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. 1477 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 and sentence dated
18th May 1999 passed by learned Special Judge (CBI), Jabalpur in Special
Case No.02 of 1985 whereby the appellant has been held guilty of
commission of offence 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
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Section120-B of IPC of Rs.1000/-, in default,
further RI for 3 months
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. Learned counsel for the appellant would submit that the appellant is in
no manner connected with the Food Corporation of India Mandir-
Hasaud. He submits that one Sabarmal Agrawal was engaged in
contract with the Food Corporation of India for handling, bundling,
loading, un-loading, transporting work for a period of two years in year
1979-81 on rate contracts. Father of appellant was Power of Attorney
Holder of the original Contractor- Sabarmal Agrawal and he was
representative. During the period of contract, Contractor executed work
as per the work agreement executed between the employer and the
Contractor. As per allegations, appellant prepared summary of the work
done based on the work slip issued by the employees of the
department, submitted bills and, in turn, department has made payment.
Subsequently, CBI registered the case on the ground that the Contractor
had not done the work under Item No.21, submitted bills and accepted
payment to the tune of Rs.51633/- . He further contended that the
prosecution has framed entire case making allegation that the appellant
along with the Contractor had first 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 for payment
and again accepted the payment for the same work mentioning as Item
No.21, but prosecution could not able to prove the charges that the bills
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submitted by the appellant under Item No.21 are the bills again
submitted by him for the work which he has already done under Item
No.24 and accepted payment. Prosecution examined as many as 15
witnesses and most of the witnesses have stated that for the purpose of
work which is subject matter of the FIR, department maintains two
registers i.e. (i) Work Done Register and (ii) Casual Labourer Register.
Bills submitted by the appellant under Item No. 24 is with respect to
casual labourers supplied by Contractor on the demand of department
whereas the bills submitted under Item No.21 is with respect to the work
done under the contract i.e. bundling, loading, unloading, transporting of
gunny bags through bullock cart. Both bills have been submitted on
different heads. M.R.C. Parnikar (PW10) who is said to have conducted
an inquiry, stated that he has not checked the work done register during
course of inquiry but has checked the daily register. Learned counsel for
the appellant further submitted that it is the daily register only which was
produced by the prosecution before the Court. Witness further admitted
that daily register is not the mandatory record to be maintained by the
department and each and every work done by the Contractor is not
being entered in the daily register. As per FCI Manual, submitted before
the Court as Ex.P-38 does not mention about maintaining daily diary. It
only mentions of maintaining work done register and casual labourer
register. In support of his contention, he referred to the evidence of K.P.
Ramchandran (PW4), A.D. Manikpuri (PW7), M.R.C. Parnikar (PW10),
Hariprakash Tahalyani (PW14) and K.K. S. Pillai (PW15) . He further
contended that appellant was not named in FIR, nor he was beneficiary
in the said transaction and there is no direct involvement but for his
signature appearing in the work slip. Investigating Officer and
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complainants were not examined before the trial Court. There are as
many as 19 sheds within the campus of FCI Mandir Hasaud Depot, out
of which, one shed is for dead stock and the dead stock mentioned in
the work slip or other documents is referring to the shed and not the
work. Finding recorded by learned trial Court that the work slip is
prepared by the appellant is perverse. There is no direct evidence in
this regard but the witness examined by the prosecution, are employees
of the department, made statement before the Court that the work slip
are being prepared by two of the employees namely R.S. Jadhav and
G.D. Mahadik (co-accused). Court further discussed the involvement of
appellant in commission of crime in para-69 and 74 of its judgment.
Learned trial Court has not recorded specific finding showing
connivance of the appellant with other co-accused nor there is any
evidence or finding recorded by trial Court that appellant was aware of
preparation of forged work slip, if any. In absence of any finding of
knowledge of preparation of forged work slip or any proof of appellant
having connivance with other co-accused who are employees of the
department, appellant could not be convicted under Section 120-B of
IPC and consequently for other offences also. He contended that
appellant is not a Govt. employee and, therefore, learned trial Court
erred in convicting the appellant for offence defined under Section 5( 1)
(d) read with Section 5 (2) of the Act of 1947.
