Jharkhand High Court
Shree Narayan Bharthuar, Shailendra ... vs The State Of Bihar (Now Jharkhand) on 19 May, 2006
Equivalent citations: 2007 (1) AIR JHAR R 618, (2006) 4 EASTCRIC 130
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
JUDGMENT Amareshwar Sahay, J.
1. All the above-mentioned three appeals arise out of the same impugned judgment passed in R.C. Case No. 10 of 1995 and, therefore, they were taken up and heard together and are being disposed of by this common judgment.
2. Altogether five accused persons were put on trial and all of them were found guilty and, thereby, convicted for the offences under Sections 120B, 420/471 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and they were sentenced to undergo R.I. for a period of 3 years each under Section 471 and 420 1PC, R.I, for a period of one year each for the offence Under Section 120 B IPC and further R.I. for one year each for the offence under Section 5(1)(d) r/w Section 5(2) of the Prevention of Corruption Act. They were also directed to pay a fine of Rs. 500/- each in default to undergo R.I. for a further period of one month by the impugned judgment dated 07/03/1998 passed by the Special Judge, C.B.I., Dhanbad in R.C. Case No. 10 of 1995,
3. The prosecution case, which has been narrated in detail in the impugned judgment is being reproduced hereinbelow:
Sri R.C. Choudhary, Inspector of Police, C.B.I., Dhanbad, on reliable source that accused S.K. Banerjee while functioning as L.T.C. Clerk in respect of time rated employees in Ghanoodih colliery during the year 1983-84 cheated his employer B.C.C.L. by frudently obtaining a sum of Rs. 50.800/- under the false representation that the amount was to be paid towards the L.T.C. scheme in respect of 27 time rated employees. It is further alleged that in the year 1983-84 S.K. Banerjee entered into criminal conspiracy with some other unknown persons and in furtherance of the same obtained an amount of Rs. 50,800/- on the strength of forged fabricated L.T.C. claim bills purported to have been preferred by 29 time rated employees of the said colliery and falsely shown as disbursed to the employees and pocketed the amount. Further allegation is that the same set of 29 employees against whom the accused had already claimed and received the amount of L.T.C. subsequently preferred their genuine L.T.C. claim for the same block year of the L.T.C. The accused processed, passed and made payment of an amount of Rs. 60,730/- arising out of the genuine L.T.C. claim of 29 time rated employees by concealing the fact of earlier payment. The F.I.R., Ext.-13 was drawn by Inspector R.C. Choudhary and investigation was started.
4. The investigation disclosed that the accused persons Sukumar Banerjee, Bill/pay Clerk, Ram Pyare Singh, Accountant, Narain Prasad Chaubey, Manager, S.N. Bharthuar, Safety Officer and S.K. Sinha, Bill/Pay Clerk of Ghanoodih Colliery, BCCL, Dhanbad are involved in preparing of bills, checking, passing and payment of the bill by entering in to criminal conspiracy and in furtherance of their common abject the L.T.C. advances were paid twice to each employee for the same block year in the following manner:
(1) An amount of Rs. 400/- was shown paid to Sriman Paswan, Drill Man as L.T.C, advance on 9.9.93, the bill was prepared and checked by S.K. Banerjee passed by S.N. Bharthuar. Second payment of L.T.C. advance to the tune of Rs. 2300/-has been shown made to him on 1.6.84 for which the bill was prepared by S.K. Banerjee checked by R.P. Singh and passed by N.P. Chaubey. There is no entry regarding the first payment of Rs. 400/- in the ledger. Second payment of Rs. 2300/- has been reflected. The first payment has been made by S.K. Banerjee.
(2) Payment of Rs. 1800/- was shown made to Janki Sao, Fitter helper on 9.5.83 for which the bill was prepared by S.K. Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. His second payment of Rs. 2300/- was shown made to him on 20.4,84 of which bill was prepared by D.N. Mukherjee checked by Ra, Pyare Singh and passed by N.P. Chaubey. Second payment has also been entered into the disbursement register.
