (ER), MEA, E.I., Kabul. Stencils, 40 sheets
MEA, N. Delhi. N.Delhi of paper packing.
18Stationery indent dated Sh. B.K. Gupta, Sh.Babu Ram Peon, 2 Ream of paper
4.9.78 relating to Issue 'B'
Attachi, High Cr. Copying Cell, packing.
Section of MEA, N. Delhi Commission of MEA, N. Delhi.
India, Daressalem.
19Stationery indent dated Sh. Thomas Co, PA, Sh. Birja Nand, 2 Reams of
1.6.79 relating to US (UN- E.I. Kualalump. Peon, Dy. Director, Stencils, 25 Tubes
II) Sec. of MEA, N. Delhi P.P., MEA, of Ink dublicators.
N.Delhi.
9. It is further the case of the prosecution in Charge Sheet No.2 that accused Tejinder Singh himself prepared following indents purported to have been written and signed by the officers/officials of MEA shown against each.
Sl. Details of the Stationery Name of the Officers/ Officials Quantity of items issued
No. Indents who is purported to have signed
the indent.
1Stationery indent dt. 26.5.79 Sh. A.K. Pandya, then Section 5 Reams of stencils purporting to relate to Africa Officer, Africa Division of Division.to MEA, New MEA, New Delhi.
Delhi.
2Stationery indent dated Sh. V.V. Advani, the then 4 Reams of stencils. 11.6.79 purporting to relate Section Officer, EW Division of to EW Division of MEA, MEA, New Delhi.
New Delhi.
3Stationery indent/ receipt Receipt issued/signed is 15 packets of stencils
dated 9.7.79 relating to purported to have by Sh.
Parliament Sec. of MEA, Bhagwan Singh, Daftri,
New Delhi. Parliament Sec., MEA.
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(CBI v. Tejinder Singh )
4Stationery indent dated Shri V.S.Mehta, Attache, CGI 5 Reams of stencils
12.6.79 purported to relate to Washington, USA.
D.B. Sec., MEA, New
Delhi..
10. In Charge Sheet No. II, the amount misappropriated alleged to be to the tune of Rs. 16,520.63/-.
11. In Charge sheet no.III the accused is alleged to have added the items/quantities as mentioned in Column No.5 of the report U/s. 173 Cr.PC. , which is reproduced hereunder:-
Sl. Details of the Stationery Name of the persons Name of the person Quantity of the No. Indents under whose who was shown to added items.
signature the indent have received the
was issued. added items of the
stationery.
1Stationery indent dt. 5.9.79 Sh. M.L. Nankani, Sh. Sunder Singh, One Reams of relating to Dy. Director PA to Dy. Director Jamadar, Visa Paper packing. (Historical) Sec., MEA, New (Policy Planning) Passport Sec., Delhi. MEA, New Delhi. MEA, New Delhi.
2Stationery indent dated Sh.H.N. Paul, PA to Sh A.K. Sharma, One Reams of 6.9.79 relating to US (Info)'s US (N) MEA , New Peon, XAD Sec. of stencils.
Sec. of MEA, New Delhi. Delhi. MEA New Delhi. 3Stationery indent dt. Sept., Shri P.K. Bhatnagar, Sh. Biharilal, Peon, Two packets of 1979, dt. of issue 12.12.79 Cashier Cell of Cashier Cell, MEA, stencils relating to Cashier Cell , MEA New Delhi. N. Delhi.
MEA New Delhi.
4Stationery indent dated Shri Y.S. Negi, Shri Sohan Lal, 12 Tubes of ink 4.12.79 relating to EW Div. Attachi, EI., Buenos Daftri, East Asia dublicators.
of, MEA New Delhi Aires. Division, MEA, N.
Delhi
5Stationery indent dt. NIL, dt. Shri Bhupinder Shri Birja Nand, 5 packets of stencils
of issue 18.8.79, US (UN-I) Singh, PA, E.I., Peon, Dy. Director,
Sec., MEA, New Delhi Warsaw P.P. MEA, N. Delhi
6Stationery indent dated Sh. S.D. Doval, the Sh. Sohan Lal, Four Reams of
5.9.79 relating to P.R. Sec. then Section LDC, JS (EW) Stencils,
MEA, New Delhi. Officer, PR Sec., Office, MEA, N. 12 Pencils.
Now retired. Delhi.
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(CBI v. Tejinder Singh )
7Stationery indent dt. 10.9.79 Shri R.S. Ravat, Shri Prem Singh, 6 Tubes of ink
relating to US (Pak) Pol Sec. Stenographer, E.I., LDC, Copying dublicator. One
of MEA, New Delhi. Jakarta. Unit, MEA, ream of stencils.
N.Delhi.
8Stationery indent dated Sh S.D. Doval, the Sh. Sohan Lal, 5 packets of
5.10.79 relating to P.R. Sec. then Section LDC, JS (EW) stencils.
of MEA, New Delhi Officer, PR Sec., Office, MEA, N.
Now retired. Delhi.
9Stationery indent dated Sh. P.C. Biswas, PA Shri Prem Singh, One packet of
11.10.79 relating to Attache to Ambassador / PR LDC, Copying Stencils and 15
(AFG) & SRO-Pak, MEA, Permanent mission Unit, MEA, tubes of ink
N. Delhi. of India, Ganeva. N.Delhi. dublicators.
10Stationery indent dated Mrs. E. Brown, the Shri Bhanwar 4 packets of
1.8.79 relating to Telegraph then Section Singh, the then stencils.
Section MEA, N. Delhi Officer, Telegraph Peon, Telegraph
Section, MEA, N. Section MEA, N.
Delhi. Delhi
11Stationery indent dated Shri N. Garg, IInd Sh. Ramesh Chand, 12 packets of
5.9.79 relating to PC Sec., Secretary Peon, PE Sec., stencils.
MEA, N. Delhi (Economic) E.I., MEA, N. Delhi.
Washington, D.C.
___________________________________________________________________
12. In Charge Sheet no. III the amount misappropriated alleged to be to the tune of Rs.4142.00.
13. It is the case of the prosecution that during investigation, the indents bearing the additions in respect to the additional stationery items and the corresponding entries in issue register were found to be in the handwriting of the accused. It has thus been stated that accused Tejinder Singh has misappropriated the stationery items in respect of three charge sheets as mentioned herein above and to achieve this end has committed the acts of forgery with the indents and falsified the entries in the issue register and has thus committed an offence punishable U/s. 5(2) read with Sections 5(1)(c) and 5(1)(d) 10 1111 (CBI v. Tejinder Singh ) of the Prevention of Corruption Act, 1947 and Section 409, 468 and 477-A IPC .