3. Learned counsel for the respondent -CBI opposing the submissions 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 . Learned trial Court after evaluating
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documentary and oral evidence available on record arrived at
conclusion that the appellant submitted bills for the work done under
Item No.24, accepted the payment against work slip issued as Ex.P-35
B-2, Ex.P-4, Ex.P-10, Ex.P-15 etc. and has again submitted work slip for
the same work under Ex.P-7, Ex.P 7-A , Ex.P-12, Ex.P-13 and Ex.P-17
mentioning Item No.21, in connivance with the other co-accused some
of those are officials of FCI at Mandir hasaud. He submits that the
witnesses examined on behalf of appellants, namely Seetaram Ramji
Jadhav, in his evidence admitted the nature of work in Item No.21
within the dead stock shed of bundling, re-bundling and staking.
Referring to the evidence of Seetaram Ramji Jadhav, he submits that
the work mentioned in Item No.21 is also to be executed in dead stock
shed. The work slip of Ex.P-35 2-B is the work slip issued for the dead
stock and the work slip Ex.P-7 is also with respect to dead stock and
hence, by producing these two documents, i.e. work slips as mentioned
above, prosecution proved that the appellant who is looking after the
work of Contractor prepared the work slip twice for one and the same
work. He contended that the prosecution examined A.D. Manikpuri
(PW7) who was working as Assistant Grade-I in the department during
that relevant period, who identified the signatures of appellant on the
disputed documents . The appellant was well aware while submitting the
document Ex.P-7 and others under Item No.21 that the work slip, work
summary and bills submitted by the appellant were forged. Submission
of learned counsel for the appellant that the prosecution failed to prove
submitting of forged work slip, work summary by the appellant by
producing cogent evidence is also not correct. Prosecution seized daily
diary as Article "A" and Article "B" in which, the work mentioned under
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Item No.21 is not mentioned as stated by M.R. C. Paniker (PW 10). He
did not find the same while conducting inquiry. Countering the
submission of learned counsel for the appellant, that private persons
cannot be convicted under Section 5 of the Act of 1947 is also not
correct. He submits that under Section 5 (3) of the Act of 1947 the word
use is "whoever" and, therefore ,even the person not under employment
but is found in conspiracy with other Govt. servant then the private
persons can also be convicted under Section 5 of the Act of 1947. Trial
Court framed charges against the appellant and other co-accused under
Section 120-B of IPC also along with other charges. Hence, learned trial
Court had not erred in convicting the appellant for offence under Section
5 (1) (d) of the Act of 1947 also. 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.
4. Shri Bhupendra Singh, learned counsel for the appellant would submit
that according to Manual produced as Ex.P-38 and admitted by the
prosecution witnesses, the employee has to maintain two registers i.e.
Work Done Register and Casual Labourer Register. Appellant was
issued work slip towards the casual labourers supplied by the
Contractor as per the contract agreement under Item No. 24 and further
the work slip issued in favour of the Contractor under Item No.21 was
for the work done, as mentioned in the agreement entered between the
parties. He contended that Ex.P-35 2B and other relevant work slip,
mentions the supply of causal labourers, dead stock for whole day,
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which means that the Contractor supplied casual labourers to FCI to
work at dead stock shed. There is no specification of any work other
than the supply of casual labourers mentioned in those work slip i.e.