(3) L.T.C. advance to the tune of Rs. 1800/- was shown made to Dhaleshwar Sao, Pump Khalasi on 10.5.83, bill was prepared by S.K. Banerjee, checked by Ram Pyare Singh and passed by N.P. Chaubey. His second payment of Rs. 1800/- was shown made to him on 16.7.83 of which the bill was prepared by D.N. Mukherjee checked by Ram Pyare Singh and passed by none. The first payment was made by S.K. Banerjee has not been entered in the ledger.
(4) Payment of Rs. 400/- was shown made to Ramdhani Dusadh, Lone Helper on 10.5.83 as L.T.C. advance of which bill was prepared by S.K. Banerjee checked by R.P. Singh and passed by N.P. Chaubey. Second payment of L.T.C. advance to the tune of Rs. 400/- was shown paid to him on 11.6.83 of which bill was prepared by S.K. Banerjee, checked by Ram Pyare Singh and passed by N.P. Chaubey. Both the bills were made by Banerjee. The only first payment has been entered.
(5) Parmeshwar Barhi shown paid an amount of Rs. 1800/- on 13.4.83 as L.T.C. advance of which bill was prepared by S.K. Banerjee, checked by Ram Pyare Singh and passed by S.N. Bharthuar. His second payment of Rs. 1800/- was again shown paid to him on 9.5.83 of which bill was prepared and checked by S.K. Banerjee passed by S.N. Bharthuar. The first payment has also been entered into the ledger. Both the payments were made by S.K. Banerjee.
(6) First payment of L.T.C. was shown payment to Jiten Gope, Timber Mistry of which bill was prepared and checked by S.K. Banerjee, and was passed by S.N. Bharthuar. Payment of Rs. 2300/- was again shown payment to him for the said purpose of which bill was prepared by S.K. Banerjee, checked by Ram Pyare Singh and passed by N.P. Chaubey. S.K. Banerjee has made payment of Rs. 1800/- which was not entered into the ledger.
(7) An amount of Rs. 1800/- L.T.C. advance was shown made to Parsadi Dusadh on 13.4.85 of which bill was prepared by S.K. Banerjee, checked by Ram Pyare Singh and passed by S.N. Bharthuar. His Second payment, of L.T.C. advance of Rs. 1800/- was shown made to him on 10.5.83, bill was prepared by Banerjee checked by R.P. Singh and passed by N.P. Chaubey, Both the payments were made by Banerjee but in the ledger the 1st payment has not been entered.
(8) Samsuddin Mian shown payment of Rs. 1800/- as advance on 26.3.83 of which bill was prepared by S.K. Banerjee checked by R.P. Singh and passed by S.N. Bharthuar. Again second payment of Rs. 2300/- L.T.C. advance was shown made to him on 1.3.84 for which payment was made by S.K. Banerjee but he has not entered it in the ledger. Second payment was made by S.K. Sinha.
(9) Pula Beldar was shown made L.T.C. advance of Rs. 1800/-bill was prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Second payment of Rs. 2300/-L.T.C. as L.T.C. advance was again shown made to him on 10.12.84 the bill owas prepared by D.N. Mukherjee, checked by S.N. Jardia and S.K. Rai, passed by I.P. Choudhary. The 1st payment was made by S.K. Banerjee and second payment was made by S.K. Sinha. The entry regarding the 1st payment has not been made in the ledger.
(10) Janaki Hazam was shown paid L.T.C. advance of Rs. 2360/- on 7.1.1985 the bill was prepared by S.K. Banerjee, checked by R.P. Singh, and passed by S.N. Bharthuar. His second payment of L.T.C. advance of Rs. 2360/- was again shown made on 15.3.85, bill prepared by D.N. Mukherjee checked by S.N. Jardia and S.K. Rai and passed by I.P. Choudhary. The 1st payment has not been reflected in the ledger.
(11) L.T.C. Advance of Rs. 1800/- was shown made to Jivlal Mahato on 10.5.83 the bill was prepared by Banerjee, checked by R.P. Singh, and passed by N.P. Chaubey. Again payment of LTC advance of Rs. 1800/- was shown made to him, bill was prepared by D.N. Mukherjee, checked by R.P. Singh and passed by N.P. Chaubey. The first payment made has not been reflected in the ledger, (12) Bandhan Barhi was shown made payment of L.T.C. advance of Rs. 1800/- on 22.3,83, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. His another payment of Rs. 2360/- was shown made to him as L.T.C. advance on 7.1.84, bill prepared by Banerjee checked by R.P. Singh and passed by S.N. Bharthuar, both the payments were made by Banerjee but the first payment has not been entered into the ledger.
