Himachal Pradesh High Court
Sheesh Pal vs State Of Himachal Pradesh. on 16 November, 2018
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 371 of 2012 a/w Cr. Appeal
Nos. 383 & 395 of 2012.
.
Reserved on: 14.11.2018.
Date of decision: 16.11.2018
1. Cr. Appeal No. 371 of 2012.
Sheesh Pal Versus State of Himachal Pradesh.
2. Cr. Appeal No. 383 of 2012.
Bal Mukand Versus State of Himachal Pradesh.
3. Cr. Appeal No. 395 of 2012.
Bir Singh Versus State of Himachal Pradesh.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the appellant(s) : Mr. G.D.Verma, Mr. Satyen Vaidya, , Sr.
Advocates with M/S. Romesh Verma,
Vivek Sharma and D.P.Chauhan,
Advocates.
For the respondent(s) : Mr. Narender Guleria, Addl. AG with
Mr. Kunal Thakur, Dy. AG.
Dharam Chand Chaudhary, J.
This judgment shall dispose of all the three appeals having arisen from the judgment dated 21.8.2012, passed by learned Special Judge (Forests), Shimla, in Corruption case No. 7-S/7 of 2009. Learned trial Court vide impugned judgment has convicted the appellants (hereinafter referred to as "the accused") and also sentenced them for the commission of the offence they allegedly committed.
1Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 22. Accused-appellant Sheesh Pal in this appeal (Cr. Appeal No. 371 of 2012) and accused-appellant Bal Mukand in connected Cr. Appeal No. 383 of .
2012 have been tried for the commission of the offence allegedly committed by them under Sections 120-B, 409/420, 409, 467, 468, 471 IPC and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, being working as Jr. Engineer and Block Development Officer (BDO), Rohru, respectively, hence public servants. Their co-accused Bir Singh, appellant in connected Cr. Appeal No. 395 of 2012, being Contractor has been tried for the commission of offence punishable under Sections 120-B, 420, 467, 468, 471 IPC and under Section 13(1)(c) & 13(1)(d) of the Prevention of Corruption Act.
Accused Bir Singh was convicted for the commission of offence punishable under Sections 120-B and 420 IPC. Accused Appellant Sheesh Pal has been acquitted of the charge under Section 409 IPC whereas acused-appellant Bal Mukand under Sections 420, 467, 468 and 471 IPC. Accused Bir Singh was also acquitted under Sections 467, 468 and 471 IPC. They all were sentenced as under:
Accused Balmukand U/S 120-B IPC- to suffer imprisonment for one year and a fine of Rs. 10,000/- (ten thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
U/S 409 IPC- to suffer imprisonment for three years and a fine of Rs. 10,000/- (ten thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
U/S 13(1) (c) read with Section 13(1)(d), PC Act- to suffer imprisonment for one year and to pay a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 3
Accused Sheesh Pal U/S 120-B IPC- to suffer imprisonment for one year and a fine of Rs. 10,000/- (ten thousand) and in default of payment of fine, to further suffer .
imprisonment for 6 months.
U/S 420 IPC- to suffer imprisonment for one year and a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
U/S 467 IPC- to suffer imprisonment for one year and a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
U/S 468 IPC- to suffer imprisonment for one year and a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
U/S 471 IPC- to suffer imprisonment for one year and a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
U/S 13(1) (c) read with Section 13(1) (d), PC Act-
to suffer imprisonment for one year and a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
Accused Bir Singh U/S 120-B IPC- to suffer imprisonment for one year and a fine of Rs. 10,000/- (ten thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
U/S 420 IPC- to suffer imprisonment for one year and a fine of Rs. 5,000/- (five thousand) and in default of payment of fine, to further suffer imprisonment for 6 months.
::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 43. Being aggrieved by the findings of their conviction and sentence recorded by learned trial Court, accused-appellant Sheesh Pal has assailed the .
same having been based on surmises and conjectures and without application of mind. The evidence available on record is stated to be not appreciated in its right perspective and the findings to the contrary holding him as guilty have been recorded mechanically without application of mind. The prosecution has miserably failed to prove its case against him, however, the findings to the contrary are the result of misreading, mis-appreciation and misconstruction of the evidence available on record. The essential ingredients of the offence he allegedly committed were not at all proved and as such no findings of conviction could have been recorded. He, however, has been convicted without there being any legal evidence available on record and on the basis of the findings recorded in a slip shod and perfunctory manner. The findings that he cheated the Government by Rs. 8,000/- or used forged documents as genuine are not supported by any cogent and reliable evidence. The factum of this amount entrusted to him vide receipt Ext. PW-4/E is not at all appreciated and to the contrary undue weightage has been given to the answers in his statement recorded under Section 313 Cr.P.C.
