[Cites 19, Cited by 0]
Chattisgarh High Court
M. R. Malik (Died) Through Lrs vs State Of Chhattisgarh on 30 March, 2026
1
2026:CGHC:14691
AFR
RAHUL
HIGH COURT OF CHHATTISGARH AT BILASPUR
JHA Judgment Reserved on 19/03/2026
Digitally signed
by RAHUL JHA
Date: 2026.03.30
13:28:08 +0530
Judgment Delivered on 30/03/2026
CRA No. 130 of 2002
1 - M. R. Malik (Dead) Through LRs.
1.1 - (A) Smt. Shyamali Mallik W/o Late Shri M.R. Mallik Aged About 72
Years R/o Mahendra Karma Ward No. 42, Jagdalpur, District Bastar,
Chhattisgarh.
1.2 - (B) Miran Mallik S/o Late Shri M.R. Mallik Aged About 54 Years R/o
Mahendra Karma Ward No. 42, Jagdalpur, District Bastar, Chhattisgarh.
1.3 - (C) Smt. Kakoli Gondli D/o Late M.R. Mallik Aged About 52 Years W/o
Shri Amresh Gondli, R/o Ayodhya Bypass, Eco Green City, House No. 118,
Opposite International School, Bhopal, Madhya Pradesh.
1.4 - (D) Smt. Konika Ray D/o Late M.R. Mallik Aged About 50 Years W/o
Sanjay Kumar Ray, R/o F-6, Dubey Colony, Near Sai Mandir, Mova Raipur,
District Raipur, Chhattisgarh.
2 - B. S. Mourya (Dead) Through LRs.
2.1 - (A) Shravan Mourya S/o B.S. Mourya, Aged About 29 Years R/o Deng
Para, Barda, Jagdalpur, District- Bastar (C.G.)
3 - T. K. C. Bose (Dead) Through LRs.
3.1 - (A) Smt. A. Bose W/o Late Shri T.K.C. Bose, Aged About 79 Years R/o
House No. 400, Vrindavan Colony, Jagdalpur, District Bastar (C.G.)
3.2 - (B) Anil Kumar Bose S/o Late Shri T.K.C. Bose, Aged About 53 Years
R/o House No. 547, Street 6/b, Shanti Nagar, Vaishali Nagar, Supela, Bhilai,
District Durg (C.G.)
3.3 - (C) Anita G. Nair W/o Shri G.Nair, Aged About 54 Years R/o House No.
400, Vrindavan Colony, Jagdalpur, District Bastar (C.G.)
2
3.4 - (D) Smt. Anita Menon W/o Shri Rajesh Menon, Aged About 47 Years R/o
House No. 400, Vrindavan Colony, Jagdalpur, District Bastar (C.G.)
4 - K.R.C. Pille (Dead) Through LRs.
4.1 - (A) Prema Kumari W/o Late Shri K.R.C. Pillai Aged About 63 Years R/o
Manakku Kizhakkethil, Niranam Vadakkumbhagom P. O. Thriuvalla,
Kadapara, Pathanamthitta, Kerala.
4.2 - (B) Manjush Chandran S/o Late Shri K. R. C. Pillai Aged About 40 Years
R/o Manakku Kizhakkethil, Niranam Vadakkumbhagom P. O. Thriuvalla,
Kadapara, Pathanamthitta, Kerala.
4.3 - (C) Mahesh Chandran S/o Late Shri K. R. C. Pillai Aged About 37 Years
R/o Manakku Kizhakkethil, Niranam Vadakkumbhagom P. O. Thriuvalla,
Kadapara, Pathanamthitta, Kerala.
4.4 - (D) Lakshmi C W/o Arun Kumar R Aged About 36 Years D/o Late Shri
K.R.C. Pillai, R/o Aykanadathu House, Nalkalikkal, P.O. Aranmula,
Kidangannur, Aranmula, Pathanathitta, Kerala.