(13) An amount of Rs. 1800/- was shown paid to Sukhram Kahar as L.T.C. advance on 22.3.83, bill was prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Second amount of Rs. 2360/- LTC advance was again shown paid to him, bill prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar, Only Rs. 1800/- has been reflected in the ledger.
(14) Nitai Modak was shown paid LTC advance of Rs. 2360/- on 1.7.84, bill was prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Again an amount of Rs. 2300/-was shown paid as LTC advance, bill prepared by Banerjee, checked by R.P. Singh and passed by none. Second payment of Rs. 2300/- was reflected in the ledger whereas the last payment has not been entered in the ledger. The 1st payment was made by Banerjee.
(15) Marho Bhuian was shown payment of L.T.C. advance of Rs. 2360-/, bill was prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Another amount of Rs. 2300/-as LTC advance was shown paid on 1.6.84, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey, The first payment, has not been reflected in the ledger.
(16) Rs. 1800/- LTC was shown paid to Yudhisthir Houri on 26.3.83 as L.T.C. Bill prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Another amount of LTC advance of Rs. 23QO/- was shown paid to him, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. Only first payment has been reflected in the ledger. Second payment has been made by N.P. Chaubey.
(17) Birbal was shown payment of L.T.C. advance of Rs. 1800-/, bill prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar on 12.12.83. His second payment of LTC advance of Rs. 2300/- was shown to be made on 1.3.84, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. Second payment of Rs. 2300/- has been received by the employees concerned where as the first payment of Rs. 1800-/ was made by Banerjee.
(18) An amount of Rs. 1880/- was shown paid to Jagdish Singh as L.T.C. advance on 18.7.83, bill was prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Another amount of Rs. 2300/- was shown paid to him as LTC advance, bill prepared by Banerjce, checked by R.P. Singh and passed by N.P. Chaubey. The employee a received second payment of Rs. 1880/-, which has been made by S.K. Sinha.
(19) Ruplal Ram was shown paid L.T.C. advance of Rs. 2360/-on 7.1.84, bill prepared by Banerjee checked by R.P. Singh and passed by N.P. Chaubey, Again an amount of Rs. 2300/-was shown made to him, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. The payment was made by Banerjee.
(20) Sahdeo Ram was shown maid payment of Rs. 1800/- as L.T.C. advance on 20.6.83, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. He was shown second payment of LTC advance of Rs. 2300/-, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. The first payment was received by the employees while the second payment was received by Banerjee.
(21) L.T.C. advance of Rs. 1800/- was shown paid to Lalu Koiri on 18.7.83, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. Another amount of Rs. 2300/-was paid to the employee as LTC advance on 20.4.84, bill prepared by Banerjee, checked by R.P. Singh and passed by none. The second payment was received by the employees while the 1st payment was received by S.K. Sinha.
(22) Janki Tantin was shown payment of Rs. 400/- as LTC advance on 18.4.83, bill prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Again her another payment of Rs. 550/- was shown paid on 8.10.84, bill parepared by D.N. Mukherjee, checked by B.K. Mukherjee passed by I.P. Choudhary. Smt. Tatin received the amount of Rs. 550/- only and RS. 400/- was received shown by Banerjee.
(23) L.T.C. advance of Rs. 1800/- was shown paid to Ram Prasad Sonhar on 26.3.83, bill prepared by Banerjee, checked by R.P. Singh, passed by S.N. Bhathuar. Second payment of LTC advance of Rs. 2300/- was again shown paid to him of which bill prepared by D.N. Mukherjee, checked by S.N. Jardia and S.K. Rai and passed by R.P. Chaudhary. Sri Sonar received Rs. 2300/- only. The amount of Rs. 1800/- was received by Sri Banerjee.