14. Charges were ordered to be framed against the accused vide order dated 14.10.87 passed by the then Special Judge, Delhi. Charges for the offences punishable U/s. U/s. 5(1)(c) r/w Section 5(2) of the Act, U/s. 5(1) (d) r/w 5(1)(2) of the Act and U/s. 467,468 and 477-A of the IPC were framed . The accused pleaded not guilty to the charge and the prosecution was directed to produce its evidence.
15. During the course of the trial, an application U/s. 321 Cr.PC. was moved by Ld. PP alleging that the progress in the trial of this case has been very difficult as large number of witnesses remained posted abroad and only a few witnesses could be examined till the moving of the application in the year 2003. It was submitted that the oral and documentary evidence recorded so far has not been sufficient to establish the essential ingredients of the offence for which charges were framed against the accused. Some of the witnesses have turned hostile, while attendance of others could not be obtained without undue expenditure. It was stated that in three cases, the total amount involved was about Rs.26,000/- in all and it would be a great burden on the exchequer to procure attendance of the witnesses in the court and even if they are examined, case of the prosecution is not likely to be proved. The prayer of the CBI did not find favour with 11 1212 (CBI v. Tejinder Singh ) the Ld. Special Judge. The application was accordingly dismissed and the request was declined vide order dated 10.3.2003.
16. In order to establish its case, the prosecution has examined as many as 33 witnesses in charge-sheet No.1, 39 witnesses in charge-sheet No.2 and 33 witnesses in charge-sheet No.3. Evidence led in all the three charge sheets is almost the same.
17. Most of the witnesses examined by the prosecution in all the charge sheets are the persons who have either signed the indents wherein the accused is alleged to have made an addition of some items or the person who had received the stores from the accused. In charge sheet No.1, PW1 Surender Kumar Nangia was working as a Stenographer in the Historical Division of the Ministry of External Affairs (hereinafter referred to as the MEA) from the year, 1976 to March, 1979. He had issued and signed the indent Ex.PW1/A. He deposed that when he had signed the indent, it contained items 1 to 8 only. Items No.9 and 10, which were hand written were not there, when he handed over the indent to Mr. Edward. However, during the cross-examination, the witness stated that he could not say if items No. 9 and 10 were added in the Office Copy. He however, denied the suggestion that the office copy was not being produced as that would have shown the addition of items No.9 and 10 in the indent. PW-2 - Edward, who was working as a Casual Labour, in the MEA and had received the stores on the basis of the indent Ex.PW1/A, denied having received items No.9 and 10.
12 1313(CBI v. Tejinder Singh )
18. PW-3 - Shri Surender Dutt Doval, stated that the accused had no authority to supply items over and above those mentioned in the indent. He had issued the indent Ex.PW3/1. He stated that the entire indent except item No. 4 was in his handwriting. During cross-examination, the witness stated that since he had not received the items personally, he can neither admit nor deny the suggestion that his peon had received all the four items. This witness had also not kept the copy of the indent sent through the Peon.
19. PW-7 - Shri Babu Ram was working as a Casual Labour in the MEA on 25th and 26th of May, 1978, he had taken the indent Ex.PW7/A, prepared by Shri K. S. Mathew. He stated that he had received the delivery of items No.1, 2 and 3, i.e. one gum bottle, 15 file flags and 15 file boards on the basis of the indent. The witness denied having received the typing papers and the stencils. The witness was confronted with his statement Ex.PW7/DA, wherein it was stated that he had collected the typing papers 4 Reams, alongwith gum bottle, file flags and file boards.
20. PW-8 - Shri Swaran Singh was working as a Section Officer in the MEA, New Delhi. He had proved the indent Ex.PW8/A, to be signed by him. During cross-examination, the witness stated that only the 'Daftri' and Peon used to be sent to Central Stationery Stores, for collecting the stationery against indents. He added that sometimes, 'Daftri' used to add in the indent, even after he had signed it when demand of a particular items was considered necessary subsequently.
21. PW-9 - Narinder Garg, simply proved an indent Ex.PW9/A, as having been signed by him. In his examination-in chief, he could not say as 13 1414 (CBI v. Tejinder Singh ) to who had filled the form. During cross-examination, he deposed that he could not identify the person, who had collected the items of stationery. PW-10 - Shri I.S. Alawadi was posted as a Section Officer from June, 1978 to November, 1979. He had signed the indent Ex.PW10/A. During cross- examination, the witness stated that addition of items No.29 and 30 was made after he had signed the indent. He deposed that he could neither admit nor deny if after he had signed the indent, Ex.PW10/A, and before it had reached the stationery store, additions were made. He stated that usually it was the peon who used to go to stationery store to collect the stationery. PW-11 - Shri Tara Chand was a Peon, posted in S.W. Section of the MEA. He had carried the indents Ex.PW11/A and Ex.PW11/B to the stationery store for collecting the articles of stationery. During examination-in-chief, the witness stated that items No.21 and No.17, as mentioned in indents Ex.PW11/A and Ex.PW11/B respectively were not issued to him. During cross-examination by the accused, he admitted that he had received all the items which had been ticked (meaning thereby that items No.17 and 21 were also received). In reply to Court question, the witness again stated that he had not received items No.21. During further cross-examination by the accused, he admitted that on Ex.PW11/B, there was no mention as to which articles have been received. He admitted that the Gate Pass is made in the Section and he had got it prepared.
22. PW12 - Rajinder Parkash, 'Daftri' was working as a Peon in US (Production) Office of MEA. He deposed that he used to take the indents to obtain stationery from Stationery Stores. He deposed that the indent Ex.PW12/A was handed over to him by the P.A to the Under Secretary.
14 1515(CBI v. Tejinder Singh ) The stencils mentioned at portion encircled red, Mark-Q.46 was not written nor he has received these stencils alongwith the stationery.
