Delhi District Court
That Accused Trivesh Sharma (A6) vs J.P. Sharma on 9 August, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI NEW DELHI DISTRICT,
NEW DELHI
CC No.15/2011
RC No.66/2002/CBI/ACB/ND
In re:
STATE (CBI)
VS
1. J. P. SHARMA
S/O LATE SHRI GURU DEV SHARMA
R/P A58, SHASTRI NAGAR
DELHI110052.
2. Y. P. SHARMA,
S/O KL SHARMA,
R/O BLOCK NO.12,
QUARTER NO.536, LODHI ROAD
NEW DELHI.
3. DOMINI DUNG DUNG
S/O LATE SH. JOHN DUNG DUNG
R/O H. NO. 317, DDA FLATS, SECTORIII
POCKET16, DWARKA, DELHI
4. S. K. AGGARWAL,
S/O SHRI KL AGGARWAL,
R/O 139, SFS, SHAKTI APARTMENTS
ASHOK VIHAR, PHASEII
NEW DELHI.
5. NATHA RAM SUMAN,
S/O KALI RAM SUMAN,
R/O QUARTER NO.773, SECTOR - III
RK PURAM, NEW DELHI.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.1/51
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6. TRIVESH SHARMA
S/O JP SHARMA
R/O A58 SHASTRI NAGAR,
DELHI.
7. GYANENDER SHARMA
S/O JP SHARMA
R/O A58 SHASTRI NAGAR,
DELHI.
8. PUSHPA SHARMA
W/O JP SHARMA
R/O A58 SHASTRI NAGAR,
DELHI.
9. SUNITA SHARMA
W/O MAHESH CHANDER MISHRA
R/O 48A, VISHAL GARDEN,
NAJAFGARH ROAD, NAJAFGARH,
NEW DELHI.
Date on which charge sheet was filed 30.09.2005
Date on which charges were framed 30.03.2009
Date on which judgment was reserved10.07.2012
Date on which judgment Pronounced 08.08.2012
APPEARANCES:
Mr. S. C Sharma, Ld.PP for CBI.
Mr. S. K. Duggal, Ld. Counsel for A1.
Mr. R.K.Verma, Ld. Counsel for A2.
Mr. A. M. Pattiyani, Ld. Counsel for A3.
Mr. Amit Goel, Ld. Counsel for A4.
Mr. Jaswinder Singh, Ld. Counsel for A5.
Mr. Sunil Chaudhary, Ld. Counsel for A6 to A9
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.2/51
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08.08.2012
JUDGMENT
1. This case was registered on 29.11.2002 on the basis of source information against accused JP Sharma (A1) Dy. Director, Central Water Commission (CWC) and other unknown officials of CWC on the allegations that they were indulging in defalcation of Government funds in pursuance of criminal conspiracy.
2. The case of the State (CBI) is that the investigation revealed that A1 in criminal conspiracy with accused persons A2 to A5 who were officials of CWC got issued several cheques in the name of his wife, daughter and two sons who are A6 to A9 in lieu of cheques earlier issued in favour of employees of CWC as well as non existing persons, and the such cheques were deposited by A1 in their respective bank accounts and on credit the amount was withdrawn by him in the knowledge of his family members.
3. It is pertinent to mention here that initially A1 and A5 had only been arraigned for trial and at the stage when the arguments were addressed on the point of charge, Sh. A. S. Yadav, Ld. Special Judge, Delhi vide order dated 05.09.2008 found that there was a prima facie case to proceed against two sons, wife and daughter of A1 and accordingly cognizance of offence of offence was taken u/s 403 of IPC and the accused A6 to A9 were summoned to face the trial.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.3/51 4
4. The case of the CBI is that investigation revealed that cheque no. 238506 dated 31.03.1999 for Rs.41,739/ was issued in favour of Gyanender Sharma (A7) S/o accused J. P. Sharma (A1) by the Pay & Accounts Office, CWC that was deposited in the account no. 5464 with Canara Bank, Shastri Nagar Brach, Delhi on 06.04.1999 by co accused Trivesh Sharma (A6) another son of accused J. P. Sharma and the said amount was credited in the account on 09.04.1999 and on the same day Rs.40,000/ were withdrawn by A7 and A1 through bankers cheque no. 964904 dated 09.04.1999. The investigation further revealed that cheque no. 238501 dated 31.03.1999 of Rs.41,331/ was issued in favour of Trivesh (A6) son of A1 which was deposited in his A/C no. 4887 with SBI Sri Nagar Colony, Delhi; that the said amount was credited in his account on 07.04.1999 and a sum of Rs.40,000/ by way of self cheque was withdrawn by (A6) on 12.04.1999. Investigation further revealed that another cheque no. 238604 dt. 12.03.1999 for Rs.53,211/ was issued in favour of Trivesh Sharma (A6) that was again deposited in the same manner deposited in his account and Rs.35,000/ were withdrawn by way of self cheque dated 17.03.1999.
5. It is further the case of CBI that investigation also revealed that cheque no. 238497 dt. 31.03.1999 for Rs.52,637/ was issued in the name of Smt. Pushpa Sharma (A8) wife of A1 which was deposited in her A/c no. 524 with Canara Bank, Shakti Nagar, Delhi; State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.4/51 5 that after clearance of the said cheque, an amount of Rs.50,000/ was withdrawn on 09.04.1999 vide cheque no. 271759 dated 09.04.1999 issued by her.
6. The investigation further revealed that three more cheques had been issued in favour of Smt. Pushpa Sharma by Pay & Accounts Office, CWC, Delhi that were deposited in her accounts viz., cheque no. 234136 dt. 27.10.1998 for Rs.41,287; cheque no. 230060 dated 29.05.1998 for Rs.64,665/ and cheque no. 227373 dt. 05.03.1998 for Rs.23,415/; that investigation further revealed that Smt. Pushpa Sharma (A8) was not employed in CWC and cheque no. 234136 dt. 27.10.1998 was issued on cancellation of two cheques as per approval of accused S. K. Aggarwal A4 vide cheque 232053 dated 14.08.1998 for Rs.22,563/ in favour of Sh. S. B. Srivastava vide cheque no. 230009 dt. 29.05.1999 and Rs.18,724/ in favour of Sh. J. K. Chopra; that the cheque of Rs.41,287/ in lieu of the above said two cheques was deposited by A8 vide deposit pay in slip on 23.10.1999 filled by A1 and Rs.30,000/ was later on withdrawn on self cheque by A8.
7. It is further the case of the CBI that cheque no. 230060 for Rs. 64,655/ dt. 29.05.1998 was deposited by A1 himself in the account of his wife and on credit that was effected on 02.06.1998 Rs.20,000/ and later Rs.10,000/ were withdrawn by self cheque no. 03.06.1998 and on 10.06.1998.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.5/51 6
8. It is then also the case of the CBI that cheque no. 230060 was issued in lieu of cheque no. 229532 dt. 18.05.1998 was issued earlier in favour of Sh. S. B. Srivastava which was issued vide voucher no. 2277 dt. 18.05.1998 forming part of arrear bill P249 /(III) dt. 18.05.1998 and drawn statement in receipt of the signed by accused A3 without mentioning the pay bill folio of S. B. Srivastava for the year 199899. The investigation further revealed that cheque no. 227376 dt. 05.03.1998 of Rs.23,415/ issued by Pay & Accounts Office of CWC was deposited in the account of Smt. Pushpa Sharma (A8) and the deposit slip of which was filled up by accused A1 and credit effected on 07.03.1998 and an amount of Rs.15,000/ was withdrawn on 14.03.1998 by way of self cheque; that this cheque was issued in lieu of cheque no. 224238 dt. 29.10.1997 issued in the name of Pramod Narayan 864/(III) dt. 27.10.1997 issued voucher no. 1794 dt. 29.10.1997 as a part of consolidated bill of Rs.1,96,878/.
