Kailash Agrawal vs The State Of M.P
2023 Latest Caselaw 252 Chatt

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                                                                          NAFR

              HIGH COURT of CHHATTISGARH, BILASPUR

                 Judgment Reserved on 05.09.2022

                 Judgment Delivered on 13.01.2023


                       CRA No. 1480 of 1999
  Kailash Agrawal, son of Satyanarayan Agrawal, aged about 42 years,
  resident of B-7, Sector-2, Devndranagar, PS- Khamtarai, Raipur
                                                                   ---- Appellant
                                    Versus
  The State
                                                                ---- Respondent

For Appellant : Mr. Bhupendra Singh, Advocate For Respondent- CBI : Mr. Vaibhav A. Goverdhan, Advocate For State : Mr. B.L. Sahu, Panel Lawyer

S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Judgment

1. Challenge in this appeal is to judgment of conviction dated 18 th May 1999

passed by learned Special Judge (CBI), Jabalpur in Special Case No.06 of

1985 whereby the learned Court below convicted appellant for offences

punishable under Sections 420, 468 read with Section 120-B of IPC,

Section 5 (1) (d) read with Section 5 (2) of Prevention of Corruption Act,

1947 read with Section 120-B IPC and sentenced him as below:-

          Conviction                               Sentence
          u/S 420 of IPC                            RI for 2 years and fine of
                                                    Rs.2000/-,      in   default,
                                                    further RI for 6 months

          u/S 468 read with                        RI for 1 year and fine
          Section120-B of IPC                      of Rs.1000/-, in default,
                                                   further RI for 3 months
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          u/S 5 (1) (d)/5 (2) of                 RI for 2 years and fine
          Prevention of Corruption               of Rs.2000/-, in default,
          Act, 1947 r/w Section 120-             further RI for 6 months
          B IPC

2. Case of the prosecution is that co-accused Rawla Jadhav during the

period from 14.07.1977 to 17.10.1981 was posted as Assistant Manager

in FCI depot Mandir Hasaud, District- Raipur. Co-accused Sabarmal

Agrawal (since deceased) was working as Contractor. Co -accused

Satyanarayn Agrawal was Power of Attorney Holder of Contractor and

appellant was representative. All the accused persons with intent to

extend unlawful gain to Contractor Sabarmal Agrawal (since deceased)

entered into criminal conspiracy, prepared forged work slips under Item

No.21, accepted payments to the tune of Rs.18,649/- (Rs.7863.32 +

5365.36 + 5420.80). After getting knowledge of irregularity, inquiry was

ordered by District Manager Mr. Khodkar, to be conducted through MRC

Paniker (PW6), Assistant Manager and Shri P.V.H. Venkatraman. Both

the employees conducted inquiry, inspected daily diary register and

gunny register, submitted its report based upon which, information was

sent to CBI Jabalpur and thereafter FIR bearing No. RC 23/81 was

registered. After completion of investigation, charge sheet was

submitted under Sections 120-B, 420, 467 and 468 of IPC, Section 5 (1)

(d) read with Section 5 (2) of the Act of 1947.

3. Learned trial Court framed the charges under Section 420, 468/120-B of

IPC, Section 5 (1) (d) read with Section 5 (2) of the Act of 1947 read

with Section 120 B of IPC against the appellant to which he denied.

Prosecution to prove charges levelled against the appellant examined

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S.S.C. Madan as PW1, D.S. Ranade as PW2, G.S. Nayak as PW3, A.D.

Manikpuri as PW4, K.K. Krishnan as PW5, M.R.C. Paniker as PW6, K.

Ramaswami as PW7, S.L. Arora as PW8, M.G. Agrawal as PW9, K.P.

Ramchandran as PW10, Hariprakash Tahalyani as PW11 and KKS

Pillai as PW12. After conclusion of trial, learned Court below convicted

the appellant for the offence alleged against him and sentenced as

mentioned in para-1 of the judgment.

4. Learned counsel for the appellant would submit that conviction of the

appellant is without any proof. Prosecution failed to prove the charges

against him by producing cogent and reliable piece of evidence.

Allegation against the appellant is that appellant has obtained payment

twice for one and the same work. Appellant is stated to be

representative of the Contractor who executed the work under the

contract entered into between the Contractor Sabarmal Agrawal (since

deceased) with the FCI at Mandir Hasaud depot. As per contract, along

with work to be done for which Contractor was engaged, Contractor is

also required to supply casual labourers as and when demanded by

FCI. Department maintains two registers one as Work Done Register

and another Casual Labourer Register. For work done, work slips and

bills are to be submitted under Item No.21 whereas for supply of casual

labourer the work slip issued and bills submitted is under Item No.24.