Ex.P-35 2B. The work slip available on record as Ex.P-7 and others is
the work slip under Item No.21 which is with regard to the work specified
under the contract to be done by the Contractor for which rate is already
fixed i.e. under the rate contract. In subsequent work slip which is
alleged to be forged, all the work done is mentioned in detail. From bare
perusal of both the work slips, it cannot be said that both the work slips
are issued for one and the same work. He also submits that the
statement of witnesses relied upon by learned counsel for respondent to
say that daily diary is being maintained by the Shed In-charge is not the
official register or document or diary but the said document is
maintained in personal capacity for his memory and thereafter all the
work done is to be entered into the Work Done Register on the same
day and also the supply of number of casual labourers is to be entered
in the Casual Labourer Register on the same day by the Work Shed In-
charge. Prosecution has not seized the Work Done Register and
Casual Labourer Register to show that the work slip issued to the
Contractor and work slip and bills submitted by the Contractor was
against the work which he has not done. Unless and until it is proved
that the work slip, and work summary submitted by the appellant for the
work done to be not entered in work done register or casual labourer
register, it cannot be said that the appellant who is representative of the
Contractor had submitted the forged work summary or forged bills
based on the forged work slip issued to him by the department. In
absence of examination of dead stock shed In-charge, daily diary to be
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maintained by him, admitted by the witnesses also cannot be proved
more so when the Investigating Officer is also not examined before trial
Court. Basis to make allegation of forgery is the daily diary and the
same has not been proved in accordance with law. He also pointed out
that Praveen Kumar (PW8) an employee of department made statement
that payments have been made after proper inquiry which means after
verification from the Work Done Register and Casual Labourer Register.
No evidence is brought on record to prove charges against the
appellant. Finding recorded by learned trial Court is only based on
presumption and surmises without there being any admissible piece of
evidence in this regard. He submits that in view of evidence of Praveen
Kumar (PW8), there is no proof that there was any conspiracy between
the appellant who is representative of the Contractor with the official of
the FCI.
5. At this stage, learned counsel for the respondent submits that learned
trial Court recorded in para-39 of the judgment that the Investigating
Officer N.L. Khadse died in a road accident. Because of the prior death
of Investigating Officer, he was not examined before the trial Court.
6. Learned counsel for the appellant would submit that before submission
of inquiry report before the Court, the then Investigating Officer Late
N.L. Khadse died and after him one R.S.Shukla, DSP, was appointed as
Investigating Officer, who under his signature, submitted final report
before the trial Court and this Investigating Officer was also not
examined.
7. I have heard learned counsel for the parties and perused the record of
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the trial Court.
8. Perusal of the first charge framed against the appellant would show that
the appellant in between 14.07.1977 to 17.10.1981 at FCI depot Mandir
Hasaud, Raipur by deceiving FCI Raipur fraudulently and dishonestly
induced the department for payment of Rs.8423.80 on the basis of false
work slip prepared for Item No.21 and thereby committed an offence
punishable under Section 420 of IPC and the second charge is that
appellant in between 14.7.1977 to 17.10.1981 at FCI Depot Mandir
Hasaud, Raipur, entered into criminal conspiracy with Rawla Jadhav
and J.D. Mahadik to illegally and fraudulently get the amount of
Rs.8423.80 for the work which was not done by him as detailed in the
charge sheet and thereby committed an offence under Section 468 of
IPC, Section 5 (1) (d) of the Prevention of Corruption Act and offence
punishable under Section 120-B/468 of IPC and Section 5 (2) of the
Prevention of Corruption Act.
9. To prove the charges against the appellant, prosecution exhibited
documents from Ex.P-1 to Ex.P-100, produced daily diary as Article "A"
and examined as many as 15 witnesses namely S.S.C. Madan (PW1),
D.S. Ranade (PW2), B.M. Tejpal (PW3), K.P. Ramchandran (PW4), R.P.
Shukla (PW5), G.S. Nayak (PW6), A.D. Manikuri (PW7), Praveen
Kumar (PW8), K.K. Krishnan (PW9), M.R.C. Panikar (PW10), K.
