Delhi District Court
Cbi vs Ajit Singh on 26 July, 2014
CBI vs Ajit Singh
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 05/2014
RC No. DST/2013/A/0004 dated 12.04.2013
U/s 13 (2) r/w 13 (1)(c) of PC Act 1988 & 409 IPC.
Unique ID No.: 0240R0036142014;p
Central Bureau of Investigation
vs
Ajit Singh S/o Late Sh. Shiv Dan Singh
R/o House No. 6049/5, Sector: D6, Vasant Kunj,
New Delhi70
Permanent Address:
VPO Sulkha, PS & District Rewari, Haryana
Date of FIR : 12/04/2013
Date of filing of Chargesheet : 28/02/2014
Arguments concluded on : 18/07/2014
Date of Judgment : 26/07/2014
Appearances
For prosecution : Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI.
For accused : Sh. Pradeep Sharma, Ld. Counsel for accused.
JUDGMENT
FACTUAL MATRIX OF PROSECUTION CASE RC52(A)/97 (D4) was registered by CBI/ACB/Delhi on 26/06/1997 against ITO Sh. R.C. Bakshi. During searches at the residential premises of Sh. R.C. Bakshi on 27/06/1997 an amount of Rs. 33,38,000/ was seized by the IO of said case vide seizure memo (D5).
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Aforesaid seized sum with other seizures in the case were deposited in Malkhana, ACB, Delhi. Cash amounts were to be deposited in the bank immediately after their receipt in Malkhana, as per then prevalent practice. Aforesaid seized sum was found divided in two parts viz. Rs. 27,18,000/ and Rs. 6,20,000/. Rs. 27,18,000/ was found deposited on 27/06/1997 in account number 000799 of Corporation Bank, CGO Complex branch, New Delhi as per statement of account (D28). Pay in slips/counter foils of year 1997 for sums deposited in said account of Corporation Bank were found to be missing from Malkhana, ACB, CBI, Delhi; though, they were required to be kept safely in Malkhana for records. Aforesaid remaining sum of Rs. 6,20,000/ was kept in the lockers as per the entries in the "Malkhana Location Cash Book" (D12) of CBI ACB/Malkhana.
2. Vide office order (D15) dated 22/07/1997 the duty of Care Taker in CBI ACB Delhi was assigned to Sh. Rajbir Singh Maan (PW3) and duty of Incharge Malkhana of CBI, ACB, Delhi branch was assigned to Sh. Ajit Singh, then ASI, presently Inspector in ACB, CBI, at Jammu, J&K (hereinafter referred as accused). Pursuant to that order, the charges for maintaining the Malkhana property of various cases including the case property of RC52(A)/97, which included trap money of Rs. 10,000/ and aforesaid Rs. 6,20,000/, was handed over to accused on 28/07/1997 by PW3, predecessor Incharge Malkhana of accused vide proper handing/taking charge list i.e. Charge of Malkhana (D14). Till RC No. DST/2013/A/0004 CC No. 05/14 2/64 CBI vs Ajit Singh July 2006, accused continued as Incharge Malkhana of CBI ACB Delhi and on 24/07/2006 he handed over the Charge of Malkhana to his successor Sh. Dayanand Sharma (PW4) but in the articles handed over, aforesaid sum of Rs. 6.2 lakhs was not so handed over as per the given Charge of Malkhana vide list (D25) of Trap Money & Personal Search amount held on charge in Malkhana as on 15/06/2006 to PW4, as per investigation.
3. Handwriting forensic expert of CFSL New Delhi in his opinion in Handwriting Examination Report (D32) dated 12/09/2013 confirmed (1) the authorship of questioned signatures on the handing/taking charge list dated 28/07/1997 between accused and PW3, his predecessor Incharge Malkhana and (2) the authorship of questioned signatures of accused and PW4, his successor Incharge Malkhana on the handing/taking charge list dated 24/07/2006.
4. On completion of investigation, chargesheet was filed on 28/02/2014 with the conclusion that the public servant Ajit Singh, the then ASI, was entrusted with the aforesaid property viz. Rs. 6.20 lakhs by PW3, his predecessor and he had dominion over the same, as a public servant being Incharge Malkhana, which he did not either deposit in the bank account of CBI concerned nor handed over to PW4, his successor but allegedly committed criminal breach of trust as a public servant being Incharge Malkhana ACB, CBI, Delhi and ASI, by dishonestly RC No. DST/2013/A/0004 CC No. 05/14 3/64 CBI vs Ajit Singh misappropriating or converting it to his own use. As per charge sheet, aforesaid alleged acts of accused also come in the ambit of criminal misconduct by public servant accused as defined in Section 13(1)(c) of The Prevention of Corruption Act, 1988 and punishable under section 13(2) of The Prevention of Corruption Act, 1988.
5. Cognizance of the offences was taken on 29/03/2014. On appearance, accused was admitted to bail. Copies were supplied to the accused and requirements of Section 207 of Cr. PC were complied with.
CHARGE
6. Charge for offences under Sections (1) 409 of IPC and (2) 13(1)(c) of The Prevention of Corruption Act, 1988 punishable under section 13(2) of The Prevention of Corruption Act, 1988 was framed on 01/05/2014 in terms of Order dated 01/05/2014 against accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. To connect arraigned accused with the offences charged, prosecution has examined in all 20 witnesses i.e., Mrs Deepika Suri (PW1), Deputy Director (Personnel); Sh Prabhu Dayal (PW2), Assistant Manager of Vijaya Bank; Sh Rajbir Singh Mann (PW3), Predecessor Malkhana Incharge; Inspector Dayanand Sharma (PW4), Successor RC No. DST/2013/A/0004 CC No. 05/14 4/64 CBI vs Ajit Singh Malkhana Incharge; ASI Ram Charan Gangwal (PW5); SI (Retired) Jeevan Lal (PW6); Sh Dilip Mondal (PW7), PA to SP CBI STF; Sh Ajay Kumar Amar (PW8), LDC in CBI; Sh Gaurav Gupta (PW9), Senior Manager in Vijaya Bank; Sh Ramnish (PW10), the then Dy. SP, ACB CBI; HC Koshy Mamachen (PW11); HC Naresh Kumar Kaushik (PW12); Sh Anil Kumar (PW13), the then SP CBI ACB; Sh Kolamala Mathew (PW14), the then Constable in CBI ACB; Sh Harish Singh Karmyal (PW15), the then Inspector CBI ACB, Delhi; Sh Yanturu Prem Babu (PW16), Senior Manager Corporation Bank; Dy. S.P Sh Prabhat Singh Jamwal (PW17), Investigating Officer; Sh Deepak Raj Handa (PW18), Senior Scientific Officer GradeI, CFSL, New Delhi; Sh P. Sai Krishna (PW19), Chief Manager of Corporation Bank and Sh Abhishek Kumar (PW20), Branch Manager of Corporation Bank at Ballabhgarh, Haryana. Since PW16 has been only examined in chief in part and not further examined by the prosecution, his incomplete testimony as such cannot be read in evidence.
STATEMENT OF ACCUSED
8. Thereafter accused was examined under Section 313 Cr. P.C. All incriminating material in evidence was put to the accused. Accused pleaded innocence and false implication. Accused admitted that he was made Malkhana Incharge, ACB Delhi Branch in terms of order Ex PW10/A (D15) dated 22/07/1997 containing directions that handing over of the charges were to be completed by 28/07/1997.
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9. In his statement under Section 313 Cr.P.C, accused submitted as follows.
No physical verification of articles was done at the time of handing over of charge of Malkhana. Ex PW3/A (D14) was not the original which was signed in the year 1997 as it was produced in the year 2013 by PW3. PW3 had intentionally prepared two lists at that time with the intention to grab Rs 6,20,000/ and he (accused) had put signatures on the copy of PW3 in good faith. In the original list which was kept in Malkhana, he (accused) had checked each and every article by marking each entry in the list but it was not so in the list so produced by PW3. PW3 had intentionally made a entry of Rs 6,20,000/ in the handing over charge list prepared for himself as same was not in the original list. Ex PW3/A (D14) was not original which was kept in Malkhana. An amount of Rs 6,20,000/ was never entrusted to him (accused). No physical verification/counting of currency notes was done at the time of handing over of charge of Malkhana. Ex PW4/A (D25) was prepared by Sh K. Mamachen (PW11) and he (accused) had merely put signatures on the said list. No physical verification was done at the time of handing over charge of Malkhana in the year 2006 to PW4. Accused admitted that he had given specimen signatures Ex PW2/A62 (S62) to Ex PW2/A102 (S102) (part of D35) but stated that PW2 and Sh Bhupal were not present at that time. Sanction was invalid as same was granted mechanically without application of mind. Accused stated that all the RC No. DST/2013/A/0004 CC No. 05/14 6/64 CBI vs Ajit Singh witnesses were from the CBI and given their statement at the asking of IO. Accused further stated that he was never entrusted with Rs 6,20,000/ by PW3 at the time of handing over charge of Malkhana in the year 1997. Original list kept in the Malkhana which was signed in the year 1997 while taking over of charge of Malkhana from PW3 was not on record and the charge list of the year 1997 was produced by PW3 in the year 2013. Accused stated that he had availed casual leaves, earned leaves, medical leaves in the period from 1997 to 2006. Accused stated that during the period when he was on leave, ASI Bachan Singh, ASI Ram Tek and ASI Surender Singh were deputed to do the work in his place. Accused stated that IO had deliberately not brought on record original taking over charge of Malkhana of the year 1997, payinslip, inspection reports of Malkhana in order to save main culprit and he (accused) had been falsely implicated in this case.
