Nand Kishore Rai & Anr vs State (Cbi)
2023 Latest Caselaw 3330 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL APPELLATE JURISDICTION
                               APPELLATE SIDE

Before: Hon'ble Justice Sugato Majumdar


                                CRA 611 of 2012
                            Nand Kishore Rai & Anr.
                                        Vs.
                                     State (CBI)


For the Appellants               :            Mr. Anand Bhandari,
                                               Mr. Urgen Lama,
                                               Mr. Panthu Rai,
                                               Mr. Mayank Bhandari,
                                               Ms. Shalini Shah.


For the CBI                      :             Ms. Chandrayee Alam,
                                               Mr. Amajit De.


Hearing concluded on             :             25.04.2023



Judgment on                      :             11.05.2023



Sugato Majumdar, J.:-

      The instant appeal is directed against Judgment dated 30.08.2012 and

Order of conviction dated 31.08.2012 passed by the Judge Special (CBI) Court,

Siliguri, Darjeeling in Special C.B.I Case No. 29 of 2012 whereby the Appellants

were convicted under Section 420/468/120B of the Indian Penal Code and read

with Section 13 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988.
                                                                        Page |2


      The Spices Board, Ministry of Commerce, Government of India, introduced

a scheme in the State of Sikkim as well as in the district of Darjeeling, West

Bengal for providing financial assistance for construction of cardamom curing

house for individual cardamom growers (200 kgs capacity). According to this

scheme planters who were willing to avail of subsidy under the scheme had to

construct curing house in accordance with the standard approved by the

Cardamom Board. The latter was to provide financial assistance in the form of

subsidy for construction of such curing house. Applications for subsidy were to

be submitted to the concerned Assistant Director under whose jurisdiction the

plantation was situated.       The Assistant Director after conducting spot

inspection, may forward the application to the Deputy Director with his own

recommendations and remarks.      The Deputy Director may also conduct spot

inspections, if necessary and accord sanction in eligible cases with the

concurrence of the Director.


      The Appellant No. 1 was Extension Assistance in the office of the

Assistant Director, Spices Board, Kalimpong. He was in charge of the said office

from 19.06.1990 to 13.09.1990 and also from 10.12.1990 to 25.02.1991. At the

relevant point of time the Appellant No. 2 was in the same office as Extension

Assistant.


      The genesis of this case is the written complaint dated 12.08.1993 lodged

by N. Dasgupta being Inspector of Police, CBI/Siliguri Sub Unit. It was alleged

in the written complaint that the Appellants conspired together between

19.06.1990 to 13.09.1990 as well as from 10.12.1990 onwards and dishonestly
                                                                           Page |3


cheated the department to the tune of Rs. 12,000/- which was property of the

department. The Appellants conspired together to show that the amount of Rs.

12,000/- was disbursed to one Tikaram Sharma of Dubling Busty, Kalimpong - II

by cheque no. 814606 dated 16.10.1990 as subsidy for construction of curing

house for cardamom plantation. In order to achieve this end, the Appellant No. 1

issued false certificate dated 12.09.1990 and the Appellant No. 2 issued false

inspection report dated 12.09.1990.     The signature of Tikaram Sharma was

forged and the amount was misappropriated.


      The written complaint was registered as R.C. Case No. 43 of 1993 -

Calcutta dated 12.08.1993 against the Appellants.            Mr. R. Debnath was

entrusted with investigating into the case.          In course of investigation, he

examined witnesses and recorded their statements, seized relevant documents,

obtained specimen signatures and handwriting, got the signatures and

handwriting examined by Government examiner of questioned documents,

obtained sanction order for prosecution and finally submitted charge sheet.


      Charges were framed under Section 120B/420/468 of the Indian Penal

Code and under Section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act,

1988 charges were read over and explained to the Appellants to which they

pleaded not guilty. Thereafter the trial followed.


      The prosecution examined twelve witnesses and produced various

documents marked as Exhibit 1 to 23 respectively.
                                                                              Page |4


      The defense of the Appellants as appears from the trend of cross-

examination and from reply to the examination under Section 313 of the Code of

Criminal Procedure is denial of allegations and plea of false implication.


      The Trial Court in terms of the impugned Judgment convicted the

Appellants and imposed sentence subsequently, as stated above.


      On being aggrieved and dissatisfied the instant is preferred.


      On behalf of the Appellants, it is argued by Mr. Anand Bhandari that

evidence-on-record indicates that Appellant No. 2 produced an Inspection Report

and Appellant No. 1 relied on the Inspection Report to issue certificate. There is

no evidence on record to indicate or establish that the Appellant No. 1 had

nurtured any wrongful intention as alleged. There is no evidence of conspiracy

against Appellant No. 1. Even if all the evidences against Appellant No. 1 are

assumed to be proved, as submitted by Mr. Bhandari, at best the same may

constitute a dereliction of duty but not an offence. In nutshell, alleged offences

are not proved against the Appellants for which they should be acquitted.