Both the registers are not placed in evidence by the prosecution. Entire

case of prosecution is based on daily diary which is maintained by the

Shed In-charge not in official capacity but in personal capacity for his

memory. Person/Shed In charge who prepared the daily diary/register is

not examined before the trial Court to prove the entries made therein.

Inquiry Officer who conducted inquiry in his statement stated that he

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cannot say that daily diary inspected by him is one and the same which

is shown to him before the Court. He has not made any initial/signature

at the time of inquiry in the daily diary/register. The other witnesses

examined by prosecution in their statement stated that according to FCI

Manual, there is no provision for maintaining daily diary. Hence, it is not

the authentic document to be relied upon to prove the charges levelled

against the appellant. Judgment of conviction against the appellant is

perverse.

5. Learned counsel for respondent- CBI opposing the submission of

learned counsel for the appellant would submit that judgment of

conviction passed against the appellant is based on evidence available

on record. Learned trial Court on appreciation of documentary and oral

evidence had found the charges levelled against the appellant proved.

Judgment of conviction passed by learned trial Court does not call for

any interference.

6. I have heard learned counsel for the parties and perused the records of

the trial Court.

7. SSC Madan (PW1) Zonal Manager was examined to prove the sanction

given by him for prosecution of Rawla Jadhav. D.S. Ranadey (PW2)

was examined to prove that co-accused G.D. Mahadik, R.S. Jadhav and

B.N. Sane were working on different posts at FCI Mandir Hasaud during

the period in between 1977 to 1981. A.D. Manikpuri (PW4) proved his

signature on the work slip and bills of the appellant and other co-

accused persons. MRC Paniker (retired Assistant Manager) examined

as PW6. In cross-examination this witness stated that he cannot state

as to who prepared the daily diary register but stated that daily diary

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register is prepared by Shed In-charge. In daily diary register, there is

signature of Shed In-charge in many pages and in some pages, there is

no signature. He inspected daily diary register during inquiry but his

signature is not there in daily diary register. He further stated in para-11

that it is not in his memory whether he has seen the work done register.

K.P. Ramchandran is examined as PW10. In his evidence, he made

statement with regard to procedure for submission of bills payment and

procedure to be followed at different stages. He further made statement

in his evidence that the bills submitted under Item No.21 was 208 %

above the rates. In cross-examination he stated that when the bills were

placed before him and checked by him, there was no error. Objection

was raised only during audit stating that there was excess payment in all

bills and all the excess payment has been recovered. Hariprakash

Tahalyani is examined as PW11 . In cross-examination this witness

stated that in FCI manual there is provision of maintaining Casual

Labourer Register and proforma is provided under Rule 27 (8) of the

Manual. Casual Labourer Register is also maintained in Mandir Hasaud

FCI depot wherein it is mentioned that for which work, the labourers

were engaged and further in the register, there is column for entering

the work slip number with date. In para-8 of his deposition he stated that

under Item No.21, the work is of opening of gunny bags, bundling,

transporting, loading and unloading. In FCI manual, there is no provision

for maintaining daily diary but it is being prepared for convenience. KKS

Pillai is examined as PW12. In para-2 of his deposition, he stated that

CBI seized the documents from him. Work which is done by casual

labourers is entered in the register maintained in office. He also

admitted that the godown In-charge maintains the daily diary for his

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personal knowledge and memory. There is no provision for maintaining

daily diary. He also admitted that in FCI Mandir Hasaud, work done

register is also prepared wherein it is entered as to what work has been

done by Contractor. Employees of the FCI who came to inquiry/audit,

upon asking, he provided register which are work done register and

casual labourer register. No person was sent for physical verification of

gunny bags and they have not done physical verification of gunny bags

personally.

8. From the aforementioned evidence brought on record by prosecution it

is apparent that at FCI Mandir Hasaud they are required to prepare and

maintain two separate register i.e. work done register and casual

labourer register. In work done register entries of the work done by

Contractor is to be maintained and in casual labourer register, entries

with regard to labourers supplied casually and work for which he is

engaged is to be maintained. The allegation is that the appellant by

entering into criminal conspiracy with other accused has submitted the

forged work slip under Item No.21, accepted payment, for same work

which was done against Item No.24 i.e. supply of casual labourers and

also accepted payment.