The documentary evidence Ext. PW-4/E, PW-4/H and A-13 being not proved legally could have not been used against him.
4. Now, if coming to the grounds of appeal preferred by accused-
appellant Bal Mukand, he has also assailed the impugned judgment on more or less similar grounds. According to him, no case that he has cheated the State Government for Rs. 1,33,179/- was made out and as such, no findings of conviction could have been recorded against him. The application Ext. PW-3/M submitted by accused Bir Singh was processed by the ministerial staff and a sum of Rs. 1,33,179/- released to said Bir Singh on the recommendation of the Jr. ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 5 Engineer concerned accused Sheesh Pal. The entries to this effect find mention in the cash-book have not been taken into consideration. Had there been any .
intention to misappropriate the said amount by him, no entry would have been made in the cash-book. The factum of the amount in question was received by Bir Singh had also been proved. He had also issued a receipt in this regard. Such evidence, however, has not been considered in its right perspective. As per the own case of the prosecution, a sum of Rs. 11,33,241/- was the expenditure incurred upon to construct the building i.e. residential accommodation for the school children studying in Govt. High School, Kuthari. Therefore, obviously, the construction material was required to undertake the construction work. The Contractor, no doubt, was Sh. Ram Lal Reshta (since dead) and he had engaged labourers as well as mules who made the payment either through said Sh. Ram Lal or directly also by him on the recommendation of accused Sheesh Pal, the Jr. Engineer/In charge of the site. The prosecution evidence is highly doubtful that a sum of Rs. 1,33,179/- was not spent on transportation/unloading the construction material at the site. Therefore, according to the appellant-accused, no findings of conviction under Section 409 IPC and Prevention of Corruption Act, could have been recorded against him.
5. The accused-appellant Bir Singh has assailed the impugned judgment on the grounds inter alia that he never made application Ext. PW-3/M nor claimed a sum of Rs. 1,33,179/- from the BDO accused Bal Mukand. The prosecution, allegedly failed to prove as to who was the scribe of this application.
The department initially intended to award the work of transportation of construction material by him, however, later on intended to float the tenders.
However, well before that he had transported some construction material to the spot. Interestingly enough, the column of amount in the application allegedly ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 6 claimed by him is blank. In the receipt Ext. PW-3/A also, the space qua the amount was blank and later on filled in as Rs. 1,33,179/-. Therefore, on such .
inadmissible evidence, no findings of conviction could have been recorded against him. The order that a sum of Rs. 1,33,179/- sanctioned for being paid to him was produced by PW-3 Rajinder Chand. Application Ext. PW-3/M was never forwarded to accused Sheesh Pal, the Jr. Engineer concerned. The same is dealt with by P.A. of the BDO himself. There is again no evidence to show as to who got the cheque amount of Rs. 1,33,179/- in cash.
6. Now, if coming to the factual matrix the record reveals that Superintendent of Police (Vigilance) on receipt of information that financial irregularities have been committed and the funds mis-appropriated in the construction of Hostel at Government High School Kuthari under Yashwant Gurukul Awas Yojna, FIR No. 5 of 2005 Ext. PW-14/B came to be registered in Police Station Anti-corruption Zone, Shimla with the allegation that Deputy commissioner, Shimla vide letter dated 6.7.1999 Ext. PW-3/J had sanctioned funds amounting to Rs. 10,00,000/- from the head "Backward Area Sub Plan" and estimate Ext. PW-3/C and PW-3/D to the tune of Rs. 31,38,700/- prepared by accused Sheesh Pal for construction of hostel in Government High School, Kuthari Development Block, Rohru, District Shimla. The sanctioned funds were placed at the disposal of Block Development Officer with the stipulation that the construction be carried out and the money spent on fulfillment of all codal formalities as is apparent from the letter Ext. PW-3/H. The department decided to raise the construction under its own supervision, however, the quotations were invited for supply of the construction material. Three government Contractors, namely, Hem Chand, Kailash Chand and Ram Lal Reshta have submitted their respective quotations. The same were opened and comparative statement was ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 7 drawn vide Ext. PW-3/L. The rates for various items quoted by accused Ram Lal Reshta (since dead) being on minimum side were accepted, however, accused Bir .
