Chattisgarh High Court
Kailash Agrawal vs The State Of M.P on 13 January, 2023
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NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
Judgment Reserved on 05.09.2022
Judgment Delivered on 13.01.2023
CRA No. 1478 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.04 of
1985 whereby the learned Court below convicted the 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 1 year and fine of
Rs.1000/-, in default,
further RI for 3 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 1 year and fine
Prevention of Corruption of Rs.1000/-, in default,
Act, 1947 r/w Section 120- further RI for 3 months
B IPC
2. Case of the prosecution is that one Sabarmal Agawal during the period
from 17.08.1977 to 17.12.1981 was working as Contractor at Food
Corporation of India depot at Mandir Hasaud. He was given contract for
handling, bundling, loading, un-loading and transporting of gunnies bags
for a period of 2 years. During period of contract, appellant, in
connivance with other co-accused, submitted forged bills against the
work for which bills were already submitted and amount was withdrawn.
By forged bills, appellant and other co-accused successfully withdrawn
the payments again.
3. Learned counsel for the appellant would submit that Sabarmal Agrawal
was engaged as Contractor. Satyanarayan Agrawal was Power of
Attorney Holder of Sabarmal Agrawal (Contractor) and appellant was
working as Agent. One inquiry was conducted through MRC Paniker
and K.P. Ramchandran, based upon the report submitted by the
members of inquiry team, report was lodged and crime was registered
initially against the employees of Food Corporation of India (FCI) and
Contractor. Appellant and his father (Satyanaray Agrawal) were
implicated in the crime subsequently. Allegation against the appellant is
that the appellant being a member of a criminal conspiracy, prepared
forged bill under Item No.21 of the contract for the work which has
already been done and payment received under Item No.24. He further
contended that prosecution has framed entire case making allegation
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that the appellant along with Contractor have first submitted the bills,
accepted payment based on work slip issued for the work done by him
under Item No.24 and later on, again, work slip was prepared under
signature of appellant and submitted for payment and again accepted
the payment for the same work mentioning as Item No.21. Though
prosecution examined as many as 15 witnesses but failed to prove the
charges levelled against the appellant by producing cogent and reliable
piece of evidence on record. As per evidence available on record, Food
Corporation of India, at depot level, so far as it relates to the case,
maintains two registers i.e. (i) Work Done Register and (ii) Casual
Labourer Register. Bills submitted under Item No.24 is with regard to
labourers supplied by the appellant and the work slip submitted under
Item No. 21 is with regard to work done by the appellant as Contractor
i.e. bundling, loading, unloading, transporting etc. of gunny bags. MRC
Paniker (PW7) conducted inquiry based on the complaint and in his
evidence, he stated that he has checked the daily register. Daily register
is not the record to be maintained officially. The official records which
are to be maintained so far as it relates to the facts of the issue involved
in the case are the Work Done Register and Casual Labourer Register.
FCI Manual placed before the trial Court does not mention about
maintaining of daily diary. In support of his contention, he referred to the
evidence of S.S.C. Madan (PW1), D.S. Ranadey (PW2), B.M. Tejpal
(PW3), A.D. Manikpuri (PW4), G.S. Naik (PW5), K.K. Krishnan (PW6),
M.R.C. Paniker (PW7), K. Ramaswami (PW8), S.L. Arora (PW9), M.G.
Agrawal (PW10), K.P. Ramchandran (PW11), Hariprakash Tahalyani
(PW12), K.K.S. Pillai (PW13). It is also contended that appellant was not
named in the FIR nor he was beneficiary in the said transaction and
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therefore also there is no direct involvement. He is being arrayed as
accused only on the basis of his signature on the bills prepared based
on work slips. Investigating officer and complainant were not examined
before the trial Court. There are as many as 19 sheds within the
premises of the FCI Godown at Mandir Hasaud. Out of 19 Sheds, one
shed is of dead stock. Finding recorded by learned trial Court that
forged work slip is prepared by the appellant under item No.21 and
accepted payment without doing work is perverse. Work slip was
prepared by the employees of FCI i.e. R.S. Jadhav and G.D. Mahadik
(co-accused).
4. 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 appreciation of
evidence available on record. Charges levelled against the appellant is
proved by producing oral and documentary evidence before trial Court.
