Chattisgarh High Court

Shyam Kant Gupta vs State Of Chhattisgarh on 29 August, 2022

                            1

                                                        NAFR

    HIGH COURT OF CHHATTISGARH, BILASPUR

        JUDGMENT RESERVED ON 24.06.2022

       JUDGMENT DELIVERED ON 29. 08.2022

                  CRA No. 1238 of 2002

• Shyam Kant Gupta, S/o. Shri Ramadhar Gupta, Aged about 36
  years, Occuption-Manager, Bajrang BunkarSahkari Samiti
  Maryadit, Ganiyari, District Bilaspur

                                                ---- Appellant

                         Versus

• State Of Chhattisgarh, through Special Police Establishment,
  Office of theLok Ayukta, Raipur CG

                                             ---- Respondent

CRA No. 1250 of 2002

• R.A.Singh, Aged about 61 years, S/o. Ram Awatar Singh, Regional Manager, Madhya Pradesh Rajya Hatkargha Bunkar Sahakari Sangh, Raipur CG

---- Appellant

Versus

• State Of Chhattisgarh, through Special Police Establishment Vigilance (Lokayukta) Office, Raipur CG

---- Respondent

CRA No. 1264 of 2002

• Ramesh Kumar Dewangan, Aged about 39 years, S/o. Shri Sachchidanand Dewangan, Technical Supercvisor, District Handloom Union (Sangh) Bilaspur (CG)

---- Appellant

Versus

• State Of Chhattisgarh, through Special Police Establishment Vigilance (Lokayukta) Office, Raipur CG

---- Respondent

For Appellants : Shri Goutam Khetrapal, Shri Khulesh Sahu & Shri Sunny Agrawal, Advocates.

For Respondent /State : Shri Lalit Jangde, Dy. G.A.

Hon'ble Smt. Jusitice Rajani Dubey

C A V Judgment

As these three appeals arise out of the judgment and order

dated 28.11.2002 passed by the Special Judge and First Additional

Sessions Judge Raipur in Sessions Trial No. 7/1999 convicting the

accused/appellants and sentencing them as under, they are being

disposed of by this common judgment.

     Appellant         Conviction                  Sentence

Shyamkant          U/s. 120-B IPC       RI for 5years with fine of Rs.
Gupta                                   5,000/- with default stipulation
                                        RI for one year

R.A.Singh & U/s. 13(1)(d) read RI for 5 years with fine of Rs.

Ramesh Kumar with      Section 5,000/- with default stipulation
Dewangan     13(2)    of    the of RI for one year
             Prevention       of
             Corruption Act &

                   Section    120(B) RI for 5 years with fine of
                   IPC               Rs.5,000/-        with     default
                                     stipulation of RI for one year

2. In the present case, at the relevant time, appellant/accused R.A.

Singh was the Assistant Regional Manager of Madhya Pradesh State

Handloom Weavers Cooperative Society, Raipur and the appellant

Shyam Kant Gupta was posted as Assistant Regional Manager and

Accused/appellant Ramesh Kumar Dewanangan was posted as

Technical Supervisor of District Handloom Weavers Union, Bilaspur. It

is alleged that the appellants entered into a criminal conspiracy to put

financial loss to the State Government, appellant R.A. Singh has

placed an order vide Letter No. {[email protected]&94 fnukad 31-03-94 with the

President of Bajrang Handloom Weavers Cooperative Society,

Ganiyari, District Bilaspur for supply of 5,000 metres of polyester

suiting with size of 54 inches at the rate of Rs. 70/- per meter at the

cost of Rs. 3,50,000/- for the use in his region. According to the

Madhya Pradesh Government Commerce and Industry Department

bearing NO. F/5/7/82/11/84 Bhopal dated 25.07.1984, the purchase of

store material was compulsorily to be from Small Scale Industry only.

Accordingly, on receipt of the order, Shyamkant Gupta, Manager

of Bajrang Bunkar Cooperative Society, Ganiyari, Bilaspur, purchased

4644 metres of cloth from M.P. handloom dressing manufacturing

Company, Raipur at the rate of Rs. 68 per meter vide Bill No.

M,P.H.D.M.C. No. 10-11 at the cost of Rs. 3,15,805.60 but the same

cloth was purchased by M.P. Handloom Manufacturing Co. Raipur

from Sunil dying Limited Bhuneshwar, Bombay and Bheemraj Sintex,

Kolhapur at the rate of Rs. 43/- per meter and Rs. 44/- per meter which

was certified by Technical Supervisor Ramesh Kumar certifying that it

is the product of handloom and thus, these three accused persons

namely R.A. Singh, Shyamkant and Ramesh have made criminal

conspiracy and misused their power by purchasing at the rate of Rs.

70.00 per meter instead of Rs. 43/- and benefited Rs. 125,392/-

themselves. The put the government to loss of the said amount. After

enquiry, FIR was lodged against the appellants and on completion of

investigation charge sheet was filed and charges were framed against

appellants namely R. A. Singh and Ramesh Kumar under Sections

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

whereas appellant Shyam Kant Gupta has been charged under

Section 13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act read with Section 120 B IPC.