      Secondly, it is argued by Mr. Bhandari that no iota of evidence indicates

that the Appellant No. 1 in any way received or misappropriated government

money, as alleged. Evidences against the Appellant No. 2 are ambiguous and

inadmissible. The Appellant No. 1 is in no way connected with encashment of

cheque as alleged. Therefore, charges are not proved against the Appellant No. 1

for which he should be acquitted.
                                                                          Page |5


      Thirdly, it is argued that Mr. Tikaram Sharma is stated to be a

beneficiary of the scheme whose name surfaced during investigation. But he is

not made a charge sheeted witnesses although he is a star and crucial witness in

this case. In absence of his evidence, it cannot be concluded that he had not

made any application, that he had not received any subsidy and that he had not

constructed any curing house. According to Mr. Bhandari the prosecution failed

to adduce best evidence for which benefit of doubt should go in favour of the

Appellants.


      Fourthly, according to Mr. Bhandari the prosecution evidence is rife with

contradictions and discrepancies. The Trial Court committed an error in relying

on such contradictory and discrepant evidences in convicting and sentencing the

Appellants.


      It is further submitted that the Trial Court failed to apply the correct law

in the given facts and circumstances of the case. According to Mr. Bhandari the

impugned judgment and the order of sentence should be set aside and the

Appellants should be acquitted.


      Per contra, Ms. Alam appearing for the CBI argued that there can hardly

be any direct evidence of conspiracy.     In most of the cases the factum of

conspiracy is proved by attenuating circumstances. In this case, the Inspection

Report was prepared by the Appellant No. 2 on 12.09.1990. The certificate was

issued by the Appellant No. 1 on the very same day without any inspection as he

was required under the existing rules.     His explanation, which he stated in

course of examination under Section 313, is that he could not remember whether
                                                                                 Page |6


he issued the certificate. This failure to explain itself is a sufficient proof of

conspiracy and presence of mens rea. It is very unlikely that an innocent person

shall have no explanation for an act and deed when he is indicted with criminal

charges for such deed and act.        So far as the Appellant No. 2 is concerned,

according to Ms. Alam, substantial and overwhelming evidence clearly and

unequivocally bring home the charges against the Appellant No. 2.                   When

confronted with incriminating evidences in course of examination under Section

313 of the Code of Criminal Procedure, the Appellant No. 2 failed to explain any

such act. Therefore, the Trial Court committed no error, according to Ms. Alam,

in convicting the Appellants for the charges levelled.


      I have heard rival submissions.


      One part of the allegation is under Section 120B of the Indian Penal Code

read with Section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988,

as was existing at the material point of time. The other part of allegation is

under Section 420/468/120B of the Indian Penal Code. Section 13 (1) (d) was

substituted by Act 16 of 2018. Before substitution the section stood as follow:


      "(d) if he,-

         i.   by corrupt or illegal means, obtains for himself or for any other
              person any valuable thing or pecuniary advantage; or

        ii.   by abusing his position as a public servant, obtains for himself or
              for any other person any valuable thing or pecuniary advantage;
              or

       iii.   while holding office as a public servant, obtains for any person
              any valuable thing or pecuniary advantage without any public
              interest; or.."
                                                                         Page |7


        The allegations are the Appellants conspired together, in abuse of their

 position and authority, to induce the authority to part with government money

 for their pecuniary advantage. In order to achieve this end, they conspired to

 make false application in name of one intended beneficiary of the scheme of

 the Spices Board, submitted inspection report containing false statement,

 issued certificate on the basis of such false inspection report and thus induced

 the government authority to hand over bearer cheque to the Appellant No.2.

 The later forged signature on that cheque, encashed the amount and

 misappropriated. All such alleged deeds come within ambits of the offences

 charged, according to the prosecution.


      Evidence of handwriting expert, specimen signature of Tikaram Sharma

establish clearly that the application does not bear the signature of Tikaram

Sharma. It is also in allegation that there was no construction of such curing

house by Tikaram Sharma since subsidy did not reach him and was

misappropriated by the Appellants. PW 1 stated in evidence that after issuing of

cheque he went to visit the spot to verify whether any construction was made or

not. He submitted his report to the Joint Director. PW 12 stated that he along

with Mr. Umesh Kumar (PW 10) Mr. G. K. Sekharappa (PW 1), Mr. A.K.

