Nand Kishore Rai & Anr vs State (Cbi)
2023 Latest Caselaw 3332 Cal

                      IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                               APPELLATE SIDE

Before: Hon'ble Justice Sugato Majumdar


                                CRA 613 of 2012
                            Nand Kishore Rai & Anr.
                                        Vs.
                                     State (CBI)


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


For the CBI                      :      Mr. Aniruddha Mitra.



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. 33 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.


      Mr. N. Dasgupta, Inspector of Police, CBI, Siliguri Sub-Unit lodged a first

information report on 12th August, 1993 alleging that the Appellant No. 1 was

assistant in the office of Assistant Director, Spices Board, Kalimpong and while

holding the chair of the said office from 19.06.1992 to 13.09.1990 entered into a
                                                                         Page |3



criminal conspiracy with the Appellant No. 2 who was Extension Assistant at

that time and in furtherance of the conspiracy dishonestly cheated the

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

The Appellant No. 1, while functioning in the aforesaid post, in collusion with

the Appellant No. 2 dishonestly shown disbursed an amount of Rs.12,000/- to one

Bhakta Bahadur Rai of Gitkolbong Busty, was a non-existent person, in terms of

a cheque dated 09/07/1990. Stay at check amount was shown to be disbursed as

a subsidy for construction of curing houses in cardamom plantation. For this end

the Appellant No. 1 issued false certificate dated 30/06/1990 on the basis of a

false inspection report dated same prepared by the Appellant No. 2.


             The first information report was registered as R.C. Case No. 41 of

1993 - Calcutta dated 12th August, 1993. 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 eleven witnesses and produced various

documents marked as Exhibit 1 to 18 respectively. On behalf of the Appellants'
                                                                              Page |4



statements of the defense witness Albert Singh, in connection with departmental

proceeding was produced and marked as Ext. A.


      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.


      Mr. Anand Bhandari, the Learned Counsel appearing for the Appellants

submitted Firstly that the prosecution evidences suffer from serious anomalies

and contradictions. Therefore, according to him the Appellants should be

acquitted.


      The second leg of argument of Mr. Bhandari is that so far as the Appellant

No. 1 is concerned, the only issued a certificate on the basis of the inspection

report prepared by the Appellant No. 2. It is alleged that Appellant No. 1 did not

verify the inspection report. At best, the same can be a dereliction of duty

without anything more. Therefore, according to him, the Appellant No. 1 should

be acquitted.


      The third leg of argument of Mr. Bhandari is that Spices Board Regulation

does not enjoin upon the Appellant No. 1 to make an inspection and verification

on the basis of the report submitted by the Appellant No. 2. More so, copies of

such regulation when they were given to the Appellants enabling them to make

up their defence properly. This highly prejudiced the Appellants causing
                                                                        Page |5



aberration of justice.   This itself justifies setting aside of the impugned

judgement and order of conviction.


      Per contra, Mr. Mitra, the Learned Counsel appearing for CBI argued that

there are very strong allegation and supporting evidences of such allegation

which bring home the charges levelled against the Appellants. According to him

there very strong evidences of conspiracy between the Appellant s to commit the

offence is charged. It is a case where a non-existent person was impersonated to

commit the offence is charged it is in the allegation and prove beyond doubt of

doubt that shake was issued in an unauthorised manner for wrongful pecuniary

gain of the Appellants. According to Mr. Mitra prosecution is able to establish

beyond diet of doubt the allegation against the Appellants. The Trial Court did

not commit any error in appreciation of evidence and application of law.

Therefore, according to him the impugned judgement demands no interference.


      I have heard rival submissions.


      The sum and substance of the allegation against the Appellants at that

and application in the name of the non-existent person was prepared and

submitted in writing of the Appellant No. 2. Thereafter, the applicant No. 2

submitted a false inspection report stating therein that such person namely

Bhakta Bahadur Rai, intended to be beneficiary of the scheme, made

construction in accordance with the scheme. The Appellant No. 1 prepared and

submitted certificate without verifying the contents and truthfulness of the

inspection report and without visiting the spot. Thereafter, the Appellant No. 1
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issued a cheque of Rs.12,000/- which was misappropriated by the Appellant No. 2

for his own pecuniary gain.


      P.W.1 G.K. Shekarappa succeeded the Appellant No. 1 in the post of

Assistant Director, Kalimpong.       P.W.1 identified the carbon copy of the

application under cyclostyled form dated 06.04.1990 (Ext.3) in the name of

Bhakta Bahadur Rai of Gitkolbong village which he stated to be filled up by the

Appellant No. 2. He stated in evidence that he went to inspect construction of

curing house. But on local enquiry he came to know that there was no person

named Bhakta Bahadur Rai in that village. There is another person named

Bhanu Bhakta Rai in the locality. P.W.1 identified the Inspection Report dated

30.06.1990 (Ext.4) as prepared by the Appellant No. 2. He also identified the

certificate dated 29.06.1990 (Ext.5) issued under signature of the Appellant No.

1.

He further stated that the proforma of the certificate was filled up by the

Appellant No. 2 where Appellant No. 1 signed. He identified all these

signatures. Ext.6 is the cheque dated 09.07.1990 for a sum of Rs. 12,000/- issued

under the seal of the Appellant No. 1. Not a single question was asked in course

of cross-examination challenging identification of signatures of the Appellants or

veracity of documents or that part of testimony which states that the certificate

(Ext.5) was filled up by the Appellant No. 2 and signed by the Appellant No. 1.

