Jharkhand High Court
Jagdish Sharma vs The State Of Jharkhand Through C.B. I on 14 December, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 193 of 2018
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Jagdish Sharma --- --- --- Appellant
Versus
The State of Jharkhand through C.B. I --- --- --- Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
For the Appellant: Mr. Indrajit Sinha, Advocate
For the Resp - CBi: Mr. Rajiv Nandan Prasad, Advocate
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05/ 14.12.2018 Heard learned counsel for the appellant and the CBI on the prayer for suspension of sentence made through I.A. No. 9593/2018.
2. Appellant stands convicted in connection with R.C. Case No. 64(A)/1996 Pat vide impugned judgment of conviction dated 23.12.2017 and order of sentence dated 06.01.2018 passed by the Learned Additional Judicial Commissioner-I cum Special Judge-VII, CBI (AHD Scam), Ranchi for the offences under sections 120-B read with sections 420, 467, 468, 471 and 477(A) of the Indian Penal Code and section 13(2) read with sections 13(1)(c)(d) of Prevention of Corruption Act and sentenced to undergo R.I. for seven years each with a fine of Rs. 10,00,000/- each and in default thereof, to undergo imprisonment for one year each separately.
3. Learned counsel for the appellant in support of the prayer has submitted that the appellant was the Chairman of the Public Accounts Committee (PAC) during the period April 1992 to January 1995. He denied being part of the criminal conspiracy and having received illegal gratification from the accused persons who fraudulently withdrew money from Deoghar Treasury and caused wrongful loss to the Government revenue. He also denied having obstructed investigation into fraudulent withdrawals by any other agency like the Vigilance. It has been further submitted that the accused appellant was not confronted with the evidence adduced by the prosecution while his statement was recorded under section 313 of the Cr. PC. Appellant did not preempt inquiry as a report was submitted during his tenure as PAC Chairman by an officer of the Vigilance Department Dr. S.B. Choudhary on 29.06.1994. Appellant was working as a Chairman, Public Accounts Committee which comprises 22 Members. There is no allegation of conspiracy with other Members of the PAC in facilitating the fraudulent withdrawals in different districts, more specifically from Deoghar Treasury during the said period which is the subject matter of this case. Same set of evidence has been adduced by the prosecution against this appellant in five 2 other R.C. cases relating to different Treasuries. The same Learned CBI Judge has acquitted the appellant in R.C. Case No. 38(A)/1996-Pat on the basis of same set of evidence. At the same time, on his conviction in two other R.C. cases i.e. R.C. Case No. 20(A)/1996 and R.C. Case No. 34(A)/1996, he has been enlarged on bail on consideration of merits by the Apex Court in Criminal Appeal No. 60/2014 vide order dated 10.01.2014 and by a Coordinate Bench of this court in Cr. Appeal (SJ) No. 50/2014 vide order dated 31.01.2014, which are Annexure- IA/1 and IA/2 to the interlocutory application. In those cases, appellant was awarded four years of sentence and had not undergone half of the custody either.
3. Learned counsel for the appellant further submits that the charges against the appellant relate to facilitation of the fraudulent withdrawals as part of the larger conspiracy. Charges also relate to being a beneficiary of the fraudulent withdrawals in the capacity of a public servant. Two letters dated 17.06.1994 and 24.06.1994 addressed to the then Chief Minister of Bihar and to the Secretary, Animal Husbandry and Fisheries Department, Bihar have been relied upon by the prosecution to bring home the charges that the appellant was instrumental in stalling the criminal investigation in the matter. However, the letter dated 24.06.1994 was not addressed to the Chief Minister, though letter dated 17.06.1994 was addressed to the Chief Minister, but never intended to stall any other inquiry. The working of the Public Accounts Committee is of a very intensive and broad nature and final report takes time to be prepared. Appellant relinquished the charge of Chairman, PAC from January 1995 before any report of indictment could be submitted in the said inquiry. Appellant was never responsible for facilitating the fraudulent withdrawals in such manner. Learned counsel further submits that the evidence on record completely failed to bring home the second charge also relating to receipt of benefits of fraudulent withdrawals. Statement of the Investigating Officer have been placed to support the submissions that there were no documents to establish the instances of hospitality at hotels or airlines ticket being received by the appellant or any documentary proof to suggest or establish that he was the beneficiary of any such fraudulent withdrawals on fake Bills submitted by the suppliers. Learned counsel for the appellant submits that the charges under the Prevention of Corruption Act do not stand substantiated in any manner in the absence of proof of wrongful gains availed by the appellant. Learned CBI Court has erroneously convicted the appellant of the charges, though prosecution had miserably failed to substantiate the allegations. Though, appellant was proceeded against as a public servant, but 3 the trial is vitiated in absence of any sanction order from the competent authority. Learned counsel for the appellant has also tried to impress that the Public Accounts Committee is a Body of Legislative Assembly of whom, the Hon'ble Speaker is the competent authority to whom the PAC is accountable. Learned counsel further submitted that in a case where the Council had suggested for further investigation, Government had never acted upon it. Such a plea therefore cannot be taken to nail the appellant of the charges of conspiracy that he stalled the investigation against the accused persons. Learned counsel for the appellant further submitted that sentence of seven years imposed upon the appellant is suffering from disparity. He submits that the then Chief Minister of Bihar Lalu Prasad Yadav who has been responsible for the larger conspiracy and providing patronage to the systematic loot, has also been convicted in the instant case and been imposed with a sentence of three and half years only. The successor PAC Chairman Mr. Dhruv Bhagat has been acquitted of the charges. The then Leader of the Opposition Jagannath Mishra has also been acquitted of the charges in the instant case. The other accused Rabindra Kumar Rana who was also allegedly part of the larger criminal conspiracy at the top level with AHD officials and politician and has also been convicted in the instant case, but has been imposed with a sentence of three and half years only. No specific reasons have been recorded for imposing double the sentence upon this appellant, even if he is treated in the category of politician who were part of the criminal conspiracy at the top level. Appellant as such, has served custody for 31 months till date and deserves to be enlarged on bail upon grant of privilege of suspension of sentence.