DEFENCE EVIDENCE
10. Accused entered into his defence and examined Sh Bhagwan Sahai Meena (DW1) and Sh Kapil Kumar (DW2) in his defence.
ARGUMENTS
11. I have heard the arguments of Sh P.K Dogra, Ld. Senior Public Prosecutor for CBI; Sh Pradeep Sharma, Ld. Counsel for accused; accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
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12. Ld. Senior PP for CBI argued that prosecution has proved that as per office order Ex PW10/A (D15) accused was posted as Malkhana Incharge and in terms thereof from his predecessor Malkhana Incharge PW3 had received the Charge of Malkhana vide Ex PW3/A (D
14) on 28/07/1997 which included the amount of Rs 6.2 lacs in question of RC No. 52 (A)/97DLI, dated 26/06/1997 of CBI, ACB, Delhi Branch. It was also argued that PW14 corroborated the version of PW3 by saying that in his presence aforesaid charge was handed over by PW3 to accused. Even with regard to received charge vide Ex PW3/A (D14) accused did not dispute his signatures there in token of receipt of charge in the course of recording of his statement under Section 313 Cr.P.C. PW4 who received charge of Malkhana vide Ex PW4/A (D25) dated 24/07/2006 from accused did not receive aforesaid sum of Rs 6.2 lacs of RC No. 52 (A)/97DLI, since said sum was not given by accused to PW4, his successor Incharge Malkhana. It was also argued that it was the duty of Malkhana Incharge, ACB, CBI Delhi to either deposit the cash in the bank or to hand over the same to his successor Malkhana Incharge at the time of handing over of the charge but accused neither handed over the aforesaid sum of Rs 6.2 lacs of RC No. 52 (A)/97DLI to his successor Malkhana Incharge PW4 nor deposited the said amount in bank of SP CBI ACB Delhi. Instead in the writing at portion Q31 and Q32 in Ex PW3/C (D11) the effort of the accused by writing CA 799 was to depict that the amount of RC No. 52 (A)/97DLI was deposited in RC No. DST/2013/A/0004 CC No. 05/14 8/64 CBI vs Ajit Singh the bank and the handwriting expert PW18 in his report Ex PW18/A (D
32) confirmed the writing of Q31 and Q32 in Ex PW3/C to be of accused after comparing the questioned writings/signatures and the specimen writings/signatures. Also was argued that PW9, PW19 and PW20 proved that in terms of statements of account of SP CBI ACB Delhi, aforesaid sum of Rs 6.2 lacs of RC No. 52 (A)/97DLI were not deposited in the bank. Sanctioning authority PW1 was competent and had accorded the sanction which was not suffering from any irregularities/discrepancies nor were pointed in the cross examination of PW1. It was also argued that since the prosecution has discharged its burden by proving that the sum of Rs 6.2 lacs of RC No. 52 (A)/97DLI had been entrusted to accused by his predecessor Malkhana Incharge PW3 then burden shifted on accused and it is not the duty of prosecution to prove how the accused misappropriated the aforesaid entrusted sum. It was accordingly submitted that accused misappropriated the sum of Rs 6.2 lacs of RC No. 52 (A)/97DLI, aforesaid to his own use and no cogent evidence has been led in evidence to prove that either accused had deposited the said sum in the bank account of SP CBI ACB Delhi or was returned in terms of order of any Court to any person or it was handed over to the Successor Malkhana Incharge of accused. It was accordingly argued that the prosecution has been able to prove its case against the accused beyond reasonable doubt for committing criminal breach of trust as public servant and also having committed criminal misconduct. Ld PP for CBI has prayed for conviction of the accused for RC No. DST/2013/A/0004 CC No. 05/14 9/64 CBI vs Ajit Singh the charges framed accordingly.
13. Ld. Defence Counsel vehemently argued as follows:
It was first posting of accused in Malkhana ACB CBI Delhi in terms of order Ex PW10/A, dated 22/07/1997. No training was given to the accused. Accused was new to the proceedings of Malkhana. No document was recovered/seized from Malkhana/office of ACB, CBI Delhi in respect of charge of Malkhana received by accused in compliance of order Ex PW10/A. In year 2013 PW3 produced Ex PW3/A (D14) which is alleged to be the original document of the charge articles received by accused from his predecessor Malkhana Incharge PW3. Ex PW3/A (D14) was not the original document of charge received in year 1997 by accused and since before handing over of charge to accused, PW3 had bad intention and prepared two documents of charge, one which was retained in the Malkhana and the other Ex PW3/A (D14) which he produced in 2013 before the IO PW17 without any demand of PW17 or issuance of any notice either under Section 91 Cr.P.C or under Section 160 Cr.P.C. At the time of receipt of charge of Malkhana in 1997 accused had marked on every item of list, which list was missing and no steps were taken by IO to recover and seize such list but IO deliberately did not bring on record the original document of charge of Malkhana of the year 1997, payinslips, inspection reports of Malkhana in order to save the actual culprit and for such missing documents neither any reports were lodged nor any enquiries were held RC No. DST/2013/A/0004 CC No. 05/14 10/64 CBI vs Ajit Singh for any departmental action but instead accused had been falsely implicated. Accused was never entrusted with Rs 6.2 lacs of RC No. 52 (A)/97DLI by PW3 at the time of handing over of charge of Malkhana in 1997. No recovery of said sum of Rs 6.2 lacs or part of said sum had been effected from or at instance of accused for which neither accused was arrested nor any request was made by investigating agency for any police custody remand of accused. On several occasions accused was on leave, while holding charge of Malkhana Incharge, ACB, CBI, New Delhi and in his absence other officials had done the work of Malkhana Incharge, ACB, CBI, New Delhi and there was every reasonable possibility of they being responsible and not the accused. No witness except PW14 and PW3 had seen the currency notes of Rs 6.2 lacs of RC No. 52 (A)/97DLI. Prosecution has failed to prove as to who is the maker of Ex PW3/A (D14). PW12 Sh N.K Kaushik and PW14 K. Mathew denied of being maker of Ex PW3/A (D14). DW1 had proved that inspections of the Malkhana were carried out regularly but there was no detection of any misappropriation of cash sum of Rs 6.2 lacs in question during such inspections in the period from year 1997 till year 2006 nor the reason for bifurcation of sum in RC No. 52 (A)/97DLI was established nor proved nor any reason for non deposit of Rs 6.2 lacs of aforesaid RC No. 52 (A)/97DLI in the bank in account of SP CBI ACB Delhi was proved. Dimensions of the three lockers number 318, 319, 320 were 50X33.5(or 33)X27 mm approximately, as per Ex DW2/A and it was practically impossible/improbable for putting aforesaid sum RC No. DST/2013/A/0004 CC No. 05/14 11/64 CBI vs Ajit Singh of Rs 6.2 lacs of denomination of GC notes of Rs 50/ and Rs 20/ in such small lockers which were already over burdened by containing the case property with effect from year 1964 in them. Accused was not maker of writing in question Q31 and Q32 in Ex PW3/C (D11) nor any witness stated of said fact and the specimen signatures/writings were not obtained before any Magistrate, so could not be made use of. No physical verification of the sums contained in the packets/parcels were done at the time of receipt of charge of Malkhana by the accused. In terms of version of PW5 aforesaid sum of Rs 6.20 lacs of RC No. 52 (A)/97DLI should have been deposited in the current account of SP, CBI ACB, Delhi but recipient of said sum i.e., PW3 did not act as per procedure and did not deposit the said sum in the bank accordingly. No investigation was done by keeping in mind PW3 as a suspect in this case but his version was believed as gospel truth. There is no material on record as to who authorized PW3 to retain document Ex PW3/A (D14) i.e., charge of Malkhana till 2013 which should have been in office/Malkhana of ACB, CBI, Delhi. PW3 took retirement under Voluntary Retirement Scheme (VRS) after two months of handing over of charge to accused. In year 2011 accused had received the medal from the President for meritorious service. It has been argued that prosecution has failed to prove of entrustment of Rs 6.2 lacs of RC No. 52 (A)/97 DLI to accused by PW3 as well as of accused having misappropriated the said sum or of any criminal misconduct of accused. Ld. Defence Counsel has prayed for acquittal of accused relying upon the following RC No. DST/2013/A/0004 CC No. 05/14 12/64 CBI vs Ajit Singh precedents:
(1) Radha Pisharassiar Amma vs State of Kerala, (2007) 13 SCC 410; (2) K.R Purushothaman vs State of Kerala, (2005) 12 SCC 631; (3) State of H.P vs Karanvir, (2006) 5 SCC 381=AIR 2006 SC 2211; (4) L. Chandraiah vs State of A.P & Another, (2003) 12 SCC 670=AIR 2004 SC 252= 2004 Crl.L.J 365;
(5) Ram Narain Poply vs CBI, AIR 2003 SC 2748.
RELEVANT LAW
14. Section 13(1)(c) of the Prevention of Corruption Act, 1988 provides as under:
"13. Criminal misconduct by a public servant -
(1) A public servant is said to commit the offence of criminal misconduct,
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do."
15. Section 13(2) of the Prevention of Corruption Act, 1988 provides for punishment to the public servant found guilty of misconduct.
16. Section 409 of IPC reads as under:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent - Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property,shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"
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17. The necessary ingredients of Sec. 13(1)(c) of Prevention of Corruption Act, 1988 are:
1. The accused must be public servant;
2. Entrustment of property to accused; and,
3. Dishonest or fraudulent misappropriation or conversion for his own use of any such property by accused.
18. The necessary ingredients of Sec. 409 IPC are as under:
1. The accused must be a public servant;
2. He must have been entrusted in such capacity the property; and,
3. He must have committed the breach of trust in respect of such property.
19. The perusal of Sec.13(1)(c) of Prevention of Corruption Act, 1988 and Sec. 409 IPC indicates the similarity between the two.
This question came up for discussion before the Hon'ble Supreme Court in Om Prakash Gupta vs. State of UP, AIR 1957 SC 458, wherein the Constitution Bench of the Supreme Court was confronted with the question that whether Sec. 409 IPC in so far as it applies to the public servant, has been impliedly repealed by the enactment of Sec. 5(1)(c) of Prevention of Corruption Act 1947 equivalent to Sec. 13(1)(c) of Prevention of Corruption Act, 1988 and Sec.5(2) of Prevention of Corruption Act 1947. The Apex Court also dealt with the question assuming that there was no such implied repeal, would the application of Sec 409 IPC to a public servant infringe Article 14 of the Constitution, in view of the fact that the provisions of Prevention of Corruption Act RC No. DST/2013/A/0004 CC No. 05/14 14/64 CBI vs Ajit Singh and procedure laid down there under are available to deal with the breach of trust by a public servant. The Supreme Court held that a clear comparison and contrast of the different elements constituting the two offences would show that an offence u/s 405 IPC is separate and distinct from the one u/s 5(1)(c) of Prevention of Corruption Act 1947. In Om Prakash Gupta's case, the Constitution Bench spelled out the distinction in Section 5(1)(c) of Prevention of Corruption Act 1947 equivalent to Section 13(1)(c) Prevention of Corruption Act 1988 and 405 IPC. It was noted that under Prevention of Corruption Act, the gist of the offence can also be made out if the offender allows another person to dishonestly or fraudulently misappropriate or otherwise convert for his own use any property so entrusted. Also was held that Section 5(1)(c) of Prevention of Corruption Act 1947, equivalent to Section 13(1)(c) Prevention of Corruption Act 1988, creates a new offence called "criminal misconduct" and cannot by implication displace the offence under section 405 of Indian Penal Code.