Singh made the application Ext. PW-4/M expressing his desire to execute the construction work of the hostel (residential accommodation) in the School. It was also mentioned in Ext. PW-3/M that to do so, he had already supplied some construction material at the spot. This application was processed by PW-4 Kedar Nath, Sr. Assistant Office of BDO Rohru when marked to him by accused Bal Mukand, the then Block Development Officer. This application was not forwarded to accused Sheesh Pal, Junior Engineer. The application was considered and payment to the tune of Rs. 1,33,179/- was sanctioned by accused Bal Mukand. The same was released to accused Bir Singh through cheque Ext.
PW-3/N. The entries in this regard were made in the cash-book Ext. B-5. The abstract thereof is Ext. PW-4/A. The accused Bir Singh has executed the receipt Ext. PW-3/A in token of the receipt of Rs. 1,33,179/- from accused BDO Bal Mukand. Not only this, but accused Bir Singh submitted hand written receipt Ext.
PW-4/E in the sum of Rs. 8,000/- on account of freight charges for loading 200 bags of sand @ Rs. 40/- each through mules of one Suresh Kumar. The hand receipt was neither verified and attested by BDO nor Jr. Engineer. It is straightway passed for payment by accused Bal Mukand. This amount was received by accused JE Sheesh Pal. Nothing, however, has come on record that said accused passed on this amount to Suresh Kumar as no receipt to this effect is produced on record. The receipt Ext. PW-4/E available on record reveals that this amount was received by one Kehar Singh of Village Tutupani and not Suresh Kumar. One GR dated 16.6.2001 Ext. PW-4/F for Rs. 2200/- on account of carriage of sand to Tutupani in Truck No. HP-10-0229 booked by Truck Operator ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 8 Union (regd.) Rohru was verified by accused JE Sheesh Pal and passed for payment by accused Bal Mukand.
.
7. During the course of investigation, the quotations Ext. PW-1/A and Ext. PW-2/A were taken into possession. PW-3 Rajinder Chand, the then J.E. in the office of BDO, Rohru has handed over letter Ext. PW-3/B, PW-3/C, estimate Ext. PW-3/D and leave chart Ext. PW-3/E which were taken into possession vide seizure memo Ext. PW-3/A. The MBs Ext. A-1 to A-12, Work Register A-13, MAs register Ext. A-14 were also handed over to PW-3 Rajinder Chand vide seizure memo Ext. PW-3/F. PW-4 Kedar Nath Sr. Assistant (Progress) in the office of BDO Rohru has also handed over the vouchers Ext. B-1 to B-4, cash book, the entries qua receipt of Rs. 10,00,000/- from the office of Deputy Commissioner, Shimla Ext. B-5 vide seizure memo Ext. PW-4/A. The entries qua receipt of further sum of Rs. 5,00,000/- Ext. PW-4/C were also proved by him.
PW-8 L.D.Chaudhary and PW-9 Chaman Singh, both Assistant Engineers had inspected the site and as per the abstract of cost Ext. PW-8/B, detail of measurement Ext. PW-8/C, consumption of material Ext. PW-8/D and analysis of rates Ext. PW-8/E find that against Rs. 13,61,550/- allegedly spent for completion of the work executed on the spot, the cost of work executed was Rs. 11,33,241/-.
The intimation to the Vigilance police in this regard was also given by Executive Engineer concerned vide letter Ext. PW-10/A. The documents Ext. PW-8/B to PW-8/E were taken in possession vide memo Ext. PW-8/A. The official record i.e. Ext. C-1 to C-4 containing admitted hand writing of accused Sheesh Pal and Ext. C-5 to C-11 of accused Bal Mukand were handed over to the police by Rich Pal Molta, the then Clerk in the office of BDO Rohru which were taken in possession by the police vide recovery memo Ext. PW-7/A. The signatures, hand writing, initials of accused Bal Mukand Nihalta marked S-1 to S-13, were ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 9 obtained by the police. Similarly, the signatures/hand writing/initials S-25 to S-
30 of accused Ram Lal Reshta (since dead) were also obtained. Besides, the .