4. Learned counsel for the CBI has seriously opposed the prayer on merits. He has referred to the findings recorded by the learned CBI court at para-119 to 124 of the impugned judgment. By referring to the statement of PW-146, the then Director General of Police (Vigilance) D.N. Sahay, he submits that the appellant was directly responsible for stalling the vigilance inquiry. Letters dated 17.06.1994 and 24.06.1994 issued by the appellant specifically recommended that no other inquiry be conducted in the matter since the PAC is in seisin of the inquiry. Evidence of PW-23 R.K. Das, an Approver, PW-25 Dr. Shashi Kumar Singh, PW-54, the then Deputy Commissioner, Deoghar Sukhdeo Singh have also been relied upon to oppose the prayer. Learned counsel submits that these Approver witnesses and independent witnesses have supported the charges that the appellant as the Chairman of the PAC during the period in question, had visited Deoghar on different dates between 1993 to 1994 for inspection of 4 accounts and pending files. The details of withdrawal of AHD for ten years from 1984-85 to 1993-94 were prepared by the Treasury which clearly indicated the abnormal figures of withdrawals during the financial year 1991-92 to 1992-93 under contingency head. It also revealed that the accused Shesh Muni Ram, Regional Director, AHD had seized the documents on the pretext of PAC inquiry on 20.04.1994. In fact, the documents were not taken by PAC from the accused Shesh Muni Ram, as per the statement of PW-54 Sukhdeo Singh. Statements of the Approver PW-23 and PW-25 also go to show that the appellant was the beneficiary of wrongful gains due to fraudulent withdrawal and accepted hospitality from the accused persons. Documentary evidence also on record, have been taken into consideration by the learned CBI court to come to a finding of guilt against this appellant. Thus, the appellant was not only a part of the larger conspiracy which has been discussed by the learned Trial Court at para-19 of the impugned judgment, but also beneficiary of the fraudulent withdrawals. The Fodder Scam was a systematic loot from the State Exchequer and conspiracy was at three levels. At the top level, amongst the Chief Minister, Secretary of the Department, PAC and other politicians who gave patronage to the middle level and district level functionaries and suppliers in undertaking the fraudulent withdrawals. As such, appellant cannot escape the liability of being part of it. Learned counsel further submits that the role of the appellant has been examined at length by the learned Trial Court and on that basis, sentence of seven years has been imposed upon him which cannot be compared with other co-accused who were holding different positions in the Government. Appellant has not completed half of the sentence either for seeking the privilege of suspension of sentence.
5. Learned counsel for the appellant, in reply, specifically adverted to the statement of PW-23 R.K. Das and PW-25 Dr. Shashi Kumar Singh who in their cross-examination, have denied having ever seen the appellant receiving any unlawful gains out of fraudulent withdrawals. Statement of these witnesses therefore cannot be read in isolation. They have clearly stated that they were not the eyewitnesses to any such transaction with the appellant. Learned counsel further submits that the office of the Accountant General had also submitted a delayed report in the year 1996 in respect of fraudulent withdrawals for the period 1992-1995. The Public Accounts Committee which has to undertake extensive inquiry in such matter and procure document from different districts, could not be expected to submit a report in a short period of time when the appellant was its Chairman. However, this, in itself, could not be the basis to say that his action 5 were actuated by dishonest intention to obtain undue pecuniary advantage. Even if conduct and action of the appellant may have been improper and contrary to departmental norms, this in itself would not establish the offence under the Prevention of Corruption Act i.e. indulging in corrupt or illegal means or to have abused his position as a public servant. Learned counsel for the appellant has referred to para-17 of the judgment rendered by the Apex Court in the case of C.K. Jaffer Sharief Versus State (Through State) [(2013) 1 SCC 205]. Summarizing his argument, he has pleaded that the appellant deserves the privilege of suspension of sentence on consideration of entire material evidence on record and also the fact that he has served for 31 months by now and that in similar such conviction and sentence of four years passed on the same set of evidence, he has been enlarged on bail by the Apex Court as well as by a Coordinate Bench of this Court earlier. Learned counsel for the appellant has referred to the order dated 12.10.2018 passed in Cr. Appeal (SJ) No. 871/2018 wherein this court have been pleased to enlarge the appellant, a supplier, convicted in R.C. Case No. 45(A)/1996-Pat and sentenced to undergo imprisonment for seven years on the grounds that other co-convicts / suppliers had been imposed with a sentence of three and half years only by the learned CBI court. Moreover, the said appellant had undergone custody for 33 months and odd against the sentence of seven years awarded.