20. Similarly, in State of MP vs. Veereshwar Rao Agnihotri, AIR 1957 SC 592, the Supreme Court held that the offence of criminal misconduct punishable u/s 5(2) of Prevention of Corruption Act, 1947 is not identical in essence, import and content with an offence u/s 409 of the Penal Code. If we read Sec. 13(1)(c) of Prevention of Corruption Act, 1988 and Sec. 409 of IPC, it would indicate that the concept of mensrea RC No. DST/2013/A/0004 CC No. 05/14 15/64 CBI vs Ajit Singh is enlarged for the purpose of Sec.13(1)(c) of Prevention of Corruption Act, 1988. Under section 13(1)(c) of Prevention of Corruption Act, 1988, the omission may be dishonest or fraudulent. The word "fraudulent" does not find place in Sec. 405 of IPC. The words "dishonest and fraudulently" connote two different things. The elements which make an act fraudulent are deceit or intention to deceit and in some cases mere secrecy. In case intention to deceive and secrecy are missing, the act may be dishonest but may not come within the purview of fraudulent. Thus, Sec.409 of IPC and Sec. 13(1)(c) of Prevention of Corruption Act 1988 are distinct offences. Perusal of Sec. 13(1)(c) of Prevention of Corruption Act 1988 would indicate that the offence laid down therein is equivalent to embezzlement. In English law, the embezzlement is complete if the property has been received by the accused for or in the name or on account of the master or employer and the accused fraudulently misappropriates that property. The essence of the offence of criminal misappropriation is that the property of another person comes into the possession of the accused in some neutral manner and has been misappropriated or converted to his own use by the accused. The offence consists dishonest misappropriation or conversion.
21. In the case of Radha Pisharassiar Amma (Supra), it was inter alia held that for an offence under Section 409 of IPC it must be proved that the person entrusted with the property, or any dominion over RC No. DST/2013/A/0004 CC No. 05/14 16/64 CBI vs Ajit Singh property in his capacity as a public servant committed criminal breach of trust in respect of such property as defined in Section 405 of IPC. The evidence must show that such person either dishonestly misappropriated or converted to own use or dishonestly used or dishonestly possessed that property in violation of directions of law prescribing the mode in which such trust is to be discharged.
22. In the case of K.R Purushothaman (Supra), it was held that for applicability of Section 13 (1) (c) of Prevention of Corruption Act, 1988, it is essential for prosecution to prove that the property dishonestly or fraudulently misappropriated was entrusted to or was under the control of the accused.
23. In the case of Karanvir (Supra), it was held that to prove the offence of criminal breach of trust the initial burden is on prosecution to prove entrustment of the property to the accused and once such initial burden is discharged by prosecution, onus would lie on accused to prove how the property entrusted to him was dealt with by him and accordingly the actual manner of misappropriation of the property by accused need not be proved by the prosecution.
24. In the case of L. Chandraiah (Supra), it was held that to prove the offence of criminal breach of trust by public servant the existence of mensrea i.e., to say guilty mind of accused must be proved RC No. DST/2013/A/0004 CC No. 05/14 17/64 CBI vs Ajit Singh and it is also to be proved that accused had dominion over the property in his capacity as public servant and committed criminal breach of trust in respect of such property, as is defined in Section 405 of IPC.
25. It had been held in the case of Ram Narain Poply (Supra), that deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, need not be by express words, but it may be by conduct or implied in the nature of the transactions itself. Also was held therein that to constitute an offence of criminal breach of trust there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of legal direction or of any legal contract and the misappropriation or conversion or disposal must with a dishonest intention. Also was held that when a person misappropriates to his own use the property that does not belong to him, the misappropriation is dishonest even though there was an intention to restore it at some future point of time.
APPRECIATION OF EVIDENCE
26. On registration of RC 52(A)/97DLI dated 26/06/1997, copy Mark P13/1 (D4), its investigation was entrusted to PW15 who was the Trap Laying Officer (TLO) therein. On laying of the trap, trap team including PW15 had gone to the residence of Sh R.C Bakshi, ITO who RC No. DST/2013/A/0004 CC No. 05/14 18/64 CBI vs Ajit Singh was accused in RC 52(A)/97DLI; conducted search at his residence from where cash sum of Rs 33,38,000/ was recovered and seized vide Ex PW15/A (D5) i.e. search cum seizure memo. PW15 also prepared recovery memo Ex PW15/B (D18) in respect of trap proceedings and seizures of recovery in RC 52(A)/97DLI. Aforesaid sum of Rs 33,38,000/ seized vide Ex PW 15/A (D5) was in denomination of GC notes of Rs. 50/, Rs. 20/ and Rs. 100/; said sum was got deposited by PW15 through constable in Malkhana, ACB, CBI on 27/06/97 with PW3, the then Malkhana Incharge ACB, CBI, New Delhi on return back to CBI office.
27. PW3 remained Incharge Malkhana, ACB, CBI as ASI for the period of about 2 years from 1995 to 1997 and had received the charge of said Malkhana from his predecessor namely Sh Inder Dev Sharma.
28. As per PW3, in his tenure of Incharge Malkhana then the procedure followed was that the trap money was entered in the Malkhana Register PartI; search money seized was entered in the Malkhana Register PartII; whatever money was deposited in the current account in Corporation Bank, CGO Complex, Lodhi Road, New Delhi, its entry was made in the Current Account Cash Book/Current Account Register; entries were made in Malkhana Cash Location Register as to the description of the cash/articles in the locker and in the account.
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29. Order Ex PW10/A (D15), dated 22/07/97 was issued by PW10 Sh Ramnish as Deputy SP ACB Delhi branch for SP CBI, ACB, New Delhi incorporating changes in the duties of the officials of ACB branch with immediate effect and in terms of the same accused then ASI was made Malkhana Incharge, ACB, Delhi branch with the direction that the handing over of the charges will be completed by 28/07/1997. Ex PW10/A was issued with the approval of DIG, ACB Delhi. In terms thereof said office order Ex PW10/A was fully executed and accused took over the charge of his aforesaid duties. Even accused admitted the same in the course of his statement under Section 313 Cr.P.C.
30. PW3 testified that he handed over the charge of Malkhana to accused, his successor, then ASI on 28/07/1997 vide Ex PW3/A (D
14) charge of Malkhana in compliance of office order Ex PW10/A (D
15).
31. PW3 testified that each and every article mentioned in Ex. PW3/A (D14) titled 'Charge of Malkhana' was got checked and handed over to accused while handing over of charge aforesaid of Malkhana in token of which accused had signed Ex. PW3/A (D14) on all pages at portion B which are also encircled Q11, Q12, Q13, Q14, Q15, Q16, Q17, Q18, Q19, Q20, Q22 and Q24, whereas PW 3 had signed Ex. PW 3/A (D14) on all pages at portion A which are also encircled Q1, RC No. DST/2013/A/0004 CC No. 05/14 20/64 CBI vs Ajit Singh Q2, Q3, Q4, Q5, Q6, Q7, Q8, Q9, Q10, Q21 and Q23. Accused had so signed there in the presence of PW3 and his aforesaid signatures were identified by PW3.
32. PW3 further deposed that at page no. 10 of Ex. PW 3/A (D
14) there was mention of trap money of Rs. 10, 000/ and PSM i.e. Personal Search Memo an amount of Rs. 6,20,000/ which amounts were in respect of RC No. 52/97 and were at serial number 462, which were handed over by PW3 to accused while handing over the Charge of Malkhana vide Ex. PW 3/A (D14).
33. PW3 also deposed that whenever trap money was delivered in Malkhana, he used to keep the said money in the chest in the Malkhana after tallying it and on the same day or on the next day it was kept in the locker; entries were made in the registers as aforesaid on the same day and also while sitting till late hours and in case still the entries could not be completed due to shortage of time then the entries were done on the said registers on the next day.
34. PW3 had made entries in portion encircled X in Ex. PW 3/B (D10) i.e. a sheet of the Main Cash Book of Malkhana reflecting that on 27/06/1997 Rs. 52,07,900/ was deposited in RC No. 52/97, due to which the total amount of cash with PW 3 that day became Rs. 4,46,62,632/23p.
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35. As per PW3, in Ex. PW 3/C (D11) i.e. the page of Cash Book, the writing containing the description below RC 52(A)/97, in red colour was in hand of PW 3, excepting the writing "CA/799" in portion encircled Q31 as well as the writing "CA 799 27697" in portion encircled Q32.
36. PW3 also made entry Ex PW3/D1 of date 25/06/1997 in Malkhana Location Register Cash Book Ex. PW 3/D (D12) of period from 05/09/1995 to 31/12/2001 in respect of RC No. 52/97 depicting the location of Rs. 10,000/ in Malkhana Chest, Rs. 6,20,000/ in locker and Rs. 45,77,900/ in current account 799.
37. PW3 further testified that in Malkhana C/A799 Register i.e. Malkhana current account no. 799 register of period 1988 to 2001 of CBI ACB New Delhi Ex. PW 3/E (D9), he made entry Ex. PW 3/E1 of date 27/06/1997 at page no. 48 in respect of RC 52/97, which entry depicted deposit of cash sum of Rs. 27,18,000/ in the current account 799 of CBI in the bank. The then SP PW13 Sh. Anil Kumar appended his signatures against the said entry.
38. Entry Ex. PW 3/E2 of date 28/06/1997 at page 48 of register Ex. PW 3/E (D9) was made by PW3 in respect of RC 52/97 which depicted deposit of cash sum of Rs. 18,59,900/ in CA 799 of CBI in the bank and against the said entry in the column of signatures of SP, RC No. DST/2013/A/0004 CC No. 05/14 22/64 CBI vs Ajit Singh the then SP PW13 Sh Anil Kumar had also signed with date 28/06/97.
39. PW3 deposed that sum of Rs. 6,20,000/ in cash which was the remaining amount of RC 52/97, was kept in locker but not deposited by PW 3 in current account of CBI in the bank.
40. As per PW3, document Ex. PW 5/M (part of D19) (earlier Mark P3/1) was the page of Malkhana Register PartI containing the entry in respect of RC 52(A)/97 DLI. PW5 handed over Ex PW5/M to PW17 vide seizurecumproduction Ex PW 5/J (D16) dated 27/05/2013 from Malkhana Register MRI after making endorsement of certifying it on the photocopies of the cover page Ex. PW 5/K (part of D19) and front page of said register containing certificate Ex. PW 5/L (part of D
19).
41. PW3 also testified that at the time of handing of Charge of Malkhana vide Ex PW3/A (D14) to accused, physical verification of the articles were done and handed over currency notes were counted. PW14 who was posted in Malkhana ACB, CBI, New Delhi as constable in the period from July 1991 till March 1998 testified that the charge of Malkhana vide Ex PW3/A (D14) was given by PW3 in his (PW14) presence to accused on 28/07/1997 and at that time all articles therein were checked, inspected and verified by PW3 and also so checked, inspected, verified and received by accused.