5 - P. L. Billare S/o Bhaiyalal Billare Aged About 45 Years Accountant, Office
Of The Chief Medical Officer, Kanker, District Kanker Chhattisgarh
6 - G. R. Sambhalkar (dead)
7 - C. Banerjee S/o Mukund Lal Banerjee, Head Clerk, T. B. Hospital
Shayiband, Raipur Chhattisgarh
8 - M. P. Pandey S/o Late D. P. Pandey Aged About 47 Years Upper Division
Clerk, Office Of The Leprosy Unit Bastar, Jagdalpur Chhattisgarh
9 - S. R. Dewangan S/o Chandu Ram Dewangan Aged About 44 Years
Accountant, Office Of The Chief Medical Officer, Jagdalpur Chhattisgarh
.Appellant(s)
Versus
State Of Chhattisgarh Through Special Police Establishment, Lokayukt Bhopal
M. P.
Respondent(s)
(Cause-title taken from Case Information System)
For Appellant(s) : Mr. Prafull N. Bharat, Senior Advocate along with
Mr. Keshav Dewangan, Mr. Vikash A. Shrivastava
and Mr. Alok Kumar Dewangan, Advocates
For Respondent(s) : Mr. Anand Gupta, Dy. GA
Hon'ble Shri Bibhu Datta Guru, Judge
C A V Judgment
The present appeal is directed against the judgment of conviction and order of
sentence dated 28/01/2002 passed by the learned Additional Sessions Judge &
Special Judge (under Section 3 of the Prevention of Corruption Act, 1988),
Jagdalpur, District Bastar (C.G.) in Special Case No. 4/1994, whereby the
appellants have been convicted and sentenced as under:-
Conviction Sentence
Section 420 of the I.P.C read with
Two years rigorous imprisonment
Section 120 B of the IPC and fine of Rs. 1000/- with default
stipulation.
Section 467 of the IPC read with Two years rigorous imprisonment
and fine of Rs. 1000/- with default
Section 120 B of the IPC
stipulation.
Section 468 of the IPC read with Two years rigorous imprisonment
and fine of Rs. 1000/- with default
Section 120 B of the IPC
stipulation.
Section 471 of the IPC read with
Two years rigorous imprisonment
Section 120 B of the IPC and fine of Rs. 1000/- with default
stipulation.
Section 13(1)(d) of the Prevention of
Two years rigorous imprisonment
Corruption Act. and fine of Rs. 1000/- with default
stipulation.
The sentences were directed to run concurrently.
1. In the trial there were ten accused. The present appeal has been preferred
by the accused No.2 to 10 whereas accused No.1 Dr. R.K. Sen, the then CMHO
(Chief Medical & Health Officer) has not preferred any appeal against his
conviction. However, from the material available on record, this Court learnt
that he died on 6.9.2003.
2. It is pertinent to note that during the pendency of the proceedings,
accused No. 2 M.R. Malik, accused No. 3 B.S. Morya, accused No. 4 T.K.C.
Bose and accused No. 5 K.R.C. Pille (appellants No.1 to 4) expired and are
now represented through their legal representatives. Accused No. 7 G.R.
Sambhalkar (appellant No.6) has also expired; the appeal in his respect stands
abated vide order dated 15.09.2021. Accused No.6, 8, 9 and 10 (appellants
No.5, 7, 8 and 9) are alive.
3. The present case arises out of allegations that the accused persons, during
the period from July 1979 to May 1985, while being posted as public servants
in the office of the District Family Welfare and Health Department, Jagdalpur,
District Bastar, entered into a criminal conspiracy and, in furtherance thereof,
committed offences punishable under Sections 120B, 420, 409, 467, 468 and
471 read with Section 34 of the Indian Penal Code, 1860, as well as under the
provisions of the Prevention of Corruption Act, 1988.
Case of the prosecution :
4. The prosecution case is that Dr. R.K. Sen (died) (A1) was posted as Chief
Medical and Health Officer in Jagdalpur, District Bastar. During his tenure, the
co-accused M.R. Malik (Cashier) (A2), B.S. Morya (Accountant) (A3), T.K.C.
