Delhi District Court
Cbi vs Om Narain Dubey on 28 February, 2007
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IN THE COURT OF SH. G P MITTAL
SPECIAL JUDGE : DELHI
CBI Vs Om Narain Dubey
R C No. 8(A)/1999
CBI/ACB/N.Delhi
C C No. 46/2001
JUDGMENT
Accused Om Narain is facing trial for the offence punishable U/s 409 IPC and Sec. 13 (1) (c) r/w Section 13 (2) of the prevention of Corruption Act, 1988.
2 As per allegations of the prosecution, a surprise check was conducted at Yamuna Vihar Telephone Exchange on 4.2.99 by a team of the CBI officer headed by Inspector H S Karmyal . During investigation of the case, it was found that during the year 1997-98, Yamuna Vihar Telephone Exchange of MTNL had raised 13 indents for procurement of various items including 1400 EPBTs and 16,000 metres of self supporting drop wire from Circle Stores Depot (CSD),Netaji Nagar, as per the details given below:
Sl Indent No. & Date CSD Voucher No.CSD Gate No & Date Pass No. 1 W-23/SDOP- 1088-KB dt.27-1 dt. 14.02.97 II/IV/96-98/5 dt.14.2.97 for issue 13.2.97 of 200 PBTs 2 2 W-31/SDOP- 684-KB dt.84-1 dt 14.02.97 II/YU/97-98/6 dt.28.11.97 for 50 21.11.97 PBT's
3 W-31/SDOP- 827-KB dt.45-1 dt. 28.11.97 II/YU/97-98/15 dt.27.12.97 for25 27.12.97 PBT's 4 W-31/SDOP- 828-KB dt.45-1 dt. 28.11.97 II/YU/97-98/12 DT.29.12.97 for 150 27.12.97 PBT's 5 W-31/SDOP- 904-KB dt.45-1 12.01.98 II/YU/97-98/13 DT.12.1..97 for 100 12.1.98 PBT's 6 W-31/SDOP- 1003-KB 40-1 dt. 07.02.98 II/YU/97-98/14 DT.dt.7.2.98for 300 6.2.98 PBT's 7 W-31/SDOP- 1009-KB 53-1 dt. 09.02.98 II/YU/97-98/15 DT.dt.9.2.98for 500 7.2.98 PBT's 8 W-31/SDOP- 1117-KB 02-1 dt.26.02.98 II/YU/97-98/17 DT.dt.26.2.98for 26 24.2.98 PBT's 9 W-31/SDOP- 1139-KB 26-1 dt. 28.2.98 II/YU/97-98/19 DT.dt.28.2.98for 50 27.2.98 PBT's 10 W-31/SDOP- 1199-KB 11-1 dt. 17.2.98 II/YU/97-98/20 dt.17.2.98for 5000 DT. 14.2.98 mtrs.SSD 3 11 W-31/SDOP- 1264-KB 02-1 dt. 26.2.98 II/YU/97-98/22 dt.26.2.98for 5000 DT. 24.2.98 mtrs.SSD 12 W-31/SDOP- 743-KB 89-1 dt. 28.11.97 II/YU/97-98/10 dt.28.11.97 for DT. 28.11.97 3000 mtrs.SSD 13 W-31/SDOP- 1118-KB dt.2.2.9888-1 dt. 02.02.98 II/YU/97-98/18 DT.for 3000 mtrs.SSD 31.1.98 3 According to the case of prosecution, all the above stated 13 indents were signed by Shri Raj Kumar SDO P-II, Yamuna Vihar and counter signed by DET Shri Soren Singh. The items mentioned at serial No.1 were received from the CSD by Shri Kishan Chand, regular Mazdoor (RN), the items mentioned at serial No.2 and 13 were collected by Shri Kishan Dutt, RM whereas rest of the items were collected by Shri J P Pandey, RM. The said regular Mazdoors of Yamuna Vihar had signed the CSD vouchers and gate passes for having received the indented store items. After collecting the store items from the CSD, the aforesaid R.Ms handed over the items to accused Om Narain, the then store Incharge, Yamuna Vihar Exchange alongwith the copies of the CSD vouchers and gate passes. Accused Om Narain after having received the aforesaid items did not enter the same in the stock register and dishonestly misappropriated the same. At the time of the surprise check by 4 the CBI team it was revealed that store items including PBTs and drop wires received from the CSD vide above stated 13 indents had not been entered in the stock register and the same were not accounted for by the accused Om Narain (as per the averments made in the report U/s 173 Cr PC the complaint was made by Inspector H S Karmyal against Shri D C Goel, SDE and accused Om Narain. The said complaint has not been produced in the court. Shri D C Goel has not been prosecuted and his name has been kept in column No.2 on the ground that there was no evidence against Shri D C Goel).