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42. PW14 also elicited that facts in entry number 54 Ex. PW 14/A in pages 96 to 99 of Malkhana Register MRII (D17) were recorded by him (PW14), which facts were in respect of RC No. 52/97 and contained the details of the articles, cash deposited after search and seizure in RC No. 52/97 and included the cash sum of Rs. 33,38,000/. PW14 used to do entry in respect of documents, cash in the Malkhana register on the directions of the Malkhana Incharge.
43. PW14 also elicited that the aforesaid cash sum of Rs 6,20,000/ mentioned at serial no. 462 against RC No. 52/97 at page no. 10 of Ex. PW 3/A (D14) was in polythene, RC number was mentioned over it, while cash inside the polythene was kept in folded manner, at the time when it was so handed in the presence of PW14 by PW3 to accused in handing over of charge of Malkhana, aforesaid on 28/07/1997.
44. The then SP, PW13 testified that Rs 27,18,000/ seized in case RC 52/97 was deposited in current account in name of SP CBI, ACB by PW 3 on 27/06/1997, while the remaining sum of Rs. 6,20,000/ as well as the trap money of Rs. 10,000/ was kept in locker of Corporation Bank, CGO Complex, Lodhi Road by PW 3 on 27/06/1997 itself. PW13 testified that the reason of bifurcation of such recovered Rs 33,38,000/ of case RC 52/97 was that since the said sum was in small denomination of GC notes of Rs. 50/, Rs. 20/ because of which it RC No. DST/2013/A/0004 CC No. 05/14 24/64 CBI vs Ajit Singh was taking long time to count and team was supposed to conduct locker search on 27/06/1997 so the said amount of Rs 6,20,000/ was deposited in the locker of Corporation Bank, CGO Complex by PW 3 on 27/06/1997.
45. On 24/07/2006 PW4, the then ASI, became Malkhana Incharge ACB CBI and received charge of Malkhana vide Ex. PW 4/A (D25) i.e. list of trap money and personal search amount, etc from accused, the then ASI and Malkhana Incharge, ACB, CBI, Delhi branch in token of which accused appended his signatures at portions encircled Q26 to Q30 on Ex. PW 4/A (D25) while PW 4 appended his signatures at portions encircled Q35 to Q39 in said document.
46. PW11 is the witness of such handing over of the charge by accused to his successor PW4. As per PW11, in the process of handing over of such charge by accused to PW4, all articles kept in bank locker were taken out and checked by accused as well as by PW 11 and PW 4 and all such articles including cash were so noted down by PW 11 after checking in Ex. PW 4/A (D25) prepared by PW 11 though at that time cash was not counted but such cash was kept in packets.
47. In terms of entry at serial number 278 encircled Q40 at page number 12 of Ex PW4/A (D25), PW4 had only received trap money of Rs. 10,000/ in respect of RC 52/97 in such charge received as RC No. DST/2013/A/0004 CC No. 05/14 25/64 CBI vs Ajit Singh aforesaid from accused and no other sum against said RC was received by PW4 from accused. PW11 also corroborated the version of PW4 and Ex PW4/A (D25) by deposing that the trap money of Rs. 10,000/ mentioned in Ex. PW 4/A (D25) was the only cash kept in the locker in respect of said RC 52/97 and there was no other cash sum in any parcel/envelope in respect of RC 52/97 when PW 11, accused and PW4 had checked the locker in the course of handing over of charge by accused to PW4 vide Ex. PW 4/A (D25). Even accused as well as PW4 had signed Ex. PW 4/A (D25) in presence of PW11. When articles as detailed in Ex PW4/A (D25) were checked, neither bundles/parcels were opened nor the GC notes therein were counted nor their denomination were noted but on the bundles/parcels RC number of the case as well as amount inside said bundles were mentioned and only after reading such facts and figures, list Ex. PW 4/A (D25) was prepared by PW11.
48. From PW4, the charge of Malkhana was received by PW6 vide Ex PW6/A (D26) i.e. list of personal search articles/documents handed over/taken over dated 12/12/2008. Similarly, vide Ex PW5/A (D
27) PW6 had handed over the charge of Malkhana, ACB, CBI, New Delhi to his successor Malkhana Incharge PW5 on 30/07/2010. Since in Ex PW4/A (D25) no cash sum of Rs 6,20,000/ of RC 52/97 was handed over in the charge of Malkhana by accused to PW4, there had been no occasion for PW6 to receive said sum of Rs 6,20,000/ from his predecessor PW4 nor there was any such occasion accordingly for PW5 RC No. DST/2013/A/0004 CC No. 05/14 26/64 CBI vs Ajit Singh to receive said sum of said RC from his predecessor Malkhana Incharge PW6.
49. In the start of February 2013, Inspector Bijender Singh of ACB, CBI, New Delhi had inquired from PW5 and asked PW5 to give FDR of Rs. 33,38,000/ which sum had been seized in RC 52(A)/97 but despite search PW5 could not find FDR of said sum in said RC 52(A)/97. One month time was sought by PW5 to search records but despite search PW5 again could not find any such FDR, aforesaid. PW5 found from records that trap money of Rs. 10,000/ in RC 52(A)/97 had been returned in his tenure of Incharge Malkhana; Rs. 27,18,000/ was found deposited on 27/06/1997 in the current account no. 0799 in name of SP, CBI in Corporation Bank, CGO Complex branch, CBI which was in respect of seized sum of RC No. 52(A)/97. For disappearance of Rs. 6,20,000/ aforesaid seized in RC 52(A)/97 PW5 lodged complaint Ex PW5/B (D2), dated 10/04/2013 to SSP, CBI, STF, New Delhi.
50. PW5 handed over documents from his records on 16/05/2013 which were seized by IO PW17 vide Ex. PW 5/C (D3) i.e. seizure cum production memo dated 16/05/2013. Along with certificate Ex PW5/D, PW5 handed over documents Ex. PW 3/B (D10) i.e. page of Main Cash Book Malkhana of period 1986 to 1999 after taking it out from said register, which was seized by IO PW17 vide Ex. PW 5/C (D
3). Also documents handed over by PW5 on 28/05/2013 were seized by RC No. DST/2013/A/0004 CC No. 05/14 27/64 CBI vs Ajit Singh IO PW17 vide seizurecumproduction memo Ex. PW 5/F (D24). Malkhana Court Order File Ex. PW 5/H (colly) (D30) was handed over by PW5 on 17/06/2013 to IO PW17 which was seized vide Ex. PW 5/G (D29) i.e., Production cum Seizure Memo.
51. PW5 testified that invoice book was maintained in the Malkhana ACB CBI New Delhi and whatever articles including cash etc move out from Malkhana they were entered in the invoice book and such entries even contained the articles including cash moved from Malkhana for production in the Court or in any other Department, whereas no entry was made in the invoice book for deposit of cash in the bank from Malkhana ACB.
52. As per PW5, Malkhana Register MRI was maintained in the Malkhana wherein entries were made in respect of trap money, wash bottles, CDs, articles/cloth washed, personal search money.
53. PW5 also testified that Malkhana Register MRII was maintained in the Malkhana ACB, CBI, New Delhi wherein entries were made in respect of the cash, jewellery, documents, articles, etc recovered in the searches. As per PW5, Index Register was maintained in the Malkhana, ACB, CBI, New Delhi whereas entries made in Malkhana Register MRI and Malkhana Register MRII were also reflected in index register and separate number was given in index register about such RC No. DST/2013/A/0004 CC No. 05/14 28/64 CBI vs Ajit Singh entries made.
54. PW5 testified that Temporary Issue Register was maintained in the Malkhana, ACB, CBI, New Delhi and whenever any person including IO, HIO received any document from Malkhana for any purpose, then entry was made in the temporary issue register. As per PW5, Main Cash Book Register, Malkhana Cash Location Register, Current Account Cash Register and Court Order file were maintained in the Malkhana, ACB, CBI, New Delhi. Main Cash Book Register contained the entries of cash, made RC wise on deposit of cash in Malkhana as well as when cash was deposited in the bank. Malkhana Cash Location Register contained the description of cash, RC wise, as well as the location of the money as to how much money is kept in the locker and how much money is kept in the bank and how money is kept in the Malkhana Chest. Current Account Cash Register contained the description of the cash deposited in the bank and the concerned RC number and said register is signed by Malkhana Incharge as well as SP. Court Order file contained the description and the process before handing over of documents, cash, articles in compliance of the Court Orders.
55. PW5 also deposed that till the time of the filing of the complaint, two bank current accounts were operational in the name of SP CBI ACB; one such current account was in Corporation Bank, CGO Complex, Lodhi Road, New Delhi and the other was in Vijaya Bank, RC No. DST/2013/A/0004 CC No. 05/14 29/64 CBI vs Ajit Singh Defence Colony, New Delhi wherein cash used to be deposited by filling the Payinslips on which signatures of SP were obtained subject to his availability and in his absence Malkhana Incharge himself signed such payinslips but in the register both Malkhana Incharge as well as SP signed.
56. On 27/05/2013 PW5 handed over the Original Malkhana Register MRII for year 1997; original leaf bearing number 55 of Malkhana Register MRI for year 1996 to 2000, certified copies of two cover pages of register and carbon copy of recovery memo in case RC 52(A)/97 DLI dated 26/06/1997 to IO PW17 which were seized vide seizurecumproduction memo Ex. PW 5/J (D16) by IO PW17.
57. Complaint Ex. PW 5/B (D2) as well as inquiry report done by CBI, ACB, New Delhi with forwarding letter were handed over by PW7 to IO PW17 which were seized vide Ex. PW 7/A (D1) i.e. search cum production memo dated 15/04/2013.
58. On 29/05/2013 IO PW17 obtained the specimen signatures Ex. PW 2/A1 (S1) to Ex. PW 2/A20 (S20) (part of D35) of PW3, given voluntarily, in the presence of PW2 and Sh. Rangoon Mehto, Peon in Vijaya Bank.