9. It is further the case of the CBI that that cheque no. 230059 dt. 29.05.1998 for Rs.57,009/ was issued in the name of daughter of A1 namely Sunita A9 by Pay & Accounts office, CWC under the signatures of accused S. K. Aggarwal; that the pay in slip was filled up by A1 and deposited in her account maintained with Canara Bank, Shastri Nagar Branch, Delhi having account no. 6492 and immediately on credit, Rs.50,000/ was credited by way of self cheque of Sunita on 03.06.1998; The investigation further revealed State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.6/51 7 that this cheque was in lieu of cheque 229531 dt. 18.05.1998 in favour of T. S. Patil.
10. Another cheque no. 261080 dt. 14.07.1998 was issued by pay and accounts office under the signatures of Sh. S. K. Aggarwal (A4) account no. 6492 maintained with Canara Bank, Shastri Nagar Branch on credit on 16.07.1998 amount of Rs.25,000/ and Rs. 13,000/ subsequently withdrawn.
11. It is the case of the CBI that Gyanender Sharma and Trivesh Sharma, both sons of accused A1 besides wife Pushpa Sharma(8) and daughter Sunita Sharma (9) were not working in the office of CWC , Delhi during the relevant time.
12. To sum up, it is the case of the CBI that accused S. K. Aggarwal (A4) in pursuance of criminal conspiracy with A1 and other accused person unauthorizedly issued cheques in the name of family members of A1 in contravention of Government Rules and in the entire process accused Domini dung Dung (A3) was actively assisted by accused Y.P.Sharma(A2) besides N. R. Suman (A5) and the accused persons were instrumental in preparing and passing of false bills and issuing cheques in favour of non employees or outsiders viz., A6 to A9 and thereby enabling defalcation of government funds and allowing the A1 to commit criminal misappropriation of funds.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.7/51 8
13. After obtaining sanction for prosecution against the accused from the Competent Authority who were public servants and after completion of investigation, present charge sheet was filed. CHARGE
14. Based on the material collected by the State (CBI), the accused persons A1 to A5 have been charged for defalcation of funds in pursuance of criminal conspiracy whereby accounts were fraudulently falsified and cheques were issued in favour of non existing persons and thereafter cancelled cheques were issued in favour of family members of A1 and the amount deposited against the such cheques were later withdrawn and misappropriated. Accordingly charge u/s. 120B r/w 420/467/468/477 IPC and further 13(2) r/w 13 (1)(d) of PC Act and for substantive offences were framed to which the accused persons pleaded not guilty.
15. On the other hand, the family members of A1 both sons Trivesh Sharma and Gyanender Sharma wife Smt. Pushpa Sharma and daughter Mrs. Sunita Mishra have been charged for committing offences u/s 403 of IPC to which the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
16. The prosecution in order to prove its case examined 26 witnesses. The witnesses who were examined from the banks were as under : State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.8/51 9
17. PW1 was Jagan Nath Khurana, Assistant in State Bank of India, Sri Nagar Colony, Delhi. He deposed about the production cum seizure memo dt. 26.12.2002 Ex.PW 1/A whereby account opening form of accused Trivesh Sharma (A6) in original pertaining to account no. 4887 Ex.PW 1/B besides computerized statement of account Ex.PW 1/C had been handed over to the CBI;
18. PW2 was Mr. Sunit Prakash, Manager from Canara Bank, Shastri Nagar Branch, Delhi who deposed about production cum seizure memo dt. 22.10.2002 Ex.PW 2/A whereby account opening form of accused Gyanender Sharma in original pertaining to account no. 5464 Ex.PW 2/B besides certified copy of statement of account Ex.PW 2/C and original debit cheque no. 964904 drawn on self Ex.PW 2/D were handed over to the CBI. PW2 also deposed about the productioncumseizure memo dt. 12.02.2001 Ex.PW 2/E whereby certain documents in respect of the account of Smt. Sunita A9 were supplied to CBI viz. original pay in slip Ex.PW 2/F to Ex.PW 2/G and certified copies of statement of accounts (running into 13 sheets) Ex.PW 2/J indicating that three cheques of Rs.45,452/ , 47,316/ and Rs.38,721/ were deposited and credited in her accounts.
19. PW9 was I.P.S Bhatia, Dy. Manager from State Bank of India, R. K. Puram Branch, Delhi. He deposed about the letter dt. 19.11.2004 Ex.PW 5/S given to the CBI. He further deposed that their State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.9/51 10 branch was having an A/c with Central Water Commission and he deposed about the detailed procedure whereby the accounts of CWC were being maintained. He further deposed about the certified copies of ledger of CWC for the period 25.02.1998 to 21.01.2000 Ex.PW 9/A and its extract which was relevant for this case Ex.PW 9/B. The witness deposed about various cheques which have been issued in favour of A6 to A9 and credited in their accounts vide entries reflected in the ledger sheets.
20. PW11 was Baldev Raj Batra, Dafari with Canara Bank, Shakti Nagar, Delhi. He deposed that on 26.08.2003 he handed over certain documents vide memo Ex.PW 8/F to Inspector R. S. Bedi pertaining to account of accused Smt. Pushpa Sharma (A8) and he further deposed about handing over three pay in slips which are Ex.PW 8/G to Ex.PW 8/H; cheques which are Ex.PW 8/L to Ex.PW 8/O and account opening form Ex.PW 8/Q besides certified copy of Statement of account no. 524 of A8 Ex.PW 8/ to the CBI.
21. PW12 was Ashok Kumar, Sr. Manager with Canara Bank, Shakti Nagar, Delhi on 14.10.2003. He deposed about production cum seizure memo dt. 14.10.2003 whereby statement of account Ex.PW 8/P of accused Smt. Pushpa Sharma (A8) was handed over to CBI.
22. PW15 was Net Ram, Record Keeper from PNB, Shastri Nagar. He deposed about the productioncum seizure memo dated State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.10/51 11 22.10.2003 Ex. PW 17/A whereby certain documents were handed over to the CBI viz. statement of account no. 18962 in the name of accused J. P. Sharma A1 Ex.PW 17/C; cheque deposit slip dt. 17.06.1998 Ex.PW 17/D besides specimen signatories card Ex.PW 17/E. He also deposed handing over to CBI cheque no.286418 drawn on self by accused J. P. Sahrma Ex.PW 17/F.
23. PW 25 was I. S. Ranga posted as Dy. Manger in R. K. Puram Delhi from June 2005. He deposed about the account opening form in favour of accused J. P. Sharma vide saving bank account no. 36903 Ex.PW 25/A and the computerized statement of accused Ex.PW 25/B. He further deposed about the transfer entry of Rs. 1 lakh in the account of A1 on 11.04.1998 and another transfer entry for Rs. 99,000/ in January 1999. It is suffice to state here that evidence of PW25 is actually meant for CC no. 14/11 which is being disposed of along with this case.
24. The only witnesses examined as Expert Witness was PW16 was Trilochan Joshi, Assistant from GEQD, Shimla. In his detailed testimony the witness deposed about examining several questioned documents viz. Specimen hand writing and signatures of accused persons proved his report Ex.PW 18/A34 with reasons contained in document Ex.PW 18/A35.
25. The witnesses who were examined from the CWC were as under : State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.11/51 12
26. PW3 was Sh. S. K. Jindia , Assistant Accounts Officer in CWC during the year 2004 he was partly examined on 26.08.2009 and later he was again examined as PW24.
27. PW4 was R. C. Tully who was P&AO in CWC during the period January 1982 to 2006. He deposed about the procedure that was being followed for preparation of bills for claims of LTC, Salary/medical etc. and also procedure for cancellation of cheques issued in favour of any beneficiary;
28. PW5 was B. S. Yadav, Pay & Accounts Officer CWC from October 2002 to November 2005. He also deposed about the organizational set up regarding disbursement of pay and allowance by the DDO and pay accounts office.