23. PW13 - Shri P.K. Chatterji, is one of most important witnesses produced by the prosecution in view of the fact that he was also working as an LDC in the stationery stores of MEA. He deposed that his duties were to procure local stationery items upto limit of Rs.500/- through P. Guruswami, who was working as an LDC in the stationery division during the year, 1977-78, used to receive the stationery from stationary depot and prepare the indents. The duties of accused Tejinder Singh, who was another LDC in the Stationery Section, were to procure and issue stationery and to maintain the stock register. He deposed that he was in a position to identify the handwriting of accused Tejinder Singh. Accordingly, he identify the handwriting of accused Tajinder Singh on various indents i.e. Ex.PW13/A to Ex.PW13/P. During cross-examination the witness admitted that he had no Technical Qualification in handwriting identification. He stated that Rajinder Singh Parihar, R.C. Pandey, Tiwari and Mishra, were working as Casual Labourer in the stationery store. He however, showed his ignorance if these persons could issue the stationery. The witness gave the set-up of stationery store. He deposed that there was a Joint Secretary, who was the head of division. There were a Dy. Secretary and a Director under the Joint Secretary. Administrative Officers, Under Secretaries, Section Officers, Assistants, UDCs and LDCs were also posted in the store. He also stated that accused used to get the stationery from stationery depot, maintain the stock and issue the stationery. The stationery depot was situated at Netaji Nagar. The accused had to go to the Depot to get the stationery. The key of the store remained with the accused and whenever, the stationery was to 15 1616 (CBI v. Tejinder Singh ) be issued, he used to open the store and sit there. He stated that he worked in the store in the absence of the accused as and when instructed by his Officer. When he worked in the stores, in the absence of the accused, the keys of the stores remained with him. He went on to add that they used to modify the indents and struck off the items or reduce the quantity. He stated that if any requisition was received on telephone, they used to add it in the indent and would then get a slip from the concerned officer about the additional requisition. He testified that the additions were made with the consent of the Officer Incharge of the Store. He stated that the Section Officer was the Officer Incharge of the Store. He stated that there was no Security Staff in the Store. The Security Staff was on the Gate of the MEA Office. Nothing could be taken out without a gate pass by anybody. The accused was never caught, while trying to take out anything from the Office. The witness also admitted that if any request was made verbally by the person who had come to collect the stationery, such items were added in the indent on his verbal request. This addition was made by the person issuing the stationery. The stationery was issued after the words, "please issue" were written on the indent as a matter of routine. This witness was not declared hostile nor the witness was cross-examined on the point that additins in the indents could be made either on telephonic requests by the Section concerned or on the oral request of the person who had come to collect the stationery.
24. PW-14 - Mohan Bir Tuli was working as an Under Secretary in MEA. He deposed that one Shri Prem Kumar was his Personal Assistant, who is since dead. He proved the indent Ex.PW13/I, as having been signed by him. He stated that he cannot say, if the writing Q.176-A existed on this 16 1717 (CBI v. Tejinder Singh ) indent when he had signed the same or not. PW15, Shri Om Prakash, PW16 Shri Jitender Mohan Mehta, PW17, Shri Narasimhan, PW18, Shri Daljeet Singh proved some of the indents. The witnesses, however, could not say about the items received on the basis of the indents. PW18 Shri Daljeet Singh, however, admitted during his cross-examination that anybody could make changes in the indents after he had signed the indent. The stationery was not checked by him after the same was received by the Peon.
25. PW19, Shri Murli Manohar Issar proved the indent Ex.PW11/B. During cross-examination, the witness also admitted that if any item was required and was not mentioned in the indent, they used to telephone to the stationery store about that item and that item was added in the indent. He showed his ignorance as to which item was brought by his peon Tara Chand in respect of specific indent.
26. PW-20 Shri Gajraj Singh Yadav was working as a Peon in the MEA. He deposed that the stencils mentioned in the indent Ex.PW13/T were not received by him. He deposed that he used to hand over the stationery to the Clerk concerned. He could not say if some other peon had received the stencils. He corroborated the admission of PW8 Shri Swaran Singh, PW13, P.K. Chaturvedi, PW18, Shri Daljeet Singh, PW19, Murali Manohar Issar that if there was some urgent requirement, the Section used to telephone the stationery store and the item was issued after making entries in the previous indent.
17 1818(CBI v. Tejinder Singh )
27. PW24, Shri R.S. Iyengar stated in his examination-in-chief that the words in ink, "stencils 15 Reams" on Ex.PW24/A have not been written with his consent. He again corroborated the testimony of PWs 8, 13, 18, 19 and 20 to the effect that to make addition, alteration and modifications in the stationery indent by the stationery store was the normal practice. PW25, Shri Gurdial Singh, who was working as a Section Officer, in MEA, proved the indent Ex.PW13/DA-1. he stated that he did not know as to who had written the portion Q-39A on the indent. During cross-examination, the witness stated that after signing the indent, he did not remain in the picture. He also admitted that in case of emergency, item could be got added in the indent already signed by him. PW26, Shri Bachiter Singh was working as a Peon on Section Issue - B of MEA. He proved the indent Ex.PW26/A. He was the person who had given specimen signatures during the investigation of the case. He gave a dent to the prosecution version by stating in his cross-examination that he had received the entire stationery as mentioned in the indent Ex.PW26/A. PW-27, Shri Gopal Dass Grover, who was posted as a Stenographer in the Property Division of the MEA, proved his signatures on the indent Ex.PW27/A. He deposed that he had received the stationery against the indent Ex.PW27/A. He also proved his specimen signatures and writing Ex.PW27/B as given by him.
28. PW-28, Shri Darshan Singh is the 'Daftri' who had collected the stationery on the basis of the indent Ex.PW8/A issued by PW8 Shri Sarwan Singh, Section Officer. During cross-examination, he deposed that he had received all the items, as were tick marked by him in Ex.PW8/A, including the items at Sr. No.45 (Q.12). PW29, Shri D.R. Raju was working as a Section Officer in Finance Section -III of MEA. He proved the indent 18 1919 (CBI v. Tejinder Singh ) dated 11.5.78 Ex.PW29/A, being signed by him. He stated that added item of one ream of stencils was not received by him. But during cross- examination, the witness stated that he had never went to the stationery store personally. It used to be collected by the Peon or Daftri. He could not give the name of any Peon or Daftri. He never maintained any record of the items received by Peon and delivered in the office. He also admitted as having given his specimen writing to the CBI.
29. PW29-A, Gajanand Wakankar was working as Chief Vigilance Officer in MEA. He deposed that misappropriation of stationery came to his notice and after some internal enquiries, formal complaint Ex.PW29/A, running into three pages was made by him to the CBI. PW-30, Shri T.S. Nayyar was working as a Section Officer (Vigilance) in the MEA in the year, 1983. His statement is of formal nature as he had forwarded certain letters received from Mission Abroad to the CBI during investigation of the case.