59. Also on 29/05/2013 IO PW17 obtained the specimen RC No. DST/2013/A/0004 CC No. 05/14 30/64 CBI vs Ajit Singh signatures Ex. PW 2/A21 (S21) to Ex. PW 2/A61 (S61) (part of D35) of accused, given voluntarily, in the presence of PW 2 and Sh. Rangoon Mehto, Peon in Vijaya Bank. In the course of his statement under Section 313 Cr.P.C, accused admitted of having given such aforesaid specimen signatures voluntarily but stated that at that time neither PW2 nor Sh Rangoon Mehto were present. On 31/05/2013 IO PW17 obtained the specimen writings Ex. PW 2/A62 (S62) to Ex. PW 2/A102 (S102) (part of D35) of accused, given voluntarily, in the presence of PW2 and Sh. Bhupal, Peon in Vijaya Bank. In the course of his statement under Section 313 Cr.P.C, accused admitted of having given such aforesaid specimen signatures voluntarily but stated that at that time neither PW2 nor Sh. Bhupal were present. Having admitted of having given aforesaid specimen signatures/writings voluntarily, it does not lie in the mouth of the accused to argue through Counsel or to take objections that since his such signatures/writings were not obtained before the Magistrate so these could not be made use of. Such specimen signatures/writings were neither disputed nor it is the case of the accused that these were obtained by force/fraud or involuntary.
60. On 14/06/2013 IO PW17 obtained the specimen signatures Ex. PW 8/A103 (S103) to Ex. PW 8/A116 (S116) (part of D35) of PW 4, given voluntarily, in the presence of PW8.
61. PW9 prepared letter Ex. PW 9/A dated 27/05/2013 (D23) RC No. DST/2013/A/0004 CC No. 05/14 31/64 CBI vs Ajit Singh which was signed by his AGM Sh. J.C. Juneja and enclosed with it statement of account Mark P9/1 of current account number 3558 for the period from 01/12/2000 till 01/11/2004, statement of account Mark P9/2 of current account number 600500300003558 for the period from 29/10/2004 to 22/05/2013 and sent them to IO PW17.
62. In Malkhana Court Order File Ex. PW 5/H (D30) seized by IO PW17 from PW 5, PW17 had encircled the (1) admitted signatures of PW3 from A1 to A69; (2) admitted signatures of accused from A70 to A120, which file was sent along with the specimen writings/signatures of accused, PW3, PW4 besides questioned writings and signatures for forensic opinion to CFSL, CBI, New Delhi. PW17 also prepared photocopies Ex. PW 17/B (D37) in nine sheets from its original Ex. PW 3/A (D14) and had encircled the questioned signatures therein from Q1 to Q19 for comparisons for forensic opinion. PW17 also prepared the photocopies Ex. PW17/C (D36) in 31 sheets from its original Ex. PW4/A (D25) and had encircled the questioned signatures therein from Q33 to Q39 for comparisons for forensic opinion.
63. PW18 Sh. Deepak Raj Handa, Senior Scientific Officer GradeI of CFSL had examined the disputed and standard writings, signatures including S1 to S116 (Ex. PW 2/A1 to Ex. PW 2/A102 and Ex. PW 8/A103 to Ex. PW 8/A116), Q1 to Q39 [Q1 to Q24 are in Ex. PW 3/A (D14); Q25 to Q30 & Q33 to Q39 are in Ex. PW 4/A RC No. DST/2013/A/0004 CC No. 05/14 32/64 CBI vs Ajit Singh (D25) and Q31 & Q32 are in Ex. PW 3/C (D11)] and had prepared and furnished his detailed report Ex. PW 18/A (D32) dated 12/09/2013 to SSP, CBI STF through his Director vide letter Ex. PW 18/B (D31) dated 13/09/2013 of his Director.
64. As per Ex. PW 18/A (D32), the result of examination was that the handwriting evidence points to the writer of the standard signatures and numerals marked as S1 to S20 (Ex. PW 2/A1 to Ex. PW 2/A20) and A1 to A69 [in Ex. PW 5/H (colly) (D30)] attributed to PW3 being the person responsible for writing the questioned signatures and numerals marked as Q1 to Q10 [in Ex. PW 3/A (D14)], Q21 and Q23 [in Ex. PW3/A (D14)].
65. As per Ex. PW 18/A (D32), the result of examination was also that the handwriting evidence points to the writer of the standard English writings, initials and signatures marked as S21 to S102 (Ex. PW 2/A21 to Ex. PW 2/A102) & A70 to A120 [in Ex. PW 5/H (colly) (D30)] attributed to accused being the person responsible for writing the questioned English writings, initials and signatures marked as Q11 to Q 20 [in Ex. PW 3/A (D14)], Q22 [in Ex. PW 3/A (D14)] and Q24 to Q 32 [Q24 is in Ex. PW 3/A (D14); Q25 to Q30 are in Ex. PW 4/A (D
25); Q31 and Q32 are in Ex. PW 3/C (D11)].
66. As per Ex. PW 18/A (D32), the result of examination was RC No. DST/2013/A/0004 CC No. 05/14 33/64 CBI vs Ajit Singh also that the handwriting evidence points to the writer of the specimen English signatures marked as S103 to S116 (Ex. PW 8/A103 to Ex. PW 8/A116) attributed to PW4 being the person responsible for writing the questioned English signatures marked as Q33 to Q39 [in Ex. PW 4/A (D25)].
67. PW19 executed letter Ex. PW19/A (part of D28) dated 03/06/2013 and had enclosed with it statement Ex. PW 19/B of current account number 01/000799 of period 01/04/1996 to 31/05/2013 in 40 sheets, after generating it from computer system and got them delivered to IO PW17 through PW20. PW19 had given (1) letter dated 29/06/2013 with (2) certified copies, as per office records, of (i) Account opening form in respect of current account no:799 in the name of SP/CBI/ACB Delhi Branch, New Delhi; (ii) Details in Link Lockers pertaining to current account no:0799 occupied by CBI, ACB, Delhi Branch and (iii) Locker Access register for the period 19/06/2006 to 31/03/2011, all collectively Ex. PW 19/C (colly) to IO PW17.
68. DW2 Sh Kapil Kumar, Single Window Operator in Corporation Bank, Lodhi Road, New Delhi brought letter Ex DW2/A signed by his Senior Manager Sh Yantrau Prem Babu on behalf of Chief Manager Sh P. Sai Krishna. DW2 deposed that he had not measured the dimensions of locker numbers 318,319 and 320 of Corporation Bank, CGO Complex, Lodhi Road, New Delhi whereas the aforesaid signatory RC No. DST/2013/A/0004 CC No. 05/14 34/64 CBI vs Ajit Singh to said letter Ex DW2/A was working in the bank. Also DW2 had not brought any record pertaining to dimensions of said lockers or their years of establishments. Since DW2 did not have any personal knowledge, so he could not elicit regarding any fact in respect of the measurements given as "50X33.5X27 mm" approximately of locker no. 318 and measurements given as "50X33X27 mm" approximately of each of locker numbers 319 and 320. Only one of these given measurements i.e., 27 is stated to be in millimeters (mm). Other two dimensions could be in centimeters or inches or some thing else. Author of aforesaid document Ex DW2/A had not come in the witness box. DW2 had no personal knowledge of the facts detailed in Ex DW2/A nor had himself measured the dimensions of aforesaid lockers. Out the three dimensions of the said lockers only one of the dimension is stated to be in millimeter (mm). If the arguments of Ld. Counsel for accused are taken on the face of it, then if such measurements of such lockers is construed as "50mmX33.5mm(or 33mm)X27mm", then such dimensional lockers would of size equal to size of a match box of any kitchen in the house hold with just one variance of height/thickness as double size of thickness/height of such match box. It is incomprehensible to fathom any bank locker to be of length and breadth of size of a match box and thickness/height to be of double size of such match box by any preponderance of probability. Any locker having length and breadth of size of match box and having height/thickness of double size of thickness/height of a match box, would only be able to contain RC No. DST/2013/A/0004 CC No. 05/14 35/64 CBI vs Ajit Singh articles/objects similar to the size of match sticks or to the size double to collective thickness of the match sticks of match box of house hold kitchen but would not be able to contain any kind of documents, cash, jewellery or other articles exceeding collective size of such match sticks/match box. Author of Ex DW2/A was not called in the defence evidence, in view of elicited deposition of peculiar facts by DW2 but instead defence evidence was closed by accused vide separate statement in presence of his Counsel. So defence cannot harp upon the size of the lockers, so depicted in Ex DW2/A to secure acquittal of accused on that score by advancing arguments that it was improbable for PW3 to retain cash sum of Rs 6.20 lacs of GC notes of denomination of Rs 20/ and Rs 50/ in such lockers. Per contra certified copies of four agreements for hiring out locker numbers 318, 319, 320, 321 of Corporation Bank, Lodhi Road, all dated 17/12/96, which are part of Ex PW19/C (colly) elicited above, embody the fact that these four lockers hired to SP, CBI ACB were of class which was 'LARGE' and such 'LARGE' lockers of course cannot be of size of match box or of dimensions "50mmX33.5mm(or 33mm)X27mm" each. Another certified copy of agreement for hiring locker no. 235 dated 20/12/02 is part of Ex PW19/C (colly) which describes the said fifth locker in name of SP CBI ACB to be of class 'SMALL'. Infact no suggestion was given to PW3 in cross examination that the cash sum of Rs 6,20,000/ in question was not kept in locker by him despite the fact that he categorically stated that he kept the said sum of money in question in the locker. Combined effect of RC No. DST/2013/A/0004 CC No. 05/14 36/64 CBI vs Ajit Singh all abovesaid depicts that submissions of defence on this count do not hold water.
69. DW1, present InCharge Malkhana, CBI, ACB, Delhi testified that in years 1997 to 2006, the inspections of the Malkhana, ACB, Delhi were conducted twice or thrice every year by Senior Public Prosecutor as well as SP of ACB, CBI, Delhi, as per records contained in the inspection registers.
70. PW1 Mrs. Deepika Suri, Deputy Director (Personnel) received file from CVO, CBI asking her to go through the details of the case and if she found them appropriate, then to accord prosecution sanction. PW1 deposed that in the present matter prosecution sanction could have been accorded by DIG, Chandigarh or by Deputy Director (Personnel) but since DIG was not posted at Chandigarh, it fell upon her to go through the records. PW1 called upon the records from IO PW17, perused the records of the case including two Malkhana Registers, the pages of the cash book, the entries made in the bank account statements, the statements of the witnesses recorded during investigation, FIR, the handing over and taking over reports of year 1997 and 2006 between Malkhana Incharges, reports of handwriting expert of forensic laboratory, besides other documents and after due diligence and application of mind accorded the Sanction Ex. PW1/A (D34) dated 14/02/2014 u/s 19 of The Prevention of Corruption Act, 1988 for RC No. DST/2013/A/0004 CC No. 05/14 37/64 CBI vs Ajit Singh prosecution of accused for offences charged being authority competent to remove accused from service and thus competent to accord sanction.
71. Elicited facts herein above embody due application of mind of the competent authority who accorded the sanction and the defence could not make out any ground/premise of any invalidity of sanction.
