Jharkhand High Court
Akbar Hussain vs State Of Jharkhand on 16 December, 2011
Author: Prashant Kumar
Bench: Prashant Kumar
CRIMINAL APPEAL NO. 1771 OF 2003
WITH
CRIMINAL APPEAL NO. 1773 OF 2003.
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Against the judgment of conviction and order of sentence dated 18.11.2003
passed by Special Judge,C.B.I.-cum-Ist Additional Sessions Judge, Dhanbad
in R.C.Case no. 30(A)/85( PAT).
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1.R.R.Sinha . . . . .Appellant in Cr. Appeal No.1771/2003.
2.Akbar Hussain. . . . Appellant in Cr. Appeal No.1773/2003.
Versus
1.The State of Jharkhand
2. D.S.Yadav, Inspector, C.B.I. Patna Respondents in Cr. Appeal No.1771/03
3. State of Jharkhand. Respondent in Cr. Appeal No.1773/03
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For the Appellant : M/s R.K.Singh,Mahesh Tiwari, G.Pathak, advocates
in Cr. Appal No.1771/03
P.P.N.Roy,Sr. Advocate Shahid Khan, R.Ansari,
Advocates in Cr.Appeal No.1773/03
For the Respondent : M/s Rajesh Kumar and Mr.Mokhtar Khan,
Advocates in both the appeals
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PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR.
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Reserved on : 17.09.2011 Delivered on :_16/12/2011
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Prashant Kumar, J. These appeals are directed against the judgment of
conviction and order of sentence dated 18.11.2003 passed by Special
Judge,C.B.I.-cum- Ist Additional Sessions Judge, Dhanbad in R.C. Case
no. 30(A)/85( PAT), whereby he convicted the appellants under sections
420/409/471read with Sections 467/477A of the I.P.C. as also under sections 5(1)(c) and (d) punishable under section 5(2) of the Prevention of Corruption Act of 1947 and sentenced them to undergo R.I. for three years under section 5(2) of the Prevention of Corruption Act, 1947 with fine of Rs.1000/- and further sentenced themto undergo R.I. for one year for the offence committed under section 420 I.P.C., two years R.I. for the offence committed under section 409 I.P.C. , two years R.I. for the offence committed under section 477A I.P.C. with a fine of Rs.1000/- and three years R.I. for the offence committed under section 467 I.P.C.. He further ordered that all the sentences will run concurrently.
2. The case of the prosecution in brief, as alleged in the F.I.R. (Ext.1) is that both the appellants hatched a conspiracy to cheat Railway for 2. their illegal pecuniary gain. It is further alleged that in pursuance of aforesaid conspiracy , they prepared inflated bill for the month of April, May and June 1985 of Unit no. CPB 361( office staff) of Loco Fore-man, Eastern Railway,Dhanbad . It is then alleged that said bills were signed by appellant Akbar Hussain. It is alleged that appellant R.R. Sinha received entire amount mentioned in aforesaid inflated bills from the office of Senior Cashier and after disbursement retained excess amount i.e. Rs. 21,708=65, drawn fraudulently and mis-appropriated the same in collusion with appellant Akbar Hussain.
3. On the basis of aforesaid allegation , C.B.I. instituted a case bearing R.C. case No. 30(A)/85(PAT) dated 31.10.85 under section 120B/ 409/420/477A I.P.C. and sections 5(2) read with section 5(1)(c) and (d) of the Prevention of Corruption Act, 1947 and took up investigation. It further appears that after completing investigation, C.B.I. submitted charge-sheet against appellants under sections 120B/420/409/467/477A of the I.P.C. and Sections 5(2) read with section 5(1)(c) and (d) of the Prevention of Corruption Act. It appears that on the basis of said charge-sheet Special Judge, C.B.I. took cognizance of aforesaid offences and thereafter framed and explained charges to the appellants under sections 120B/420/409/471/467/477A I.P.C. and sections 5(1)(c) and (d) read with section 5(2) of the Prevention of Corruption Act, 1947 to which appellants pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether 14 witnesses in support of its case. It also adduced documentary evidence details of which given in exhibit list.
4. Learned court below after close of prosecution case, examined appellants under section 313 of the Cr. P.C. in which their defence is of total denial. It further appears that appellant R.R. Sinha examined himself as defence witness no.1.
5. It appears that learned court below after considering the evidence available on record and also after hearing counsels for the parties, convicted and sentenced appellants as stated above, against that present appeals filed.