3. In order to establish the guilt of the accused/appellants,

prosecution has examined 10 witnesses. Statements of the

accused/appellants were also recorded under Section 313 of the

Cr.P.C. in which they denied the charges levelled against them and

pleaded their innocence and false implication in the case.

4. After hearing the parties, the trial Court by judgment impugned,

has convicted and sentenced the accused/appellants as mentioned

above. Hence the present appeal.

5. Contention of counsel for the appellants in Cr. A. Nos.

1250/2002 and 1264/2002 is that the prosecution has not produced

primary enquiry report which was held initially bearing No. 56/94 along

with the charge sheet therefore, prejudice has been caused to the

appellants. This has caused a serious infirmity in the case. The

prosecution witness PW-6 has stated that no explanation has been

given by the prosecution about filing of the alleged report which

proves that the prosecution has suppressed the report for the reasons

best known to them. This fact also makes the case of the prosecution

suspicious and doubtful. He further submits that the prosecution has

not seized the polyester clothes and has failed to send them for

examination of expert opinion in order to prove their contention that the

material seized was polyester cloth manufactured in powerloom and it

becomes more necessary when the fact has not been admitted by the

defence. It is submitted that the prosecution has failed to examine

Simran Chatterjee and other witnesses of bills therefore the

prosecution has failed to prove the important bills. It is further submits

that the investigating Officer is not an expert to recognize the fact that

the clothes are polyester material or the material. PW-3 Poornanand

Giri Goswami has admitted the fact that there is no contravention of

rule of the State Government and the material was purchased at

prescribed rate of government rule. It is contented that Anand Diwan

(PW--8) has admitted that the earlier investigating officer Mr. Katlam

has not found any offence against the accused therefore PW-9 has

been made the Investigating Officer. The Investigating Officer Mr.

Rajput has stated that the basis of registration of crime is not known to

him. The statement alone demolishes the entire vase of prosecution.

In the present case, misappropriation of funds is not established and it

is the basis principle of criminal jurisprudence that suspicion however

strong cannot take place of proof. The prosecution has failed to

establish the case against the appellants beyond reasonable doubt

therefore the conviction and sentence imposed on the appellants is not

sustainable in the eye of law. Reliance has been placed in the matter

of K.R.Purushottam Vs. State of Kerala reported in (2005) SCC

631: (2006) 1 SCC (Cri.) 686:2005 SCC Online SC 1544; in the

matter of A.Subair Vs. State of Kerala reported in (2009) 6 SCC

587.

6. Counsel for the appellant Shyam Kant Gupta in Cr.A. No.

1238/2002 submits that the appellant is not a public servant and there

is no evidence to suggest that the appellant was involved in the

conspiracy with the co-accused persons for causing pecuniary loss to

the State Government. There is no positive evidence to show that the

appellant has gained benefit in the entire transaction. The order placed

by the Bajrang Bunkar Sahkari Samiti has not mentioned that the cloth

which is to be supplied should be manufactured through handloom but

the learned trial court did not appreciate this fact and convicted the

appellant for the conspiracy. It is submitted that earlier name of the

appellant was incorporated as witness which shows that the appellant

was not involved in the conspiracy and he has discharged his duty as

President, Bajrang Bunkar Sahkari Samiti in a bonafide manner

therefore the conviction and sentence of the appellant is not

maintainable. Reliance has been placed in the matter of Sukhdeo

Jha Uipal Vs. State of Bihar reported in AIR 1957 SC 466;

Rangbahadur Sinde Vs. state of Maharasatra reported in (2000)

3 Scc 454; L. Chandraiah Vs. State of A.P. and Another reported

in (2003) 12 SCC 670; Ramsewak Vs. State of M.P. reported in

(2004) 11 SCC 259; C.K.Jaffer Shariff Vs. State Through CBI

reported in (2013) 1 SCC 205 and B.Jayaraj Vs. State of A.P .

reported in (2014) 13 SCC 55.

7. On the other hand supporting the impugned judgment it has

been argued by the State counsel that the conviction of the

accused/appellants is strictly in accordance with law and there is no

infirmity in the same.

8. Heard counsel for the parties and perused the material on

record.

9. Before the trial court, it was not the dispute that at the relevant

time, appellant/accused R.A.Singh and Ramesh Kumar Dewnangan

was posted in M.P. Handloom Weavers Cooperative Society, Raipur

and appellant Shyam Kant Gupta was the President of Bajrang Bunkar

Cooperative Society Ganiyari. As per the FIR the enquiry was

conducted and in preliminary enquiry, prima facie charges of

misappropriation was found against the appellants therefore the matter

was reported to the Special Police and FIR was lodged against the

appellant but in the whole charge sheet enquiry report was not

enclosed by the prosecution. Witness Poornanand Giri Goswami (PW-

3) is the original Officer In charge of the M.P.Handloom Weavers

society, Raipur. He has admitted in para 3 that " vfHk;qDr leLr izfdz;kvksa

dk ikyu djus ds ckn gh diMk [kjhnk x;k gSA " He has also admitted in

para 8 that " ;g lgh gS fd 1994-95 esa iksfyLVj [kjhnh ds fy;s gLr dj?kk

lapkuky; }kjk [kjhnh nj [email protected]& #- izfr ehVj r; dh x;h Fkh \] rFkk iz-Mh-&4

mlh nj vuqlkj [kjhnk x;k gSA 'kklu }kjk fu/kkZfjr nj ls mldk fodz; fd;k

x;k blesa fu;e dk dksbZ mYya?ku ugha gqvkA"