72. Report Ex PW18/A (D32) inter alia included that the Microscopic, Twin Video Comparator and Video Spectral Comparator as well as Transmitted light examination of the questioned document marked Q40 i.e., portion encircled as Q40 at page number 12 of Ex PW4/A (D25) containing writings "278 52/97 10000.00" revealing no sign of physical and chemical erasure. It simply lends corroboration to the version of PW4 and PW11 that simply sum of Rs 10,000/ of trap money was handed over by accused vide Ex PW4/A (D25) in handing over of the Charge of Malkhana to his successor PW4 on 24/07/2006.
73. PW3 testified and proved of handing over of charge of Malkhana to accused on 28/07/1997 vide Ex PW3/A (D14) and that each and every article of charge including sum of Rs 6.20 lacs in question of RC 52(A)/97DLI to have been so handed over after due checking and verification. As elicited above in detail, PW14 was witness to such handing over of cash sum of Rs 6.20 lacs of RC 52(A)/97DLI during handing over of charge of Malkhana by PW3 to accused vide Ex RC No. DST/2013/A/0004 CC No. 05/14 38/64 CBI vs Ajit Singh PW3/A (D14). To any of these material witnesses PW3 and PW14, no question was put in cross examination that charge was handed over by PW3 to accused by document other than Ex PW3/A (D14), every item of which was marked by accused nor any suggestion was put to PW3 or PW14 that Ex PW3/A (D14) was not the original document of charge by which articles were received by accused from his predecessor PW3. The defence taken in the arguments that Ex PW3/A (D14) was not the original document of charge received in the year 1997 by accused but accused took charge from PW3 vide some other document of charge of Malkhana, every item of which was marked by accused, is an after thought and defence developed later to the examination of PW3 and PW14 which surfaced in the course of cross examination of IO PW17 for the first time on 01/07/2014 and continued in statement under Section 313 Cr.P.C of accused as well as in the final arguments. Motives have been attributed by defence that PW3 had dishonest intention since the day of receipt of cash sums in RC 52(A)/97 due to which he bifurcated cash sums in said RC and deposited part sum in bank and retained part sum of Rs 6.20 lacs with him. Unable to recollect PW3 could not specify reason for such bifurcation. SP PW13, Supervisory Officer of PW3 testified of seized GC notes being of denomination of Rs 20/ and Rs 50/ resulting in only part counting of cash seized in said RC and compelling circumstance of search of locker to be conducted in said RC by team of CBI which further resulted in bifurcation of cash seized in said RC. Even otherwise how could PW3 anticipate in advance that he RC No. DST/2013/A/0004 CC No. 05/14 39/64 CBI vs Ajit Singh would be transferred within a month of seizures in RC 52 (A)/97. Besides there was no rhyme or reason for PW14 to testify in corroboration to version of PW3 against accused. For PW14, both PW3 and accused were colleagues in CBI and PW14 was neither friendly with PW3 or accused nor nursed any grudge/enmity with accused. There is no reason whatsoever to disbelieve the testimonies of PW14 and PW3 which can be classified in category of wholly reliable witnesses as categorized in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 and their testimonies are lent corroboration and support by documentary evidence in form of Ex PW3/A (D14) embodying entrustment of cash sum of Rs 6.20 lacs in question of RC 52(A)/97, by PW3 to accused in handing over charge of Malkhana.
74. There was no impediment in the way of defence to put questions, if any relating to any other alleged document of charge, if it so existed, to the relevant witnesses PW3 and PW14 since it was PW3 who handed over the charge to accused and PW14 was witness of such handing over of the charge. Since such questions, on such plea of defence were not put to PW3 and PW14 and for which no other evidence in defence was led nor brought on record nor proved, it could be safely presumed that if such questions were asked or any such evidence could have been gathered from any other source on these facts, the same would be unfavorable to accused in terms of Illustration (g) of Section 114 of Indian Evidence Act. Accused accordingly cannot take shelter of said RC No. DST/2013/A/0004 CC No. 05/14 40/64 CBI vs Ajit Singh defence.
75. The onus to prove the fact is always on the prosecution. In the criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This onus to prove never shifts. The prosecution can also not take benefit of the weakness of the defence of the accused. However, this proposition is subject to certain exceptions. For example, if the accused has taken the plea of alibi, this has to be proved by the accused. Similarly, if the accused takes the plea that his case falls within the general exceptions of Penal Code, the onus is upon the accused to prove the same. In the similar fashion, Section 106 of the Indian Evidence Act provides that if the act done is within the special knowledge of the accused, it is for him to prove the same. However, the rule of caution is that even in these cases, the prosecution is required to prove its case prima facie and therefore, if there are certain circumstances which were in the special knowledge of the accused, then it is for the accused to come out and spell out those circumstances.
76. In a criminal trial, the prosecution is duty bound to prove its case against the accused beyond reasonable doubt. Sections 101 to 104 of Indian Evidence Act (IEA) lay down the general principles as to onus to prove. Section 106 of IEA provides asunder :
"106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden RC No. DST/2013/A/0004 CC No. 05/14 41/64 CBI vs Ajit Singh of proving that fact is upon him."
77. However, section 106 IEA comes into play only after the prosecution has been able to prove prima facie case. If the prosecution has not been able to make out a prima facie case, accused cannot be asked to prove any particular fact which is within his knowledge. The principles underling section 106 can be summed up that initially the burden to prove the guilt beyond reasonable doubt always remain upon prosecution. If the prosecution has been successful in proving the fact from which a reasonable inference can be drawn regarding the existence of certain facts, then the accused is required to offer an explanation regarding such fact so as to set aside the reasonable inference being presented by the prosecution. The accused must offer an explanation which should be probable and satisfactory.
78. In Shambhu Nath Mehra Vs. State of Ajmer, AIR 1956 SC 404, the scope of section 106 of IEA was held as under :
"This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts."
79. Perusal of the above said precedent makes it clear that the RC No. DST/2013/A/0004 CC No. 05/14 42/64 CBI vs Ajit Singh prosecution has to lead evidence to substantiate its accusations, but if facts within the special knowledge of accused are not satisfactorily explained, it is a factor against the accused.
80. It is a settled proposition that the concept "beyond reasonable doubt" cannot be stretched too far. The whims and fancies of the accused cannot displace the facts proved by the prosecution in accordance with the provisions of IEA. The prosecution is not supposed to meet every hypothetical questions raised by the defence, if it is presumed to be so, it would amount to deflecting the course of justice.
81. True that it was the duty of the Inspecting Officers i.e., SP concerned or the Prosecutor concerned to appropriately inspect the Malkhana of ACB CBI at periodical intervals in terms of the provisions 53/314 to 56/318 of CBI Crime Manual1991 and provision 13.21 of CBI Crime Manual2005 in vogue at different points of time. Yet, failure of these officials to detect the loss/misappropriation of the sum of Rs 6.20 lacs in question of RC 52(A)/97 aforesaid during such periodic inspections would not suffice for accused to furnish grounds for acquittal on charges framed. Provision 13.21 of CBI Crime Manual2005 provided that cash whose identity was not required to be established, should be deposited in the Nationalized Bank in a current account operable jointly by the SP of the branch and the Malkhana Incharge and a remark to said effect must be made against the relevant entries in the Malkhana RC No. DST/2013/A/0004 CC No. 05/14 43/64 CBI vs Ajit Singh Register/SubModule of CRIMES. As per provision 13.22 of CBI Crime Manual2005, data entry in Malkhana SubModule in the CRIMES Modules had to be made by Malkhana Incharge on realtime basis and this record is required to be maintained year wise and is to show the items carried over from the previous year in the Malkhana. Nothing of the sort above said was done by accused before handing over of the charge of Malkhana to his successor PW4 on 24/07/2006.
82. There is a famous legal maxim "nullus commodum capere potest de injuria sua propria", which means that no man can take advantage of his own wrong. It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong. This maxim is based on elementary principles and has gained status in law and equity. Herein accused received charge of Malkhana from PW3 vide Ex PW3/A (D14) on 28/07/1997 which including the sum of Rs 6.20 lacs in RC 52(A)/97, dated 26/06/1997 of ACB CBI Delhi Branch. Said sum was neither deposited by accused in any bank account of CBI nor said sum was handed over to any official of CBI or to any other person by orders of any Court nor accused handed over the said sum in his charge given vide Ex PW4/A (D25) dated 24/06/06 to PW4. Statement of account number CA/01/000799 Ex PW19/B of SP CBI ACB Delhi in Corporation Bank, Lodhi Road finds no mention of deposit of sum of Rs 6,20,000/ [connected with the seizure of cash sums of RC 52(A)/97] in question. There are entries of deposits of cash Rs RC No. DST/2013/A/0004 CC No. 05/14 44/64 CBI vs Ajit Singh 27,18,000/ on 27/06/1997 and Rs 18,59,900/ on 28/06/1997 in Ex PW19/B which sums do not embody the sum of Rs 6,20,000/ in question and were the other sums seized in said RC 52/97 and duly reflected in entries Ex PW3/E 1 and Ex PW3/E 2 in register Ex PW3/E elicited in detail in earlier part of the judgment. Lapses on the part of inspecting officials including SPs concerned and Prosecutor(s) concerned in failure of detection of loss of sum of Rs 6.20 lacs in question may be sheer negligence but certainly short of having element of conspiracy and/or criminal misappropriation/breach of trust, for lack of evidence. Accused cannot be permitted to take advantage of his own wrong.
83. There is also another legal maxim "acta exteriora indicant interiora secreta" which means that acts indicate the intention. The previous intention of a person can be judged by his subsequent acts. It is a settled proposition that if a man abuses his authority given to him by the law, he becomes a trespasser ab initio.
84. Ex PW3/C (D11), relevant page of Main Cash Book of Malkhana embodied writing "CA/799" in portion encircled Q31 and writing "CA 799 27697" in portion encircled Q32. Said writings Q31 and Q32 were not of PW3 but when compared with the standard writings as S21 to S102 (Ex PW2/A21 to Ex PW2/A102) and A70 to A120 [in Ex PW5/H (colly) (D30)], which writings were of the accused done in the normal routine course of his duty as Malkhana RC No. DST/2013/A/0004 CC No. 05/14 45/64 CBI vs Ajit Singh Incharge in Malkhana Court Order File Ex PW5/H (colly), then such writings Q31 and Q32 were opined by PW18 as to be attributed to accused being the person responsible for such writings. Such writings in portions Q31 and Q32 bring into fore the dishonest intention of accused to write such false and misleading remarks to escape attention of supervisory officer of Malkhana in periodical Inspections of Malkhana and to inter alia depict deposit of said sum Rs 6.2 lacs in question in Current Account (CA) number 799 in Corporation Bank, CGO Complex branch, New Delhi, since the writing Q31 was immediately near to sum of Rs 6.20 lacs beneath description of money of RC 52(A)/97 while the writing at portion encircled Q32 was in the right side of total amount of Rs 33,38,000/. PW3 categorically stated that when he handed over the charge to accused, then page Ex PW3/C (D11) was intact and was not torn and when said document was seized it was found a bit torn, which torn portion consisted the writing of PW3 as to the reason for bifurcation, which reason PW3 unfortunately did not recollect nor could testify. Dishonest intention of public servant accused as Assistant Sub Inspector and Malkhana Incharge of CBI ACB Delhi to misappropriate or convert aforesaid sum of Rs 6.20 lacs in question to own use is borne out from aforesaid proved facts.