29. PW 10 was Madav Ram, Daftari who deposed that after bills were cleared by the office of DDO, he sued to carry the cheques to P&AO upon which a certain token used to be issued against each bill and after getting cheques for disbursement and he used to make entries in the cheque acquaintance register. The extract of the register which is relevant for this trial was proved as Ex.PW 10/A.
30. PW14 was J. R. Behl who was posted as Accounted in CWC during the relevant time and deposed about the production cum seizure memo dt 17.09.2003 Ex.PW 14/A whereby certain documents were handed over to the CBI.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.12/51 13
31. PW21 was S. P. Shokhanda, Under Secretary in the Ministry of Home Affairs who deposed according sanction for prosecution on 14.10.2005 against the accused Dominie Dung Dung Ex.PW 21/A.
32. PW22 was Ambrish Kumar, Director (Administration) CWC who deposed according sanction for prosecution on 03.10.2005 against the accused Y. P. Sharma Ex.PW 22/A.
33. PW23 was N. R. Meena who was Sr. Accounts officer in PAO w.e.f. 1994 to 2002. His evidence is very crucial for decision in the trial as he deposed that the impugned cheques were issued at the instance of accused S. K. Aggarwal A4 which documents have been proved Ex.PW 23/A1 to Ex.PW 23/F and I shall dwell on his evidence later on in this judgment.
34. The following witnesses were examined as Independent Witnesses who were as under :
35. PW6 was Naresh Kumar, Peon from BPRD who deposed that on 06.12.2004 specimen signatures of A3 Domini Dung Dung were taken in his presence on three sheets S30 to S32 which are Ex.PW6/A (colly).
36. PW13 was O. P. Sharma. He deposed that he had introduced the account of accused Jyanender Sharma with Canara Bank, Shastri Nagar Branch as per account opening form Ex.PW 2/B. State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.13/51 14
37. PW7 was Brij Mohan Sharma, who was Senior Clerk in DTC in whose presence specimen signatures of accused S. K. Aggarwal (A4) were taken (running into 07 sheets) mark S56 to S62 which are Ex.PW7/A and Ex.PW 7/B respectively.
38. PW17 was S. K. Punj, Head Clerk from NCC Kashmere Gate, Delhi who deposed that on 04.08.2003 specimen of Trivesh Sharma was taken in his presence (running into 14 pages) mark S1 to S14 collectively Ex.PW 8/U.
39. PW18 was Sudhakar Pakhiddey who deposed that on 20.12.2002 specimen of J. P. Sharma was taken in his presence (running into 18 pages) mark S15 to S32 collectively Ex.PW 18/A.
40. PW19 was Gulshan Manocha who deposed that on 04.12.2008 specimen handwriting of accused J. P. Sharma was taken in his presence mark S23 to S26 collectively Ex.PW 19/A.
41. PW20 was Gyan Chand, JE from CPWD, Karnal Central Division, Haryana who deposed that on 08.12.2004 specimen handwriting of accused Gyanender Sharma was taken in his presence mark S36 to S38 collectively Ex.PW 8/V and on the same day specimen signatures of accused Smt. Pushpa Sharma (A8) were taken in his presence mark S33 to S35 collectively Ex.PW 8/X.
42. The witnesses who were examined from the CBI were as under : State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.14/51 15
43. PW8 was Inspector R. S. Bedi who had investigated the entire matter.
44. PW26 was Inspector Sri Bhagwan who was entrusted with the investigation of this case from Inspector R. S. Bedi. He deposed that after obtaining the sanction against the public servants, he filed the charge sheet.
STATEMENT OF ACCUSED PERSONS
45. On the close of the prosecution evidence, each of the accused was separately examined u/s. 313 Cr.PC. and put the incriminating facts and circumstances brought on the record. It is suffice to state that A1 denied the case of the prosecution. He submitted that he did not receive any of the cheques on behalf of his family members and he had not played any role in the deposit of such cheques and withdrawal of the amount. He stated that he was innocent and falsely implicated in this case.
46. His son Gyanender Sharma(A7) and Trivesh Sharma(A6) besides wife Smt. Pushpa Sharma(A8) and daughter Sunita Mishra(A9) also on putting incriminating evidence appearing against each of them separately deposed that they have been falsely implicated by the State (CBI).
47. So far as accused persons namely Y. P. Sharma(A2), Domini dung dung(A3), S. K. Aggarwal(A4) and Natha Ram Suman(5) are concerned, they also stated that they have been falsely implicated State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.15/51 16 by the State (CBI) and also denied the case of the prosecution in this case.
ARGUMENTS
48. I have heard ld. Counsel for the parties and Ld. PP for the Sate (CBI). I have meticulously gone through the entire record of the case.
PRACTICES & PROCUDURE TO BE FOLLOWED IN THE OFFICE OF DDO & PAO FOR PREPARATION OF BILLS, PRESENSTATION, PROCESSING AND ISSUANCE OF CHEQUES
49. Firstly, it would be worthwhile to highlight the general practices and procedures mandated to be followed by the DDOs and the office of PAOs in various government department including CWC. Chapter 2 of the Civil Accounts Manual, (Revised First Edition)2002 issued by the Ministry of Finance, Department of Expenditure (Controller General of Accounts) New Delhi lays down guidelines about presentation, processing and passing of claims against the Government presented to Pay and Accounts Office for payment. Scrutiny and payment Procedures are laid down vide Regulation 2.3.3:
2.3.3 After duly examining the bills from various angles and recording precheck enfacement and amount passed for payment (in words and figures) on each bill, the Senior Accountant/ Accountant should submit them to the Pay and Accounts Officer through his Assistant / Junior Accounts Officer along with the concerned 'DDO wise Bill Passing cum Expenditure Control Register' in Form CAM 9. the Pay and Accounts Officer will examine the bills, compare the signature of the drawing officer with his specimen signature and after satisfying himself of the correctness of the charges tick off relevant entry and affix initials in the register and approve the State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.16/51 17 enfacement of pass orders on the bill for payment, over his full dated signature. The bills so passed will immediately thereafter be made over to the cheque section by the payment section.
2.3.5. The cheque writer will prepare a cheque for the net amount. When two or more bills are payable to the same person, it will be convenient to issue a single cheque for the total amount, though the particulars of each bill should be entered at the appropriate stage, separately in the register of cheques delivered. The cheque writer will note the number of the cheque conspicuously on the bill, enter its details in the Register of the Cheques Drawn (Form CAM 10) and submit the cheque and the bill along with it to the Pay and Accounts Officer and also to the second officer authorised to sign the cheques, wherever required, through the Assistant / Junior Accounts Officer. The pay and Accounts Officer signing the cheque will tick the cheque number, see that the amount of cheque agrees with the amount passed for payment and then sign the cheque after defacing the pay order given earlier. The passed bill together with the cheque will be returned to the Cheque Section which will affix the date on the cheque at the time of its delivery. Immediately after the delivery / despatch of the cheque, the cheque section will attach the payee's acknowledgment, if received by them, to the bill, stamp it as paid, write the voucher no. on the upper right hand corner of the bill and enter details of payments for each day on a separate page in the Register of Cheques Delivered (form CAM
11). The register may be prepared with second and third perforated copies for each page, to be utilised for making two carbon copies thereof meant to serve as "Daily Memorandum of Precheck payments by the PAO". The form of the acknowledgment should be "Received by cheque Rs......... from the .............. in payment of bill No..... dated...... on account of ........ " and its receipt should be watched in all cases.
50. Further, Procedure for issue of fresh cheque in lieu of cancelled / time barred cheque is provided vide regulation 2.7.1 as under:
Revalidation of the time barred cheque by PAO/ cheque drawing DDO is not permissible irrespective of the date of its drawal. Fresh cheques will be issued in all such cases.