6. It is submitted by learned counsel for the appellants that in the instant case, learned court below has committed serious illegality by 3. convicting and sentencing the appellants for the offences under sections 409 I.P.C. as well as under section 5(1)(c) of the Prevention of Corruption Act, 1947. It is submitted that offence under section 5(1)(c) of the Prevention of Corruption Act is identical with offence under section 409 of the I.P.C. thus, as per section 26 of the General Clauses Act, appellants can be prosecuted and punished for any one of aforesaid two offences. It is submitted that since, the appellants were punished for both the offences, therefore, judgment of the court below cannot be sustained. It is further submitted that appellants have no intention to mis- appropriate excess amount because admittedly the said amount has already been deposited with the authority concerned prior to lodging of F.I.R. It is further submitted that from the materials available on record, it is clear that the appellants have no dishonest intention to mis-appropriate the aforesaid amount. Thus, offence under section 409 I.P.C. as well as under section 5(1)(c) of Prevention of Corruption Act is not made out. It is further submitted that there is no evidenced to show that appellants hatched conspiracy to mis-appropriate the amount , but the learned court below convicted the appellants under section 120B of the I.P.C. without any evidence. Accordingly, it is submitted that impugned judgment of conviction and order of sentence cannot be sustained in these appeals.
7. On the other hand, learned counsel appearing for the C.B.I. submits that though appellant R.R. Sinha was not authorized to prepare pay bill but he illegally prepared said bills and Akbar Hussain put his signature on them. It is also submitted that appellant R.R. Sinha took cash amount from the office of Senior Cashier for disbursement of same to the staff, He further submitted that after disbursing the salary of staff he returned the bills, but retained excess amount and mis-appropriated the same. It is submitted that the said excess amount returned by appellant R.R. Sinha on being asked by higher authority. It is submitted that even temporary embezzlement of public money is sufficient for conviction of appellants under section 409 of the I.P.C. and section 5(1)
(c) of the Prevention of Corruption Act. Accordingly, it is submitted that there is no illegality in the impugned judgment, which require any interference by this Court.
4.8. Before considering the factual aspect of the matter, I think it appropriate to consider various submissions raised by learned counsels on the point of law. Section 26 of the General Clauses Act reads as under :
" 26.Provision as to offences punishable under two or more enactments- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
9. Thus, it can be visualized from aforesaid propvision that if one act or omission constitute an offence under two or more enactments then in that case offender is liable to be prosecuted and punished under any one of aforesaid enactments, but he shall not be punished for both offences.
10. In the instant case, both the appellants were prosecuted, convicted and sentenced under section 409 I.P.C. as well as under section 5(1)(c) of the Prevention of Corruption Act. Thus, question arise in this case for consideration as to whether same act or omission constitutes offence under section 409 of the I.P.C. as well as as under section 5(1)(c) of the Prevention of Corruption Act, 1947 ? Section 409 of the I.P.C. runs as follows :
"S.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."( emphasis added)
11. From perusal of aforesaid provision, it appears that if a public servant is entrusted with a property and he commits criminal breach of trust with respect to the said property then he is liable to be punished under section 409 I.P.C. Criminal breach of trust defined under section 405 of the I.P.C., which runs as follows :
"405.Criminal breach of trust- Whoever, being any manner entrusted with property, or with any dominion over property, dishonestly, misappropriates or converts to his own use that property, or dishonestly uses or disposes of that 5. property in violation of any direction of law prescribing the mode in which such trust is to be discharged , or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
Thus, if any property entrusted to a person and that person dishonestly misappropriates that property then he commits the offence of criminal breach of trust.
12. It is not out of place to quote section 5(1)(c) of the Prevention of Corruption Ac, 1947, for better appreciation, which is as follows :
" A public servant is said to commit the offence of criminal mis-conduct in the discharge of duty, if he dishonestly or fraudulently mis-appropriates or otherwise converts to his own use any property entrusted to him or under his control as a public servant or allow any other person so to do."
13. Thus, on joint reading of aforesaid provisions, it is clear that if a public servant dishonestly mis-appropriates public money and convert it to his own use, he can be punished for the said offences. Under the said circumstance, the same act or omission i.e. dishonest mis-appropriation of public money by a public servant constitute offence both under section 409 of the I.P.C. as well as under section 5(1)(c) of Prevention of Corruption Act, 1947.
14. A similar view was taken by Full Bench of Allahabad High Court in the case of " Om Prakash.Vs. State reported in A.I.R. 1955 Allahabad 275, where after considering aforeasaid provisions, their Lordships concluded that offence under section 5(1)(c) of the Prevention of Corruption Act is almost identical with an offence under section 409 of the I.P.C.
15. As a result of aforesaid conclusion that same act or omission i.e. dishonest mis-appropriation of public money by a public servant constitutes offence both under section 409 of the I.P.C. and under section 5(1)(c) of the Prevention of Corruption Act, in my view as per section 26 of the General Clauses Act, the appellants can be prosecuted and punished either under Indian Penal Code or under Prevention of Corruption Act, but certainly they cannot be punished under both 6. provisions.
16. In the instant case, as noticed above,the learned court below prosecuted, convicted and sentenced the appellants both under section 409 of the I.P.C. as well as under section 5(1)(c) of the Prevention of Corruption Act. Thus, by doing so learned court below, in my view, has committed serious illegality.
17. From perusal of entire evidence available on record, I find that there is absolutely no evidence to show that the appellants hatched conspiracy for cheating Railway Administration. There is no evidence to show that the appellants met together and plan for mis-appropriation of money by preparing inflated bills. Under the said circumstance, conviction of appellants for various offences with the aid of section 120B of the I.P.C. cannot be sustained.