85. Non recovery of Rs 6.20 lacs in question from accused; inability of prosecution to prove as to who amongst the CBI officials had infact made/prepared Ex PW3/A (D14); non deposit of Rs 6.20 lacs in RC No. DST/2013/A/0004 CC No. 05/14 46/64 CBI vs Ajit Singh question by PW3 in bank immediately after receipt; missing of Payin slip/Counterfoils of deposits of cash in bank in year 1997 and retention of Ex PW3/A (D14) by PW3 himself and its production in year 2013 before IO PW17 cannot be made grounds for acquittal of accused. Recovery of embezzled sum is not sine qua non to prove the commission of offence of criminal breach of trust or criminal misconduct against a public servant. Non deposit of Rs 6.20 lacs in question by PW3 in bank immediately after receipt stands appropriately explained by testimonies of PW3 as well as his supervising Superintendent of Police (SP) PW13 since due to seized currency notes being of denomination of Rs 50/ and Rs 20/ the enormous time was consumed in their counting after delivery of the seized sum of Rs 33,38,000/ of RC 52(A)/97 by seizing officers to PW3 and thereafter immediately search of locker was to be conducted by the CBI team, so sum of Rs 6.20 lacs in question was kept in locker by PW3. Fact remains that not only PW3 but also PW14 testified that charge was handed over by PW3 to accused in terms of Ex PW3/A (D
14) and each and every sum of cash detailed therein was duly checked, inspected, verified and received by accused, in token of which accused appended his signatures on Ex. PW3/A (D14) on all pages at portion B which are also encircled Q11, Q12, Q13, Q14, Q15, Q16, Q17, Q 18, Q19, Q20, Q22 and Q24, whereas PW 3 had signed Ex. PW 3/A (D14) on all pages at portion A which are also encircled Q1, Q2, Q3, Q4, Q5, Q6, Q7, Q8, Q9, Q10, Q21 and Q23. Such version of PW3 and PW14 is lent corroboration by report Ex PW18/A (D32) of the RC No. DST/2013/A/0004 CC No. 05/14 47/64 CBI vs Ajit Singh Forensic Expert, as elicited above. Having signed at Q20 at page 10 of Ex PW3/A (D14), which sheet incorporates at serial number 462 the sums of Rs 10,000/ of trap money and Rs 620000/ of PSM (amount in question), being the sums against RC No. 52/97 inter alia handed over by PW3 and taken over by accused in receipt of charge of Malkhana, it does not lie in the mouth of accused to retract from his received charge of said sum of Rs 6,20,000/ in question. In view of the categorical assertion of PW3 and PW14 that the sum of Rs 6,20,000/ in question as well as other cash of sums were duly checked, inspected and verified before accused signed as aforesaid on Ex PW3/A (D14), for lack of any cogent evidence to contrary led to negate the said fact by any preponderance of probability, the version of defence of having received charge only on paper and no physical counting of currency notes having been done by accused in receipt of charge or accused having signed Ex PW3/A (D14) in good faith or Ex PW3/A (D14) being not the original document of handing over of charge but some other document being the original document of handing over of charge, all pleas in defence do not hold water and per se cannot be accepted in view of evidence on record and facts proved, elicited above. In this fact of the matter, much importance also cannot be given to inability of prosecution to prove as to who amongst CBI officials had typed or printed Ex PW3/A (D14) since it is not to be lost sight of the fact that Ex PW3/A (D14) was prepared on 28/07/1997 and the investigation of the matter started in year 2013 after detection of the crime in question and the trial was completed in about RC No. DST/2013/A/0004 CC No. 05/14 48/64 CBI vs Ajit Singh five months of filing of chargesheet in year 2014. Time gap of more than 16 years was there in between when Ex PW3/A (D14) was prepared and when evidence of prosecution was led. Human memory is short and no premium can be claimed for such fact. Since PW3 had handed over the charge of Malkhana vide Ex PW3/A (D14) to accused on 28/07/1997 there was nothing wrong in PW3 retaining Ex PW3/A (D
14) as at all times later to 28/07/1997 it would have been PW3 who would have been called to come and explain the whereabouts of any missing case property received by him in his tenure or received in charge received by him in case he did not deliver all such case properties to his successor Malkhana Incharge. True that even Ex PW3/A (D14) could have been placed in the Malkhana/Office of ACB CBI but for non placing of said document there, no adverse inference can be drawn against either PW3 or even prosecution case.
86. In the case of "Mustafikhan vs State of Maharashtra"
2007(1) RCR (Criminal) 503, it was held that "9. In order to sustain a conviction under Section 409 IPC the prosecution is required to prove that (a) the accused, a public servant was entrusted with property of which he has duty bound to account for,
(b) the accused had misappropriated the property.
10. Where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged.
11. The above position was reiterated in Jagat Narayan Jha vs. State of Bihar (1995 (Supp) 4 SCC 518).
12. It is not necessary or possible in every case to prove as to in RC No. DST/2013/A/0004 CC No. 05/14 49/64 CBI vs Ajit Singh what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. In the instant case, there is no dispute about the entrustment."
87. From the aforesaid discussion, it is proved on record that cash in question i.e., Rs 6,20,000/ of RC No. 52(A)/97 was entrusted to accused on 28/07/1997 by PW3 in presence of PW14 vide Charge of Malkhana Ex PW3/A (D14) which accused received as Malkhana Incharge of ACB CBI Delhi and being ASI there. It is also proved on record that accused did not hand over aforesaid sum of Rs 6,20,000/ to his successor Malkhana Incharge PW4 while handing over the charge of Malkhana vide Ex PW4/A (D25) dated 24/07/2006. It is also proved on record that the aforesaid sum of Rs 6,20,000/ was not deposited in bank account of SP CBI ACB Delhi by accused in his tenure of Malkhana Incharge ACB CBI Delhi. Prosecution has proved that the sum of Rs 6,20,000/ in question was entrusted to accused and once such initial burden had been discharged by prosecution, onus fell upon accused to prove how the aforesaid property entrusted to him was dealt with by him. Accused had not led any evidence what to say of any cogent evidence to prove by any preponderance of probability as to how aforesaid property RC No. DST/2013/A/0004 CC No. 05/14 50/64 CBI vs Ajit Singh entrusted to him was dealt with by him as he was having control/dominion over it being Malkhana Incharge and a public servant. Being Malkhana Incharge, it was the bounden duty of accused to hand over the entrusted cash of case property to his successor Malkhana Incharge in case such cash is neither deposited in the bank account concerned nor returned to any person in terms of orders of Court concerned nor handed over to any person/authority under directions of his Superiors/Supervisory Officers. Entire focus of accused in the trial had been to demonstrate that the aforesaid cash of Rs 6,20,000/ in question was infact never entrusted to him, which accused failed to do by preponderance of probability from led prosecution evidence and defence evidence. No cogent evidence is borne out of record as to what actually was done with such entrusted cash sum of Rs 6,20,000/ in question by the accused. Judging the dishonest intention of accused from his elicited acts, as aforesaid, in terms of legal maxim "acta exteriora indicant interiora secreta" suffice it would be to say that dishonest intention of accused for misappropriation of aforesaid entrusted sum of cash Rs 6,20,000/ in question is writ large on face of record and stands proved. It is proved on record that accused misappropriated or converted to own use the said sum of cash Rs 6,20,000/ in question.
88. In view of foregoing discussions, I am of the considered opinion that prosecution has been successful in proving its case beyond reasonable doubt against arraigned accused Ajit Singh for offences (1) of RC No. DST/2013/A/0004 CC No. 05/14 51/64 CBI vs Ajit Singh criminal breach of trust committed in capacity of public servant and punishable under Section 409 of IPC and (2) of criminal misconduct, as defined in Section 13 (1) (c) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988, committed in the capacity of public servant, for which offences, the said accused is held guilty and convicted accordingly. Let he be heard on sentence.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 26/07/2014 Patiala House Court, New Delhi.
RC No. DST/2013/A/0004 CC No. 05/14 52/64 CBI vs Ajit Singh IN THE COURT OF SH. GURVINDER PAL SINGH, SPECIAL JUDGE (PC ACT) (CBI)6, PATIALA HOUSE COURT, NEW DELHI CC No. 05/2014 RC No. DST/2013/A/0004 dated 12.04.2013 U/s 13 (2) r/w 13 (1)(c) of PC Act 1988 & 409 IPC.
Unique ID No.: 0240R0036142014 CBI vs. Ajit Singh ORDER ON SENTENCE Having convicted Ajit Singh of offences of (1) criminal breach of trust committed in capacity of public servant and punishable under Section 409 of IPC and (2) criminal misconduct, as defined in Section 13 (1) (c) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988, committed in the capacity of public servant; I have heard Ld. Senior PP for CBI, Ld. Defence Counsel and the convict and have perused the record.
2. Sh. P.K Dogra, Ld. Senior Public Prosecutor for CBI has prayed for maximum prison term on the premise that corruption has reached phenomenal level and deterrent sentence would meet the ends of justice as is required in the interest of the society and the convict committed the offences being Malkhana Incharge and was supposed to be the protector / custodian of entrusted case property of Rs 6.20 lacs in RC No. DST/2013/A/0004 CC No. 05/14 53/64 CBI vs Ajit Singh question which he dishonestly misappropriated/converted to own use and being member of disciplined force since long was well conversant with his bounden duty and committed the offences in question in a preplanned manner.
3. Sh Mukesh Kumar Sharma, Ld. Counsel for convict has submitted that convict is the sole bread earner of his family, has clean antecedents, no past record of conviction or involvement in any criminal case and is victim of circumstances besides having unblemished record during the course of his service of about 40 years, initially in Delhi Police where he served as constable and head constable and later in the CBI where he served as ASI till Inspector till date. Lenient view has been prayed for the convict including enlargement on probation.