Acharya (PW 2) and Mr. S. Sanyal (PW 7) went to Dubling Basti, Kalimpong on

12.09.1990 to verify whether curing house was constructed or not by Tikaram

Sharma. No such curing house was found to be constructed by Tikaram Sharma,

as stated by PW 12. This is corroborated by PW 10 (Umesh Kumar). Cross-

examination could not contradict their statements. Identification of signatures

are corroborated by handwriting expert and his report.
                                                                             Page |8


       It is argued by Mr. Bhandari that the prosecution should adduce evidence

of Tikaram Sharma absence of whose evidence is fatal to the prosecution case. I

cannot agree with this argument. In their unshaken testimony, the prosecution

witnesses stated that on visit they are not able to find any curing house in the

residency of Tikaram Sharma. When prosecution as adduced evidence of persons

of witnesses who deposed on the basis of their personal knowledge it is duty of

the defense to disprove such established fact. They should call Tikaram Sharma

as defense witness so that truth might come to the knowledge of the Court for

rebuttal of the prosecution case. But no such attempts were made. So, it is

established that there was no curing house constructed by Tikaram Sharma.

Documentary evidences adduced before the Trial Court were the application

made by Tikaram Sharma dated 31.07.1992 addressed to the Assistant Director,

Spices Board, Inspection Report dated 12.09.1990 signed by Appellant No. 2

certificate dated 12.09.1990 issued by Appellant No. 1 bearer cheque dated

16.10.1990 of Rs. 12,000/-, received of Rs. 12,000/- along with specimen signature

and report on specimen signatures submitted by Government examiner of

questioned documents.


Section 463 of the Indian Penal Code defines forgery as:


         "463. Forgery.-- Whoever makes any false documents or false
         electronic record or part of a document or electronic record,
         with intent to cause damage or injury], to the public or to any
         person, or to support any claim or title, or to cause any person
         to part with property, or to enter into any express or implied
         contract, or with intent to commit fraud or that fraud may be
         committed, commits forgery."
                                                                             Page |9


   Section 464 of the Indian Penal Code clarifies, among others, that a person is
said to make a false document who dishonestly or fraudulently makes, signs,
seals or executes a document or part of a document. In Mohd. Ibrahim v. State of
Bihar, [(2009) 8 SCC 751], explaining the scope of Section 464, the Supreme
Court of India observed:

     "14. An analysis of Section 464 of the Penal Code shows that it divides
         false documents into three categories:

         1.

The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."

Section 415 of the Indian Penal Code defines cheating as :

415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to P a g e | 10

deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.

Section 13 (1) (d) was substituted by Act 16 of 2018. Before substitution the

section stood as follow:

"(d) if he,-

i. by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

ii. by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

iii. while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or.."

Oral testimony of P.W.8 (government examiner of questioned document),

Ext.15 and 16 (opinion of P.W.8 and reason) along with other exhibits which are

specimen signatures and handwriting of Tikaram Sharma and Appellant No.2,

the impugned cheque (Ext.6) testimony of P.W.6, K.B.Soren, the passing officer

at counter of the bank clearly, unequivocally and beyond reasonable doubt

establish the allegations against the Appellant No.2. He was confronted with all

incriminating elements in course of his examination under Section 313 of the P a g e | 11

Code of Criminal Procedure but he failed to explain anything. If prosecution had

failed to call Tikaram Sharma as witness, the Appellants could call him as

defense witness to disprove the allegations. He could have clarified whether the

allegations are true or false. They failed to do that. Absence of Tikaram Sharma

is not fatal for the prosecution case. I disagree with the submission of Mr.

Bhandari. The Trial Court correctly came to a conclusion of proper appreciation

of evidence that the Appellant No. 2 is the guilty of offences charged against him.

Therefore, I am not inclined to interfere with finding of the Trial Court so far as

the Appellant No. 2 is concerned.

Creation of a document on false premises and facts is one thing and

creation of false documents to commit offence of forgery is a different thing. In

order to constitute forgery, the alleged act must come within the ambit of Section

463 and 464 of the Indian Penal Code. Essential ingredients of the offences are

discussed above. The alleged document should not only be a false document as

defined in Section 464 of the Indian Penal Code, but must also come within

ambit of Section 463 of the Code. The Appellant No.1 signed the certificate in his

own name; it is not of a kind of document as enumerated in Section 464 of the

Code. The facts on the basis of which the document was made may be false. But

there is no proof that the certificate (Ext.5) was executed by any person other

than the Appellant No.1 or that the same was executed in the name of some

other or dead person, whatever wrong intention he might have. That may be

relevant for consideration of other perspective but itself does not attract the

offences of Section 463 or Section 464 or Section 420 of the Code or conspiracy to

commit such acts. Therefore, I am of the view that issue of the certificate by P a g e | 12

Appellant No.1 does not attract the offences of forgery or cheating. Therefore,

conviction under Section 420/467/120B against the Appellant No.1 is liable to be

set aside.