30. PW1 Shri Rajinder Singh Parihar was working as a Casual Labour in the stationery store. He deposed that during the period 1977 to 1980, he was working as a casual labour in SE-I Section of MEA. His job was to maintain the stationery store; to remove dust from the items; and to help other staff members namely Mr. R.K. Sharma, LDC, Mr. P.K. Chatterjee, LDC, Mr. P. Guruswami, LDC, Mr. Kishan Sarup, Assistant, Mr. S.C. Pathak, Section Officer and Mr. Tejinder Singh, LDC. He stated that the job of the accused was to issue the stationery as per the indents. He stated that S/Shri R.K. Sharma, P.K. Chatterjee, P. Guruswami, and accused Tejinder Singh used to receive and enter the stationery in the stock register. The 19 2020 (CBI v. Tejinder Singh ) witness was allowed to be cross-examined by the Learned Sr. PP. However, his cross-examination was not completed and this witness was not produced for cross-examination by the defence Counsel.
31. PW-32 Shri B.R. Dawar, is a formal witness, as he had handed over certain documents to the CBI vide memo Ex.PW32/1 to 4. PW-33 Shri Bimal Sehgal, has proved the indent Ex.PW23/D. He stated that he could not say if item no. 7 was received or not as the number of items received, is not mentioned.
32. PW-4 Shri S.C. Pathak, who was working as Administrative Officer (SE-II) in the MEA, New Delhi, testified that accused Tejinder Singh, was responsible for receiving stationery items from different sources and to issue items against the indents. He stated that gate passes used to be issued for the stationery items, taken out of the store room and that the gate passes used to be regularly maintained. PW-5, Satish Kumar and PW6, R.K. Sharma, are formal witnesses as certain specimen signatures were taken in their presence.
33. PW-21, Shri N.U. Avirachen, was working as a Section Officer in the Vigilance Unit of MEA. He deposed that he knew Shri R. Sen, who was working as Joint Secretary (Administration) at that time. He proved the sanction order passed in the file as Ex.PW21/A and the formal sanction order as Ex.PW21/B. PW22, Shri Subhashish Dey, is Government Examiner of Questioned Documents. He proved his report Ex.PW22/A. The factum of the addition in the indents in his own handwriting has not been disputed by the accused, in his statement recorded under Section 313 20 2121 (CBI v. Tejinder Singh ) Cr.P.C. The testimony of this witness was also not challenged during cross-examination by putting any question. Rather an application was moved by the accused on 16.11.1999 that he did not dispute that the additions on the indent are in his handwriting.
34. PW-23, Inspector Sushil Kumar, is the Investigating Officer. He deposed about the part played during investigation of this case. He admitted during cross-examination that the Audit Party from the Directorate of Audit, Central Revenue had conducted the Audit for the period 1977 to 1980 and found pilferage and embezzlement of the stationery to the extent of Rs.20 Lakhs. He admitted that in the complaint, it was mentioned that Shri B.N. Sharma, Section Officer and Shri Tejinder Singh, LDC were working in the Store. He had taken into possession a copy of the Audit Report alongwith the complaint. He admitted that he did not file the said report with the charge sheet. He deposed that during investigation, he did not find any evidence against B.N. Sharma, Section Officer and therefore, he did not arrest him. He went on to add that the Audit report had detailed 2061 instances of forgery of indents. He had taken up investigation with respect to 560 cases. Out of this, complete investigation could be done only in respect of 46 instances (in respect of which three charge sheets have been filed). He also admitted that as against the allegations of embezzlement of Rs.20 Lakhs of stationery stores, he could gather evidence with respect to Rs.26,533.20 Paise only. He showed his ignorance if the key of the store was deposited in the Central Registry and the store was opened by the Frash in the morning and locked in the evening by him. He admitted that in some instances, stationery was issued by the Daftri and casual labourers. He, however, denied the suggestion that he had picked up only those instances 21 2222 (CBI v. Tejinder Singh ) wherein the stationery had been [ordered to be] issued by the accused and had let the others off. He admitted that stock register (receipt register) and issue register, maintained by accused Tejinder Singh were found to be containing entries as per modified indents. He admitted that as per procedure, nothing could go out or come in the building without the gate pass. He admitted that he had seized the gate passes, which could be found, related to the instances in these case. He denied the suggestion that he had not made investigation with regard to the gate passes relating to the cases referred to in the instant charge sheet. He admitted that there were no allegations against the accused of having taken out any stationery item without the gate pass.
35. Thirty nine witnesses and 33 witnesses were examined in respect of charge sheet No.2 and 3 respectively and same kind of evidence has been produced by the prosecution in charge sheet No.2 and 3 also.
36. The accused was examined under Section 313 Cr.P.C. It was admitted by the accused that he was expected to maintain the stock and issue register at the stationery stores of MEA. The accused denied that he was entrusted with the charge of all the stationery items/stores or that he had complete dominion and control over the stationery items. He stated that he was only an LDC, working under the supervision of the Senior Officers. He had neither the charge, nor complete dominion/control over the stationery items. He denied that the keys of the stationery stores used to remain with him. He stated that after the office hours, the keys of the store were deposited with Central Registry Section. The stationery store was opened and closed by Frash. He stated that stationery indent was received 22 2323 (CBI v. Tejinder Singh ) by the Incharge of Stationery Store. The stationery items were passed by him under the instruction of the Incharge. The accused admitted various additions in the indent as were proved during prosecution evidence. The accused took-up the plea that as per usual practice, additions, alterations, modifications etc. could be made in the indents after these were received in the stationery stores under verbal instructions of the Senior Officers.
37. I have heard Shri V.S. Shukla, learned Sr. Public Prosecutor for CBI and Shri Jagdish Singh, learned Defence Counsel on behalf of the accused and have perused the record.
38. As I have already mentioned above, as per admission of Inspector Sushil Kumar, Investigating Officer of the case, on the basis of Audit Report, there were allegations of misappropriation of the stores to the extent of Rs.20 Lakhs. The Audit report had pointed out 2061 instances of forgery/additions in the indents. The IO had taken up investigation only with regard to 560 cases and the investigation could attribute the same to accused Tejinder Singh only 46 instances.