4 The charge for the offences Punishable U/s 409 IPC and Sec. 13 (1) © r/w Sec. 13 (2) of the PC Act, 1988 was framed against accused Om Narain by my Learned. Predecessor vide his order dt. 9.7.03. The accused pleaded not guilty to the charge whereupon the prosecution was directed to produce its evidence.
5 In order to establish its case, the prosecution has examined as many as 12 witnesses.
6 PW1 Shri D C Goel was working as SDE (cables) in Yamuna Vihar Telephone Exchange at the relevant time. He deposed that accused Om Narain was working as a Store Keeper. As a store keeper, his duty was to bring the 5 goods/items, enter the same in the register and to distribute the same. He deposed that he had checked the register on 25.4.98. Since the entries were not complete he had issued memos Ex PW1/B and Ex PW1/C to the accused. The accused submitted his replies Ex PW1/E and Ex PW1/F. He deposed that he had written letter Ex PW1/D to the Divisional Engineer for holding an enquiry against Om Narain and providing another person in place of Om Narain. He deposed that Om Narain had joined as a Store Keeper on 24.4.95 vide letter Ex PW1/J. The goods are received from the CSD in the vehicles of the contractors. The store keeper was required to give a certificate about the receipt of goods in the store and proved the said certificates as Ex PW1/H1 to H8. He also proved the requisitions cum slip vouchers Ex PW1/J1 and J2 through which the receipt of goods had been acknowledged by the accused. The witness testified that after receipt of the goods and after checking the vouchers the same have to be shown to the AE but the vouchers were never shown to him. He in detail deposed that the PBTs and drop wire as mentioned herein above had not been entered in the stock register Ex PW4/M on the dates on which these were supposed to be received in the Exchange by the accused. Deposing about the procedure for procurement of the goods, the witness deposed that the requirements made by the SDO are not brought to his notice. In one day the articles are received from the CSD only once through a truck/tempo engaged through the 6 approved contractor. He deposed that the gate passes in respect of the bills Ex PW1/H1 to Ex PW1/H 8 were Ex PW1/X1 to Ex PW1/X8 respectively. He added that as per the procedure his signatures being SDE (cables) ought to have been obtained by accused Om Narain for acknowledging the receipt of the articles in the store which was not done.
7 PW 2 Shri Jagdamba Parshad Pandey, PW3 Shri Kishan Chand Shukla were the regular Mazdoors in Yamuna Vihar Telephone Exchange at the relevant time. They deposed about the collection of material from CSD and handing over of the same to the accused. They proved various gate passes and the vouchers as Ex PW2/A, PW2/B, PW2/C, PW1/D, ExPW1/DC Ex PW2/DD2, Ex. PW1/DE2, Ex PW1/DE3, Ex PW1/DF2, Ex PW 2/E, Ex PW 2/B, Ex PW2/F, Ex OPW2/G, Ex PW2/H, Ex PW2/I, Ex Pw2/J, Ex PW 2/ K, Ex P|W2/ L, M , N, O, During cross examination, PW-2 stated that Shri D C Goel SDE was his controlling officer who used to authorize him to collect the material from CSD by virtue of an authority letter. The authority letter used to be deposited with the CSD. The official concerned at CSD would compare the signatures of D C Goel on indent and authority letter with the signatures available with him and would then issue the material.