It is argued by Ms. Alam that there are strong evidences on record to

establish that the Appellants conspired together to commit offences under

Section 13(1) (d) and Section 13 (2) of the Prevention of Corruption Act. The

Appellant No. 2 in this case managed to make an application in the name of

Tikaram Sharma and filed an Inspection Report stating falsely therein that

curing house was constructed by Tikaram Sharma with definite intention to

obtain pecuniary gain for him which subsequent acts established. When the

Appellant No.2 submitted the inspection report, dated 12/09/1990, the Appellant

No. 1, issued certificate on the very same day. The conduct clearly indicates that

Appellant No. 1 had no intention to verify the report visiting the spot. Otherwise

on the self-same day he would not have issued such certificate.

Direct evidence of criminal conspiracy may not be available in all

circumstances in most cases proof of conspiracy is largely in conferential though

the inference must be derived from the solid facts. Surrounding circumstances

antecedents and subsequent conduct are some factors which were constituted

material (Noor Mohammad Mohd. Yusuf Momim v. State of Maharashtra, AIR

1971 SC 855; (1970) 1 SCC 696: 1970 SCC (Cri) 274: 1971 CrLJ 793 and V. C.

Sukla V. State (Delhi Admn.), AIR 1980 SC 1382: (1980) 2 SCC 665: 1980 SCC

(Cri) 561: 1980 CrLJ 965.

P a g e | 13

"A conspiracy from its very nature is generally hatched in secret. It

is, therefore, extremely rare that direct evidence in proof of conspiracy

can be forthcoming from wholly disinterested quarters or from utter

strangers. But, like other offences, criminal conspiracy can be proved

by circumstantial evidence. Indeed, in most cases proof of conspiracy

is largely inferential though the inference must be founded on solid

facts. Surrounding circumstances and antecedent and subsequent

conduct, among other factors, constitute relevant material. In fact

because of the difficulties in having direct evidence of criminal

conspiracy, once reasonable ground is shown for believing that two or

more persons have conspired to commit an offence then anything done

by anyone of them in reference to their common intention after the

same is entertained becomes, according to the law of evidence,

relevant for proving both conspiracy and the offences committed

pursuant thereto." [Noor Mohammad Mohd. Yusuf Momim v. State of

Maharashtra, AIR 1971 SC 855; (1970) 1 SCC 696]

The act of Appellant No. 1 to issue certificate on the same day with

overactive promptness indicates that he had made no effort to verify the

inspection report. This is not mere dereliction of duty but something more, a

design to carry out an agreed plan to obtain pecuniary benefit by either himself

or some other person, here the Appellant No.2. I disagree with the argument of

Mr. Bhandari that it is mere dereliction of duty. It might be that Appellant No.

1 had no knowledge or did not conspire with Appellant No. 2 to commit the

offence of forgery. No evidence is there that he shared the sum of money P a g e | 14

misappropriated by way of forgery by Appellant No. 2. But it can be concluded

that there is a conspiracy between Appellant No. 1 and Appellant No. 2 to

commit offences under Section 13 (1) (d) and 13 (2) of Prevention of Corruption

Act, 1988. Although there is no evidence that the Appellant No.2

misappropriated or converted to his own use dishonestly or fraudulently the

money obtained by encashing the cheque in questioned, he allowed the Appellant

No. 2 to do the same. To this extent it is proved that he conspires with Appellant

No. 2 to commit offence under Section 13 (1) (d) and 13 (2) of Prevention of

Corruption Act, 1988.

In nutshell, the appeal is partly allowed to the extent that conviction and

sentence under Section 420/468/120B of the Indian Penal Code stands set aside

against the Appellant No.1. Judgment of conviction under Section 13 (1) (d) and

Section 13 (2) of Prevention of Corruption Act, 1988 stands upheld against the

Appellant No.1. Terms of imprisonment against the Appellant No. 1 is reduced

to three years considering long pendency of this appeal and considering the

punishment provided under Section 13 (1) (d) and 13 (2) of Prevention of

Corruption Act, 1988 as it stood at the time of passing of the impugned

judgment. Order of sentence so far as fine is concerned against the Appellant

No. 1 stands unaltered.

The Judgment of conviction remains unaltered against the Appellant No.

2. Order of sentence, so far as terms of imprisonment is concerned, is modified

and reduced to four years considering long pendency of the appeal.

P a g e | 15

The Appellants shall surrender before the trial court to serve the rest of

the sentence, if unserved.

Accordingly, the instant appeal stands disposed of.

(Sugato Majumdar, J.)