39. During the course of evidence, the prosecution has produced some evidence with regard to additions in just 10 indents out of 12 indents in charge sheet No.1 inasmuch as indent Ex.PW17/A was received by Govind Prasad who has not been examined by the prosecution. Similarly, indent D- 100 was not proved as neither the indenter nor the official, who had received the stationery, was examined by the prosecution. Similarly, in charge sheet No.2, the documents Ex.PW9/A and Ex.PW9/B, pertains to the addition of stencils one packet and stencils one ream. These indents for 23 2424 (CBI v. Tejinder Singh ) supply were presented by PW28, Darshan Singh, but he was not specific as to the items received by him, rather he stated that all the items tick-marked, had been received. Ex.PW25/A had an addition of 2 Reams at item No.4. Shri Kundal Lal is the person who had allegedly received the items, but he had not been examined to deny that this additional item of two reams was not received. Indent Ex.PW38/42 has got 250 sheets of additional items of packing, 2 Reams duplicating papers and 2 Reams of Stencils at items No.49, 53 and 59. Indenter T.N. Raghvan who is also alleged to have received the items, has not been examined by the prosecution. Indent Ex.PW38/43 has 4 Reams of additional items of Stencils. Indent Ex.PW38/44 has 4 Reams of additional items of packing papers, 4 Reams duplicating papers and 20 packets stencils at item No.49, 53 and 59 respectively; Indent Ex.PW38/45 has four Reams of additional items of stencils at item No.59. All these three indents were signed by Shri E. Brown and these items were received by Shri Bhanwar Singh but neither Shri E. Brown nor Shri Bhanwar Singh has been examined by the prosecution. Indent Ex.PW38/77 has additional items of 4 packets of Stencils at item No.5, but Shri D.S. Bhutani, who had indented the items and had received the items, has not been examined. Indent Ex.PW10/A is in respect of 25 tubes of ink duplicator, two Reams of packing papers, 4 numbers of red/blue pencils and two Reams of stencils at item No.36, 49, 50 and 59 respectively, but Shri Birjanand who had allegedly received the indented items, has not been produced by the prosecution. Indent Ex.PW13/42 in respect of 12 packets of stencils, purports to be signed by PW-17, Shri A.K. Pandey. He, however stated that the indent was filled in by some LDC or peon according to the requirement of the Section. He could not say if 12 packets of stencils written in hand, was mentioned on 24 2525 (CBI v. Tejinder Singh ) his instructions or not. He also could not say if this item was written when he signed this indent or it was written lateron. The witness was allowed to be cross-examined by the learned Public Prosecutor for the CBI, but nothing could be brought in his cross-examination which could show that 12 packets of stencils were not written on his instructions or that the same were not received alongwith other items. In respect of indent Ex.PW38/39 which contains 15 packets of stencils, was also not proved by any witness as neither the indenter Shri Bhagwan Singh nor the person who had received the store in respect of this indent has been examined.
40. As far as Charge sheet No.3 is concerned, Indent Ex.PW1/A, contains addition of 2 packets of stencils. The store in respect of this indent had been received by one Shri Behari Lal, who has not been examined by the prosecution. Similarly, indents Ex.PW22/A, Ex.PW33/A, PW21/A, PW23/B, PW33/2, PW33/3 have not been proved as the witnesses concerned were not examined during trial. Thus, out of 42 indents in all the three charge sheets, almost 18 indents have not at all been proved by the prosecution.
41. It has been urged by the learned Sr. Public Prosecutor that if any addition was made in the indent by the accused himself, as has been proved in the three cases, the onus would be on the accused to show as to under what circumstances, the addition was made. Since no explanation has been given by the accused, an inference can be drawn that the added items were not supplied by the accused to the indenter or to the person who was sent by the indenter to collect the items of stationery. In support of his contention, the learned Sr. Public Prosecutor has placed reliance Brahamananda 25 2626 (CBI v. Tejinder Singh ) Mohanty v. State, 1967, Crl.L.J. 1168. The learned Sr. Public Prosecutor has taken me through para 16 of the report, which is extracted hereunder for ready reference:
"The settled position in law is that it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods; the question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated as a strong circumstance against the accused person. In such a case the elements of criminal offence of misappropriation will be established if the prosecution proves that the accused received the goods, that he was under duty to account for the same and had not done so. It is not the law that the prosecution has to eliminate all possible evidences or circumstances which may exonerate him. If the facts are within the knowledge of the accused then he was to prove them. Of course the prosecution has to establish a prima facie case in the first instances. It is enough to establish facts which give rise to a suspicion; and then by reason of S. 106 of the Evidence Act, the onus is thrown on the accused to prove his innocence."
42. On the other hand, it has been urged by the learned Defence Counsel that there is no nexus between the complaint and the investigation. The complaint was in respect of misappropriation / embezzlement for articles worth Rs.20 Lakhs, whereas three charge sheets contains allegations for an amount of about Rs.26,000/- which is just 1.33% of the alleged embezzlement. All the indents were before the IO. He however, preferred not to file the charge sheet in respect of all the indents. If all the indents had been put in the charge sheet, it would have been made clear that it was the normal practice to make additions in the indents as per the requirement 26 2727 (CBI v. Tejinder Singh ) conveyed either orally or through telephone by the indenter. No discrepancy has been found in the issue register viz-a-viz indent. There is overwhelming evidence on record, including the admission of the IO that not even a pin could be taken out of the Stores without a gate pass by any person and thus, the accused cannot be said to have committed criminal breach of trust or of doing any forgery, falsification of accounts or causing pecuniary advantage to himself or any other person by illegal means.