The time barred cheque received back by the PAO should not be destroyed but it should be cancelled under his signature. The can celled cheque should be treated as a voucher / subvoucher for is suing fresh cheque in lieu thereof and the fact of issuing fresh cheque should be noted on it. The amount of the time barred cheque (i.e. Voucher) should be classified as () credit below the heard "8670Cheques & bills PAO Cheques" in terms of para 5.11 State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.17/51 18 of C.A.M. Entries regarding cancellation of old cheque with voucher number of the fresh cheque etc. should be noted on the counterfoil/record slip of the old cheque book.
51. As per Swamy's Master Manual for DDOs and Heads of Officers, PartI, Finance and Accounts, 9th Edition 2010, the introductory part explains the common fact that there are officers/staff in different categories to assist the Head of Office and the entire staff is called 'Establishment'. As per the Central Treasury Rules/ Receipts and Payments Rules, the Head of Office authorizes Junior Officer to carry out his functions of drawal of money from Government and payments who is called "Drawing and Disbursing Officer", whose main functions are to look after the regulation of receipt of Government money and incurring expenditure and also keeping the accounts of the office on behalf of Head of Office. No doubt the DDOs are assisted by Junior staff on several matters of Finance, but the DDO is supposed to be conversant with the basic provisions of the rules.
52. While various duties are assigned to the DDOs for over all superintendence, monitoring various personal claims of the employees, the DDO is responsible for the amounts drawn on a bill signed by him or on his behalf only for payment to the persons entitled to receive and obtain legal acquittance. There is an exception where the amount is directly credited into the account of State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.18/51 19 the employee for which a confirmation from the PAO is required. The 'Acquittance Roll' is recommended to be kept to be in bound book in stead of loose sheets vide GAR 24.
53. Chapter 13 makes a distinction as between the DDOs who are having cheque drawing powers and not having one and in the case of latter, the DDOs have to draw the money from the PAOs and in that case all the bills are forwarded to the PAO for approval and drawing of cheques / drafts in terms of GAR 10. There are mandated several precautions as regards safe custody of cheque book, physical verification, tallying of bills/cheques disbursed with the statement from the official bank etc.
54. GAR 4 provides register of cheque issued to be maintained containing column, details of cheques issued, name of the payee, date of cheque etc. Further, when after issuance of the cheque, it is required to be cancelled, the DDO is supposed to get a confirmation from the register of cheque issued and payments scroll that it has not been encashed and while personally checking it must write on its back about any fresh cheque, if any, issued against the payment due to the beneficiary.
55. In the instant case while there is no dispute that the DDO was authorized to issue cheques after the same had been approved and delivered back to the Establishment from the office of PAO. Before drawal of cheques, Chequedrawing DDOs are expected to exercise State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.19/51 20 the checks in the same manner carried out by PAO. In so far as the bills relating to his own office are concerned the DDO should ensure that they are got checked independently by a person other than the one responsible for the preparation. Bills pertaining to other branch offices should be checked arithmetically an examined with a view to seeing that the claim is admissible, the authority good, signatures / counter signatures are genuine and corrections, if any, are duly attested, DDO will also ensure that the quarterly assignment intimated by PAO for such branch office is not exceeded. This can be seen from the 'Register of Cheques' issued GAR 4; to be maintained for each of the branch offices separately. The procedure discussed above was explained by PW4 Mr. Robert Charles Tully and further elaborated by PW5 Mr. B. S. Yadav.
56. It is in evidence of PW4 that the duties of the DDO involved drawing of all the pay bills and other bills before they are sent to the Pay & Accounts Office and admittedly DDO was being helped by the establishment staff and in the present case, there were four account sections which were dealing with different categories of employees. It is in evidence of PW4 that the bills that were scrutinized and passed by the establishment used to be placed before the DDO, who after verifying and signing the same used to send it to the Pay & Accounts Office. The State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.20/51 21 Pay & Accounts Office was also enjoined to scrutinize the bills and then issue cheques. It is in evidence that bill transit register was used for recording the bills sent to Pay & Accounts Office and on receipt of bills in Pay & Accounts Office a token number used to be issued for every bill; the bill was given a number and entered in the bill register and the token number was incorporated in the register so maintained.
57. It is also in the evidence that when particular bill was passed by the Pay & Accounts Office, it used to be sent back to the DDO or in favour of the individual concerned and no cheques could be issued in favour of any family member of an employee . Before disbursement of cheque, an entry used to be made in the Cheque Acquaintance Roll containing details viz. Bill no., name and designation of the employee to whom cheque is issued to be signed by the DDO or the individual beneficiary, as the case may be. Once this was done, the details of the bill used to be entered into a register known as the "Pay Bill Register". This register contained a separate page of each employee wherein all financial transactions of the financial year used to be recorded. It is also admitted case that bills used to be prepared only on the basis of financial sanction granted by the establishment section dealing with the category of employees in State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.21/51 22 whose case the sanction has been issued invariably containing head of the account to which the expenditure was to be debited.
58. PW5 Mr. B. S. Yadav further elaborated in his deposition that in the Pay & Accounts Office there were Eight Sections. Suffice to state that his testimony was that there were Sections dealing with Pay and Allowance, TA, LTC, GPF withdrawal , pension etc. and so far as Section VIII was concerned, it was dealing with General Administration where original bills used to be received from DDOs,CWC given a token number, then sent to the concerned Section for processing and after approval of the bill, cheque was prepared by the cheque writer and approved by the PAO, signed by the Senior Accounts Officer. He further deposed that it is in this Section that details used to be recorded regarding list of bills, cheque deliveries to the DDO concerned, preparation of bank drafts, dispatch of drafts / cheques etc.
59. In the back ground of the broad practices and procedure for preparation, processing and issuance of bills discussed above, let us come back to the instant case and appreciate one by one as to how the cheques in disputes have been prepared, dealt with, issued, deposited and amount withdrawn from time to time. State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.22/51 23 EVIDENCE ESTABLISHED ON THE RECORD Case accused Trivesh Sharma (A6)
60. It is brought out in the evidence of PW1 that A6 was having S.B.Account no.4887 with State Bank of India, Srinagar Colony, Delhi and account opening form was proved as Ex.PW1/B. PW1 deposed hat cheque no.238501 dated 31.03.1999 for Rs41,331/ was deposited by pay in slip Ex.PW1/C and the amount was credited on clearance of the cheque on 09.04.1999 as shown vide entry at point X in the statement of account MarkA. The entries in computer copy Mark 'A' are corroborated further corroborated by the evidence of PW9 , who produced the certified copies of the statement of account for the period 25.01.1998 to 27.01.2000 of the bank account with CWC Ex.PW9/A with its extracts Ex.PW9/B which is admissible as per Section 65 (g) of the Indian Evidence Act showing that cheque amount was credited vide entry in ledger sheet no.103 dated 17.04.1999 in Ex.PW9/A. Although the certified copy of the statement of account was not produced, the statement of account MarkA shows that Rs.40,000/ were withdrawn on 12.04.1999 when the amount was credited to which there is no challenged in his cross examination either by A1 or by A6. It is further in evidence that another cheque no.238604 dated 12.03.1999 for Rs.53,211/ was deposited in the account of A6, which was credited in his account on 15.03.1999 vide ledger sheet 77 in Ex.PW9/A and the statement State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.23/51 24 of account MarkA shows that Rs.35,000/ have been withdrawn on 17.03.1999.
61. The debit cheque Ex.PW 18/A4 for Rs. 35,000/ dt. 17.03.1999 appears to have been signed by accused Trivesh Sharma at Q25 on the front and his signatures also appears on the back. Opinion was sought from the CFSL regarding the writing on the pay in slip Ex.PW 1/C, Q26 when the cheque for Rs. 41,331/ was deposited but the report Ex.PW18/A.34 is in conclusive.
62. The other debit cheque which was seized Ex.PW 18/A15 which is for Rs. 40,000/ dt. 09.04.1999 which appears to have been signed on the front by accused Trivesh at Q27 and on the back as well but also signed by A1 at Q28 confirmed to be his signatures by GEQD report Ex.PW18/A.34.
Case against Gyanender Sharma(A7).
