Delhi District Court
C.B.I. vs . Govind Singh & Others on 6 October, 2007
1
IN THE COURT OF SHRI G.P. MITTAL : SPECIAL JUDGE: DELHI.
C.B.I. Vs. Govind Singh & others
RC No. 76 (A)/88-CBI/ACB/DLI
CC No.128/98
Judgment
1.Accused Govind Singh , Saheb Lal and Hans Raj have been sent up to this court to face trial for the offence punishable U/s.120-B read with Section 409 IPC and substantive offences U/s 409 IPC and Section 5(2) read with Section 5(1)© of the Preventive of Corruption Act, 1947. Shri G.P. Srivastava who was also sent for trial has died during the proceedings and the trial has abated against him.
2. There are several telephone exchanges of Mahanagar Telephone Nigam Limited(for short MTNL) working for providing telephone facilities in various areas of Metropolitan city of Delhi. There is one Circle Store Depot (for short CSD) in Netaji Nagar, New Delhi of MTNL which caters to the needs of stores requirement of the telephone exchanges working in that circle. As per procedure SDO (Phones) of different telephone exchanges used to send the indents to the AE, In Charge of CSD for supply of the stores items including drop wire. Upon such receipt of indents at the CSD, a dealing clerk used to prepare the issue note (in three copies) and all the copies were signed by the Section Superintendent. The SDO of different exchanges/stores used to send authority letter to the CSD In Charge for supplying the material through the authorised person. CSD Store 2 Keeper took the signatures of the authorised person on the issue note already with him and issue notes were handed over to the said person for collection of gate passes. The Store Keeper of the CSD supplied the material (drop wire in the present case) , the gate pass was issued and the gate man allowed the same to be taken out of the CSD.
3. The material so taken was to be entered in the stock register of the respective exchanges by the person, who had collected the material from the CSD. The entry in the stock register used to be initialled by the JE and counter signed by the SDO of the exchange.
4. The case of the prosecution is that accused Govind Singh in conspiracy with other accused persons had collected 65 Kms of drop wire. Issue notes Ex.PW5/A1, Ex.PW5/A2, Ex.PW5/A3 and Ex.PW5/A4 were issued by the CSD and signed by Govind Singh in token of having received the drop wire. Gate passes Ex.PW5/H, Ex.PW5/G, Ex.PW5/J and Ex.PW5/J (there is one gate pass in respect of issue note Ex.PW5/A3 and Ex.PW5/A4) were issued which were also signed by accused Govind Singh. Authority Letter Ex.PW7/B in respect of issue note Ex.PW5/A1 and Authority Letter Ex.PW7/A in respect of issue note Ex.PW5/A2 were also issued by PW7 Shri YD Baluja, SDO in favour of accused Govind Singh.
5. With regard to accused Saheb Lal, the prosecution alleges that an issue note Ex.PW5/C was prepared by the CSD and was signed by accused Saheb Lal in token of having received 20 Kms. of drop wire. Gate pass Ex.PW5/N was prepared in 3 respect of 20 Kms. of drop wire which was also signed by accused Saheb Lal.
6. As far as accused Hans Raj is concerned, it is alleged that he had collected 167 Kms. of drop wire between the period 29.9.87 to 29.3.88 through the issue notes Ex.PW5/B1, Ex.PW5/B2, Ex.PW5/B3, Ex.PW5/B4, Ex.PW5/B5, Ex.PW5/B6, Ex.PW5/D1, Ex.PW5/D2, which were duly signed by him in token of having received the drop wires, gate passes Ex.PW5/K1, Ex.PW5,K2, Ex.PW5/K3, Ex.PW5/K4, Ex.PW5/K5, Ex.PW5/K6, Ex.PW5/L1 and Ex.PW5/L2. Authority Letters for collection of the material except in respect of the issue note Ex.PW5/B6 and Ex.PW5/B4 have also been placed on record as Ex.PW1/A, Ex.PW1/B1, Ex.PW3/A, Ex.PW3/B, Ex.PW3/C and Ex.PW3/E.
7. According to the prosecution, accused Govind Singh, Saheb Lal and Hans Raj who were expected to make entries in the stock registers Ex.PW4/A, Ex.PW11/A and Ex.PW10/A respectively did not make any entry in the stock register nor did they account for the same and therefore they had criminally misappropriated or otherwise converted to their own use the drop wire entrusted to them as public servant for being taken to their respective exchanges.
8. Accused persons pleaded not guilty to the charges framed against them vide order dated 4.9.02 by my learned predecessor.
49. In order to establish its case, the prosecution has examined as many as 11 witnesses.
10.On close of the evidence of the prosecution, the accused persons were examined U/s. 313 Cr.PC. Accused Govind Singh admitted that he was working as a lineman/store incharge (in Okhla Telephone Exchange) and he used to collect the material from CSD Netaji Nagar on the basis of the authority letter issued by the SDO. He admitted the procedure for collection of the material from the CSD as claimed by the prosecution. He stated that the authorised person brings the material to the store of his telephone exchange, deposits the same and an entry of the item is made in the stock register. He, however, denied having collected 65 Kms of drop wire on the basis of issue notes Ex.PW5/A1 to A4 and the gate passes Ex.PW5/G, Ex.PW5/H and Ex.PW5/J and his signatures on the issue vouchers and the gate passes. He stated that the sanction had been granted for his prosecution mechanically and he has been falsely implicated in the case.
