Kailash Agrawal vs The State Of M.P
2023 Latest Caselaw 255 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. 1479 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.05 of

1985 whereby 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 (for short "Act of 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
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         Section120-B of IPC                  of Rs.1500/-, in default,
                                              further RI for 3 months

         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 prosecution is that during the period from 14.07.1977 to

17.12.1981, Sabarmal Agrawal worked as Contractor under contract

awarded to him by FCI depot Mandir Hasaud for handling/transporting.

Satyanarayan Agrawal was Power of Attorney Holder and Kailash

Agrawal (appellant) was representative of Sabarmal Agrawal. Sabarmal

Agrawal died during trial. During course of audit, objection was raised

with regard to commission of irregularities in payment to the Contractor

Sabarmal Agrawal. Inquiry was ordered and after receiving inquiry

report, report was forwarded to CBI Jabalpur, based upon which, crime

was registered. After completion of investigation, charge sheet was

submitted by CBI before the Special Court, CBI. Learned trial Court

based on the material available in the charge sheet framed charges

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

the Act of 1947 read with Section 120-B of IPC which was denied by the

appellant. During course of trial prosecution examined SSC Madan as

PW1, D.S. Ranadey as PW2, G. S. Naik as PW3, A.D. Manikupri as

PW4, K.K. Krishnan as PW5, MRC Paniker as PW6, K. Ramaswami as

PW7, S.L. Arora as PW8, MG Agrawal as PW9, KP Ramchandran as

PW10, Hariprakash Tahalyani as PW11 and KKS Pillai as PW12. After

conclusion of trial, learned trial Court considering the documentary and

oral evidence of witnesses held the charges levelled against the

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appellant proved and convicted the appellant and sentenced as

mentioned in para-1 of this judgment.

3. Learned counsel for the appellant would submit that judgment of

conviction passed by learned Court below is without any evidence.

Prosecution has framed entire case on the allegation that appellant

along with Contractor submitted the bills, accepted payment based on

the work slip issued for Item No.24 and later on, again, work slip was

prepared under signature of appellant, submitted bills and accepted

payment for the same work mentioning to have been done under Item

No.21. Nature of work under Item No.21 and Item No. 24 are entirely

different. Under Item No.24 of contract, Contractor is to supply casual

labourers to be engaged by the FCI for specific work and under Item

No.21, the Contractor has to do the work through labourers of bundling

of gunny bags, sorting out the damaged gunny bags, re-bundling,

loading, unloading, transporting and stacking of the gunny bags. The

work under Item No.24 and Item No. 21 are to be entered into the

register maintained by the FCI i.e. Casual Labourer Register and Work

Done Register. Both the registers are not produced before the Court to

prove the allegation/charges. MRC Paniker (PW6) who conducted

inquiry has not checked the Work Done Register during the course of

inquiry and has only inspected daily register/diary. Only daily

diary/register is produced by prosecution before the Court. In Court

evidence, this witness admitted that he cannot say that the daily

diary/register which is shown to him in the Court is one and the same

which he inspected during course of inquiry. The daily diary/register

which is made basis for prosecution of the appellant is not official

records as it is not mentioned in FCI Manual to be maintained by the

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employee mandatorily. There are as many as 19 sheds within the

premises of FCI Mandir Hasaud depot. Out of which, one Shed is dead

stock shed. Dead stock mentioned in the work slip is shed/place and not

the work. Appellant is not the Govt. servant and, therefore, he cannot be

charge and convicted for the offence defined under Section 5 (1) (d)

read with Section 5 (2) of the Act of 1947. Judgment passed by learned

trial Court convicting the appellant is perverse.

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 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. In support of his contention, he placed reliance upon

the judgment passed by Hon'ble Supreme Court in the case of West

Bengal Vs. Manmal (AIR 1977 SC 1772) and the judgment of High

Court of Madhya Pradesh in Ramesh Chand Jain and Ors. Vs. State

of Madhya Pradesh 1991 CRLJ 2957.