63. It is in evidence of PW2 that A7 was having saving bank account no.5464 with Canara Bank, Uttam Nagar Branch, Delhi and his account opening form without any challenge was proved as Ex.PW2/B and certified copy of account for the relevant period was proved as ExPW.2/C Evidence of PW2 Sunit Parkash visavis testimony of PW9 IPS Bhatia would show that cheque no238506 dated 31.03.1999 for Rs.41,739/ was deposited on 06.04.1999 as per ledger sheet no.105 in Ex.PW9/A and credited on 09.04.1999 and Rs. 40,000/ were withdrawn on the same day vide self cheque no. State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.24/51 25 964904 Ex.PW2/D apparently signed by A7. There is no challenge to such facts in the cross examination of PW9 or for that matter PW2.
64. The debit cheque Ex.PW 2/C for Rs. 40,000/ dt. 09.04.1999 bears signatures of accused Gynander Sharma on the front at Q52 and on the back Q53 and also appears to have been signed by accused A1 at Q54, which were confirmed by GEQD in report Ex.PW18/A.34.
Case accused Pushpa Sharma (A8)
65. It is brought out in the evidence of PW4 Baldev Raj visavis PW8 Inspector R.S.Bedi that Pushpa Sharma (A8) wife of A1 was having bank account no. 524 with Canara Bank, Shakti Nagar, Delhi as per specimen signatures card Ex.PW8/Q and cheque no.238497 dated 31.03.1999 for Rs.52,666/ was credited in her account on 07.04.1998 as per ledge sheet no.103 in Ex.PW9/A and certified copy of statement of account was proved as Ex.PW8/P. On the amount getting credited, Rs.50,000/ were withdrawn on 09.04.1999. No dispute was raised in the cross examination about deposit of such cheque.
66. Evidence led on the record further brings out that three more cheques were issued in favour of A8 and deposited in her account. Cheque no.234136 dated 27.10.1998 for Rs,.41,287/ was deposited in the account vide pay in slip Ex.PW8/J and the amount was State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.25/51 26 credited on 29.10.1998 as per ledger sheet no.145 in Ex.PW9/A. The case of the prosecution here is that payinslip was filled by A1 and this cheque was issued in lieu of two cheques that were cancelled by A4 on approval by A5 no.232053 dated 14.08.1998 for Rs.22,563/ in the name of S.B.Srivastava and another cheque no.230009 dated 29.05.1998 for Rs.18,424/ in the name of JK Chopra. It is in evidence of PW23 NR Meena that the request for cancellation from DDO, CWC for cancellation of two cheques was received as per noting Ex.PW3/A7 and the direction was to issue one consolidate cheque in the name of Pushpa Sharma. However, the noting does not reflect such direction. He deposed that accordingly the cheque for Rs.41,287/ was prepared by him and it was signed by A4 SK Aggarwal on approval by A5. The entry in regard to such cheque was mentioned in the cheque delivery register Ex.PW23/A7 but the witness was unable to state as to who had made the said notings and therefore the entry was Marked PX2 for identification and the cheque book out of which cheque was issued is Ex.PW26/E . It is then in the evidence of SK Jindia (PW24) that in the cheque delivery register Ex.PW24/D although the particulars of the cheque were indicated, there was no name of the payee at page 60 (D301) of the register Ex.PW26/PX2.
67. The crux of the whole discussion so far is that two cheques in the name of S.B.Srivastava and JK Chopra were cancelled and a State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.26/51 27 consolidate cheque was issued in the name of Pushpa Sharma (A8) and the amount was credited in her bank account and later on withdrawn.
68. The third cheque is bearing no.230060 dated 29.05.1998 for Rs.64,665/deposited in her account vide pay in slip Ex.PW8/H, as per the prosecution in the handwriting of A1. The amount was credited on 02.06.1998 as per ledger folio sheet no.1 Ex. PW9/A and the statement of account Ex.PW8/B would show that Rs.20,000/ and Rs.10,000/ were withdrawn by self cheque dated 03.06.1998 and 10.06.1998.
69. The prosecution case is that the cheque no.230060 dated 29.05.1998 for Rs.64,655/ was issued in lieu of cheque no.229532 dated 18.05.1998 which was earlier issued in the name of S.B.Srivastava. No notings were found in regard to any request from the DDO, CWC for cancellation of these cheques and for issuance of new cheque Ex.PW3/A but the cheque was signed by A4. Surprisingly, it is in the cheque delivery register Ex.PW24/C (D296) page 75, there is a writing that cheque no.230060 was issued in lieu of cheque no.229532 but again despite mentioning the particulars of the cheque, the name of the payee is not indicated as per evidence of PW24 SK Jindia.
70. The story about fourth cheque issued in favour of Pushpa Sharma (A8) goes as follows : Cheque no.227376 dated 05.03.1998 State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.27/51 28 for Rs.23,415/ was issued in her name and deposited vide pay in slip Ex.PW8/G and credited on 07.03.1998 in her account as per ledger sheet no.114 in Ex.PW9/A. The case of the prosecution is that this cheque was deposited by A1 in his own handwriting and statement of account Ex.PW8/P indicates that Rs.15,000/ were withdrawn on 14.03.1998 vide self cheque no.585172. The prosecution case is that this cheque was issued in lieu of cheque no. 224263 dated 29.10.1997 issued earlier in the name of Parmod Narain. The particulars of cheque in favour of Parmod Narain were found in D56, which is the cheque delivery register at serial no.58 Mark PX5 and receipt for cancellation and issuance of a new cheque vide noting Ex.PW23/A1. It is pertinent to mention here that notings in the cancellation file Ex.PW23/A (D523) for the year 19992000 or for that matter Ex. PW3/A (D522)for the year 19981999 are in a stereo type manner, where notings indicate receipt of cheque for cancellation with particulars about cheque number, date and amount indiating that requests were received from the DDO but while issuing fresh cheque, the name of payee or the date of the cheque or the amount is not indicated. No corresponding entry in regard to issuance of these cheque in the cheque delivery register Ex.PW24/A to F were found. It is pertinent to mention here that the requests received from DDO, CWC were neither found in the file Ex.PW23/A nor Ex.PW3/A and the State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.28/51 29 testimony of I.O.PW8 is silent about such documents and during the course of arguments he was called and his version is that none of such documents could be traced in the Office of DDO or the P& AO. Well, there was recorded statement of no senior functionary in the CWC about such alleged request documents of DDO or the Register of Cheques or the Pay Bill Register being not available or not being maintained in the ordinary course of business.
71.The debit cheque in respect of account of Pushpa Sharma revealed that cheque for Rs.20,000/ Ex.PW 8/L dt. 03.06.1998 bears her signatures on the front at Q36 as well as at Q38 and on the back at appears to have been signed by Gynander sharma at Q37 besides one Chander Shekhar . Debit cheque Ex.PW 8/M for Rs. 6,000/ appears to have been signed by accused Pushpa sharma at Q40 on the back and in both the cheques Ex.PW 8/L and 8/M, opinion was sought about the amount described in words vide Q35 and Q39 respectively and Q39 is the handwriting of A7 as per report Ex.PW18/A.34.
72. The third debit cheque Ex.PW 8/N for Rs. 30,000/ appears to have been signed at Q42 on the front at Q43 on the back and opinion about the amount of cheque was sought vide Q41 which is signatures of A1 as per Report Ex.PW18/A.34.
73. The 4th cheque Ex.PW 8/O for Rs. 50,000/ dt. 09.04.1999 which appears to have been signed by accused Pushpa Sharma at State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.29/51 30 Q45 on the front and Q46 on the back and opinion was sought about writing at Q44 which is handwriting of A1 as per Ex.PW18/A 34.