78 PW6 Kishan Dutt in his examination in chief deposed that he had received the items as mentioned in Ex PW6/A from the CSD through vouchers Ex PW6/B and that the stores were handed over by him to the accused and DET Soren Singh. During cross examination he deposed that he had not taken any receipt in token of the goods having been handed over to the accused or to the DET.
9 PW4 Shri Soren Singh who was working as DE (T) at Telephone Exchange, Yamuna Vihar, deposed that accused Om Narain Dubey was working as Store Keeper in the Exchange. It was his duty to receive the material to make entries in the stock register and to put the stock under his custody. He proved the indents Ex PW3/B and Ex PW4/A to Ex PW4/L as having been signed by him. During cross examination the witness deposed that the indent of the material required in the exchange used to be prepared by SDO Incharge and counter signed by him in the capacity of DE (T). He admitted that his signatures as well as signatures of the SDO were available in the CSD as authorized signatories and the material was issued from the CSD only on the basis of indent by authorised signatories whose signatures were available in the CSD. During cross examination the witness admitted that the security man at the gate of telephone Exchange used to check the material coming from outside to the Exchange or the material going outside the Exchange. There 8 was a register maintained at the Security Gate. The vouchers in CSD used to be prepared in triplicate. One was retained in the CSD and two copies of the vouchers were sent to the Exchange 10 PW5 Raj Kumar SDO, Telephones also proved the indents and the vouchers and deposed about the procedure for procurement of the stores from the CSD. He has more or less corroborated the testimony of PW4 Soren Singh.
11 PW7 Anand Kumar Mishra was working as Area Manager from January, 2001 to August, 2002. He had granted sanction for prosecution of accused Om Narain and proved the same as Ex PW7/A 12 PW 8 Inspector H S Karmyal had conducted the surprise check at Yamuna Vihar Telephone Exchange on 4.2.99. He proved the joint surprise memo as Ex PW-1/1. He deposed that he had made a complaint to the SP, CBI on the basis of which FIR Ex PW8/A was registered. by the C1BI.
13 PW9 Shri Brij Mohan was posted as JTO, (Receipt) in CSD, Netaji Nagar, He stated that his duties as JTO was to receive the material from different companies. Shri Vijay Kumar was working as JTO (stores) and his duty was to issue the material on the basis of indents received from different 9 Telephone Exchanges. In the absence of Shri Vijay Kumar he used to look after his work. He deposed that Shri Vijay Kumar had expired about one year back. Shri Rishi Pal Sharma who was working as head clerk during the year 1997-98 used to issue the vouchers under his signatures on the basis of which gate passes used to be prepared. They used to obtain the signatures of the authorised person on the gate pass and issue voucher for receiving the material. He identified signatures of Vijay Kumar on the gate passes and of Shri R P Sharma on the issue vouchers. He then identified signatures of Shri Vijay Kumar on various entries regarding issue of material in the registers Ex PW9/A-1 to Ex Pw9/A3.
14 PW10 Shri P K Sharma, Chief Section Supervisor of MTNL deposed that the cost of one Electronic Push button was Rs. 424.78 and of Telephone instrument plan 103 was Rs. 2132.69 and the cost of one metre of drop wire was Rs. 1.90.
15 PW11 Shri R K Sharma was working as SDE Vigilance on 4.2.99. He was present at the time of the surprise check and proved his signatures on the surprise memo Ex PW1/1.
16 PW12 Shri M D Pathak was working as AE CSD Netaji Nagar from the year 1992 to 2002. He stated that as per procedure two copies of issue voucher are handed over to the 10 authorised person who comes to collect the material to the CSD. One copy of issue voucher needed to be returned to the CSD by the concerned unit. He proved issue voucher ex PW1/J1 and PW1/J2 regarding receipt of the material by the Exchange in good condition in the stock register.