11.Accused Saheb Lal when confronted with the evidence against him U/s. 313 Cr.PC. admitted the procedure of issue of material from the CSD. He admitted that the authorised person brings the material to the store of his telephone exchange, deposits the same in the store and an entry of the item is made in the stock register. He also denied his signatures on the issue note Ex.PW5/C and the gate pass Ex.PW5/N. He took up the plea that he had not received 20 Kms of drop wire as alleged by the prosecution. He stated 5 that during an inquiry held by the vigilance he was not found to have misappropriated the drop wire. Authority to collect the material from CSD was not issued, nor his signatures were attested by the SDO to collect the material from the CSD. He stated that he was not responsible for the loss of the drop wire.
12.Accused Hans Raj in his examination U/s. 313 Cr.PC admitted that he was working as Store Incharge at Telephone Exchange Laxmi Nagar and was responsible for maintaining the stock items received from CSD issued the same to the field staff at the store of the telephone exchange and to make relevant entries in the stock register. He denied having received 167 Kms of drop wire from CSD Netaji Nagar on the basis of issue note Ex.PW5/B1 to B6 and D1 to D2 and the gate passes Ex.PW5/K1 to K6 and Ex.PW5/L1 and Ex.PW5/L2. The accused, however, admitted that the authority letter Ex.PW1/A, Ex.PW1/B, Ex.PW1/B1, Ex.PW1/C and Ex.PW1/E were issued by his SDO PW3 Shri Satya Pal Behl. He also stated that he had been falsely implicated in the case on the basis of a sanction mechanically accorded by the sanctioning authority.
13.Accused Hans Raj produced Shri Laxman Singh in his defence, who stated about the procedure about receipt of the store from the CSD. He, however, stated that one person used to be issued only one gate pass per day for the purpose of taking the goods. If any further article is to be issued, then the gate pass has to be issued to some other person. He stated that the authority letters were to be deposited in the 6 CSD even if no stores was received/available. During cross examination, the witness admitted that only those goods are mentioned in the issue voucher, which are available and are issued to the exchange. He admitted that an official who is designated as sircar would prepare the voucher. A regular majdoor would prepare the gate pass to take out the goods from the CSD. A tempo/truck used to be taken from the exchange for transport of stores from CSD to the exchange. He stated that SDO is bound to sign the entry, when the goods are received in the telephone exchange and are entered in the stock register. He stated that in the stock register Ex.PW10/A, some of the entries are in the handwriting of accused Hans Raj.
14.I have heard Shri Rajesh Malhotra, Learned Senior Public Prosecutor for the CBI, Shri Mahesh Srivastava Advocate for accused Govind Singh and Saheb Lal and Shri LS Chaudhary Advocate on behalf of accused Hans Raj.
15.At the outset, it has been urged by Shri LS Chaudhary, Ld. Counsel for accused Hans Raj that the present case has been investigated by Central Bureau of Investigation which had also registered this case; the Central Bureau of Investigation has no legal or statutory foundation and thus, the investigation carried out by the CBI is illegal and the charge sheet is non est. He has referred to notification No. 4/31/61- T through which the Central Bureau of Investigation was constituted. It has been urged that a police force cannot be established by a Government Notification. Ld. Defence Counsel also refers to the debates of the Constituent 7 Assembly and has urged that the framers of the Constitution were very clear that the police is a State Subject and that the Central Government shall not constitute any police force. On the other hand, it has been urged by Shri Rajesh Malhotra, Learned Senior Public Prosecutor for the CBI that it is true that as per entry No.2 of list 2-State List (7th Schedule) police is a State Subject but it initially restricts the competence of the Union Government to constitute a police force for any area as is given in entry 80 to list I - Union List. The Ld. Senior Public Prosecutor has also referred to a decision of the Hon'ble Delhi High Court in Advance Insurance Company. Vs. Gurdas Mal AIR 1969 330 which was approved by the Hon'ble Supreme Court In The Management of Advance Insurance Company Ltd. Vs. Gurdas Mal & Others AIR 1970 SC 1126 where the words "belonging to any State" were interpreted as to be located in any State and not to be created by any State. The Special Police Force under the Delhi Special Police Establishment Act, 1946 was thus held to be a police force under the superintendence and control of the Central Govt. but belonging to the Chief Commissioner's province of Delhi. The Notification dated 1.4.1963 (supra) issued by the Govt. of India, to my mind, does not create any new Police Establishment but simply refers to the Sixth Division of the Delhi Special Police Establishment the investigation and Anti Corruption Division referred to as the Central Bureau of Investigation being the main division of Delhi Special Police Establishment. The validity of investigation conducted by the Central Bureau of Investigation came up before the Hon'ble Supreme Court of India in Moti Lal. Vs. Central 8 Bureau of Investigation & Another 2002 Cri.LJ 2060 wherein it was held that the offences punishable under the Wild Life Act could be investigated by the Central Bureau of Investigation. The only restriction on the powers of the Delhi Special Police Establishment which is synonymous with CBI are as given in Section 3 and Section 6 of the Delhi Special Police Establishment Act 1946 i.e. the Delhi Special Police Establishment/CBI can investigate the offences which are specified by notification in the Official Gazette by the Central Govt. and that a police officer belonging to DSPE/CBI shall not be entitled to exercise powers and jurisdiction in any area in a State not in an Union Territory or Railway Area without the consent of the Government of that State. In the instant case the offence is purported to have been committed, within the jurisdiction of Union Territory of Delhi (para-c State) and thus, DSPE/CBI should have powers to investigate the offence. In this view of matter the contention raised on behalf of the accused Hans Raj that the investigation by the CBI is without any authority does not hold any water.