posting order of accused Bal Mukand Ext. PW-13/A, his further posting order at Rohru Ext. PW-13/B & Ext. PW-13/C, the posting order of accused JE Sheesh Pal Ext. PW-13/D, his appointment letter Ext. PW-13/E, posting order Ext. PW-13/F were also taken into possession. Letter granting permission to register the case against accused accorded by the Government is Ext. PW-14/A. The inventory prepared is Ext. PW-14/D and the seizure memo is Ext. PW-14/E. The letters according approval by the competent authority are Ext. PW-3/G and PW-3/H which were taken into possession vide recovery memo Ext. PW-14/F. The report qua comparison of the admitted signatures and hand writing of the accused persons with their specimen signatures and hand writing submitted by PW-12 Dr. Meenakshi Mahajan, Asstt. Director, Documents and Photo Division, SFSL Junga is Ext. PW-12/D.
8. It is on the completion of the investigation and according prosecution sanction under Section 19(1) (c) of the Prevention of Corruption Act, 1988, in respect of accused JE Sheesh Pal Ext. PW-9/A, the report under Section 173 Cr.P.C. was filed in the Court. Learned trial Judge, on appreciation of the report and the documents annexed therewith and on finding a prima-facie case made out against the accused persons framed charge against each of them as pointed out in this judgment at the very outset.
9. The accused persons, however, pleaded not guilty to the charge.
Therefore, the prosecution has examined 14 witnesses in all and also placed reliance on documentary evidence as discussed hereinabove. The material prosecution witnesses are PW-1 Hem Chand, one of the Contractor having submitted the quotation for supplying the construction material such as sand, ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 10 bricks etc. He has proved the quotation Ext. PW-1/A, he submitted and admitted in his cross-examination that the notice for inviting quotations was published.
.
PW-2 Kailash Chand is another Contractor who had submitted the quotation Ext.
PW-2/A. PW-3 Rajinder Chand Sharma was working as J.E. in the office of BDO Rohru at the relevant time and various documents referred to hereinabove were taken into possession from him during the course of investigation. He, when re-examined had also identified the signatures marked Q-26 being that of accused JE Sheesh Pal. He has also identified signatures marked Q-27 of accused JE Sheesh Pal. PW-4 Kedar Nath was working as Sr. Assistant (Progress) in the office of BDO Rohru at the relevant time. He has also handed over the documents referred hereinabove during the course of investigation. When re-
examined, he has identified the signatures of accused Sheesh Pal on Ext. PW-4/G and that of accused Bal Mukand on Ext. PW-4/H, PW-4/J, PW-4/K and PW-4/L. PW-5 Gopal Das, Sr. Assistant has proved the cheque Ext. PW-3/N issued in favour of Bir Singh, a government contractor. The cheque is not crossed one.
PW-6 Dr. Rajesh Kumar, Dy. Director, RFSL Mandi has given the report Ext.
PW-6/A with respect to quality of sand, stone, cement and mortar used for raising construction and the ratio thereof Ext. PW-6/A. PW-7 Rich Pal Molta has produced the documents referred to hereinabove which were taken into possession by the police vide memo Ext. PW-7/A. PW-8 L.D.Chaudhary and PW-10 Chaman Singh had conducted spot inspection and submitted the reports as already discussed hereinabove. PW-9 Ramesh Chand Verma, the then Superintending Engineer, HP PWD Rohru has proved the order of sanction Ext. PW-9/A. PW-11 Kehar Singh though was examined to prove the receipt Ext. PW-4/C, however, he denied the signatures thereon and stated that there is another Kehar Singh in Village Totupani. It has come in his cross-examination that said Kehar Singh of ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 11 Village Totupani had mules and used to carry sand etc. According to him, the receipt Ext. PW-4/C may have been signed by him. When re-examined, it is .
stated by this witness that there was another Kehar Singh in Village Totupani. He never stated so, during the course of investigation. PW-12 Dr. Minakshi Mahajan is Asstt. Director who has proved report Ext. PW-12/D. The remaining prosecution witnesses are PW-13 Naresh Kumar Sharma, Dy. Superintendent of Police State Vigilance and ACB, Kullu who had partly investigated this case during his posting as DSP (SV & ACB) Police Station Shimla. Sh. Vinod Kumar PW-14 DSP has also investigated this case partly.
10. On the other hand, accused Sheesh Pal in his statement recorded under Section 313 Cr.P.C. has almost admitted the entire prosecution case.