(24) Preman Mahtb was shown paid LTC advance of Rs. 1800/-on 4.11.83 bill prepared by Banerjee, checked by R.P. Singh passed by S.N. Bharthuar, Again second LTC advance of Rs. 2300/- was shown made paid to him on 24,3.83 of which bill prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Again a second LTC advance of Rs. 2300/-was shown made payment to him on 24.3.83 bill prepared by Banerjee checked by R.P. Singh and passed by N.P. Chaubey. Second Payment of Rs. 2300/- was received by Sri Mahto and 1st payment of Rs. 1800/- was received by Banerjee.
(25) An amount of Rs. 2360/- as LTC advance was shown paid to Prabhu Bhar on 1.7.84, bill parepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. Again payment of Rs. 2300/- as LTC advance shown paid on 24.3.83 bill prepared and checked by R.P. Singh and passed by N.P. Chaubey. The 1st payment shown was not entered in the ledger.
(26) G.P. Chakraverty was shown paid Rs. 1800/- as LTC advance on 12.12.83, bill prepared by Banerjee, checked by R.P. Singh and passed by S.N. Bharthuar. The second LTC advance of Rs. 2300/- was shown paid to him on 24.3.84, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. Chakravarty received the amount of Rs. 2300/-only. Other payment shown against the name of the employee was made by Banerjee.
(27) L.T.C. advance of Rs. 1800/- was shown paid to Deo Dutt Singh on 20.10.83, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. Again second LTC advance of Rs. 2300/- shown paid to him on 20.4.84, bill prepared by Banerjee, checked by R.P. Singh and passed by N.P. Chaubey. The employee received the second payment of Rs. 2300/- only.
5. The investigation further revealed that S.K. Banerjee prepared most of the bill of the employees against which the payments were shown made. He prepared 40 bills in respect of 20 employees. He also disbursed the amount, which were not received by the employees. R.P. Singh had checked both the bills of L.T.C, advance in respect of each employee. The payment against most of the bills passed by him, were not received by the employees. N.P. Chaubey Manager passed certain number of bills the bill for one employee for one block year. S.N. Bharthuar also passed bill against which payments were not made although the amounts were withdrawn. S.K. Sinha received payment of L.T.C. advance, which was not received by the concerned employees.
6. The defence is of total denial of the charges and further that the Rules and Regulations regarding L.T.C. or L.L.T.C. advance were not being followed and it is only due to the procedural lapses, the said occurrence took place for which the appellants were not responsible because they were working under the supervision of Personnel Department of the Colliery.
8. In order to establish the charges, altogether 32 witnesses were examined on behalf of the prosecution and on behalf of the defence also 4 D.Ws. were examined.
9. According to the prosecution case, the accused S.K. Banerjee in the capacity of Bill/Pay Clerk prepared the bills related to the employees and, thereafter, those bills were checked and verified by the accused Ram Pyare Singh (appellant. in Cr. Appeal No. 89/98), who was the Accountant and those bill were passed by the accused N.P. Chaubey (now dead) and S.N. Bharthuar (appellant in Cr. Appeal No. 98/98) and the amounts were received by the accused S.K. Banerjee and S.K. Sinha (appellant in Cr. Appeal No. 92/98) for disbursement. The payments were passed by Narayan Prasad Chaubey (now dead) and S.N. Bharthuar in the capacity of the Manager,
10. Mr. Chittaranjan Sinha, learned senior counsel appearing for the appellant, Shree Narayan Bharthuar in Cr. Appeal No. 98/98 (R), submitted that, the appellant was infact a Safety Officer and only for some occasions in the absence of Manager, he worked as acting Manager and he was never associated with the bills of L.T.C. and it was not possible for the acting Manager to know about the payments. He further submitted that there was no method for the appellant to check as to whether the concerned person was receiving the money for the first time or for the second time. It was further argued that there was no evidence in this case that the Manager of the Colliery was responsible for sanctioning the payment of the L.T.C. bills rather for payment on the basis of entire form of LTC the bills were prepared and passed by the Accountant, Finance Department and the Managers used to sign it only for the release of money only for payment and, as such, they cannot be held liable for the mistake in payment because it was not there responsibility.