17 The incriminating evidence appearing in the case of the prosecution was put up to the accused in the stock registered in his statement recorded U/s 313 Cr PC. The accused denied that he had received the goods vide gate passes Ex PW2/A, Ex. PW2/B, Ex PW1/DC, Ex.PW1/DE-3, Ex PW1/DE-2, Ex. PW2/D, Ex PW2/DG, Ex PW2/I, Ex PW2/K, Ex Pw2/M, Ex PW2/O and issue vouchers issued by CSD Ex PW2/C, Ex PW1/DA, Ex PW1/DD-2, Ex PW1/DE-2, ExPW1/DF-2, Ex PW2/E, Ex PW2/F, Ex PW2/H, Ex PW/2J, Ex PW2/L, Ex PW2/M, Ex PW2/N. He also denied that he had not made the entries of the material so received in the stock register or that he had misappropriated 1400 Push Button Telephones Equipment and 16000 metres of self supporting drop wire costing Rs.5,87,844/-. He also denied his signatures on the acknowledgment Ex PW1/J1 and Ex PW-1/J2 in respect of the receipt of the material by him. He took up the plea that he had been falsely implicated in the case at the instance of Sh. D C Goel and that said Sh. D C Goel was accused No.1 in the FIR 11 has been let off. He declined to produce any evidence in defence.
18 I have heard Sh. Rajesh Malhotra, Sr. PP for CBI and Sh. K N Sharma Advocate and Sh. Ajay Chaudhary Advocate for the accused persons.
19 In order to establish its case U/s 409 IPC, the prosecution has to establish that the accused was entrusted with the property or with dominion over property in his capacity as a public servant and had dishonestly misappropriated or converted to his own use any movable property. The ingredients of Section 13 (1) © of the P C Act are almost the same. Section 13 (1) (c) does not contain the words Dominion over the property and the word fraudulently. In this sense, the scope of section 13 (1) © is wider than section 409 IPC 20 In order to prove a case, U/s 409 IPC of Section 13 (1) (c) of the PC Act, it is not necessary to prove as to in what particular manner the accused had dealt with or misappropriated the goods entrusted to him. The offence of misappropriating the goods belonging to the Govt. the elements of the criminal offence of misappropriation will be established if the prosecution proves that the goods were handed over to the accused and the accused had failed to account for the same.
1221 There are allegations of entrustment of the goods in respect of 13 indents Ex. PW-3/E, Ex. PW4/A, Ex. PW-4/B, Ex. PW-4/C, Ex. PW-1/DD1, Ex. PW-1/DE1, Ex. PW-1/DF1, Ex. PW-1/DG1, Ex. PW-1/DG-1 (this exhibit twice), Ex. PW- 1/DH1, Ex. PW-1/DI-1, Ex. PW-1/DJ-1 and Ex. PW-1/DK1. The procedure for indenting the articles, its issue by the CSD, receipt by the authorised person and handing over of the same has been given by several witnesses. It has been stated by Sh. Raj Kumar with reference to particular indent that after he had put his signatures on the indent the same was put up to the Divisional Engineer for counter signatures. The indent was sent to Engineering Secretary. The indent was then assigned to store Incharge (Physical) to collect the material of the indent. The witness stated that it was the duty of Sh. D C Goel to check whether the indented material had been received or not. The duty of the Store Keeper was to collect the indented material from the store and to bring the same to the Exchange, enter it in the Stock Register and to disburse the same as per the requisition.
22 It has been urged by the Ld. Defence counsel that it has been admitted by the prosecution witnesses that the material could be issued on further indents only after the issue voucher which used to be given to the person receiving the goods in 13 duplicate, was returned to the CSD after signatures of the Store Incharge. He has argued that since all the requisition slips/vouchers containing the receipts by accused Om Narain have been produced by the prosecution it is not believable that the material on the basis of these indents was received by any person or was ultimately handed over to the accused. The Ld Defence counsel has taken me through the cross examination of Pw12 Sh. M D Pathak who has stated that as per rule the copy of the voucher after receipt of the material in Telephone Exchange was received back in CSD Netaji Nagar and second indent was required to be entertained only after the receipt of the first voucher.
23 This is true that as per procedure the material on second indent was issued after the receipt on the first voucher was given by the Store Incharge but PW 12 Sh. M D Pathak had also stated that practically this procedure was not possible.