Similarly, accused Bal Mukand has also admitted the incriminating circumstances appearing against him in the prosecution case except for that a sum of Rs.
1,33,179/- was released by him to accused Bir Singh without he having executed any work and that the cost of the work executed on the spot was found by the Expert Committee only amounting to Rs. 11,33,241/-. Accused Contractor Bir Singh has, however, denied the incriminating circumstances put to him being wrong, however, admitted that the application Ext. PW-3/M bears his signatures but as per his further version, he did not receive the payment through cheque.
According to him, the receipt Ext. PW-3/O also bears his signatures but the same is related to some other work.
11. The accused, however, opted for not producing any evidence in their respective defence.
12. Learned trial Judge on examination of the entire evidence and affording an opportunity of being heard to the prosecution as well as accused has concluded that accused Bal Mukand committed the offence punishable under ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 12 Sections 120B, 409/420 , 409, 467, 468, 471 IPC and also under Section 13(i)(d) read with Section 13(2) of P.C. Act and accused JE Sheesh Pal under Sections .
120B, 420, 409, 467, 468 & 471 IPC and under Section 13(2) of P.C.Act whereas accused Bir Singh under Sections 120B, 420, 467, 468 and 471 IPC and convicted all of them. The sentences imposed against each of them have already been discussed in this judgment at the very outset.
13. Mr. G.D.Verma, Sr. Advocate assisted by Mr. B.C.Verma, Advocate representing accused Contractor Bir Singh has pointed out from the record that in the application Ext. PW-3/M, the column pertaining to amount claimed is blank. Had accused Bir Singh claimed any amount, he would have mentioned the same in the application. The receipt Ext. PW-3/A is stated to be partly in Hindi and partly in English. Who had scribed it, according to Mr. Verma remained unexplained. As regards the cheque Ext. PW-3/N, according to learned counsel whether it was got encashed by accused Bir Singh, no evidence is forthcoming. Also that when the money was received by accused Bir Singh, vide receipt Ext. PW-3/O, why the cheque was issued qua the same payment. The report Ext. PW-12/D, according to learned counsel is not suggestive of that the documents Ext. PW-3/N and PW-3/O bears the signatures of accused Bir Singh.
14. Mr. Satyen Vaidya, Sr. Advocate assisted by Vivek Sharma, Advocate, has argued on behalf of accused Jr. Engineer Sheesh Pal that findings of conviction against the said accused could have not been recorded on the basis of the statement under Section 313 Cr.P.C. and rather learned trial Court should have recorded such findings on the basis of the prosecution evidence if available on record. The so called Suresh Kumar, mules operator was neither associated during the course of investigation nor was he produced in evidence to show that he received Rs. 8,000/- from accused JE Sheesh Pal. The less work executed on ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 13 the spot is not at all proved. The receipt Ext. PW-4/E reveals that a sum of Rs.
8,000/- was received by Suresh Kumar.
.
15. Mr. D.P.Chauhan, Advocate representing accused BDO Bal Mukand has stated that in the application Ext. PW-3/M, the amount claimed has not been mentioned. Similarly in the receipt Ext PW-3/O, the amount received also do not find mention. The cheque is not a crossed cheque. The payment thereunder has not been received by accused Bir Singh. The work was executed on nomination and not on tender. The accounts allegedly were accurate. The bearer of the cheque accused Bir Singh was not identified in the bank by anyone as there is no evidence. Therefore, according to Mr. Chauhan, the payment has not been received by accused Bir Singh to whom the cheque was issued.
16. Learned Dy. Advocate General, while supporting the judgment passed by learned trial Court has pointed out that accused Bal Mukand has passed the bill for payment of false claim. The quality and quantity of work was not found as shown in the record. PW-1 Hem Chand and PW-2 Kailash Chand who had also submitted the quotations were not called when the same were opened.
Accused Bir Singh did nothing, however, received the payment. Also that reply to the questions put to the accused in their statements under Section 313 Cr.P.C.
reveals that they themselves have admitted the prosecution case. Learned trial Judge as such has rightly convicted and sentenced the accused.
17. The present is a case where accused Bal Mukand was Block Development Officer, accused Sheesh Pal Jr. Engineer and accused Ram Lal Reshta (since dead) as well as accused Bir Singh, Government Contractors. They allegedly hatched conspiracy to commit the offence of cheating, mis-
appropriation of the government funds on the basis of forged and fictitious documents. Pursuant to such conspiracy, the cost of work executed on the spot ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 14 was entered/shown in the documents as Rs. 13,61,550/- by way of forging and fabricating the same and thereby mis-appropriated the government funds.