9. The entire case is based on daily diary/register which is not maintained

in accordance with the FCI Manual but it is prepared and maintained by

the Shed In-charge for his personal convenience and memory and

therefore register is not the authentic register prepared and maintained

under the FCI manual. The case is registered based on inquiry report

stated to have been submitted by MRC Paniker (PW6). In his evidence

this witness in para-10 stated that he is not in a position to make

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statement whether the register "A" and "B" are the same registers which

were inspected by him during inquiry and similar statement is made

with regard to work slip. He further stated that he is not remembering

whether he has inspected work done register and casual labourer

register. Daily diary is also not proved by person who prepared the daily

diary. More so when MRC Paniker (PW6) who conducted inquiry

admitted in his evidence that he has not put any initial/signature in the

daily diary/register during course of inquiry. Charges levelled against the

appellant that he prepared work slip, submitted bill, accepted payment

under Item No.21 which was not done by him is not proved in absence

of work done register placed on record as documentary evidence. The

evidence of excess payment may be for other reason, when it is

evidence of prosecution witnesses that the work slip is submitted for

payment above 208% of the rate. It is settled law that the suspicion

howsoever grave cannot take place of proof.

10.Hon'ble Supreme Court in the case of Datar Singh Vs. The State of

Punjab (1975)4 SCC 272, held thus:-

"3. It is often difficult for Courts of law to arrive at

the real truth in criminal cases. The judicial

process can only operate on the firm foundations

of actual and credible evidence on record. Mere

suspicion or suspicious circumstances cannot

relieve, the prosecution of its primary duty of

proving its case against an accused person

beyond reasonable doubt. Courts of justice

cannot be swayed by sentiment or prejudice

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against a person accused of the very

reprehensible crime, of patricide. They cannot

even act on some conviction that an accused

person has committed a crime unless his offence

is proved by satisfactory evidence of it on record.

If the pieces of evidence on which the

prosecution closes to rest its case are so brittle

that they crumble when subjected to close and

critical examination so that the whole super-

structure built on such insecure foundations

collapses, proof of some incriminating

circumstances, which might have given support

to merely defective evidence cannot avert a

failure of the prosecution case."

11. In the case of Varkey Joseph Vs. State of Kerala 1993 Supp (3) SCC

745, Hon'ble Supreme Court held as under

"12. Suspicion is not the substitute for proof.

There is a long distance between ,may be true'

and 'must be true' and the prosecution has to

travel all the way to prove its case beyond all

reasonable doubt. We have already seen that the

prosecution not only has not proved its case but

palpably produced false evidence and the

prosecution has miserably failed to prove its case

against the appellant let alone beyond all

reasonable doubt that the appellant and he alone

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committed the offence. We had already allowed

the appeal and acquitted him by our order dated

April 12, 1993 and set the appellant at liberty

which we have little doubt that it was carried out

by date. The appeal is allowed and the appellant

stands acquitted of the offence under section

302 I.P.C."

12.If in the light of aforementioned ruling of Hon'ble Supreme Court, facts

of the case at hand is tested would show that case of the prosecution is

based on submission of work slips and bills for one and the same work

for which the Contractor withdrawn the amount twice. Case was

reported to CBI based on inquiry report. Inquiry report is not part of the

record. MRC Paniker (PW6) had made statement before the Court

based on daily diary and work slip shown to him during course of

examination, before Court. He cannot say that daily diary/register

inspected by him and shown to him in the Court are one and the same.

He has not put initial/signature in the daily diary at the time of inspection

during inquiry. Author of the daily diary/Shed Incharge is not examined

as witness before the Court. Work done register and casual labourer

register maintained by the department according to FCI manual is not

brought on record as documentary evidence and further that there is no

provision of maintaining daily diary. To prove that appellant submitted

bills twice for one and the same work, one under Item No.21 and

another under Item No.24, production of work done register under Item

No.21 and Casual Labourer Register under Item No.24 are important

documentary evidence which was not produced before Court.

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13.In the aforementioned facts of the case,nature of evidence available on

record, I am of the view that prosecution has failed to prove the charges

that appellant prepared the forged work slip for one and the same work

and withdrawn the amount twice.

14.For the foregoing reason, finding recorded by learned trial court that

prosecution proved the charges levelled against the appellant under

Sections 420, 468 read with Section 120-B IPC , Section 5 (1) (d) / 5 (2)

of the Act of 1947 read with Section 120-B IPC is not sustainable.

15. The appeal is accordingly allowed. Impugned judgment of conviction

dated 18th May 1999 is hereby set aside. Appellant is acquitted from the

charges levelled against him. Appellant is on bail. His bail bond stands

discharged.

Sd/-/--

(Parth Prateem Sahu) Judge

Praveen