10. Salik Ram (PW-7) has admitted this fact in para 2 " nsgkrh ukfy'kh

dh Nk;k izfr iz-ih-&7 lh] uacjh ukfy'kh dh Nk;k izfr iz-ih-&8 lh ekdZ fd;k

x;kA vijk/k dk;eh ds i'pkr~ ewy ukfy'kh jk;iqj laHkkx dks vfxze foospuk gsrq

Hkst fn;kA Anand Diwan (PW-8) has admitted in para 5 that ";g lgh gS

fd esjs }kjk tks izFke lwpuk fjiksVZ fy[kk x;k mlesa vkjksfi;ksa dh lwph es jes'k

nsokaxu dk uke ugha gSA " In para 12 he has admitted this fact that " bl

izdj.k esa 1]25]393-40 iSls vuqfpr ykHk izkIr djus dk vkjksi gSA fdarq eSaus bl

ykHk dks vkjksihx.k ds py&vpy lEifRr tVr dj izekf.kr ugha fd;k gSA " In

para 14 he has admitted that " lacaf/kr vfHk;qDrksa ds foHkkx dh vksj ls 22-10-

94 ds i= ds lkFk fdlh izdkj dh dksbZ f'kdk;r ugha gS ;g dguk lgh gSA " In

para 16 he has admitted that " pwafd drye us vfHk;qDrksa ds f[kykQ dksbZ

vijk/k ughs ik;k blfy, eq>s foospuk vf/kdkjh cu;k x;k gSA " N.S.Rajput (PW-

9) has admitted in para 17 that ";g lgh gS fd eSaus tkap esa ;g ik;k Fkk fd

'kklu ds gkFk dj?kk m|ksx ls lacaf/kr oLrq,a [kjhnus ds fy, jkT; gkFk dj?kk

cqudj lgdkjh lfefr e;kZfnr ds oLr dz; djuk FkkA ;g dguk Hkh lgh gS fd

jkT; gkFk dj?kk cqudj lgdkjh lfefr iathd`r cqudj lfefr ls gh eky [kjhndj

'kklu dks lkSaius ds fy;s vf/kd`r FkkA"

11. As per dehati nalishi and FIR some enquiry was conducted in

this matter and prima facie appellant R.A. Singh and Ramesh

Dewanangn were found guilty in the enquiry report but it was not filed

along with the charge sheet. The original Manager Poornanand Giri

Goswami (PW-3) has admitted this fact that at the relevant time, rate

was fixed by the Government as Rs. 70/- and according to Ex.D-4

cloth was purchased at the rate of 70/- per meter. He has also

admitted that appellant R.A. Singh has followed the procedure and

thereafter he purchased the clothes.

12. In the matter of B.Jairaj Vs. State of A.P. reported in (2014)

13 SCC 55, the Apex Court has held that "in so far as offence under

Sections 13(1)(d) (I) and (ii) is concerned as in the absence of proof of

demand for illegal gratification, the use of corrupt or illegal means or

abuse of position as a public servant to obtain any valuable thing or

pecuniary advantage cannot be held to be established."

In K.R.Purushottam Vs. State of Kerala reported in (2005)

12 SCC 631, it ha been held by the Apex Court as under :

"21. To attract the provisions of Section 13 (10(d) of the Prevention of Corruption Act, a public servant should obtain himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his postiion as a public servant. Therefore, for convicting a person under the proivisions of Section 13(1)(d) of the Prevention of Corruption Act, 1988, there must been vidence on record that the accused has obtained for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant obtains for himself, or for any person, any valuable thing, or pecuniary advantage without any public interest. "

13. Looking to the above principles, this Court finds that in the

present case there is no evidence on record to prove the fact that the

accused/appellants obtained for themselves or for any valuable thing

or pecuniary advantage by corrupt or illegal means.

14. As per FIR, some order was placed for supplying the clothes by

appellant/accused R.A. Singh, who was the Manager at the relevant

time in M.P. Hand loom Weavers Society. Appellant Shyam Kant Gupta

supplied the clothes to the said society. Appellant Shyam Kant Gupta

at the relevant time was President of Banjrang Bunkar Samiti. It is

alleged that he purchased the clothes at the rate of 43/- and 44/- and

supplied the same to the appellants R.A. Singh and Ramesh Kumar

Dewangan at higher price of Rs. 68/- and 70/- per meter, but it is also