.
18. The prosecution, in support of its case has relied upon the oral as well as documentary evidence. Admittedly, the approval for construction of residential accommodation in Government High School, Kuthari, Tehsil Rohru, Distt. Shimla under the scheme Yashwant Gurukul Awas Yojna was conveyed by the Deputy Commissioner Shimla to District Education Officer on 6.7.1999.
The letter is Ext. PW-3/G. The funds were diverted from the head "Backward Area Sub Plan" and were required to be utilized on fulfillment of all codal formalities. The funds amounting to Rs. 10,00,000/- and Rs. 5,00,000/- were received by accused BDO Bal Mukand. The work was to be executed departmentally, however, the construction material was to be supplied by the government contractors. The quotations were received and comparative statement Ext. PW-3/L was prepared and the same reveals that the rates quoted by accused Ram Lal Reshta (since deceased) being lowest were accepted, meaning thereby that the construction material should have been supplied by said accused Ram Lal Reshta (since deceased). How accused Bir Singh came into picture because he even had not submitted the quotations also, the accused BDO Bal Mukand has failed to explain? On the other hand, the prosecution has satisfactorily pleaded and proved that though he did nothing, however, received a sum of Rs. 1,33,179/-.
The arguments addressed that accused Bir Singh was executing other works and the money released to him was pertaining to the said works are without any substance for the reason that in the application Ext. PW-3/M, it is categorically submitted that the said accused was interested in getting the construction work of the hostel of Government High School Kothari executed and as tenders were to be ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 15 invited for execution of the said work and as he had already supplied some construction material at the work site, therefore, claimed payment.
.
19. True it is that the amount has not been mentioned in this application and may be due to part of the conspiracy amongst the accused.
According to PW-3, this application was made by accused Bir Singh, the same as per the report Ext. PW-12/B of the Asstt. Scientist bears the signature of the said accused. Not only this, but this application was processed and the accused BDO Bal Mukand sanctioned a sum of Rs. 1,33,179/- for being paid to accused Bir Singh. No evidence is forthcoming as to the construction material in how much quantity was transported by the said accused to the spot and under whose authority because the rates of deceased contractor accused Ram Lal Reshta qua supply of such material were duly approved.
20. It is canvassed that the cheque Ext. PW-3/N is not crossed one and there is no proof of the identifier. The crossed cheque seems to be not issued deliberately and intentionally with a view to enable accused Bir Singh to receive the payment in cash. There is endorsement on the reverse of the cheque that it was got encashed by accused Bir Singh and the payment thereunder received by him. Though as per the report Ext. PW-12/D, it was not possible to express opinion on the disputed signatures Q-19 and Q-20 which are that of accused Bir Singh on the reverse of the cheque. The fact, however, remains that the payment under the cheque was drawn by cash. The reference in this behalf can be made to the statement of PW-3 Rajinder Chand. In his cross-examination, no suggestion was put that the payment under the cheque was not received in cash. On the other hand, accused Bal Mukand in reply to question No. 11 in his statement recorded under Section 313 Cr.P.C. has admitted that the application Ext. PW-3/M was made by accused Bir Singh and on that he has sanctioned a sum of Rs. 1,33,179/-
::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 16for payment to the said accused through cheque Ext. PW-3/N. Similarly, in reply to question No. 12, accused Bal Mukand, has further admitted that on receipt of .
the amount in question, accused Bir Singh had executed the receipt Ext. PW-3/O. The payment pertains to advance towards construction of the hostel of Government High School Kothari. It has also been admitted that entries in the cash-book were also made in this regard while answering question No. 13. The prosecution evidence coupled with the own admission of accused Bal Mukand, lead to the only conclusion that a sum of Rs. 1,33,179/- was paid to accused Bir Singh on the basis of the forged and fictitious record because there was no other reason to have taken the services of said accused to supply the construction material particularly when the lowest rates quoted by deceased contractor Ram Lal Reshta were approved.