74. It is pertinent to mention here that in the pay bill Ex.PW 18/A5 signed by accused Dominic Dung Dung on 18.01.1998 there was mention of payment of amount of Rs.64,655/ to Sh. S. B. Srivastava and Rs. 57,009/ to T. S. Patil. However, there is no mention or indication of such payment in the Due Drawn statement of S. B. Srivastava for the relevant years which are Ex.PW 18/A6 to A10. Since no evidence is led, we assume that there were existing such employees in the CWC but they were not examined during the investigation about such bills/cheques. Case against Sunita Mishra (A9)
75. It is in evidence of PW2 that accused A9 Sunita Mishra was having S.B.A/C no.6492 with the Canara Bank and cheque no. 230059 dated 29.05.1998 for Rs.57,009/ issued by the CWC bearing signatures of accused SK Aggarwal was deposited in her account which was credited on 01.06.1998 as per ledger sheet no.200 in Ex.PW9/A and the certified copy of statement of account Ex.PW2/J shows that Rs.56,000/ were withdrawn on 03.06.1998 by way of self cheque.
76. The case of the prosecution is that this cheque was issued in lieu of earlier cheque no.229531 dated 18.05.1998 in the name of State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.30/51 31 T.S.Patil. No notings in the cancellation file Ex.PW3/A for the period 199899 (D522) and in the cancellation file Ex.PW23/A for the period 19992000 (D523) were found in regard to this cheque. It, therefore, remains mystery, as to how come the said cheque was signed by accused SK Aggarwal, although in the counterfoil of the cheque book (D323) the cheque is shown to have been issued earlier which was Mark PX3 for identification as PW23 stated that it was not prepared by him and new cheque was issued from the counterfoil of the cheque (D57) mark PX4 but again this witness not able to say anything about the writing or the signatures on the same. On the other hand, PW24 Jindia showed from cheque delivery register Ex.PW24/C (D296) which are loose sheets that cheque no.230059 was issued in lieu of cheque no. 229531 but the entries did not indicate the name of the payee. The second cheque that was issued in favour of Sunita Mishra (A9) is no.231080 dated 14.07.1998 for Rs.38,721/ credited in her account as per statement of account Ex.PW2/J and corroborated by entries vide ledger sheet no.42 in Ex.PW9/A on 16.07.1998. It then shows that Rs.25,000/ and Rs.13,000/ were withdrawn on 18.07.1998 and 25.07.1998 respectively.
77. The case of the prosecution is that the second cheque was issued in lieu of cheque no.230070 dated 29.05.1998 in the name of B.Sundariya noted in the cheque delivery register Ex.PW24/A3 and State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.31/51 32 notings found regarding cancellation in Ex.PW3/A7. However, these entries were not made by PW23 N.R.Meena and he was unable to say as to who made such entries except that it could be said that the notings did not specifically seek approval for issuance of new cheques in favour of Sunita Mishra (A9) but cheque nonetheless issued under the signatures of A4 on approval by NR Suman (A5) .
78. The third cheque issued in favour of A9 is no.231612 dated 31.07.1998 for Rs.47,316/ credited in her account on 03.08.1998 as per ledger sheet no.60 Ex.PW19/A and Rs.45,000/ withdrawn on 05.08.2009 as per statement of account Ex.PW2/J. There are no evidence in the cancellation file Ex.PW3/A as well as Ex.PW23/A regarding issuance of this cheque.
79. The fourth cheque bearing no.238500 for Rs.45,452/ deposited in her account as per ledger sheet no.105 on 08.04.1999 in Ex.PW9/A and Rs.45,000/ withdrawn on 09.04.1999, as per the prosecution by A1 and the entry of withdrawal is reflected in the certified copy of statement of account Ex.PW2/J. There are no notings in Ex.PW3/A and Ex.PW23/A for cancellation of any earlier cheque or issuance of new cheue in respect of thereto. The pay in slip Ex.PW 2/F in her account for deposit of cheque of Rs.45,452/, signatures at Q20 appearing to be that of Trivesh Sharma was State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.32/51 33 referred to CFSL and GEQD Ex.PW18/A.34 verifies it to be his handwriting. Third debit cheque for Rs. 45,000/ dt. 09.04.1999 Ex.PW 8/C appears to be signatures of accused Sunita Mishra at Q6 on the front and Q8 on the back besides having signatures that appears to be of A1 at Q9 and that of accused Gynender Sharma at Q10. Q9 is the signatures of A1 as per GEQD Ex.PW18/A.34.
80. The fifth cheque no.240766 dated 29.06.1999 for Rs.72,000/ and credited in the account no.6492 with Canara Bank as per ledger sheet no.197 in Ex.PW9/A on 01.07.1999 and immediately on 02.07.1999and 03.07.1999, Rs.50,000/ and Rs.20,000/ respectively were withdrawn. There is no noting in cancellation file Ex.PW3/A (D52) and Ex.PW23/A (D523) about this cheque. Similarly, there is no noting in the cheque delivery register Ex.PW24/A to D about delivery of such cheques. The debit cheqeu Ex.PW 8/A dt. 03.07.1999 for Rs. 50,000/ appears to be signatures of accused Sunita Mishra on the front of the cheque at Q16 and on the back at Q18. On the back, there appears to be signature of A1 as well at Q19. On debit cheque Ex.PW 8/B for Rs.20,000/ at mark Q11 and Q13 appears to be signatures of accused Sunita while Q14 appears to be that of Trivesh Sharma or J. P. Sharma besides having signatures of Chander Shekhat at Q15. As per GEQD report Ex.PW18/A.34, Q 19 are the signatures of A1.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.33/51 34 APPRECIATION OF EVIDENCE; BROAD CONCLUSION
81. Broadly speaking, the evidence brought on the record bring out the following facts and circumstances against the accused persons:
1. That accused Trivesh Sharma (A6), Gyanender Sharma (A7), Pushpa Sharma (A8) and Sunita Mishra (A9) were not employees of CWC nor they were entitled to any claim in regard to any other services nor A1 had any claim in respect of the bills/cheques passed;
2. That the cheques were some how procured from the Establishment or from the office of DDO or from the Pay & Accounts Office by someone, presumably JP Sharma (A1) since he only could have access in his department and the cheques were deposited in the account of A6 to A9 and the amount of the cheques were ultimately credited and there is a visible pattern that soon after deposit of cheques from time to time, amount had been withdrawn vide debit cheque of the account holders drawn on 'self' on each occasion;
3. We can very well assume that anybody other than the account holder could deposit some cheque or cash amount in the account of the holder but when it comes to State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.34/51 35 withdrawal, particularly when a self cheque is drawn or withdrawal slip is used, an inference could be formed that such withdrawal was by none other than the account holder himself or herself;
4. However, eleven cheques out of twelve in question were deposited in the accounts of A6 to A9 by A1 and one cheque by accused Trivesh (A6)in the account pertaining to his brother A7;
5. That three debit cheques Ex.PW8/A to Ex.PW 8/C in respect of account of accused Sunita Sharma (A9) were signed by A1; Similarly, three debit cheques in respect of account of accused Pushpa Sharma (A8) Ex.PW 8/M to Ex.PW 8/O had also been signed by A1. Further, one cheque in respect of account of accused Gyanender Sharma (A7) Ex.PW 2/C and one cheque in respect of account of accused Trivesh Sharma (A6) were signed by accused A1 as per the report of the GEQD which have not been challenged by A1;
6. There is no evidence regarding the remaining cheques except that one debit cheque in respect of account of Pushpa Sharma (A8) Ex.PW 8/L appears to have been signed by A7 as confirmed by the report of GEQD.State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.35/51 36
7. As a matter of common sense, a rational inference is invited that the signatures on the debit cheques referred above at the time of withdrawal, demonstrate that the amount was actually withdrawn by A1 in respect of eight debit cheques while one was withdrawal by A7 and the position is not made clear about the remaining three debit cheques;
8. That the evidence discussed so far further demonstrate that during the period March 1998 to April 1999, the twelve cheques were issued from time to time on approval by Mr. N. R. Suman (A5), Pay & Accounts Officer and under the signatures of accused S. K. Aggarwal (A4) on alleged requests of A3;
9. That the during the investigation, several documents such as the alleged requests by the DDO or the prescribed registers were not seized and there is led no evidence that such documents were not being maintained deliberately by the accused persons or if the same were destroyed when the irregularities came to light;
10. That the evidence further demonstrate that there are no noting in the cancellation files Ex. PW3/A and PW23/A about each of the twelve cheques nor complete details in the Cheque Acquittance Register Ex.PW 24/A to F and such State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.36/51 37 files were kept in loose sheets making it highly susceptible to alteration or manipulation and it is difficult to vouch for the authenticity of the entries and in any case notings/ entries are not attributable to any of the accused persons;
82. Based on such conclusion which are verified from the evidence on record, legal proposition which comes for decision is:
whether accused persons namely A1 to A5 had been acting in criminal conspiracy, thereby committed cheating, fabricated or falsified accounts and further being public servants committing criminal misconduct; and secondly whether or not A6 to A9 committed criminal misappropriation as charged?