P.W.8 Umesh Kumar and P.W.11 Rajeev Debnath, the later being the

Investigating Officer of the case, corroborated the testimony of P.W.1 that both of

them visited Gitkolbong busty; but on interrogation of several local people, they

came to know that no person named Bhakta Bahadur Rai stayed there.

Page |7

Signature identification of P.W.1 was corroborated by P.W.9, a government

examiner of questioned document, in terms of his report (Ext.11). It is in

evidence of P.W.1 that the cheque (Ext.6) was signed by the Appellant No. 1;

P.W.1 identified the signature, corroborated by testimony of P.W.9 and Ext.11.

P.W.6, K.B. Soren was Passing Officer at Kalimpong Branch of State Bank of

India. His evidence is that the cheque was encashed by one Bhakta Bahadur

Rai. When confronted with all incriminating materials, Appellant No.1 did not

make any substantial denial. He rather stated that they did inspection of the

spot and that Bhakta Bahadur Rai was there at material point of time.

The Appellants produced Ext.A which is deposition of defence witness

Albert Singh given in the departmental proceeding. The said Albert Singh was

not called as defence witness so that his statements could be tested by cross

examination and veracity could be put in test. Therefore, that piece of evidence

cannot be relied upon.

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 |8

Section 463 should be read along with Section 464 of the Indian Penal Code.

Relevant part of Section 464 states:

464. Making a false document. -- A person is said to make a

false document or false electronic record-- First --Who

dishonestly or fraudulently--

(a) makes, signs, seals or executes a document or part of a

document;

(b) makes or transmits any electronic record or part of any

electronic record;

(c) affixes any [electronic signature] on any electronic record;

(d) makes any mark denoting the execution of a document or

the authenticity of the [electronic signature],

with the intention of causing it to be believed that such

document or part of document, electronic record or

[electronic signature] was made, signed, sealed, executed,

transmitted or affixed by or by the authority of a person by

whom or by whose authority he knows that it was not made,

signed, sealed, executed or affixed; or

Secondly --Who, without lawful authority, dishonestly or

fraudulently, by cancellation or otherwise, alters a document

or an electronic record in any material part thereof, after it Page |9

has been made, executed or affixed with [electronic

signature] either by himself or by any other person, whether

such person be living or dead at the time of such alteration;

or

Thirdly --Who dishonestly or fraudulently causes any person

to sign, seal, execute or alter a document or an electronic

record or to affix his [electronic signature] on any electronic

record knowing that such person by reason of unsoundness

of mind or intoxication cannot, or that by reason of deception

practised upon him, he does not know the contents of the

document or electronic record or the nature of the alteration.

*****

Explanation 2. --The making of a false document in the

name of a fictitious person, intending it to be believed that

the document was made by a real person, or in the name of a

deceased person, intending it to be believed that the

document was made by the person in his lifetime, may

amount to forgery.

Illustration: A draws a bill of exchange upon a fictitious

person, and fraudulently accepts the bill in the name of such

fictitious person with intent to negotiate it. A commits

forgery.

P a g e | 10

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 and documentary evidences adduced by prosecution establish that

an application for grant of subsidy was made by one Bhakta Bahadur Rai of

Gitcolban village. No such person was found living in that village. The

application was signed by the Appellant No.2 in the name of that non-existent

person. One inspection report was prepared by the Appellant No.2 stating that

the said Bhakta Bahadur Rai constructed a house in terms of specification of

the Spices Board which although no such person was found to exist. Appellant

No.1 signed a proforma certificate filled up by the Appellant No.2 in respect of a

non-existent person. Appellant No.1 issued a cheque containing a sum of

Rs.12,000/- out of government fund in the name of that non-existent Bhakta

Bahadur Rai which was encashed by the Appellant No.2. No explanation was P a g e | 11

there by the Appellant No.2 as to what he did with that money. Explanation 2

of Section 464 of the Indian Penal Code clearly applies in this case bringing the

acts of the Appellants within period of Section 463/464 of the Indian Penal

Code, creation of false documents and committing the offence of forgery and

cheating under Section 420 of the Code. Although Mr. Bhandari vehemently

argued that the acts of the Appellant No.1 is nothing more than mere

dereliction of duty, such argument is not tenable. What the Appellant No.2 did

is not mere dereliction of duty, but did such acts which shows very existence of

dishonest intention to commit the offences. The Appellant No. 1 created a

document and drawn up a cheque in the name of a non-existent person. The

conduct of the Appellant No. 1 very clearly establish that both the Appellants

acted in tandem and conspired together to do the offences alleged. The alleged

acts of the Appellants also comes within the ambit of Section 13 (1) (d) and

Section 13 (2) of the Prevention of Corruption Act, 1988.

Evidences, so adduced by the prosecution beyond reasonable doubt,

brings the case within ambit of the charges framed against the Appellants. It is

established clearly, unequivocally and beyond reasonable doubt that the

Appellants committed offences so charged.

The Trial Court committed no error passing the impugned judgment of

conviction and order of sentence. The judgment of conviction demands no

interference, therefore. However, considering the long pendency of the trial,

terms of sentences are reduced to four years for both the Appellants. The

impugned order of sentence is modified to that extent.

P a g e | 12

In nutshell, the appeal is partly allowed.

The Appellants shall surrender before the Trial Court to serve the rest of

the sentence, if not served.

The instant appeal is disposed of accordingly.

(Sugato Majumdar, J.)