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

the trial Court.

6. Allegation against the appellant is that during the period from

14.07.1977 to 17.12.1981, petitioner had entered into conspiracy with

the employees of FCI, prepared forged work slip and accepted the

amount of Rs.13309.68/- from FCI .

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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 depot

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

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

accused persons. MRC Paniker (retired Assistant Manager) examined

as PW6. In his evidence, he stated that District Manager, FCI engaged

him and one Venkatram for inquiry of excess work done at FCI Mandir

Hasaud depot. He further stated that during inquiry, he found that in the

work slip Ex.P-9 and Ex.P-9C and others nature of work done by

Contractor is mentioned but corresponding entry is not mentioned in

daily diary. Daily diary is prepared by Shed In-charge. He is not aware of

the employee/person who prepared daily diary. In daily diary signature

of Shed In- charge/person who made entry is not in all pages. Some of

pages are without signature. He also did not sign the pages of daily

diary or any of the part of daily diary during inquiry. In cross-examination

he stated that he cannot say whether he inspected the work done

register and Casual Labourer Register during inquiry. He gave

statement based on the work slip and register available in the Court

record. K. Ramaswami (PW7) is witness to tender based upon which

work was awarded to Contractor Sabarmal Agrawal (deceased). S.L.

Arora (PW8) is also retired employee of FCI and is witness to seizure of

the documents. MG Agrawal (PW9) is Deputy Superintendent of Police

who proved the submission of charge sheet and in his evidence he

stated that the investigating officer N.L. Khadse died in road accident

and thereafter he was deputed in the case. K.P. Ramchandran (PW10)

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is witness to the procedure of payment . In cross-examination, this

witness stated that when he checked the bills, he did not find any

mistake or wrong. Hari Prakash Tahalyani (PW11) in his evidence stated

about the procedure of working in FCI godown/depot and the procedure

for submission of the work slip. KKS Pillai (PW12) in his evidence stated

that during course of inquiry, he shown work done register and Casual

Labourer Register to person who came for inquiry/audit, no person

came for physical verification of gunny bags and further clarifies that the

team of inquiry has not conducted physical verification of gunny bags.

This witness in his evidence in a trial of other criminal case of similar

nature against appellant, stated that there is no provision for preparing

and maintaining daily diary but it is for the convenience and memory of

Shed In-charge personally. Official register which is maintained is the

Work Done Register and Causal Labourer Register as per FCI Manual .

8. Work Done Register and Casual Labourer Register is not placed by

prosecution as evidence before trial Court. The allegation is with regard

to acceptance of payment based on work slip in Item No.24 i.e. supply

of casual labourers and the work slip subsequently submitted under

Item No. 21 and accepted payment for the work done by the Contractor.

As per evidence both the work i.e. (i) supply of casual labourers and (ii)

work done by Contractor is to be entered into two different registers i.e.

Casual Labourer Register and Work Done Register. Both the registers

are not produced by the prosecution in support of proof of charges. In

absence of the proof of two registers maintained in the FCI Mandir

Hasaud depot in evidence, allegation that the appellant prepared forged

work slip and accepted payment without doing work under Item No.21 in

the opinion of this Court cannot be proved, more so when the register

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which is made basis for prosecution of the appellant i.e. daily

diary/register is not the official register/document but it is maintained in

personal capacity by the godown In-charge as admitted by the

witnesses in the other criminal case registered against the appellant

which was heard by this Court and decided separately. .

9. The excess payment made to the Contractor may be on some other

ground. Merely because the excess payment made to the Contractor

has been recovered will not be a poof of commission of offence as

alleged against the appellant. To convict any person, prosecution is

required to prove charges beyond reasonable doubt. 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

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

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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

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

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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 court

examination. He cannot say that daily diary/registers 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 In-charge 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 in FCI Manual.

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, accepted payment for one

and the same work twice.

14.For the foregoing reasons, 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.

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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