24 The prosecution is relying upon the statement of three witnessed to prove the entrustment of the material to the accused and alleged to have been misappropriated by him. These are PW1 Sh. Jagdamba Prashad Pandey, PW 3 Kishan Chand Shukla and PW 6 Kishan Dutt. However, out of the the 13 store requisition slips cum issue vouchers prepared in respect of 13 indents through which the above stated 3 witnesses had 14 received the material only 2 requisition slips cum issue vouchers purported to be signed by the accused Om Narain have been produced during the trial and the same are Ex PW 1/J1 and PW1/J2, in respect of receipt of 300 PBTs and 3000 metres of self supporting drop wire.
25 I am unable to be convinced with the argument advanced by the Ld. Defence Counsel that simply because all the requisition slips cum issue vouchers have not been produced the stores could not have issued by the CSD. But at the same time it is difficult to fasten liability in respect of receipt of material on accused Om Narain simply on the transport challans Ex PW1/H1, PW1/H2, PW1/H3, PW1/H4, PW1/H5, H6, H7, H8, H9. Of course, the above stated transport challans bear the endorsement made by the accused that the work was done satisfactory. However, it nowhere reveals that the goods as mentioned in the gate pass were received. The endorsement "work done satisfactorily" on the challans appears to have been made for the transporter ie Transcon India Pvt. Ltd. for the purpose of payment of the conveyance charges.
26 Of course, PW2 Jagdamba Prashad Pandey, PW3 Kishan Chand Shukla and PW6 Kishan Dutt have deposed in respect of handing over the goods by them to accused Om Narain. No authority letter purported to have been issued by the SDO or the 15 DET in the name of the above stated three persons have been placed on record or proved by the prosecution. As per procedure given by PW 5 Raj Kumar, SDO, infact it was for the Store Incharge to have collected the material from the CSD. It is not the case of the prosecution that accused Om Narain collected the material in respect of the 13 indents. As stated above, there is no authority placed on record in favour of PW 2, PW3 and PW6. It would therefore, be difficult to hold simply on the basis of the oral statement of these three witnesses that the goods in respect of the 13 indents had been handed over by them to the accused when the prosecution was in possession of the better evidence in the form of receipts obtained from the accused on the requisition slips cum issue voucher which was to be deposited with the CSD in respect of every indent.
27 Receipt on the Requisition slip cum issue voucher Ex PW1/J1 and EX.PW1/J2 have been proved to be in the hand writing of the accused by PW1.D C Goel It has been urged by the Ld. Defence Counsel that the requisition slip cum issue voucher Ex PW1/J1 and Ex PW1/J2 were not sent to the handwriting expert to compare with the signatures of the accused and therefore, testimony of PW1 Sh. D C Goel who himself f was a real culprit and was named in the FIR should not be believed. I have gone through the cross examination of PW1 recorded on 5.4.04 and 11.1.07. No question was asked 16 to PW1 during cross examination regarding the genuineness of the signatures of the accused for having received the material in good condition. Not even a suggestion was given that Ex PW1/J1 and Ex PW1/J2 were not signed by the accused. When the accused was examined U/s 313 Cr PC he simply denied that the requisition slip cum issue voucher were signed by him in token of having received the material . He did not give any explanation as to how his signatures appear on the receipt which in my view is sufficiently proved by the prosecution by evidence of PW1 D C Goel and of Sh. M D Pathak PW12.
29 It has been urged by the Ld. Defence Counsel that no material could get in or go out of the Exchange without being checked at the gate and therefore, the accused could not have taken out any material and thus, misappropriated the same. It is true that it has come in the evidence of the prosecution witnesses that the material used to come inside the Exchange and go out of the Exchange only after being checked at the gate but there is no presumption that there cannot be any misappropriation where some mechanism has been fixed to check the arrival and dispatch of the material. In this particular case I have already observed that material in respect of the requisition slips cum issue vouchers Ex PW1/J1 and Ex PW1/J2 which were duly signed by the accused, the onus was on him to show as to how this material has not been received by him 17 inspite of his signatures and why the same has not been entered in the Stock Register.