16.It has been contended by Shri LS Chaudhary Advocate counsel for accused Hans Raj that in this case the CBI had initially filed a closure report which was withdrawn by the CBI. He referred to the report U/s. 173 Cr.PC and urged that the charge sheet was filed on the instructions of the senior officers. It is contended that as per provision of Section 173 of the Cr.PC. it is the exclusive domain of the Officer-in- Charge of the Police Station to forward the report U/s. 173 Cr.PC. mentioning certain details. The investigating officer 9 could not have been guided by the superior officer and thus filing of the report U/s. 173 Cr.PC. is totally illegal. I have gone through the closure report dated 16.3.90 and the application dated 22.3.93 filed by Inspector Pushkal Sharma of the CBI. It had been mentioned in the said application that the closure report filed in the case is pending disposal and had not yet been accepted by the court. It had further been stated that on the basis of incriminating evidence against the accused persons the case is required to be charge sheeted. Thus permission was sought to withdraw the closure report. The said application was duly considered by the learned Special Judge and was permitted to be withdrawn vide order dated 22.3.93. There is no whisper in the application for withdrawal of the closure report that any instructions have been issued by the senior officer of the CBI to withdraw the closure report or to file the charge sheet. On the other hand, it has been stated that there is sufficient incriminating evidence against the accused persons and therefore the accused persons are liable to be charge sheeted. Whenever, any closure report is filed before the court, the court may either accept the same or may direct further investigation in the case. It is no gain saying that the investigations are supervised by the supervisory officer and if the investigating officer comes to the conclusion that there is sufficient evidence to file a charge sheet and to withdraw a closure report either of his own or on discussion/guidance by any supervisory officer and the closure report is permitted to be withdrawn by the court there is absolutely no illegality in the same. This contention, therefore, does not help the accused.
1017.First of all, I shall take up the case as against accused Govind Singh, who was working as the Store Lineman in Okhla Telephone Exchange.
18.PW4 Shri Banwari Rajak was working as SDO, Okhla Telephone Exchange. He gave the procedure for issuance of the stores to the respective exchanges by the CSD. He deposed that as per requirement quota is allotted to different telephone exchanges. The indent is prepared by the Assistant on the basis of the allotment. It is checked and signed by the SDO, counter signed by the DET as also by the area SD Engineering. The stores are collected by the person authorised by SDO. The SDO has to give an authority letter for getting the store items from the CSD. The person authorised gives the authority letter and the indent to the CSD on the basis of which the CSD In Charge prepares a store voucher (this has also been described as issue voucher by other witnesses). Gate pass is issued to the authorised person to enable him to take out the stores items from the CSD. He deposed that an entry has to be made in the stock register on the same day when the articles are received in the stores from the CSD through gate pass of the same date. This witness is particularly relevant to accused Govind Singh. He however stated that when he had joined Okhla Telephone Exchange, accused Govind Singh had already been placed under suspension. His statement is relevant on the aspect that there was no entry in the stock register regarding receipt of drop wire measuring 20 Kms. on 28.10.87, 20 Kms. on 13.1.88 and 25 Kms. on 19.2.88 in the stock register 11 Ex.PW4/A. During cross examination the witness admitted that whatever articles used to be received in the exchange a duplicate voucher used to be sent alongwith the articles. One copy of the voucher used to be returned to CSD in token of acknowledging receipt of the articles. The witness further admitted that after the entry is made by the concerned lineman in the stock register, the same is put up before the SDO, who signs the entry and then the voucher is returned to the CSD. He stated that physical verification of the store is done half yearly by the SDO concerned. He also admitted that a value voucher in duplicate is also received from the CSD in the store of the exchange concerned and one copy of the value voucher is returned and the other is retained. The other witnesses namely PW2 Diwakar Prakash Pathak, PW3 Satya Pal Behl, PW5 Vinod Chand Gaur, PW7 YB Baluja, PW10 Ghanshyam Dass and PW11 Mulak Raj have more or less given the same procedure regarding issuance of the stores from the CSD.