21. Not only this, but as per hand receipt Ext. PW-4/E, a sum of Rs.
8,000/- was sanctioned for being paid to one Suresh Kumar from whom allegedly construction material was purchased. The hand receipt bears signatures of accused Sheesh Pal. This amount even is received by accused Jr. Engineer Sheesh Pal. However, who was Suresh Kumar and what construction material was purchased from him, nothing could be made out from the record maintained by accused BDO Bal Mukand and accused Sheesh Pal. This amount was actually paid to Suresh Kumar, is also not proved because neither said Suresh Kumar has been examined as a witness during the course of trial nor the receipt if any issued by him in token of the receipt of this amount. This amount has therefore been embezzled by accused Sheesh Pal or may be by accused BDO Bal Mukand. A further sum of Rs. 2200/- has been shown to be paid by way of freight charges on account of carriage of construction material in truck No. HP 10-0229 which was got booked from Truck Operators' Union (Regd.), Rohru. This amount as per ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 17 Ext. PW-4/F was to be paid to the driver of the truck. The same has been received by one Satish as is evident from the signature on the revenue stamp.
.
However, who was that Satish, nothing to this effect surfaced during the course of investigation nor the accused could give any explanation in this regard. On the other hand, in the statement recorded under Section 313 Cr.P.C. of accused Bal Mukand, he has expressed his inability to tell that this amount was drawn and paid. As per the evidence having come on record by way of testimony of PW-4 Kedar Nath, Sr. Assistant, the payment of Rs. 2200/- was verified by Shesh Lal and thereafter passed for payment by the BDO accused Bal Mukand. The signatures of the said accused (Q-4) stands proved from the report Ext. PW-12/D. Therefore, it is proved beyond all reasonable doubt that payments of Rs.
1,33,179/-, Rs. 8000/- and Rs. 2200/- was sanctioned for payment to accused Contractor Bir Singh, Suresh Kumar and driver of truck No. HP 10-0229, respectively. There is sufficient evidence available on record to show that the payment of Rs. 1,33,179/- to Bir Singh is duly proved. However, the justification of such payment to the said accused is not at all established. The accused respondent, however, failed to count for the payment of Rs. 8,000/- to Suresh Kumar and Rs. 2200/- to the driver of the truck. Therefore, under the part of the conspiracy, accused persons hatched, they forged the record and mis-appropriated this amount and thereby caused wrongful loss to the public exchequer whereas wrongful gain to themselves.
22. The poor workmanship and quality of the construction work find support from the report of FSL Ext. PW-6/A. As per this document, the ratio of cement, sand and stone was 1:4.7:10 by weight and in the ratio of 1:6.9 of cement and sand by weight. The report stands duly proved from the statement of Dr. Rajesh Kumar, Dy. Director, RFSL, Mandi. The ratio as per Ext. PW-8/B, ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 18 however, should have been as prescribed in Ext. PW-8/B. It is, therefore, proved that the prescribed ratio of cement, sand and stone etc. has not been used and as .
such construction work executed on the spot was of inferior quality. The report of the Expert committee Ext. PW-8/B further reveals that the cost of construction on the spot comes to Rs. 11,33,241/- as against Rs. 13,61,550/- shown in the record by the accused persons. This report finds full support from the testimonies of PW-8 L.D.Chaudhary and PW-10 Chaman Singh, both Asstt. Engineers and Members of the Expert Committee who had conducted the spot inspection and prepared the report Ext. PW-8/B. This report is correct as nothing to the contrary has been suggested to both the witnesses in their cross-examination. Although, a plea in defence that cross-sections were not prepared and had it been prepared the exact estimation of the work conducted could have been made was raised, however, unsuccessfully because the same cannot be believed to be true without any material to the contrary available on record.
23. Another plea raised by accused Bir Singh that the payment was received by him in connection with some other work he executed is also false as no suggestion was given to PW-5 Gopal Dass and for that matter PW-3 Rajinder Chand Sharma in this regard who proved the cheque Ext. PW-3/N. On comparison of the admitted signatures with specimen signatures of all the accused in the SFSL, Junga by PW-12 Dr. Minakshi Mahajan, the signatures on various documents discussed hereinabove were proved to be that of accused BDO Bal Mukand and accused Sheesh Pal, Jr. Engineer. True it is that no opinion could be expressed by PW-12 Dr. Minakshi Mahajan qua the signatures marked Q-19 and Q-20 on the reverse of the cheque Ext. PW-3/N, however, the signatures Q-17 on the application Ext. PW-3/M and receipt Ext. PW-3/O are that of the said accused.