4. Convict submits that he is of age 59 years nine months plus and is sole bread earner of his family consisting of wife, two married but unemployed sons of age 30 years, 27 years respectively and an unmarried daughter of 25 years who is student of first year of MBA, Correspondence Course from Symbiosis, Pune. Convict also stated that his father expired in 1986 and his mother of age 95 years is residing in Village at Rewari with his younger brother. Convict submitted that he joined as constable in Delhi Police on 04/03/1974 and when he was serving as head constable, he joined CBI on 30/09/1994 on deputation as ASI and presently he is posted as Inspector in CBI ACB, Jammu while RC No. DST/2013/A/0004 CC No. 05/14 54/64 CBI vs Ajit Singh he is educated till 10th class. Convict also submitted that he is suffering from Fistula and had undergone surgery a month ago in June in Rockland Hospital for which he required further treatment. Convict submitted that he is victim of circumstances and had signed Ex PW3/A (D14) in good faith while the actual list of Charge of Malkhana was tick marked by him and not seized nor produced and did not contain the item of cash sum of Rs 6.20 lacs in question. Convict also submitted that in his long tenure of service of more than 40 years in the Delhi Police and CBI he never received even a warning but infact had received medal from the President in year 2011 for meritorious services. Convict has prayed for lenient view accordingly.
5. Rs. 6,20,000/ of RC 52(A)/97 were entrusted to convict on 28/07/1997 by PW3 in course of handing over of Charge of Malkhana vide Ex PW3/A (D14) on convict having been made Malkhana Incharge of ACB CBI Delhi vide order Ex PW10/A (D15). Neither the convict deposited the said entrusted sum of cash in bank in account of SP CBI ACB nor returned to any person in terms of the orders of any Court/Superior CBI Officers nor entrusted the said sum to his successor PW4 in handing over of charge of Malkhana vide Ex PW4/A (D25) dated 24/07/2006. Convict failed to prove by preponderance of probability as to how he dealt with the aforesaid entrusted sum of Rs 6,20,000/ since he had control/dominion over it being Malkhana Incharge and a public servant as ASI. Judgment embodies proving of the RC No. DST/2013/A/0004 CC No. 05/14 55/64 CBI vs Ajit Singh fact from the proved acts of convict that convict had dishonest intention for misappropriation of aforesaid entrusted sum of Rs 6,20,000/. Convict was custodian of said sum of Rs 6,20,000/ being Malkhana Incharge of ACB CBI Delhi as ASI. Proved acts of convict reflect that convict acted in preplanned, cool calculation, deliberate design in a concerted manner to misappropriate the said sum entrusted but not delivered to successor Malkhana Incharge PW4 and having not accounted for it in any manner whatsoever, so as for personal wrongful gains putting his office to wrongful loss to the tune of Rs 6,20,000/. Rightful owner of said sum of Rs 6,20,000/ can rightfully claim the said sum from the office of SP CBI ACB Delhi by due process of law and because of the proved criminal acts of the convict, the said office would suffer wrongful loss for such misdeeds of convict.
6. In the case of "State of U. P. v. Kishan," AIR 2005 SC 1250, it was held that "Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (AIR 1991 SC 1463).
The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society RC No. DST/2013/A/0004 CC No. 05/14 56/64 CBI vs Ajit Singh and the sentencing process has to be stern where it should be.
The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal."
7. The benefit of provisions of Probation of Offenders Act cannot be granted to the accused found guilty for the offence under the Prevention of Corruption Act. It is so held by the Hon'ble Supreme Court in the case of "N. Bhargavan Pillai v. State of Kerala", AIR 2004 SC 2317 and also by Hon'ble Punjab and Haryana High Court in the cases of (1) Gurbachan Singh v. State of Punjab, 1980 Cri.L.J. 417; (2) Gurdial Singh v. State of Punjab, 2003 Cri.L.J. 3312. As such this contention of the convict cannot be accepted.
8. In the case of "A.Wati A.O. vs. State of Manipur," 1996 Cri. L. J. 403 (SC), it was held that "The fact that the appellant is a senior IAS Officer really requires a serious view of the matter to be taken, instead of soft dealing. The fact that he has a number of dependents and is going to lose his job are irrelevant considerations in as much as in almost every case a person found guilty would have dependents and if he be a public servant, he would lose his job. The present being the first offence is also an irrelevant consideration. Though the delay has some relevance, but as in cases of the present nature, investigation itself takes time and then the trial is prolonged, because of the type of evidence to be adduced and number of the witnesses to be examined, we do not think that the RC No. DST/2013/A/0004 CC No. 05/14 57/64 CBI vs Ajit Singh fact of delay of about five years could have been a ground to award the sentence of imprisonment till rising of the Court, which really makes a mockery of the whole exercise."
9. In view of the law laid in the case of A. Wati A.O. (Supra), in the cases of corruption the age, family, responsibilities, previous records of convict and the loss of job cannot be considered as mitigating circumstances in sentencing of the convict.
10. In the case of State of Andhra Pradesh Vs. V. Vasudeva Rao, 2004 Cri.LJ 620: MANU/SC/0916/2003 it was inter alia held that "30. When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with a very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means."
RC No. DST/2013/A/0004 CC No. 05/14 58/64
CBI vs Ajit Singh
11. In the case of State of M.P. v. Shambhu Dayal Nagar MANU/SC/8623/2006 : (2006) 8 SCC 693 it was held that:
"32. It is difficult to accept the prayer of the Respondent that a lenient view is taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Largescale corruption retards the nation building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh v. State of Haryana, MANU/SC/0510/1997: (1997) 4 SCC 14, corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke."
12. In the case of A.B. Bhaskara Rao Vs. Inspector of Police, CBI, Visakhapatnam, MANU/SC/1110/2011 : (2011) 10 SCC 259 it was inter alia held that in a case of corruption by public servant merely because the delinquent lost his job due to conviction under the Prevention of Corruption Act, may not be a mitigating circumstance for reduction of sentence, particularly, when the Statute prescribes minimum sentence.
13. In the case of Narendra Champaklal Trivedi Vs. State of RC No. DST/2013/A/0004 CC No. 05/14 59/64 CBI vs Ajit Singh Gujarat MANU/SC/0484/2012 :(2012)7 SCC 80 it was inter alia held that "It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile."
14. Corruption is indeed one of the major roadblocks in India's journey from a developing to a developed economy. There is an urgent need to have a comprehensive framework that would help curtail corruption. Rigid bureaucracy, complex laws and long drawn processes of the legal system deters people from taking legal recourse against corrupt public servants.
15. Need of the hour is to sacrifice selfish approach for the sake of the society and nation. Corruption needs to be eradicated from the nation. Task is arduous but not unachievable. To achieve that, one has to rise above his vainglorious interest and to raise his moral standards. Public persons need to resist to such illegitimate insistence and rather should act as whistleblowers. Only with collective efforts, corruption can be eradicated.
16. In the fact of the matter Convict had the job profile of Malkhana Incharge of ACB CBI Delhi. Convict was responsible to keep RC No. DST/2013/A/0004 CC No. 05/14 60/64 CBI vs Ajit Singh entrusted sum of Rs 6,20,000/ in question and account for it. Instead, consequences were kept at bay by the convict while usurping Government money despite the fact that the convict had a long experience in government service as an official of Delhi Police as well as of CBI and was educated till class 10 th class, capable of understanding well all consequences of his criminal acts. The criminal breach of trust and criminal misconduct were committed by the convict, a public servant, with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Government Exchequer and/or Community. Convict gave supremacy to illegal personal gains putting the Government Exchequer at loss to the tune of Rs 6,20,000/. No glimpse of remorse was visible on the face of the Convict. Over all entire nation is suffering on account of misdeeds of such offenders who put Government Exchequer to such loss compromising with the economy of the nation. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book and suitably punished.
17. Grant of probation to convict would be like granting license to such offenders to usurp Government/ public money in detriment to public interest. Cry of society is that such convict is to be suitably sentenced. Grant of probation to convict is passe part not made out. Breach of trust and criminal misconduct by a public servant putting the Government Exchequer at loss are certainly serious offences calling for a RC No. DST/2013/A/0004 CC No. 05/14 61/64 CBI vs Ajit Singh deterrent sentence in the interest of nation as well as society, lest it would send wrong signals to public at large that by fleebite sentence, such offenders can be let off, which would encourage such like offenders to commit similar offences and enhance misery of society and nation, which are infact presently reeling under the evil of corruption.
18. Be that as it may, I cannot be oblivious of the fact that the convict has no bad antecedents and accordingly keeping in mind overall facts and circumstances of the case, the Convict Ajit Singh is sentenced to:
(i) Rigorous Imprisonment for 6 years and fine of Rs.
4,00,000/ in default thereof he would undergo Simple Imprisonment for a further period of 12 months under Section 409 of IPC;
(ii)Rigorous Imprisonment for 4 years and fine of Rs.
4,00,000/ in default thereof he would undergo Simple Imprisonment for a further period of 12 months under Section 13 (1) (c) of the Prevention of Corruption Act, 1988 and punishable under Section 13 (2) of The Prevention of Corruption Act 1988.
19. The sentences of Rigorous Imprisonment shall run concurrently. The sentences of Simple Imprisonment in default of RC No. DST/2013/A/0004 CC No. 05/14 62/64 CBI vs Ajit Singh payment of fine shall run consecutively.
20. The convict was not arrested in investigation and on appearance was admitted on bail and remained on bail during trial. The convict has been sent to jail on 26/07/2014 after the judgment of conviction in this case. Needless to say, the convict would be entitled to benefit of Section 428 Cr.P.C.
21. Out of the fine imposed on the convict a sum of Rs 6,20,000/ shall be payable to the office of SP CBI ACB Delhi as compensation for the loss suffered which was caused by the offences committed by the convict. On deposit/recovery of such sum, it shall be so payable to the office of SP CBI ACB after expiry of period of appeal or decision of appeal which ever is later, in terms of Section 357 of The Code of Criminal Procedure 1973.
22. A copy of judgment and order on sentence be given to the convict free of cost.
23. Let the convict be sent to jail under appropriate warrant for which the Reader is directed to do needful.
24. Copy of this order on sentence be also sent to Superintendent Jail for information and necessary compliance and also RC No. DST/2013/A/0004 CC No. 05/14 63/64 CBI vs Ajit Singh for providing of the appropriate medical treatment to the convict in terms of the procedure applicable and the convict may provide copies or originals of his medical treatment for ailments suffered by him and previously treated.
25. The convict has also been made aware about the fact that he has right to file appeal.
26. Ahlmad is directed to page and bookmark the file as per the latest circular so as to enable digitization of the entire record.
27. File be consigned to record Room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 28/07/2014 Patiala House Court, New Delhi.
RC No. DST/2013/A/0004 CC No. 05/14 64/64