19.With regard to accused Govind Singh, there is another witness in the shape of PW5 Shri Vinod Chand Gaur, who stated that the issue notes Ex.PW5/A1, Ex.PW5/A2, Ex.PW5/A3 and Ex.PW5/A4 were prepared by Shri Deep Chand, Senior Section Supervisor in the CSD. He was conversant with his signatures and identified the same on the above stated issue notes at points A. He also identified the endorsement (signatures) of accused Govind Singh at points Q1 to Q4 on Ex.PW5/A1, Ex.PW5/A2, Ex.PW5/A3 and Ex.PW5/A4. This witness further identified the gate pass Ex.PW5/G bearing his signatures at point A and signatures of 12 Shri Govind Singh in token of having received 20 Kms. of drop wire at point B. The witness identified the gate pass Ex.PW5/H to be signed by Shri KL Tuteja, JE at point A and signatures of accused Govind Singh, Store Lineman for having received the drop wire at point B. Similarly the witness identified the signatures of Shri KL Tuteja on gate pass Ex.PW5/J at point A and of accused Govind Singh at point B for having received 25 Kms of drop wire (10 Kms plus 15 Kms). During cross-examination of this witness, this part of the testimony was not challenged on behalf of accused Govind Singh.
20.PW7 Shri YB Baluja was working as SDO (Telephones) at Okhla Telephone Exchange during the period August 1987 to May 1989. Accused Govind Singh was working under him as Store Lineman. He also identified the signatures of accused Govind Singh on issue notes CSD Netaji Nagar Ex.PW5/A1 to A4 at points Q1 to Q4. He also identified the signatures of accused Govind Singh at points B on gate passes on Ex.PW5/G, H and J in token of having received the articles as mentioned in the gate passes. He thus corroborated the testimony of PW5 on this aspect. In addition the witness also identified his signatures at points A on authority letter Ex.PW7/A and Ex.PW7/B and signatures of accused Govind Singh at points Q5 and Q9. The witness stated that in the stock register Ex.PW4/A, there is no entry with regard to the drop wire received by him from the CSD in respect of the above issue notes. The testimony of this witness was also not challenged with regard to the signatures of accused Govind Singh on issue notes, gate passes and the authority letters.
1321.Now I turn to the case as against accused Saheb Lal. Apart from the evidence, which has been discussed herein above the prosecution has examined PW11 Shri Mulak Raj who was working as SDO at Chankya Puri Telephone Exchange during the period 1984 to 1988. He stated that accused Saheb Lal was working as Store Lineman. His duties were to maintain the store, bring material from CSD, enter the same in stock register and issue the items to other linemen. He identified the signatures of accused Saheb Lal on issue note dated 15.10.87 Ex.PW5/C regarding issue of 20 Kms of drop wire to him and on the corresponding gate pass dated 16.10.87 Ex.PW5/N at point B. He also deposed that in the store register Ex.PW11/A, no entry with regard to 20 Kms of drop wire received on 16.10.87 has been made by accused Saheb Lal. This witness was generally questioned about the procedure. However, testimony of this witness regarding the signatures of accused Saheb Lal on voucher Ex.PW5/C and gate pass Ex.PW5/N was not specifically challenged. The witness however admitted that there was no indent of 20 Kms of drop wire nor there was any entry for allotment of any vehicle for collection of the drop wire.
22.It has been urged by Shri Mahesh Srivastava, Ld. Counsel for accused Govind Singh and Saheb Lal that the prosecution has not placed on record the indents on the basis of which the issue notes were prepared; no physical verification of the store has been done to find out if the drop wire alleged to be collected by accused Govind Singh and Saheb Lal had been deposited in the store of Okhla and Chankya Puri Telephone 14 Exchanges respectively or not. It has been contended that a number of witnesses produced by the prosecution have admitted that the issue note used to be handed over to the store lineman in duplicate and one copy of the issue note was to be returned to the CSD. If the drop wire issued by the CSD had not been received in the respective exchange the same would have come to the notice of the CSD because of non receipt of the copy of the issue note from the concerned exchange. It has been urged that there are grave doubts in the case of the prosecution and accused Govind Singh and Saheb Lal are, therefore, entitled to be acquitted. It has been urged that when the FIR was initially lodged Shri Madhusudan sircar CSD, Shri Gurcharan Singh sircar CSD and Shri Ranbir Singh, Phone Inspector Okhla Telephone Exchange had been named in the FIR as also in the complaint made by the telephone department. The above stated three persons were infact responsible for the alleged misappropriation of the drop wire, whereas accused Govind Singh and Saheb Lal have been made scape goats by the CBI. It has been urged that the sanctioning authority had granted the sanction mechanically without application of mind and since the sanction is invalid, the cognizance taken is bad in law.
23.In addition to what has been urged by Shri Mahesh Srivastava, it has been argued by Shri LS Chaudhary, Ld. Counsel for Accused Hans Raj that no reliable evidence has been produced by the prosecution to show that the issue notes or the gate passes had been signed by him. It is contended that accused cannot be convicted only on the 15 basis of mere suspicion. The authority letters Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW1/E, Ex.PW1/B1 and Ex.PW3/A do not make a mention of any particular item having been received and thus the prosecution has failed to establish its case against accused Hans Raj beyond all reasonable doubt and the accused is, therefore, entitled to be acquitted.