It is again without any substance that in the receipt, the amount received by ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 19 accused Bir Singh do not find mention because the same find mention with red pen not only in figures but words also.
.
24. The entrustment of Rs. 15,00,000/- the amount sanctioned by Deputy Commissioner is duly proved as it is stated so by PW-3 Rajinder Chand Sharma, Jr. Engineer and also PW-4 Kedar Nath. There is no denial thereto by accused Bal Mukand also as he has admitted this aspect of the matter while answering question Nos. 8 & 9 in his statement recorded under Section 313 Cr.P.C.
25. Interestingly enough, accused Jr. Engineer Sheesh Pal has only denied the commission of various offences under the Indian Penal Code and Prevention of Corruption Act while answering question No. 1 and as regards remaining incriminating circumstances put to him under questions Nos. 3 to 14 and 16 to 20, he has admitted the same to be true and correct. He has only denied question No. 15 qua drawing the sample of cement concrete, cement mortar and stone used in masonry work as well as RCC slab and the ratio thereof found when analyzed in the laboratory. Similarly, accused Bal Mukand has also denied the second question i.e. qua he having committed different offences under the IPC and the Prevention of Corruption Act whereas admitted the rest of the prosecution case put to him under question Nos. 3 to 13 and 15 to 18 and 20. In reply to question No. 14 that he had sanctioned a sum of Rs. 2200/- for transportation of sand by GR Ext. PW-4/F, the reply was that he does not remember and denied the prosecution case that a Committee comprising Asstt. Engineers when conducted spot inspection, the cost of construction raised on the spot was valued at Rs.
11,33,241/- put to him under question No. 19. Similarly, accused Bir Singh has also denied the commission of various offences while answering question No. 2, however, in reply to question No. 3 admitted his signatures on the application Ext.
::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 20PW-3/M. However, according to him, he did not receive any payment through cheque nor the receipt Ext. PW-3/O bears his signatures. The receipt according to .
him pertains to some other work which is not correct because no suggestion was given by him to PW-3 Rajinder Chand and PW-5 Gopal Dass who have proved the cheque and receipt that this amount was due and admissible to him with respect to execution of some other work.
26. True it is that the statement of the accused recorded under Section 313 Cr.P.C. cannot be made the sole basis for recording the findings of conviction against an accused, however, only in those cases where the prosecution has failed to produce cogent and reliable evidence. In the case in hand, the documentary evidence itself is sufficient to prove the entrustment of the funds and its misappropriation by accused BDO Bal Mukand, accused Jr. Engineer Sheesh Pal in connivance with their co-accused Bir Singh, the contractor. The prosecution, as such, has otherwise also proved its case beyond all reasonable doubt with the help of the oral as well as documentary evidence. The ratio of the judgment of the Hon'ble Apex Court in Balaji Gunthu Dhule vs. State of Maharashtra, (2012) 11 SC 685, is therefore, not attracted in the case in hand. On the other hand, learned trial Judge has not only appreciated the evidence available on record in its right perspective but also the law applicable to a case of this nature and rightly held all the accused guilty for commission of various offences under the IPC and also the Prevention of Corruption Act. The findings of conviction as recorded, therefore, call for no interference. In the matter of sentence also, learned trial Court has taken a reasonable view by sentencing all the accused to undergo imprisonment only for six months for the commission of each offence.
27. The defence of the accused that at the most the present is a case of lack of supervision and administrative failure and not misappropriation of the ::: Downloaded on - 19/11/2018 22:57:23 :::HCHP 21 funds is also without any substance for the reason that a sum of Rs. 1,33,179/- has been paid to accused Bir Singh without there being any record to show that the .
construction material to this extent was supplied by him. So far as payment of Rs.
8,000/- to Suresh Kumar and Rs. 2200/- to the driver of truck No. HP 10-0229 is concerned, there is again no record maintained, therefore, it is not due to the supervisory control or its administrative failure and rather a move to misappropriate the funds with malafide intention to cause wrongful loss to the public exchequer and wrongful gains to them.
28. For all the reasons hereinabove, there is no merit in these appeals and the same are accordingly dismissed. Consequently, the impugned judgment is affirmed. The appellants-convicts to surrender in the trial Court to serve out the sentence passed against each of them.
November 16, 2018. (Dharam Chand Chaudhary),
(karan--) Judge.
::: Downloaded on - 19/11/2018 22:57:23 :::HCHP