6. Considered the submissions of learned counsel for the appellant and the CBI and the facts and circumstances placed from the record. Appellant has faced trial as being the Chairman of Public Accounts Committee for the period April 1992 to January 1995 and being part of the larger conspiracy leading to fraudulent withdrawals from Deoghar Treasury and responsible for stalling investigation in the matter on account of specific recommendation made by him to the then Chief Minister of Bihar and Secretary, Animal Husbandry and Fisheries Department through letters dated 17.06.1994 and 24.06.1994. Learned Trial Court has taken into account the statement of the prosecution witnesses like the Investigating Officer, two Approver witnesses and other independent witnesses to come to a finding that he as a Chairman of PAC had falsely observed that no irregularity was found in transportation of animal and feed and exoneration of Regional Director, Ranchi and others. CAG reports of 1988-89 to 1993-94 were received by the Finance Department and laid in the House in between 29.12.1993 to 22.12.1995 which indicated huge excess expenditure incurred by AHD. Appellant had also visited Deoghar on different dates between 1993 to 1994 and 6 requisitioned the details of withdrawal of AHD for the last three years from Deoghar Treasury on 20.04.1994 during meeting of PAC at Deoghar. Statement clearly showed that Rs. 43.29 lakhs have been withdrawn in 1991-92, Rs. 34.12 lakhs between 1992-93 and Rs. 7.57 lakhs during 1993-94 through Deoghar Treasury. Learned Trial Court has also taken into consideration the statement of these prosecution witnesses that the appellant had accepted hospitality from certain accused persons such as airlines ticket or stay at hotels. As such, he had knowledge of withdrawal of excess money from Deoghar Treasury and was instrumental in saving the accused Shesh Muni Ram as he was his classmate. Therefore, he failed to perform his duty as PAC Chairman and was deeply involved in criminal conspiracy.
7. Learned counsel for the appellant and CBI both adverted to these material evidences in support of their rival arguments. This court, at this stage, during consideration of the prayer for suspension of sentence, does not feel it proper to dissect or analyze the evidences on record in any further detail, lest it may prejudice the case of either of the parties during final hearing of the appeal. It is further evident that the appellant has also been tried along with politician and people at the helm in the Government like the then Chief Minister, Bihar, Leader of Opposition, Bihar, successor PAC Chairman and the Secretary, Animal Husbandry and Fisheries Department as being part of larger conspiracy at the top level who gave patronage to the middle level functionaries and district level functionaries in facilitating the fraudulent withdrawals. Learned court has, on such charges of larger conspiracy, convicted the then Chief Minister of Bihar Lalu Prasad Yadav for the offences both under Indian Penal Code and Prevention of Corruption Act and imposed a sentence of three and half years each. Other co- accused Rabindra Kumar Rana who had been tried as an active member of criminal conspiracy and close to the then Chief Minister Lalu Prasad Yadav, stands convicted of the same offences, but has been imposed a sentence of three and half years each for the offences under IPC and PC Act.
8. Learned counsel for the appellant, on the other hand, has pointed out that on conviction under R.C. Case No. 20(A)/1996 and R.C. Case No. 34(A)/1996 on the basis of same set of evidence, he has been imposed with a sentence of four years each and had been released on bail by the Apex Court vide order dated 10.01.2014 passed in Criminal Appeal No. 60/2014 and in Cr. Appeal (SJ) No. 50/2014 by a Coordinate Bench of this Court vide order dated 31.01.2014. By now, appellant has undergone custody for about 31 months against the sentence 7 of seven years imposed upon him.
9. The appellant though has been treated as part of the larger criminal conspiracy in league with the politicians, the then Chief Minister of Bihar and other co-accuseds, he has been imposed a sentence of seven years i.e. twice the quantum of sentence awarded to the other co-accused named above in present R.C. case. He has also undergone custody for about 31 months by now. Therefore, I am inclined to grant the privilege of suspension of sentence to the appellant during pendency of the appeal. Accordingly, let the appellant Jagdish Sharma be released on bail, during the pendency of this appeal, on furnishing bail bonds of Rs. 50,000/- (Rupees Fifty Thousand) with two sureties of the like amount each, to the satisfaction of Learned Additional Judicial Commissioner-I cum Special Judge-VII, CBI (AHD Scam), Ranchi in connection with R.C. Case No. 64(A)/1996 Pat, subject to deposit of the fine amount of Rs. 5.00 lakhs in the Court below and if not wanted in connection with any other case. The appellant would not leave the country without permission of the Learned Trial Court. He would also submit his passport, if any, before the Learned Trial court.
10. I.A. No. 9593/2018 stands disposed of accordingly.
(Aparesh Kumar Singh, J) Ranjeet/