Ramaswami (PW11), K.L. Arora (PW12), M.G. Agrawal (PW13),
Hariprakash Tahalyani (PW14) and K.K.S. Pillai (PW15). Statement of
appellant along with others accused persons were also recorded by the
trial Court. S.S.C Madan examined as PW1, was working as Zonal
Manager with FCI during the year 1984, who gave sanction for
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prosecution of one Rawla Jadhav, Assistant Manager in the department.
K.P. Ramchandran (PW4) (Assistant Manager, Accounts), in his
evidence, stated that during the period 1977 to 1981, he was working in
Mandir Hasaud FCI Depot, Shri Sabarmal Agrawal was HNT Contractor.
All the bills submitted by the Contractor were being certified by the
Assistant Manager and thereafter it is being sent to the higher office i.e.
District Food Corporation of India Office- Kampa. In his evidence, he
further stated about procedure of submitting and passing of bills which
passes through several tables and entries were also made in different
register. The work slip (Ex.P-7) is relating to Item No.21 which was
signed by G.D. Mahadik. Ex.P-4 payment of work under Item No.21 has
been made. This witness also stated the payment towards the bills
submitted has been made. Payments have been made at 208% above
the rate. The Tender issued by the FCI dated 8.5.1978 is marked as
Ex.P-101 proved by Tulsiram (PW2). Period of contract, as mentioned in
internal page No.15 under Clause -IX, is two years from 15.6.1978.
Part-II of the tender deals with the other services in which Item No.21
deals with "bundling, loading, unloading, transporting of empty gunnies"
and 24 deals with "supply of casual labourers" which are the two
different heads in the facts of the case. The name of work as appearing
in document Ex.P-101 is "appointment of loading/un-loading/handling
and transport contractors" at Food Corporation Godowns and
Railheads. The rates for each of the work is fixed.
10.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
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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 those registers 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
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. Document (Ex.P35-B-2) is document
relating supply of casual labourers whereas Ex.P-7 is the work slip
issued by the officer of department for work done by Contractor, relating
to the gunny bags work under the contract at different stock sheds.
Similarly, Ex.P7-A, Ex.P7-B, Ex.P-12, Ex.P-12A, Ex.P-12-B, Ex.P-17A
and others up to Ex.P-17J are work slips related to the work done by the
Contractor and not of the supply of casual labourers. Perusal of the
aforementioned documents would show that Ex.P-7 to Ex.P-17 including
Ex.P-5 is related to the work under the contract. The work slips Ex.P-
35 B1 up to Ex.P-35 B10, Ex.P36 B-1 up to Ex. B36 B-4, Ex.P36-B7,
Ex.P35 B9, Ex.P-37 B-1 up to Ex.P-37 B8, Ex.P-37 B10, Ex.P37 B11,
Ex.P-38 B1 up to Ex.P-38 B3, Ex.P-38 B-5 up to Ex.P-38 B9 etc. are
the work slips of supply of labourers under Item No.24. A.D. Manikpuri
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(PW-7) stated in his evidence that he identifies signature and writing of
Kailash Agrawal because he also used to supply the work slip and
Kailash used to sign on the receipt. In his evidence(para-10), he further
stated that work slip is prepared by the FCI employees in which the
particulates of work executed by the Contractor is mentioned and based
on the work slip, Contractor submits the bills. Praveen Kumar (PW8) in
para-7 of his evidence stated that Item No.21 and Item No.24 are bills of
two separate/different work. Shed In-charge prepares and maintains the
daily diary. Based on daily diary work slip is to be issued. He further
admitted that there is no procedure to keep daily diary. R.C. Paniker
(PW10) (retired Assistant Manager) in para-11 stated that daily diary is
to be prepared by Shed In-charge. He cannot say that daily diary
prepared is, by which employee. He verified the daily diary but his
signature is not there. He prepared the inquiry report but that is not
placed in this case and admitted that report was not shown to him
during his examination before the Court. He also admitted that he is not
in a position to state that the Article produced in the Court as Article "A"
and Article "B" diary and the work slips available in the case is the same
which he inquired and verified during inquiry. In cross-examination, this
witness stated that it is not in his memory that during inquiry he looked
into the Work Done Register and Casual Labourer Register, further
admitted that he gave evidence only on the basis of daily diary and work
slip available in the case. K.K.S. Pillai (PW15) the then Assistant
Manager in his evidence stated that in FCI Mandir Hasaud, Work Done
Register is also prepared in which it is mentioned as to what work the
Contractor has done. He in para-5 of the evidence stated that he also
shown the Work Done Register and Casual Labourers Register to
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Panikar and Venkatraman. Hariprakash Tahalyani (PW14) the then
Assistant Grade-II in his evidence stated that all over India in the offices
of FCI, Work Done Register is prepared and in that register Item-wise
work done is entered. K.K.S. Pillai (PW15) in para-3 of his evidence
admitted that in accordance with FCI manual, there is no provision for
maintaining daily diary.