PROPOSITION OF LAW
83. So far as criminal conspiracy, the essential ingredients u/s 120A is that there must be an agreement between two or more persons to be do an illegal act or a legal act in an illegal manner. In the case of Vijayan v. State of Kerela 1999 (3) SSC 54, it was observed that in order to bring home the charge on conspiracy there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.37/51 38
84. On the law on conspiracy, I may just refer to observations in State v. Nalini (1999) (5) SSC 253, wherein the issue was discussed in reference to section 10 of the Indian Evidence Act and it was observed as under :
"In reaching the stage of meeting of minds, two or more per sons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by il legal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the con spiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspir acy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participat ed in the commission of those offences.
"One who commits an overt act with knowledge of the conspir acy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
85. In this regard, it would be relevant to quote the observation of their lordships in State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600], on the issue of conspiracy:
"101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.38/51 39 Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
(Emphasis mine)
86. We may further take note of the ingredients of of the offence of cheating u/s 420 besides section 403 and section 471 of the Penal Code that are as follows :
Section 420:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
403. Dishonest misappropriation of property Whoever dishon estly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either descrip tion for a term which may extend to two years, or with fine, or with both.
Explanation 1 A dishonest misappropriation for a time only is a misappropriation within the meaning of this section. Explanation 2 A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly and is not guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the own er, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it.
What are reasonable means or what is a reasonable time in such a case, is a question of fact.
It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believe that the real owner cannot be found.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.39/51 40
471. Using as genuine a forged document or electronic record.
Whoever fraudulently or dishonestly uses as genuine any docu ment or electronic record which he knows or has reason to believe to be a forged document or electronic record shall be punished in the same manner as if he had forged such document or electronic record.
87. The word 'dishonestly ' has been defined to mean that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly. The word 'fraudulently' has been defined to mean that a person is said to do a thing fraudulently if he does that thing with the intent to defraud but not otherwise. Section 13(1) (d)
(i) of the PC Act on the other hand defines criminal misconduct by a public servant to mean if he by using corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage. Section 13(1)(d)(ii)of the PC Act further defines criminal misconduct where the public servant by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. The word 'abuse' as occurring in S. 5(1)(d) of Prevention of Corruption Act, 1947 (analogous to section 13(1) (d) (i) and (ii) of the present Act) came up for consideration of this Court in M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116 : (1963 (2) Cri LJ 186) where it was observed vide (Para 10) : State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.40/51 41 "Abuse" means misuse i.e. using his position for something for which it is not intended. .........and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. " It was further observed that "The expression 'abuse of powers' in the context and setting in which it has been used cannot mean use of power which may appear to be simply unreasonable or inappropriate. It implies a wilful abuse or an intentional wrong. An honest though erroneous exercise of power or an indecision is not an abuse of power. A decision, action or instruction may be inconvenient or unpalatable to the person affected but it would not be an abuse of power. "
DECISION AS REGARDS A-1 to A-6
88. Held, that the entire charge against the A2 TO A6 are rested on circumstantial evidence and the prosecution fails to prove that the circumstances were such as could be explained only on one hypothesis, namely that the accused actively and knowingly participated in the crime committed and were guilty. It was for the prosecution to prove affirmatively that the accused person by corrupt or illegal means or by abusing their position obtained any pecuniary advantage for some other person. It is difficult to discern that the accused A3 TO a5 knew as to what was happening around. As regards abuse of position, it must necessarily be dishonest so that it may be proved that the accused persons caused deliberate wrongful loss to their department for obtaining pecuniary benefit for A1.In the case of S. P. Bhatnagar v. The State of Maharashtra, 1979 CRI. L. J. State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.41/51 42 566(SC), relied upon by Shri P.N.Dhar ld defence counsel for A3, it was observed that :
The abuse of position in order to come within the mischief of S.5 (1) (d) must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
89. Section 13 (1)(d) came up for explanation in the case of L. Chandraiah v. State of A.P., 2004 CRI. L. J. 365. It was a case where large number of withdrawals were alleged to have been made during the relevant period from recurring deposit accounts in post office in a clandestine manner pursuant to a conspiracy between the accused, employees of post office and others. It was the case of the prosecution that fabricated vouchers were prepared with forged signatures and forged seal of the management of account holders and payment was made on the basis of the said forged vouchers. The vouchers were prepared by A3. The appellants accused who functioned as SubPost Master during the relevant period did not take requisite care before passing the vouchers and did not care to verify whether the vouchers were genuine or forged. In this manner they permitted a larger number of fraudulent withdrawals on the basis of forged vouchers. It was held:
"Even though it could be said that the appellants accused acted in a negligent manner and if they had taken due care they would have detected the fraud, but that by itself State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.42/51 43 would not constitute an offence under S. 409, IPC though it may expose the appellants to disciplinary action under the relevant rules.
90. It would be relevant to note the observation of their lordships of the Apex Court in Anil Kumar Bose v. State of Bihar, AIR 1974 SC 1560, in this context:
"On the above evidence at the highest it was a failure on the part of the Accountant to perform his duties or to observe the rules of procedure laid down in the Duty Chart in a proper manner and may, therefore, be an administrative lapse on his part about which we are not required to pronounce any opinion in this case. Without, however, anything more we do not think it will be correct to impute to this appellant a guilty intention which is one of the essential ingredients of the offence of cheating under Section 420, I.P.C. Apart from this, the High Court is not correct and indeed had no material to hold that "the Accountant did not purposely sign on these forged bills with a view to get himself absolved of the responsibility.''
91. Applying the said proposition of law to the instant case, I do not find any iota of evidence on record that A2 To A5 had any prior meeting of mind with A1. There is no evidence that they had any knowledge of the clandestine method that were adopted or were being adopted by A1 in procuring the cheques and getting them encashed through his family members. The only beneficiary in the entire episode is A1 and there is no Evidence that A2 to A5 got benefited in any manner. Based on the circumstances established on the record, it is difficult to raise an inference that A2 to A5 had a common design or a common purpose in mind to produce a particular result or that they were acting in concert. They were State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.43/51 44 senior officers and had no apparent motive to assist or allow A1 in the kind of cheating and criminal misconduct that he committed. The evidence brought on record rather sadly and painfully demonstrates that the accused persons namely Dominic Dung Dung (A3) and N. R. Suman (A5) were wantonly negligent in the performance of their duties and accused S.K.Aggarwal was probably blindly signing the cheques. It is shocking that over a period of one year, twelve cheques in the present case and several other cheques in connected matters were issued and there is a visible pattern that complete notes were not made about the cancellation, fresh cheques were issued without disclosing the payees; that entries of the fresh cheques were not made in the Cheque Acquaintance Register and wherever made no acknowledgment was taken from the recipient and there was a total loss of about Twenty five lakhs of rupees. One can assume that there were several officials / staff posted in the establishment including the office of PAO and it appears to be a scenario where there was gross mismanagement in the way of bills were being prepared, process and approved by the designated functionaries at all stages. Of course, had A3, A4 and A5 been diligent and exercised due care, they could have easily found out the irregularities that were being committed at all levels but that fact alone can not make them criminally culpable. State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.44/51 45
92. At the cost of repetition, there are several facets of the case that are not explained by the prosecution. How come the cheques were collected by A1 remains a mystery and we can assume that he was probably in league with some or other officials / staff of CWC taking advantage of lack of administrative and managerial skill on the part of the DDO (A3) and P&AO (A5). When it comes to the issue of conspiracy, there is nothing in the evidence about the role of A2 except that he was Programme Assistant in the Accounts Section and it might be that he was very close to A1 and other accused persons. Beyond that, there is no evidence against A2. The investigation in this case left many loose ends and some of the accused who could have been witnesses have rather been made to face the trial and there is no version from the Senior hierarchy as to what was exactly going on in the department.