Work Slip No.300 dated 11.12.1979, Work Slip No.8417 dated 7.2.1980,
Work Slip No.8427 dated 07.03.1980 and Work Slip No.8228 dated
7.3.1980 were forged work slip under Item No.21 and based upon the
forged work slip, amount was withdrawn through Bill No.259 and 300.
Work slip submitted was for the work which was already done much
prior under different work slips placed in the office by the complainant
and for which amount was also withdrawn earlier under Item No.24.
Prosecution seized daily diary as Article- A and Article- B in which the
work mentioned in Item No.21 is not mentioned as stated by MRC
Paniker.
5. I have heard learned counsel for the parties and perused the records of
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the trial Court.
6. Perusal of charge would show that appellant entered into criminal
conspiracy with other co-accused including employees of Food
Corporation of India, for the purpose of cheating, prepared forged work
slips for an amount of Rs.6076.84. Forged work slips said to be
prepared was under Item No.21. The second charge levelled against the
appellant is with regard to commission of offence under Section 468 of
IPC and Section 5 (1) (d) of the Act of 1947 along with Section 120-B of
IPC and Section 5 (2) of the Act of 1947.
7. Item No.21 deals with the work under the contract of bundling, loading,
unloading, transporting etc. of gunny bags and the work in Item No.24
is of supply of casual labourers. Both the work under Item No.21 and
Item No.24 are different.
8. Learned counsel for the appellant had raised ground that entire case
against the appellant is that he submitted work summary and bills based
on the work slip issued to him. The manner and procedure of
maintaining records of the work done or the casual labourers is being
maintained by the FCI, in the Work Done Register and Casual Labourer
Register. Both the registers were not seized and exhibited before the
trial Court. From the entries made in the register only, it could be
ascertained whether the appellant has prepared work summary for the
same work of which he had already withdrawn/accepted the payment.
The dead stock is a separate shed where the goods not usable are
being stored. There are as many as 18 sheds out of which one is the
dead stock shed. For each shed, one shed In-charge is deputed by the
FCI. It is his duty to enter the number of casual labourers supplied and
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work done by the Contractor. Under Item No.24, the Contractor is only
required to supply labourers as and when demand is raised by the
department and payment is to be made by department as per rate
contract. Under Item No.21, the Contractor is required to bundle, load,
unload, transport at rail-head.
9. A.D. Manikpuri (PW4) in his evidence stated that he is acquainted with
the signature of appellant. He also stated that work slip is issued by the
godown In-charge. At the relevant time, godown In-charge was
Shri Mahadik (co accused). MRC Paniker (retired Assistant Manager)
was examined as PW7. In para-1 of his evidence, he stated that he and
one Venkatraman was deputed to conduct inquiry of the work done at
Mandir Hasaud depot. KKS Pillai, In-charge of Depot submitted daily
diary register and gunny register of the work done by the Contractor.
Details of the work mentioned in work slip is entered in daily diary. The
work details mentioned in Ex.P-4-A i.e. work slip No. 8417 is not entered
in daily diary. Similarly, the other work as mentioned in the work slip is of
the same work which shows that Contractor has not done the work as
mentioned in work slip. Details of work mentioned in work slip No.8428
(Ex.P-4C) is also mentioned in daily diary. In cross examination, this
witness admitted that he is not able to name the person who has
prepared daily diary but stated that daily diary is prepared by shed In-
charge. He also admitted that in daily diary, in some pages, there is
signature of Shed In-charge and in some pages, there is no signature of
Shed In-charge. During the course of inquiry, he inspected daily diary
but he has not signed the daily diary at the time of inquiry. After inquiry,
he prepared the report but report was not shown to him during his
examination before the Court. He also admitted that today he is not in a
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position to make statement that Article- A and Article- B register is the
same register which he inspected and also not in a position to say that
work slip is also same or not. In para-12 of his evidence, he stated that
he do not remember as to he also inspected the work done register and
casual labourer register. He has given evidence based on daily register
and work slip shown to him from record. From the evidence of M.R.C.
Paniker (PW7) it is not clearly appearing that while conducting inquiry,
he also looked into the work done register and casual labourer register.