11. From the aforementioned evidence of prosecution witnesses, it is
apparent that the witnesses in categorical terms made statement that in
FCI, the Work Done Register and Casual Labourer Register are being
maintained as per FCI Manual and there is no provision under the FCI
Manual to maintain daily diary. One of the witness in his evidence stated
that the daily diary is prepared by the Godown In-charge for his memory.
Learned trial Court has also taken note, that there is no mention in FCI
Manual of preparing of daily diary. Therefore, the authentic
register/record for entering the entries of the work done Item-wise is
Work Done Register and further, separate register is maintained as
Casual Labourer Register for keeping the record of the labourers
supplied. Person/Shed In-charge who prepared the daily diary Article "A"
was not examined before trial Court and the witness M.R.C. Paanikar
(PW10) stated that he cannot say that daily diary inspected by him is
one and the same as shown to him in the Court (para-14). In absence of
examination of the Shed In-charge before the Court, it cannot be proved
that the daily diary seized and marked as Article "A" and Article "B" is the
same daily diary maintained by the Shed In-charge, 'dead stock'. Entire
case is based on entries made in daily diary, it is not the record
maintained as per Manual but for convenience of the shed In-charge.
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The daily diary is not a record to maintain mandatorily as per norms of
Manual and therefore, it cannot be treated as authentic record. One of
the important lacuna of the case is that the Shed In-charge who stated
to have prepared daily diary and made entries was not examined, and
therefore the appellant was deprived of his right to cross-examine the
material witness.
12.Learned trial Court in para-66 of the judgment, has recorded finding
that appellant and co-accused Late Satyanarayan Agrawal have
produced bill (Ex.P-4) with regard to "dead stock" and earlier also, bills
Ex.P-41, Ex.P-42, Ex.P-40, Ex.P-26 and Ex.P-43 and work slips
No.7503, 7512 were produced with regard to "dead stock" and for the
same work, the work slip No.252 (Ex.P-7) and work slip No.8442 (Ex.P-
7B), work slip No.8432 (Ex.P-7A), work slip No.8441 (Ex.P-12) and work
slip No.8431 (Ex.P-17) were produced. Trial Court further recorded in
para-67 of the judgment that it is proved by the prosecution that the bills
submitted mentioning the work under Item No.24, was again submitted
mentioning Item No.21 for the same work. Taking into consideration the
judgment of Hon'ble Supreme Court in case of Bakhshish Singh
Dhaliwal vs The State Of Punjab (AIR 1967 SC 752) and Sunil
Kumar Paul Vs. State of West Bengal (AIR 1965 SC 706), finding
has been recorded that the appellant committed the offence of cheating.
Learned trial Court further considered in para-69 of its judgment that the
Assistant Manager (Depot) has to verify before certifying and forwarding
the bills from the work slip and work done register and it is clear from
the evidence of witnesses Seetaram Ramji Jadhav and Rawla Jadhav
that it is also to be seen whether the work for which the work slip is
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issued is entered into the Work Done Register or not but no such inquiry
was done. As discussed above, to prove that the appellant based on the
work slip issued by the official of the department has prepared summary
and submitted for payment and accepted amount for one and the same
work twice, it is for the prosecution to prove beyond all reasonable doubt
that the appellant claimed twice for one and the same work and
withdrawn amount twice. Perusal of the document as referred to above
in para -66 of the judgment of the trial Court would show that work slips
issued under Item No.24 only mentioned about the deployment of
casual labourers. There is no specification of the work done.