24.On the other hand, it has been submitted by the learned Senior Public Prosecutor that the evidence produced by the prosecution is sufficient to bring home the guilt of all the accused persons. It is established from the evidence produced that the drop wire as per the case of the prosecution was received by the accused persons. They have failed to account for the same. The sanctioned document Ex.PW6/A itself speaks of application of mind and no fault can be found with the same.
25.This is true that except for one indent Ex.PW3/D no indent purported to have been issued by the SDO Laxmi Nagar Exchange has been proved on record. Two more indents one pertaining to Delhi Gate Exchange and another pertaining to Laxmi Nagar Exchange have been placed on record, but the same have not been proved. This is also true that the copy of the issue voucher which ought to have been received after signatures from the concerned telephone exchange regarding receipt of drop wire has also not been produced, but that by itself will not make the case of the prosecution against the present accused persons to be doubtful. The court shall have to see and analyse whether on the basis of evidence produced by the prosecution, the case against the 16 accused persons has been proved beyond reasonable doubt or there is lurking doubt because of the non production of all the indents and the copy of the issue voucher.
26.It may be noted that the FIR in the present case was registered against the 7 named persons, which included one Shri Madhusudan and Shri Gurcharan Singh from CSD and one Shri Randhir Singh, Phone Inspector of Okhla Telephone Exchange. A closure report was initially filed against all the 7 persons, which as stated herein above was permitted to be withdrawn by the learned Special Judge. A charge sheet U/s. 173 Cr.PC. was filed against the 4 accused persons including Shri GP Srivastava (now deceased). The remaining 3 accused persons were not even shown in column no.2 nor the CBI sought any discharge of the said 3 persons. The arguments raised on behalf of the accused persons that copy of the issue voucher issued by the CSD ought to have been received as per the procedure for issue of the stores assume significance in the context that there may be possibility of the involvement of the officials working in the CSD also because the issuance of the drop wire could have been tallied on receipt of the copy of the issue voucher from the exchange concerned. A period of 20 years has since passed and no specific evidence was produced against any of the three accused persons, who were not sent up for trial. If there was no material against them, the CBI ought to have submitted for their discharge. It appears that the conduct of the Investigating Officer and the Supervisory Officers was not above board. This is a matter which should be looked into by the Director of CBI.
1727.As far as sanction for prosecution of the three accused persons now facing trial is concerned, the prosecution has examined PW6 Shri FH Zaidi, who was working as DGM (Administration) at the relevant time. He deposed that he had carefully examined all the documents and material placed before him with regard to the allegations against the accused persons and after considering all the documents he had accorded sanction for prosecution Ex.PW6/A of the accused persons. During cross examination the witness admitted that he had no knowledge that on these very facts accused Saheb Lal has been exonerated in the departmental inquiry. But at the same time, accused Saheb Lal has not produced any evidence to show that he was infact exonerated in the departmental inquiry. During cross examination on behalf of accused Hans Raj the witness stated that he must have taken several days in considering the question of granting sanction against the accused person. He stated that sanction order was prepared in his office. He stated that the correction in the sanction order (on page 4) were made by him and were signed by him. The witness denied the suggestion that the sanction order, as it was, was received by the CBI and he merely put the signatures thereon.
28.It is very well settled law that sanction can be proved either from the sanction order itself or by leading extraneous evidence to show that there was application of mind by the sanctioning authority. In Mansukh Lal Vithal Dass Chauhan. Vs. State of Gujarat (1997) 7 SCC 622 it was held 18 that the validity of the sanction would depend upon the material placed before the sanctioning authority and the fact that the material and evidence so placed has been considered by the sanctioning authority. It was held that the order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant file before the court to show that all the relevant facts were considered by the sanctioning authority. A reference may also be made to Mohd. Iqbal M. Sheikh & others. Vs. State of Maharashtra 1998 SCC (Cri) 1064; C.S.Krishnamurthy. Vs. State of Karnataka 2005 SCC (Cri.) 923; State through Inspector of Police. Vs. K.Narsimhachary 2005 (3) JCC 1840 on the proposition that either the sanction order itself may indicate application of mind or the evidence can be led during trial to prove the application of mind. A reference may also be made to Dharam Saroop. Vs. The State AIR 1953 Allahabad 37 where the question of sufficiency of facts to be placed before the sanctioning authority came up for consideration. In para 13 of the report, it was held by His Lordship as under :-
".. . . . . The discretion to sanction prosecution is vested solely in the sanctioning authority and is absolute. Its exercise cannot be questioned in a Court of Law. The satisfaction of the sanctioning authority is entirely subjective. He is the judge of the materials that should be placed before him for enabling him to accord the sanction. If the facts placed before him are not sufficient to enable him to exercise his discretion properly, he will ask for more particulars but it is for him alone to determine this matter. The courts are concerned only with one matter to find whether sanction for the particular prosecution was in fact accorded by the proper 19 authority. If the record shows that the sanction was in fact accorded and the sanction was in respect of the particular transaction which is the subject matter of the charge against the accused, the requirement of the law are fully satisfied."