93. To sum up, the prosecution miserably fails to bring home its case against the accused Y. P. Sharma (A2), Dominic Dung Dung (A3), S. K. Aggarwal (A4) and N. R. Suman (A5). At the same time, the prosecution is able to prove beyond reasonable doubt that accused J. P. Sharma (A1) not only committed cheating but he also dishonestly used the cheqeus that had been drawn in favour of his family members having knowledge that the same were forged and fabricated and deposited the cheques in the bank account of his family members and got the amount encashed from time to time. State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.45/51 46 The accused was a public servant and manifestly he adopted corrupt and illegal means in procuring twelve cheques from his department which he got deposited in the account of his family members, withdrawing the amount and thereby deriving pecuniary benefit. Therefore, I find him guilty for having committed offences punishable u/s 420 IPC r/w section 471 IPC and section 13 (1) (d)
(i) & (ii) r/w section 13 (2) of Prevention of Corruption Act. DECISION AS REGARDS A6 to A9
94. Without much ado, in view of the evidence led on the record that depict a pattern that it was accused J. P. Sharma (A1) who had adopted corrupt or illegal means in procuring 12 cheques and further in view another established pattern that it was he who had deposited the cheques in the bank accounts of his family members i.e. A6 to A9 and in about eight withdrawals the cash had been collected by him on debit cheque issued by his family members, I hold that it was a sinister ploy on the part of accused J. P. Sharma to use his family members in order to commit cheating and criminal misconduct and thereby derive pecuniary advantage. It is difficult to discern that accused A6 to A9 had any knowledge or connived with A1 in getting the cheque or if at all any of them dealt with the cheques or withdrawal, he or she did it with full knowledge or implications of ones act or omission. One view is that they trusted State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.46/51 47 A1 who betrayed their love and affection. It appears that in the entire sequence of events the poor wife, daughter and two sons had hardly any say and had been taken for a ride by A1. I, therefore, hold that the prosecution has failed to prove beyond reasonable doubt that A6 to A9 acted in a deliberate manner so as to indulge in dishonest misappropriation of the cheques wrongfully procured by A1.
FINAL ORDER:
95. In the said view of the discussion, accused persons namely the accused Y. P. Sharma (A2), Dominic Dung Dung (A3), S. K. Aggarwal (A4) and N. R. Suman (A5) besides Trivesh Sharma (A6), Gyanender Sharma (A7), Pushpa Sharma (A8) and Sunita Mishra (A9) are acquitted. Their PB&SB are cancelled and sureties are discharged.
25. So far as accused J. P. Sharma (A1) is concerned, he is convicted u/s 420 and section 471 of the IPC r/w Section 13 (1) (d) r/w section 13 (2) of Prevention of Corruption Act.
26. Let the accused J. P. Sharma (A1) be heard on the point of sentence on 09.08.2012.
ANNOUNCED IN THE OPEN
COURT TODAY: ON 08.08.2012 (DHARMESH SHARMA)
SPECIAL JUDGE 03 (CBI)
... NEW DELHI DISCTRICT
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.47/51
48
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI NEW DELHI DISTRICT
NEW DELHI
CC No.15/2011
RC No.66/2002/CBI/ACB/ND
In re:
STATE (CBI)
VS
J.P. SHARMA
S/O GURU DEV SHARMA
R/O A58 SHASTRI NAGAR,
DELHI110052.
APPEARANCES:
Mr. SC Sharma, Ld.PP for CBI.
Mr. SK Duggal, Ld.Counsel for the convict JP Sharma. 09.08.2012 ORDER ON THE POINT OF SENTENCE.
1. Heard on the point of sentence and perused the record.
27. It is submitted that convict J.P. Sharma is about 71 years of age, and he had put in 291/2 years of unblemished service with the CWC when this case was slapped upon him; that his family consists of his wife aged about 69 years of age who has State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.48/51 49 undergone two major surgeries and suffering from throat cancer and getting regular medical treatment . It is stated that the convict has six married children, who are living separately. It is urged that the convict has suffered the agony of trial for about 8 years now.
28. It is further urged that the convict has been under suspension since 26.02.2001 and he retired on reaching the age of superannuation w.e.f. 31.03.2002. It is urged that prior to his retirement he was denied the promotion as well. It is urged that on conviction in this matter, he would be deprived of his full terminal benefits and there would also be loss of pension as well. It is, therefore, requested that a lenient view may be taken in favour of the convict.
29. Per contra, Mr. S.C. Sharma, Ld. Special PP for the CBI has urged that no mitigating circumstance exists in this case so as to take a lenient view in favour of the convicts and it is urged that exemplary punishment be awarded under the law.
30. The offence committed by the accused is of very serious nature as a public servant and I do not see as to how a lenient view could be taken in a case like this. The facts and circumstances have been proved beyond reasonable doubt by the prosecution in arriving at the conclusion that the convict used corrupt or illegal means for procuring as many as 12 cheques in the name of his family State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.49/51 50 members and got the amount encashed thereby deriving pecuniary benefits, that have already been explained in the accompanying judgment dated 07.08.2012. It is also pertinent to mention here that convict has also been convicted in CC No.14/2011, State.vs. JP Sharma & Ors for having forged and fabricated medical bills of his son Trivesh Sharma and daughter Sunita Mishra and claiming medical reimbursement on false certificates and thereby convicted u/s. 420 IPC and 13 (1) (d) r/w Section 13 (2) of PC Act and vide order on sentence dated 07.08.2012 he has been sentenced to undergo RI for 3 years on each count.
31. However, this case stands on a different footing. The convict JP Sharma was a husband, father, guardian and protector in a pios relationship of utter trust and faith with his family members but his conduct shows that he violated his sacred duties and in a most brazen and shameful manner put his entire family members at risk so much so that they have to undergo the ignominy of trial for about 8 years. The case of the convict is one where as "the fence he tried to destroy the crops that he was supposed to protect". While he lacked total integrity and commitment to his own department, he acted in a diabolic manner in roping in his family members in the crime without their full knowledge.
32. In the totality of the facts and circumstances of the case, I State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.50/51 51 sentence the convict JP Sharma to undergo rigorous imprisonment for a period of 4 years u/s 420B IPC and also to pay a fine of Rs. 25,000/ in default to further undergo RI for a period of six months.
33. I further sentence the convict JP Sharma to undergo rigorous imprisonment for a period of 4 years u/s 471 IPC and also pay fine of Rs.25,000/ in default to further undergo RI for a period of six months.
34. I further sentence the convict JP Sharma to undergo rigorous imprisonment for a period of 4 years u/s 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 and also pay fine of Rs.50,000/ in default to further undergo RI for a period of one year.
35. All the sentences shall run concurrently. Benefit u/s. 428 Cr.PC. shall be given to the convict.
36. Copy of the judgment dated 08.08.2012 and order on sentence of even date i.e. 09.08.2012 be given free of cost to the convict.
37.File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY: ON 09.08.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03, CBI PHC, NEW DELHI.
State (CBI) v. JP Sharma & Ors (CC No.15/11) Page No.51/51