43. As pointed out by me earlier, while discussing the evidence produced by the prosecution, a number of prosecution witnesses have categorically stated that if any request for additional items is made verbally by the person who has come to collect stationery or on telephone, such items were added in the indent. For instance in charge sheet No.1, a reference may be made to the statement of PW-8 Shri Swaran Singh who is the author of indent Ex.PW8/A. He has categorically stated during his cross-examination that sometimes, Daftri used to add in the indent even after he had signed the indent when demand of particular item was considered necessary subsequently. PW13, Shri P.K. Chatterjee was working as an LDC in the stationery stores itself alongwith the accused. He used to issue the stores when the accused used to be on leave and was, therefore, very much aware of the procedure. He stated during his cross- examination that if any requisition was received on telephone (by them), they used to add it in the indent and would get a slip from the concerned officer about the additional requisition. He added that the additions were made with the consent of the Officer Incharge of their Store. PW-18, Shri Daljit Singh stated during his cross-examination that office copy of the indent was not sent to the stationery section/store. Anyone could make changes in the indent after he 27 2828 (CBI v. Tejinder Singh ) had signed the same. The stationery obtained by the Peon was not checked by him. It was checked by the stationery Incharge in the section. Similarly, PW19, Murli Manohar Issar who was working as P.A. to the Under Secretary, Supply Wing, MEA, and used to indent stationery, stated during his cross-examination that if any item was required and was not mentioned in the indent, they used to telephone the stationery store and the item could be added in the indent. PW-20 Shri Gajraj Singh Yadav is another witness who supports the defence version. He was working as UDC in MEA and had issued indent Ex.PW13/T containing addition Q.331. He stated during his cross-examination that if there was any urgent requirement, the Section would telephone the stationery store and the item was issued after making entries in the previous indent. The learned defence Counsel has referred to the statement of PW24 Shri S.R. Iyengar, who was working as a Section Officer in the Issue (S) Section of MEA at the relevant time, and was examined to prove indent Ex.PW24/A. He stated during his cross- examination that it was normal practice to make additions, alterations and modifications in the stationery indent by the stationery stores. The learned Defence Counsel also referred to the statement of PW28 Shri Gurdial Singh Khera, who also stated that in case of emergency, items could be got added in the indent signed by him.
44. PW-8 Shri Sawaran Singh, in charge sheet No.1, was examined as PW9 in charge sheet No.2. Shri P.K. Chatterjee, who was examined as PW13 in charge sheet No.1, was examined as PW13 in Charge sheet No.2 and charge sheet No.3 also. Darshan Singh who was examined as PW28 in charge sheet No.1, was examined as PW29 in charge sheet No.2. Thus similar statements were made by various witnesses in charge sheet No.2 28 2929 (CBI v. Tejinder Singh ) and 3 regarding additions in the indents after the same were signed by the indenter on requirement being conveyed to the stationery stores.
45. The IO has admitted nothing could come out or go in the store without the gate pass. Similar statements have been made by various other witnesses, produced by the prosecution. The contention raised on behalf of the accused that it was normal practice to make addition in the indent as per the requirement conveyed on telephone or otherwise, cannot be brushed aside in view of the fact that nothing could be taken out from the stationery store without the gate pass. When gate passes in respect of all 2160 indents were taken into possession by the IO, its non-production in the court remains a mystery. The gate passes signed by the accused would have shown the discrepancy in the indent and the gate pass if the additional items added in the indent had not been mentioned in the gate pass.
46. Brahamananda v. State (supra), relied upon by the learned Sr. Public Prosecutor, is not attracted to the facts of the present case and is clearly distinguishable. In the cited case, it was admitted case of the accused who was an Insurance Agent, that he had received a sum of Rs.546.90 paise from the proposer Sri Hari Krishan Mishra and had only deposited a sum of Rs.40/- with the LIC. The accused failed to reply the legal notice given by the proposer through Advocate as also letters written by the Branch Manager, LIC, Balasore, asking him to deposit the balance amount of Rs.504.90 P. The accused had initially taken up the plea that the amount of Rs.504.90P had been paid by him to the Field Officer of the LIC. Subsequently the accused gave in writing to the Field Officer that the amount of Rs.504.90P was not deposited by him with the LIC as per 29 3030 (CBI v. Tejinder Singh ) request of the proposer. Thereafter, the accused Insurance Agent, prepared a receipt for Rs.504.90P as having been issued by the proposer for receipt of the said amount from the accused which was found to be forged. It was under these circumstances, that the Orissa High Court had held that it was not necessary in every case to prove in what precise manner, the accused had dealt with or appropriated the goods and that giving false account of what the accused had done with the goods received by him, may be treated as a strong circumstance against him.
47. It has been urged by the learned Sr. Public Prosecutor that the prosecution has to prove its own case and the defence of the accused has to be proved by accused himself. The Learned Sr. Public Prosecutor refers to State of HP v. Karanvir, 2006 Crl. LJ, 2917. There is no dispute about the preposition of law that the defence must be proved by the accused. That however, would not mean that the accused must produce defence evidence. He can rely upon prosecution evidence to prove the defence version. The test of proving defence is however different from the prosecution as the prosecution has to prove its case beyond reasonable doubts, whereas the accused, by his defence version proved from the material on record, can either create a reasonable doubt in the case of prosecution or can prove his version on the standard of probabilities.
48. In the instant case, as against the allegations of misappropriation of the goods, worth Rs.20 Lakhs, the three charge sheets, that have been filed, allege misappropriation, falsification of record, forgery, and causing pecuniary advantage to himself or to any other person by corrupt or illegal means to the tune of just about Rs.26,000/-. Out of the 42 indents, 18 30 3131 (CBI v. Tejinder Singh ) indents as stated herein above have not been legally proved since value of each and every item has not been given, I cannot say as to what was the amount of the added items in the remaining 24 indents. The explanation given by the accused that it was the normal practice to make addition in the indent on the basis of requests received either orally or on telephone, has been supported by half a dozen witnesses produced by the prosecution. None of those witnesses was declared hostile nor any explanation has been given by the prosecution that they had told a lie simply to support the accused. The accused had not to prove the defence version beyond reasonable doubt. Rather the explanation given by the accused has to be examined on the test of probability. In view of the version of the accused, having been supported by a large number of prosecution witnesses, against whom no motive has been alleged by the prosecution, I am inclined to believe the version of the accused that it was the normal practice to make additions in the indents on the oral/telephonic requests made by the section concerned.
49. It has been urged by the learned Sr. Public Prosecutor that the accused would be guilty under Section 5 (i)(d) of the Act as he had no authority to make any addition in the indent and it will be abuse of his position as a public servant to obtain pecuniary advantage to himself or to any other person. In support of his contention, the learned Sr. Public Prosecutor has relied upon M. Narayanan Nambia v. State of Kerala, AIR 1963 SC 1116. I am unable to subscribe to the contention raised by Learned. Sr. Public Prosecutor because I have already observed above that there is sufficient evidence available on record to show that it was the normal practice to make addition in the indent. The accused, therefore, 31 3232 (CBI v. Tejinder Singh ) cannot be said to have abused his position to obtain for himself or for any other person any pecuniary advantage. Existence of mens rea must be proved. If the accused acted in a negligent manner or followed a wrong practice which was going on in the department, he cannot be held liable either for criminal breach of trust or for dishonestly converting for his own use any property entrusted to him or under his control as a public servant or for abusing his position as a public servant or to obtain for himself or for any other person any pecuniary advantage.