29.In this particular case, the sanction order shows that detailed facts of the case as to how the indents used to be sent to the AE Incharge of the CSD for supply of drop wire, how the drop wire was supplied in general and how much drop wire in particular had been received by the accused persons on the basis of the issue notes and the gate passes have been mentioned. Therefore, the sanction order Ex.PW6/A itself shows application of mind. It may be mentioned that it is not the job of the sanctioning authority to find out whether the case will result in acquittal or conviction. What is to be seen by the sanctioning authority is that there is some material on record which would point out an accusing finger towards the accused so that the prosecution may be launched. In my view, there is no defect in the sanction and the contention raised on behalf of the defence that it has been granted mechanically without application of mind is without any substance and is bound to be rejected.
29.Coming to the evidence, as has been discussed above, against accused Govind Singh, I have already observed above that there is evidence of PW4 Banwari Rajak to prove that the entry of 65 Kms of drop wire was not made by the accused in the stock register Ex.PW4/A. The evidence of PW5 Vinod Chand Gaur and PW7 YB Baluja clearly establishes that the 20 issue note Ex.PW5/A1, Ex.PW5/A2, Ex.PW5/A3 and Ex.PW5/A4 were duly signed by the accused Govind Singh in token of having received 20 Kms, 20 Kms, 10 Kms and 15 Kms of drop wire. The gate passes Ex.PW5/H for taking out 20 Kms of drop wire in respect of issue voucher Ex.PW5/A1, Ex.PW5/G for taking out 20 Kms of drop wire in respect of issue voucher Ex.PW5/A2, gate pass Ex.PW5/J in respect of 10 plus 15 Kms of drop wire in respect of issue voucher Ex.PW5/A3 and Ex.PW5/A4 duly signed by the accused Govind Singh have been proved. I have already observed above that the testimony of PW4 Banwari Rajak, PW5 Vinod Chand Gaur and PW7 YB Baluja has not been challenged by the accused in this regard. Further more, authority letter Ex.PW7/B in respect of issue voucher Ex.PW5/A1 and authority letter Ex.PW7/A in respect of issue voucher Ex.PW5/A2 is proved from the statement of PW7 Shri YB Baluja. Nothing could be brought during cross examination of Shri YB Baluja to discredit his testimony. Rather this part of the testimony was not challenged during cross examination. Of course, the prosecution could have collected corroborative evidence by comparison of the signatures of accused Govind Singh on all these documents with his specimen/admitted signatures. But failure to do so will not affect the case of the prosecution as there is more than one witness who has identified his signatures particularly PW7 Shri YB Baluja under whom accused Govind Singh was working and had issued the authority letters to accused Govind Singh to obtain the drop wire.
2130.In view of above discussion, I am of the view that the prosecution has been able to establish its case against accused Govind Singh that during October 1987 to February 1998 he had received 65 Kms of drop wire from the Circle Store Depot which had been duly entrusted to him and that he had criminally misappropriated the same and had also committed the criminal misconduct by dishonestly misappropriating the above quantity of the drop wire. As per charge dated 4.9.02 the accused had been charged for misappropriating 59 Kms of drop wire. In my view no prejudice has been caused to the accused as the accused was well aware of the allegations and the evidence led against him. In my view, the error in charge has not resulted in any failure of justice. I accordingly hold the accused Govind Singh guilty for the offence punishable U/s. 409 IPC and Section 5(2) read with Section 5t(1)(©of Prevention of Corruption Act 1947 and convict him accordingly.
31.Coming to accused Saheb Lal, it is established from the statement of PW5 Vinod Chand Gaur and PW11 Mulak Raj as has been discussed by me herein before that he had received 20 Kms of drop wire from the CSD vide issue voucher Ex.PW5/C. The signatures on the issue vouchers have not been disputed in the cross examination of PW5 Shri Vinod Chand Gaur and PW11 Shri Mulak Raj. Gate pass Ex.PW5/N has also been proved by PW5 Shri Vinod Chand Gaur and PW11 Shri Mulak Raj. It was admitted by PW5 that the gate pass Ex.PW5/N was not prepared by him, but at the same time, no suggestion was given to PW5 that the gate pass Ex.PW5/N was not signed by Saheb Lal at point D. Similarly, 22 testimony of PW11 Shri Mulak Raj was also not challenged regarding preparation of gate pass Ex.PW5/N duly signed by accused Saheb Lal in respect of issue voucher Ex.PW5/C. The testimony of PW11 Shri Mulak Raj that there was no entry with regard to the issue voucher 598 STA Ex.PW5/C in the stock register was also not challenged during cross examination. The onus was therefore on accused Saheb Lal to explain as to what he had done with 20 Kms of drop wire which was duly received by him from the CSD. He has absolutely not given any explanation. It is ,therefore, established beyond shadow of all reasonable doubts that during October 1987 the accused Saheb Lal had been entrusted with 20 Kms of drop wire, which was criminally misappropriated by him and he had also committed the criminal misconduct. I, therefore, hold accused Saheb Lal guilty for the offence punishable U/s. 409 IPC and U/s. 5(2) read with Section 5(1)© of the Prevention of Corruption Act,1947 and convict him accordingly.