18. For convicting an accused under section 409 of the I.P.C. and under Section 5(1)(c) of the Prevention of Corruption Act, it is necessary for the prosecution to prove that the accused person dishonestly mis- appropriated property entrusted to them and converted it to their own use.
19. Thus, I am proceeding to consider prosecution evidence with a view to ascertain whether appellants had any dishonest intention to mis- appropriate the amount ?
20. P.W.2 is Deputy Chief Personnel Officer. He stated in detail about the procedure of preparation of salary bill, method of checking of bills and its en-cashment and disbursement to the staff. He stated that after preparation, bills were sent to Accounts Office for check and after checking, same were signed by Assistant Personnel Officer. Thereafter, bills again checked by Accounts Clerk. Thereafter, Dy. Accounts Officer certified and passed them. Thereafter, bills sent to Divisional Accounts Office for encasement. He further deposed that Cashier of the section disbursed the said amount to different employees. He also deposed that after disbursing if some amounts became excess, then same were kept by the cashier or any authorized person for a reasonable period and thereafter they deposit it in the office. P.W.8, who is a senior Cashier 7. posted in the Accounts Office, Dhanbad had also narrated the same procedure.
21. It is admitted that appellants R.R. Sinha has filed an application (Ext.5)before the Senior D.A.O. ;Eastern Railway, Dhanbad praying therein that he may be permitted to deposit excess drawn salary amount of Loco Dhanbad for the months of April 1985 to June 1985 which were kept by him. It also stands admitted that as per permission given by Senior D.A.O., Dhanbad appellant R.R.Sinha deposited the said amount on 31.07.1985. It is also not in dispute that F.I.R. of this case instituted on 31.10.1985. Thus, the said deposit was made by appellant R.R. Sinha much before the date of institution of F.I.R.
22. As per procedure, after preparation of bills are require to be checked by various officers. As per procedure after passing of bill cashier encash it and then distribute it to different employees. Under the said circumstance, at the time of preparation of bill, none of the appellants were knowing that they will distribute cash amount to different employees, because it is not their job. It is alleged that there is error in totaling of bills. It appears that appellants innocently committed mistake, because they know that if they do it deliberately they may be caught, because said mistakes can easily be detected by other officer or employee at the time of checking of bills, unless other officer or employee also connived with appellants. There is no evidence on record to show that appellants connived with other officers and employee to mis-appropriate excess amount. Under the said circumstance it can safely be held that at the time of preparation of bills, appellants had no ill intention.
23. It is relevant to mention that, as per procedure, after disbursement if some amount become excess, the cashier and/or authorized person can retain it for a reasonable time and then deposit it in office. In the instant case, appellant R.R.Sinha was authorized to disburse salary to the Loco staff for the months of April to June , 1985. It further appears that for the months of April, May & June, the payment were made in the first week of May June & July respectively. As noticed above, appellant R.R.Sinha through Ext. 5 requested Divisional Accounts Officer to permit him to deposit the excess amount and after obtaining permission he deposited excess amount on 31.7.1985. Thus, in my view, he retained excess amount only for few days. It appears from Ext.5 that he seeks 8. permission to deposit aforesaid amount voluntarily. It is stated by P.W.8 in his deposition that appellants R.R.Sinha deposited the said amount on being ordered by superior authority but he had not disclosed the name of officer who issued such order. It is worth mentioning that the said officer has not been examined to prove aforesaid statement of P.W.8. Under the said circumstance, I find that the said evidence of P.W.8 is hearsay,thus, cannot be looked into. Therefore, it is clear from evidence that appellant R.R.Sinha deposited the said amount voluntarily. According to procedure, an employee who has been authorized to disburse amount, can retain excess amount for a reasonable period,thus, in my view, retention of excess amount by appellant R.R.Sinha for few days does not amount to temporary embezzlement.
24. It has been held by Their Lordships of Supreme Court in the case of ".Narendra Pratap Narain Singh & another.Vs.State of U.P." reported in AIR 1991 SC-1394 that if an amount alleged to have been mis-appropriated was deposited by the accused before investigation, then offence under section 409 I.P.C. can not be made out. As noticed above, in the instant case, appellant R.R. Sinha deposited the said amount on 31.7.1985, whereas investigation started after 31.10.1985. Thus, in view of aforesaid law laid down by their Lordships of Supreme Court, offence under section 409 of the I.P.C. is not made out. From perusal of entire evidence adduced by prosecution, I find that there is nothing to show that appellants have forged any document, thus, offence under section 467/471 and 477A of the I.P.C. is not made out.
25. In view of the discussions made above, I find that the impugned judgment of conviction and order of sentence suffers from serious illegality , therefore, cannot be sustained in these appeals.
26. In the result, appeals are allowed. Impugned judgment of conviction and order of sentence is set aside. Appellants are acquitted from the charges levelled against them. They are also discharged from the liabilities of their bail bonds furnished by them.
( Prashant Kumar,J.) Jharkhand High Court, Ranchi The 16th December, 2011.
Raman/ N.A.F.R.