50. The accused has been charged for the offence of criminal breach of trust punishable under Section 409 IPC. In order to prove the offence the prosecution has to prove that the property in question was entrusted with the accused. Where entrustment is not proved, the accused cannot be convicted under Section 409 IPC. In the instant case, it was admitted by the Investigating Officer that the store items were received in the stationery stores from various places. The orders for obtaining stores were placed under the signatures of A.O. and the accused. In many instances, the stores have been received by the Administrative Officer. He admitted that he had not seen any document by which the Administrative Officer handed over the charge of the stores received by him to the accused. He could not keep any instance where the accused had received any stores from the supplier. The IO simply stated that the Administrative Officer had stated that he used to hand over the stores to the accused. Thus, there is no reliable evidence of entrustment of the stores to the accused; rather, as has been discussed by me herein above, anybody including P.K. Chatterjee, (PW-13) and the Administrative Officer were at least definitely dealing with the stores. The 32 3333 (CBI v. Tejinder Singh ) accused, in any case, cannot be said to be having exclusive dominion or control of the stores.
51. In any case, suspicion cannot take the place of proof. There is a long distance between may be true and must be true and the prosecution has to travel all the way to prove its case against the accused beyond all reasonable doubts which is not there in the instance case (see Varkey Joseph v. State of Kerala, AIR 1993, SC 1892; Swaran Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637).
52. It has been urged by the Learned Defence counsel that the sanctioning authority has not been produced and the application of mind by the sanctioning authority could not be proved by PW21, Shri N.U. Avirachem, who was examined by the prosecution to prove sanction Ex.PW21/B. The learned Defence Counsel has referred to the noting Ex.PW21/A through which the sanction for prosecution was accorded by Shri R. Sen, Joint Secretary (AD). The internal noting, Ex.PW21/A, according the sanction is reproduced hereunder:
"The investigating officer came with the record of the case. I have examined the SPs record and all other relevant records of the case. I am of the view that this is a fit case in which the accused Shri Tejinder, formerly LDC in the stationery store of this Ministry should be prosecuted in the court law for criminal breach of trust of the stationery store entrusted to him.
2. I, therefore, accord sanction for prosecution of Shri Tejinder Singh. Since in this case, three charge sheets are required to be filed in the court in respect of instance of 33 3434 (CBI v. Tejinder Singh ) three different periods, three sanction orders are being issued."
Sd/-
(R. Sen) Joint Secretary (AD) 24.12.1985
53. It has been urged that since Mr. R Sen, who accorded the sanction is still in service, the prosecution ought to have produced him to prove the application of mind. It has been pleaded that since there is no mention of the amount of the criminal breach of trust in the internal order Ex.PW21/A, there is every reason to believe that it was not brought to the notice of the sanctioning authority that the prosecution is ultimately being launched in the three cases for an amount of just Rs.26,000/- as against the complaint of Rs.20 Lakhs. In view of the complaint Ex.PW29/A, there is every reason to believe that the sanctioning authority was given an impression that the accused was responsible for criminal breach of trust for Rs.20 Lakhs. It has been urged that had the sanctioning authority known that there were allegations of pilferage of stationery store for about Rs.26,000/- the sanctioning authority might have preferred to proceed against the accused departmentally instead of launching criminal prosecution.
54. As per Section 62 of the Evidence Act, primary evidence means the documents itself produced for the inspection of the court. A document can be proved either by the author or by any person who is conversant with the handwriting and signatures of the author of the document. The value to be 34 3535 (CBI v. Tejinder Singh ) attached to such proof shall depend on the opportunity such person had to be conversant with the signatures and handwriting of the author. Signatures of Shri R. Sen, Sanctioning Authority have not been disputed on the sanction Ex.PW21/B. As far as application of mind is concerned, it can be proved either by production of the sanctioning authority in the court or by the sanction document. Of course, there is no mention of the amount involved in the internal noting Ex.PW21/A, but the sanction order Ex.PW21/B clearly shows the amount involved in each case and, therefore, it cannot be said that the sanctioning authority was not aware of the full facts or that the full facts were not brought to its notice. Rather, the details of the amount have also been mentioned in each of the sanction order Ex.PW21/B placed in the respective three charge sheets. The Sanctioning Authority has given all the detailed facts in the sanction order Ex.PW21/B which itself shows full application of mind by the Sanctioning Authority. In C.S. Krishnamurthy v. State of Karnataka, 2005 V AD (SC) 141 it was held that where the sanction order does not speak for itself, the Sanctioning Authority may be produced to show application of mind. In case the sanction speaks for itself, then the satisfaction of the Sanctioning Authority is apparent by reading the order. The mentioning of the detailed facts by the Sanctioning Authority in the sanction order itself shows the application of mind. The purpose of grant of sanction by the Sanctioning Authority is to protect an honest public servant from frivolous criminal cases and not to shield corrupt public servant. Thus, the Sanctioning Authority is simply to reach a satisfaction that on the basis of facts disclosed in the complaint, the accused should be prosecuted or not. In State by Police Inspector v. Sri T. Venktesh Murthy, 2004 (4) Crimes 7 (SC) it was held that merely because there is any omission, error, or irregularity in the matter of 35 3636 (CBI v. Tejinder Singh ) according sanction, that does not affect the validity of proceedings unless the court records the satisfaction that such omission, error or irregularity has resulted in failure of justice. The fact that in the internal noting the amount or the various offences were not mentioned is not material when the same was mentioned in the sanction order Ex.PW21/B. Thus I do not find any defect in the sanction order.
55. The learned Defence Counsel has taken me through the application under Section 321 Cr.P.C. dated 24.4.2002 moved by the prosecution, seeking withdrawal of the case from prosecution against accused Tejinder Singh and has urged that the prosecution itself was very clear that no case at all is made out in respect of any of the offences for which charges have been framed against the accused and that is why this application was moved. It has been urged that though the request for withdrawal from prosecution was rejected by the learned Special Judge vide order dated 10.3.2003, yet the averments made in the application which are founded on facts of the case would show that the case of the prosecution is bound to fail for the reasons as mentioned in the application. It has been urged that no substantial evidence has been led by the prosecution in any of the three charge sheets after rejection of the application. Therefore, what was stated in the application under Section 321 Cr.P.C., on facts, has to be accepted which would clearly show that the accused is entitled to be acquitted in all the three cases.