10.K.P. Ramchandran is examined as PW11. He was posted as Assistant
Manager (Accounts) in the office at FCI, Kampa. KKS Pillai (PW13) in
para-2 of his evidence admitted that the work done by casual labourers
is entered in the register maintained by the Department. Godown In-
charge prepares the daily diary/ register for his personal information and
memory. He also admitted that according to FCI Manual, there is no
provision for maintaining daily diary/register. This witness in his
evidence has stated that during the course of inquiry, he provided work
done register and Casual Labourers Register to the members of Inquiry
Team but in evidence of PW7 MRC Paniker it has come that report
prepared by him is not part of the case from which it can be ascertained
that the report is prepared after verification and inspecting the work
done register and Casual Labourer Register. The entire case is based
on the entries made in the daily register which is not the register to be
maintained according to the FCI Manual. Work done register and
Casual Labourer Register are not made part of record to prove the
charges levelled against the appellant that he had submitted forged bills
and withdrawn the amount again under Item No.21 for which he has
already submitted bills and withdrawn the amount earlier under Item
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No.24.
11. The work slips issued under Item No.21 mentions the details of work
specifically. Work done register is not produced as evidence before the
Court which is an official register and essential in the facts and
circumstances of the case wherein the entire work done by the
Contractor under Item No.21 is being entered by the officials of FCI.
Work done register is very important piece of documentary evidence in
view of allegation levelled against the appellant that appellant has
earlier submitted work slip under Item No.24, accepted payment and
subsequently, again, submitted the bills under Item No.21. Therefore,
the prosecution is required to prove the allegation against the appellant
based on entries made in the work done register and Casual Labourer
Register, but those important registers are not submitted as evidence
before the trial Court but the prosecution has made an attempt to prove
the charges based on daily diary/register which is not maintained
officially but is maintained by th Shed Incharge in personal capacity for
his memory and functioning. Shed In-charge was also not examined
before the trial Court to prove the contents of daily diary whether he has
made entries of the entire work or made entry of only some works on a
particular day.
12.Evidence of officials only shows recovery of some excess payment from
the Contractor. Prosecution failed to prove beyond reasonable doubt
that appellant by preparing the work slip summary and bills claimed
twice for one and the same work, by entering into criminal conspiracy
with officials of FCI. It is settled law that in criminal cases, it is for the
prosecution to prove charges against accused persons beyond all
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reasonable doubt. Suspicion, howsoever grave, cannot take place of the
proof.
13.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
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
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failure of the prosecution case."
14. 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
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."
15.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 and the appellant being
representative of the Contractor had again submitted the work slips and
bills and also withdrawn amount twice one under Item No.24 and
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second under Item No.21. Upon audit objection, an inquiry was
conducted by MRC Paniker (PW7). In his evince, he stated that daily
diary is prepared and maintained by an employee who is Shed In-
charge. Daily diary is prepared for memory of Shed In-charge and is not
an official record. PW7 verified the diary of Shed -Dead Stock but did
not find the entry for which the work slip is submitted by the appellant
under Item No.21 and prepared report. The Inquiry Report is not part of
the record as admitted by witness. He also admitted that he gave
statement/evidence based on daily diary/register and work slip
available. He also made statement that he cannot say daily diary
inspected by him is one and the same which is shown to him in Court.
He did not make any initials or marking on the daily diary inspected by
him. Author of daily diary (Shed In-charge who prepared the daily diary)
is not examined as witness before the Court to prove that the daily diary
which is part of the record is prepared by him. According to evidence
available on record, work done register is maintained to enter work done
by Contractor and Casual Labourer Register to maintain the record of
supply of labourers by the Contractor according to FCI Manual. Both the
registers are not made part of the proceedings and proved by the
prosecution. KKS Pillai (PW15) in his evidence stated that there is no
provision to maintain daily diary but it is maintained by the Shed In-
charge for his memory.
16.Entire case of the prosecution is made to stand on superstructure of
inquiry conducted by the officials before registration of the case and
entries made in daily diary i.e. Article- A and Article- B. Prosecution
failed to prove beyond reasonable doubt that diary inspected by Inquiry
Officer (PW7) during course of inquiry is one and the same which is
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produced before the Court and further that daily diary produced is one
and the same prepared by the Shed In-charge of the dead stock shed.
Author of the daily diary is not examined before the Court below. In view
of above facts and circumstances of the case, nature of evidence
available on record, I am of the view that prosecution failed to prove the
charges levelled against the appellant that he prepared the work slip
under Item No.21 for one and the same work for which he has already
withdrawn the payment under Item No.24.
17.For the aforementioned reasons, finding recorded by the trial Court and
conviction of the appellant for offence 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.
18. 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