13.The work slips issued under Item No.21 mentions the details of the work
specifically. Even if it is considered that the work slip produced under
Item No.24 and 21 is of the same date and period, then also, in view of
the contract given to Late Sabarmal Agrawal (Contractor) under the
tender (Ex.P-101), the Contractor has to discharge the work under the
different items. Work Done Register is not produced as evidence, which
is essential and offical register wherein the entire work done by the
Contractor is being entered by the official of FCI. The consideration of
learned trial Court in para-71 of its judgment of some recovery from the
Contractor, in absence of specific evidence to be brought on record that
the recovery is on account of submission of claim by the Contractor
through appellant, is against withdrawal of amount twice for one and the
same work, is not sustainable. The evidence of the official only shows
some recovery of excess payment. In the evidence, it has come that
amount for work claims 208% above. The law enunciated in the
judgment relied upon by learned trial Court will apply to the facts of case
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only when the prosecution proves beyond reasonable doubt that the
appellant claimed twice by preparing the work slips summary and bills in
connivance with the official of the FCI. It is settled law that in criminal
cases, to prove the charges levelled against any of the accused person,
it is for the prosecution to prove the charges beyond all reasonable
doubt. Suspicion, howsoever grave, cannot take place of the proof.
14.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
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some incriminating circumstances, which might
have given support to merely defective evidence
cannot avert a failure of the prosecution case."
15. 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."
16.If in the light of aforementioned decisions of Hon'ble Supreme Court,
facts of the case at hand is tested, would show that case of the
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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 submitted the work
slips and bills as also withdrawn amount twice. Upon audit objection, an
inquiry was conducted by MRC Panikar (PW10). 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 and convenience of Shed
In-charge and is not an offcial record. He verified the diary of Shed
-Dead Stock but did not find the entry for which the work slip is
submitted by the appellant and prepared report. The Inquiry Report is
not part of the record as admitted by witnesses. He also admitted that
he gave statement/evidence based on daily diary and work slip available
in Court record.. He also made statement that he cannot say that 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. There
is also evidence available on record to show that work done register is
maintained to enter work done 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 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. This fact is discussed by the trial Court
in para 50 to 51 of the impugned judgment. The entire case of
prosecution is made to stand on the superstructure of inquiry conducted
-19
by the officials before registration of case and entry made in the daily
diary i.e. Article "A" . Prosecution failed to prove beyond reasonable
doubt that diary inspected by the Inquiry Officer (PW10) during the
course of inquiry is one and the same which is produced before the
Court and further that daily diary produced is one and the same
prepared by Shed In-charge of dead stock shed. Author of the daily
diary is not examined before the Court.
17.In aforementioned facts and evidence, I am of the view that prosecution
failed to prove the charge that the appellant prepared the work slip for
one and the same work and withdrawn the amount twice , more so in
view of entries made in the disputed work slips under Item No.24 and
Item No.21. This Court is of the view that prosecution failed to prove
charges levelled against the appellant beyond reasonable doubt.
18.For the foregoing reasons, finding recorded by learned trial Court
convicting the appellant for offence under Sections 420, 468-120-B of
IPC, Section 5 (1) (d) / 5 (2) of the Act of 1947 read with Section 120-B
of IPC are not sustainable. Accordingly, the judgment and conviction are
set aside.
19.Appeal is allowed. Appellant is acquitted from the charges levelled
against him. Appellant is on bail, his bail bonds are discharged.
Sd/-/-/--
(Parth Prateem Sahu)
Judge
Praveen