56. On the other hand, it has been urged by the learned Sr. Public Prosecutor that once the application under Section 321 Cr.P.C. was 36 3737 (CBI v. Tejinder Singh ) rejected, the averments made therein are of no consequences and the accused cannot take any advantage of it.
57. This is true that the averments made in the application were limited for the purpose of seeking withdrawal from the prosecution. I have already held above that case of the prosecution is not beyond doubt. The accused, however, can definitely rely and take advantage of certain factual averments made by the prosecution on the basis of the evidence produced by it during trial. I would, therefore, like to extract some of the paras of the application which would show that the prosecution itself was aware of the various weaknesses and doubts in the case of prosecution. Para 7 to para 17 of the application are extracted hereunder:
"7. That oral and documentary evidence recorded so far has not been sufficient to establish the essential ingredients of the offences for which charges were framed against accused.
8. That some of the witnesses namely Shri R.S. Parihar, Shri Surender Kumar, Shri Anand Panth, Shri R.P. Karry and Shri J.P. Singh have since turned hostile and not supported prosecution version and a number of other witnesses during their cross examination have revealed facts which go a long way to make prosecution case full of doubts as is clear from the statements available on record.
9. That there is no evidence, oral or documentary on record to establish the most important ingredient of entrustment of stationery stores to the accused or that the accused had 'exclusive dominion and control' over the stationery stores of MEA during the relevant period. On the contrary it has come on record during the course of trial to show that other persons were also issuing stationery during the relevant period from stationery store of MEA.37 3838
(CBI v. Tejinder Singh )
10. That there is no oral or documentary evidence regarding taking over of the change of stationery store of MEA (item wise) from the accused and it cannot be said as to how much quantity of different stationery items were available in store when charge of store was taken over by other officer. Physical verification of stationery items in the stores of MEA was not done, at the relevant time and it cannot be said with certainity if the alleged misappropriation actually took place or not and if the stationery items were still lying in the store or not when charge of stationery stores was taken over by other officer from accused. It is a fact that large quantity of stationery was available in the stationery stores at the end of relevant period (in respect of this charge-sheet i.e. in CC No.324/94).
11. Shri S.C. Pathak, the then Admn. Officer, Stationery Store of MEA had said during his examination that entries in the issue register of MEA which were maintained by accused were often found not upto date and directions used to be given by him to the accused to correct them. On the other hand there is absence of physical verification of stationery items at the end of relevant time, it is, therefore, impossible to prove misappropriation and hence the charge of criminal breach of trust.
12. That from evidence of indenting officers and persons who collected the stationery from stores, it has been established that no register was maintained at the office of the indentor to record the actual receipt of stationery items and that there was a practice prevailing in MEA to add/alter items in the indents on telephonic instructions or instruction received through messangers. This gives a space for accused to explain additions in the intents in his own hand writing making charge of Section 467, 468 & 477A entirely without basis.
13. That a common practice prevailed in MEA vide which acknowledgement was given by writing "items received" and putting signature on the original indent itself without writing items and their quantitive details separately. Since no record was maintained at indenting 38 3939 (CBI v. Tejinder Singh ) office in respect of items and quality of stationery received and since duplicates of indents could not be collected for relevant instance, it cannot be said that items were misappropriated by Tajender Singh alone and none else, as persons bring back stationery items of indenting office could also misappropriate the same.
14. That the stationery items could be taken out from the stationery store of MEA through gate passes only which were regularly issued but the relevant gate passes of the corresponding indents could not be collected during investigation dut to non-availability and hence an important link to prove that the inflated items were not taken away by persons (who received stationery on behalf of indenting office) but were actually misappropriated by accused Tejinder Singh is missing.
15. That even after considering the evidence which is yet to come, the charge of falsification on records will not be proved for the facts and reasons mentioned above and because there is no sufficient evidence to establish dishonest intention on the part of the accused and for the same reasons offences u/s 467, 468 & 477A IPC and 5(2) r/w Sections 5(1) (c) & (d) of PC Act 1947 also cannot be sustained.
16. That it cannot be said that accused obtained pecuniary advantage for himself or for others by misappropriating stationery items since essential ingredients of misappropriation are not prove.
17. That the alleged amount involved in the case is petty and the accused is facing trial since 1986. A period of more than 16.5 years have passed and majority of witnesses are yet to be examined. The cost of production of the witnesses posted abroad, in the court, is very high in ratio of the alleged amount of misappropriation. It would be a great burden on exchequer to procure attendance of these witnesses in the court and even if they are examined the prosecution case is not likely to be proved." (emphasis supplied).39 4040
(CBI v. Tejinder Singh )
58. So what has been stated by the prosecution in the application is that there is no oral or documentary evidence to establish the most important ingredient of entrustment of stationery stores to the accused; that there is no oral or documentary evidence regarding taking over of the charge of stores item wise from the accused and it cannot be said as to how much quantity of different stationery items were available in the store when the charge was taken over by other officers; that no register was maintained at the office of indenter to record the actual receipt of stationery items and there was a practice prevailing in MEA to add/alter items in the indents on telephonic instructions or instructions received through messenger which gives space to the accused to explain additions in the indents in his own handwriting, making charge under Section 467/468 and 477-A IPC entirely without any basis; that as per common practice, prevailing in MEA, acknowledgement of the articles received was given by writing "items received" and putting signatures on the original indent without writing items and their quantities which had actually been received; that the stationery items could be taken out from the stationery store of MEA through gate passes only which were regularly issued, but the relevant gate passes of the corresponding indent could not be collected during investigation and hence an important link to prove that the inflated items were not received on behalf of the indenter, but were misappropriated by accused Tejinder Singh, is missing; that after considering the evidence which is yet to come, the charge of falsification of record will not be proved for the facts and reasons mentioned above and also because there was no sufficient evidence to establish dishonest intention on the part of the accused and for the said reason, offences under 40 4141 (CBI v. Tejinder Singh ) Sections 467/468/477-A IPC and Section 5(2) r/w Sections 5(1) (c) and (d) of PC Act, 1947, cannot be sustained.
59. All the above stated facts in the application have been established on record by preponderance of probabilities and, therefore, I am of the view that the prosecution has failed to proved its case against the accused for the offences punishable under Sections 5(2) r/w Sections 5(1) (c) and (d) of PC Act, 1947 and Section 409/467/468/477-A IPC beyond all reasonable doubts. The accused is entitled to be given benefit of doubt and is hereby acquitted.
Announced in open (G.P.MITTAL)
Court on 4.1.2007. SPECIAL JUDGE (CBI)
41