32.Turning to the case of the prosecution as against accused Hans Raj as has been discussed by me herein above, the accused has admitted the evidence of the prosecution produced against him that entry in the stock register are to be made by the Store Lineman and he was working as Store Lineman in Laxmi Nagar Telephone Exchange during the period 1987 to 1988. It is established from the testimony of PW10 Shri Ghanshyam Dass who was working as JTO in Laxmi Nagar Telephone Exchange during the period 1987 to 1993 that the drop wire received through the gate passes Ex.PW5/K1 to K6 and Ex.PW5/L1 and L2 by accused Hans 23 Raj, which were duly signed by him was not entered in the stock register Ex.PW10/A. The authority letters in respect of all the gate passes and all the issue vouchers (except issue voucher Ex.PW5/B4 and Ex.PW5/B6 for 20 Kms and 10 Kms respectively) were also identified by this witness. During cross examination the witness admitted that he was not a handwriting expert and that he had identified the signatures of Hans Raj on the gate passes because the same tally with his attested signatures.
33.PW3 Shri Satya Pal Behl identified the signatures of accused Hans Raj on the authority letters Ex.PW1/A, Ex.PW1/B1, Ex.PW3/A, Ex.PW3/B, Ex.PW3/C and Ex.PW1/E. This part of the testimony of this witness was not challenged during cross examination. In his examination U/s. 313 Cr.PC. the accused Hans Raj has not denied his signatures on the same.
34.PW5 Shri Vinod Chand Gaur has categorically stated that the issue vouchers Ex.PW5/B1 pertaining to gate pass Ex.PW5/K1, issue vouchers Ex.PW5/B2, Ex.PW5/B3 pertaining to gate pass Ex.PW3/B, issue voucher Ex.PW5/B4 pertaining to gate pass Ex.PW5/L1, issue voucher Ex.PW5/B5 pertaining to gate pass Ex.PW5/L2, issue voucher Ex.PW5/B6 pertaining to gate pass Ex.PW5/K6,issue voucher Ex.PW5/D1 pertaining to gate pass Ex.PW5/K5 and issue voucher Ex.PW5/D2 pertaining to gate pass Ex.PW5/K2 were signed by accused Hans Raj vide his endorsement at points Q12, Q13, Q15, Q16, Q17, Q18, Q19 and Q20. He identified the issue notes to have been prepared by Shri Deep Chand and Shri Bhatia and also identified their signatures. Out of the 24 above documents gate passes goods vide gate passes Ex.PW5/K1 to Ex.PW5/K6 were released by PW5 himself vide his signatures at point A and the endorsement of the accused Hans Raj at point B. Of course, issue notes no.649 dated 27.10.87 and issue note 957 dated 8.1.88 in respect of issuance of 16 and 5 Kms of drop wire to accused Hans Raj were not proved, but their respective gate passes Ex.PW5/K3 and Ex.PW5/K5 were proved by PW5 Shri Vinod Chand Gaur. In reply to court question, this witness stated that the office copy of gate passes Ex.PW5/P1, Ex.PW5/P2, Ex.PW5/5, Ex.PW5/P4 and Ex.PW5/P7 in some gate pass books were signed by accused Hans Raj. During cross examination the witness admitted that the signatures in the gate pass book were not put in his presence. He added that he did not recollect that if any goods were received by the accused persons in his presence or not. The witness also showed his ignorance if accused Hans Raj had not come to collect the goods except on two occasions.
35.It has been urged by Shri LS Chaudhary, Ld. Counsel for accused Hans Raj that no reliable evidence has been produced by the prosecution that the issue vouchers and the gate passes were signed by accused Hans Raj in token of having received the drop wire. He referred to the statement of PW3 Shri Satya Pal Behl who had stated that the signatures on issue voucher appeared to be of Shri Hans Raj. It has been urged that during cross examination PW5 has also stated that he did not recollect if accused Hans Raj had not come to collect the goods except on two occasions. It has been pointed out that PW10 Ghanshyam Dass who was 25 working as JTO at Laxmi Nagar Telephone Exchange during the period had also identified the signatures of accused Hans Raj on gate passes Ex.PW5/K1 to K6 and Ex.PW5/L1 to L2 because these signatures tallied with the attested signatures of accused Hans Raj. It has been vehemently urged that the evidence produced by the prosecution is of very weak nature and on the basis of this evidence, it cannot be held that the drop wire was received by accused Hans Raj.