11. Mr. R.S. Mazumdar, learned Counsel appearing for the appellant Shailendra Kumar Sinha in Cr. Appeal No. 92/98 (R), submitted that the said appellant was only a Bill Clerk on the alleged date of occurrence and he prepared the LTC bills by the order of the Personnel Officer and, therefore, he had no hands in payment of the alleged LTC bills.
12. Mr. V. Shivnath, learned senior counsel appearing for the appellant Ram Pyare Singh in Cr. Appeal No. 89/98 (R) has submitted that the said appellant was posted as Accountant at the relevant time and the allegation is that only 8 persons had received double payment.
It was further submitted that the Accountant was only required to check 10 per cent of the bills and not all the bills, therefore, he cannot be held responsible for the offence alleged.
13. Lastly, it was submitted by all the counsels appearing for the appellants that the alleged occurrence is of the year 1983-84 and the trial of the case continued for about 13 years and the appeals remained pending since 1998, i.e. about 8 years and, therefore, the appellants have sufficiently been punished by undergoing the ordeal of long protracted trial and, therefore, at this stage since most of the appellants have already retired from service, the sentences awarded to them by the trial court be suitably modified so that they may not be sent to jail again.
14. From the evidence adduced on behalf of the prosecution, it appears that the case of double withdrawal of the LTC advance relates to 27 employees, out of which only 18 have been examined and out of the 18 also three persons namely Lalu Koiri, Ruplal Ram and Jivlal Mahato died during the pendency of the trial and, hence, they could not be examined by the prosecution.
15. From the evidence of the prosecution witness particularly of PW-13 it appears that the LTC bills were being processed and passed according to the Finance Manual and the same were prepared on prescribed format duly countersigned by the controlling officers and, thereafter, entries were made into the relevant register, which was being maintained by the Clerks. The Clerks used to report entitlement and genuineness of the applications and genuineness were also examined by the Accountant. All the details were being entered into the LTC register showing payments, block year wise and the Accountant was responsible to check and verify all those facts. Managers and Agents were also responsible to check and verify the claim of the employees from the entries made in the register. The Managers were duty bound to check and verify whether the particular employee has taken previously LTC advance or not and for maintaining ledgers the Managers were responsible.
16 After going through the evidence of PWs.-13, 14, 15 and 21, I find that for the 27 employees, bills were twice prepared for the same LTC block year, checked, passed and the amounts were withdrawn from the cashier and were shown to have been disbursed to the employees. From the documentary evidence, it has been established by the prosecution that for 27 employees, bills were prepared twice, which were checked and passed by the accused persons.
17. In view of the above discussions of the prosecutions evidence, there is no doubt that the appellant S.K. Banerjee in the capacity of the Bill Clerk prepared most of the bills related to the employees and bills were checked by Ram Pyare Singh, Accountant and the same were passed by N.P. Chaubey and S.N. Bharthuar and some time by S.K. Banerjee himself and, therefore, in my view, the charges against the appellants were fully proved by cogent evidence by the prosecution.
18. Now coming to the question of sentence. Though the minimum sentence as provided under Section 5(1)(d) and 5(2) of the Prevention of Corruption Act is imprisonment for one year, which may extend to seven years. The minimum sentence can be reduced to less than one year for any special reason. It appears that the case relates to the year 1983-84 and the trial of the case continued for about 13 years and these appeals remained pending for about eight years and, therefore, it is apparent that the appellants have undergone the rigors and ordeal of protracted trial for sufficiently long time and since they have already retired from the service and, therefore, in such a situation, in my view, it would not be justiceable to send them to jail again and, as such, for the aforesaid special reasons I feel that to meet the ends of justice the sentence of imprisonment awarded by the trial court requires to be modified. Accordingly, the sentences of Rigorous Imprisonment awarded by the trial court to the appellants is reduced to the period already undergone by them. Over and above they are also directed to pay a consolidated sum of Rs. 5000/- each by way of fine for all the charges and in default they shall undergo R.I. for a period of six months.
19. Accordingly, by upholding the conviction of the appellants as passed by the trial court, all the aforesaid three appeals are dismissed with modification in sentence as aforesaid.