30 It has been urged by the Ld. Defence counsel that as per the case of the prosecution a complaint was given by Inspector H S Karmyal after the surprise check on the basis of which present case was registered. The said complaint has not been produced by the prosecution, therefore, an adverse inference has to be drawn against the prosecution U/s 114 (g) of the Evidence Act and the accused is entitled to be acquitted. It has been urged that the prosecution was interested in shielding Sh. D C Goel, SDO who was the real culprit and that is why the complaint has not been produced which has caused prejudice to the accused. Of course, the complaint alleged to have been made by H S Karmyal had not been produced but the FIR which was registered on the basis of the complaint was proved by Inspector H S Karmyal as Ex PW8/A. Name of D C Goel does figure in the FIR Ex PW8/A. Infact the complaint has been reproduced in the FIR which shows that the allegations were that the goods have been misappropriated by accused Om Narain Dubey in connivance with Sh. D C Goel, SDE. In my view the non production of the complaint in the circumstances does not cause any prejudice to the accused and the accused cannot be acquitted on the said ground.
1831 In view of the foregoing discussions, I come to the conclusion that the prosecution has not been able to establish its case regarding receipt of the material in respect of the 11 out of 13 indents. It is however, established beyond all reasonable doubt that the material in respect of the indent Ex PW1/DE1 was issued vide Store Requisition slip cum issue voucher Ex PW1/DE2 and it was duly received by the accused vide his endorsement made on Ex PW1/J1, a copy of the requisition slip cum issue voucher which has to be sent back to the CSD. Similarly, it is also established beyond shadow of all reasonable doubts that the material through indent Ex PW1/DK1 was received by Sh. J P Pandey through requisition slip cum issue voucher Ex PW1/DK2 and its receipt was acknowledged by the accused vide copy of the requisition slip cum issue voucher Ex PW1/J2 I therefore, hold that the accused Om Narain being a public servant was entrusted with 300 PBTs vide Ex PW1/J1 and 3000 metres of self supporting drop wire Ex P2 and that he had committed criminal breach of trust in respect of the said property and has misappropriated the same in order to cause wrongful loss to MTNL and wrongful gain to himself. I accordingly hold the accused guilty for the offence punishable U/s 409 IPC and under Section 13 (1) (c) r/w Sec. 13 (2) of the P C Act 1988 and convict him accordingly.
Announced in open court (G P MI|TTAL)
today on 27th February ,2007 SPECIAL JUDGE: DELHI
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IN THE COURT OF SHRI G.P. MITTAL : SPECIAL
JUDGE: DELHI.
CBI......vs.....Om Narain Dubey
RC no. 8(A)/1999/CBI/ACB/ND
CC No. 46 of 2001.
1. Accused Om Narain has been convicted by me vide judgment dated 27.2.2007 for the offence punishable U/s. 409 IPC and 13(1)(c) r/w Section 13(2) of the PC Act, 1988 .
2. I have heard Shri KN Sharma, advocate ld. counsel for the convict and Shri Rajesh Malhotra, Ld. Sr.PP for the CBI.
3. It has been urged by ld. defence counsel that Om Narain has not been previously convicted of any offence; he is a poor person and his daughter is going to be married in the next month. He is the only earning member in the family. It has been pointed out that as per the case of the prosecution there was misappropriation of 16000 meters of self supporting drop wire and 1400 EPBTs in respect of 13 indents, but the prosecution has proved its case only in respect of 3000 meters of self supporting drop wire and 300 EPBTs .
204. In the facts and circumstances of the case, convict Om Narain is sentenced to undergo RI for 2 years and to pay a fine of Rs.10000/- U/s. 13(1)(c) read with 13(2) of the PC Act 1988 or in default to undergo SI for 6 months.
-2-5. I further sentence the convict Om Narain to undergo RI for one year and to pay a fine of Rs.5000/- for the offence punishable U/s. 409 IPC or in default to undergo SI for 3 months.
The substantive sentences shall run concurrently. File be consigned to record room.
Announced in open court. ( G.P.Mittal )
dated: 28.2.2007. Special Judge: Delhi.
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