36. The testimony of PW10 Shri Ghanshyam Dass that there was no entry of the drop wire in respect of the gate passes mentioned herein above has not been seriously disputed during cross examination. Though a suggestion was given to PW10 Shri Ghanshyam Dass during cross examination that it was not a part of duty of accused Hans Raj to maintain the stock register, yet as stated above in his examination U/s. 313 Cr.PC. in reply to question no.1 the accused had admitted that he was working as Store Incharge and it was part of duty to make relevant entry in the stock register. Thus, there is no manner of doubt that accused Hans Raj was responsible for making the entries in the stock register and the entries with regard to the above stated issue vouchers and gate passes have not been made. It may be noted here that the accused had not disputed his signatures on various authority letters issued to collect the goods, though the item to be received has not been mentioned in the authority letters Ex.PW1/A, Ex.PW1/B1, Ex.PW1/E, Ex.PW3/A, Ex.PW3/B and Ex.PW3/C. Nevertheless the authority letter pertains to the date of issuance of the gate passes 26
37.In State .Vs. Brij Mohan 1985 CC Cases 233 (HC), it was held by the Hon'ble Delhi High Court that Section 67 of the Evidence Act refer to document other than the document required by law to be attested. The signature of the person alleged to have signed a document must be proved by evidence that the signature purporting to be that of the executant is in his handwriting. However, Section 67 does not prescribe any particular mode of proof and any recognised mode of proof which satisfies the judge can prove a document. Thus a document can be proved either (1) by calling a person who wrote the document or (2) who saw it written or signed or (3) who is qualified to express an opinion as to the handwriting or signatures by virtue of Section 47 or (4) by a comparison of handwriting provided by Section 73 or (5) by an admission of the person against whom the document is tendered or (6) by expert evidence U/s. 45 and (7) by internal evidence as afforded by the contents of the documents. In this particular case, evidence of PW5 is quite material. He has identified the signatures of accused Hans Raj on the issue notes Ex.PW5/B1 to B6 and Ex.PW5/D1 and D2 as also on the gate passes Ex.PW5/K1 to K6 and Ex.PW5/L1 and L2. The witness was quite emphatic that in respect of the gate passes no.40 II dated 29.9.87 (Ex.PW5/K1), No.55 II dated 7.10.87 (Ex.PW1/B1), no. 87 III dated 3.11.87 Ex.PW5/K3, no. 56 II dated 4.12.87 Ex.PW5/K4, no. 9 II dated 8.11.88 Ex.PW5/K5, no.46 0 dated 4.2.88 (Ex.Pw5/K6) the articles had been released by him vide his signatures at point A and the goods had been received by accused Hans Raj vide his endorsement at point B. Only a vague suggestion was given towards end of the cross examination and the witness 27 showed his ignorance if the goods had been received by the accused persons in his presence. The witness further showed his ignorance if accused Hans Raj had not come to collect the goods except on two occasions. I am not inclined to believe this part of the testimony of the witness in cross examination in view of the emphatic specific statement that the goods in respect of the gate passes Ex.PW5/K1 to Ex.PW5/K6 were received by accused Hans Raj and were released by him. The examination in chief of PW5 was recorded on 8.2.2006, whereas his cross examination was recorded on 16.4.07. Infact this witness has been called for cross examination U/s. 311 Cr.PC. on an application moved by the accused persons. It appears that the witness has tried to feign ignorance about receipt of the goods or that accused Hans Raj had not come to collect the goods except on two occasions simply to help him. In this connection a reference may be made to Radha Mohan Singh .Vs. State of U. P. AIR 2006 SC 951 where it was held that where there is a time lag between the examination in chief and the cross examination of witness and the witness changes his statement, the later part may not be believed if the court is convinced that the witness had spoken the truth in his examination. In the said case the witness had fully supported the prosecution story in his examination in chief and cross examination. Further cross examination of the witness was deferred for the next day. He then stated that he could not see the incident due to darkness. On scrutiny of the evidence this part of the testimony was not believed by the Learned Sessions Judge and by the Hon'ble High Court. The Hon'ble Supreme Court upheld the Judgement which had been confirmed in appeal.
28From the categorical statement of PW5 in his examination in chief that he had issued the material in respect of the specific issue voucher and gate passes one line in the end of cross examination that he did not recollect if Hans Raj had collected goods only on two occasion does not carry any value in the circumstances explained above. A reference may also be made to the decision of division bench of our own High Court in Abdul Murasalin Vs. State 123 (2005) DLT 73. The testimony of PW5 on signatures of accused Hans Raj is supported by PW3 Shri Satya Pal Behl, though he had simply stated that the signatures on the issue voucher (Mark PW3/A to PW3/H) appear to be that of the accused.
38.In view of the above discussion, I am convinced that the prosecution has been able to establish its case against accused Hans Raj that between September 1987 to March 1988 he had received 146 Kms of drop wire and that the same had been criminally misappropriated by him and he had committed criminal misconduct as defined U/s. 5(1)© of PC Act and criminal breach of trust as a public servant as defined U/s. 409 IPC. I accordingly hold accused Hans Raj guilty for the offence punishable U/s. 409 IPC and Section 5(2) read with Section 5(1)© of the PC Act, 1947 and convict him accordingly.
39.The prosecution has failed to adduce any evidence that there was any criminal conspiracy amongst the accused persons to criminally misappropriate the drop wire, therefore, the substantive charge U/s. 120-B IPC and the charge of criminal 29 conspiracy read with Section 409 IPC is not established against the accused persons.
40.To sum up accused Govind Singh, Saheb Lal and Hans Raj are held guilty for the offence punishable U/s. 409 IPC and Section 5(2) read with Section 5(1)© of Prevention of Corruption Act and I convict them accordingly.
Announced in open court.
Dated: 6.10.2007. ( G.P.Mittal ) Special Judge : Delhi.