Bose (Accountant) (A4), K.R.C. Pille (Accountant) (A5), P.J. Billare
(Accountant) (A6). G.R. Sambhalkar (Accountant) (A7), C. Banerjee (Head
Clerk) (A8), M.C. Pande (Upper Division Clerk) (A9) & S.R. Dewangan
(Accountant) (A10) were working in the office of CMHO or between July 1979
and May 1985 under the supervision of A1. It is further alleged that three
sweepers namely; Jaysingh, Lalmani, and Mayaram were appointed at different
primary health centres on a temporary basis. However, instead of posting them
at their designated places of work, A1 engaged them as domestic servants at his
residence from July 1979 for about one year. Thereafter, all three sweepers left
the job. It is the case of the prosecution that despite their departure, A1 in
conspiracy with the other accused persons (A2 to A10), continued to prepare
false salary bills in their names from July 1979 until May 1985 and
fraudulently withdrew their salaries from the office. It is further alleged that
forged thumb impressions of the said sweepers were affixed on the salary bills,
even though they were literate and capable of signing. In this manner, the
accused persons, by entering into a criminal conspiracy, fraudulently withdrew
a total amount of Rs. 42,040.35 in the names of the said sweepers without any
actual work being performed, thereby committing criminal acts and
misappropriating government funds.
5. Upon completion of investigation and after obtaining requisite sanction
for prosecution, the charge-sheet was filed before the competent court. The
learned Special Judge framed charges against the accused persons under the
aforesaid provisions, to which they pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution examined as many as 29
witnesses. After closure of prosecution evidence, the statements of the accused
persons were recorded under Section 313 of the Code of Criminal Procedure,
wherein they denied the allegations and pleaded their innocence, however, did
not lead any defence evidence.
7. The learned trial Court after appreciating the oral and documentary
evidence available on record proceeded to convict the appellants herein for the
aforementioned offence and sentenced them as mentioned herein-above against
which this appeal has been preferred by the appellants herein questioning the
impugned judgment of conviction and order of sentence.
Contentions of the parties :
8. (i) Learned senior counsel appearing for the appellants/A2 to A10
would submit that the conviction of the appellants under Sections 420, 467,
468, 471 read with Section 120-B IPC and Section 13(1)(d) of the Prevention
of Corruption Act is wholly unsustainable in law and on facts, as the
prosecution has failed to establish the essential ingredients of the alleged
offences. For an offence of forgery under Sections 467, 468 and 471 IPC, it is
incumbent upon the prosecution to prove the creation of a false document
within the meaning of Section 463 IPC with intent to cause damage or injury
and its use as genuine; however, there is no evidence on record to show that the
appellants either prepared or forged any document, and in the absence of such
foundational proof, the question of using any forged document does not arise.
Likewise, the offence under Section 420 IPC is not made out, as there is no
material to establish deception or inducement by the appellants leading to
delivery of property.
(ii) Learned senior counsel would further submit that the charge under
Section 13(1)(d) of the Prevention of Corruption Act also fails, as there is no
evidence to show that the appellants obtained any pecuniary advantage for
themselves or for any other person by corrupt or illegal means or by abusing
their official position. The prosecution case stands completely demolished by
its own witnesses, who have categorically admitted that all entries and
withdrawals were duly certified and countersigned by A1 the competent
authority, and that the appellants, being subordinate officials, merely acted
under his directions without any independent role. It has also come on record
that the contingency registers and relevant accounts were prepared by other
officials, particularly PW-18 Pradeep Kumar Banik, and not by the appellants;
that the alleged beneficiaries have not furnished any specific or reliable
evidence regarding the period of employment or receipt of salary; that for
certain periods no salary was withdrawn at all, thereby falsifying the
prosecution case; and that the material documents relied upon are merely
carbon copies, without production of originals, rendering them legally
inadmissible.
(iii) According to the learned counsel, even the Investigating Officer has
admitted that the appellants were bound to follow the directions of A1 and
there is no evidence of any independent culpable intent on their part.
Furthermore, the charge of criminal conspiracy under Section 120-B IPC is not
made out, as there is no evidence of any agreement or meeting of minds
between the appellants and the co-accused to commit any illegal act, and mere
compliance with official instructions cannot constitute conspiracy. In view of
the settled legal position that bald allegations are insufficient, that discharge of
official duty does not constitute criminal liability in the absence of mens rea,
and that conspiracy and criminal misconduct must be proved by cogent and
reliable evidence, it is evident that the prosecution has failed to prove its case
beyond reasonable doubt, and the conviction of the appellants, being based on
conjectures and surmises, is liable to be set aside.
(iv) Learned Senior Counsel appearing for the appellants would next submit
that the allegations against the appellants are based on bald and omnibus
statements. It is contended that no specific role has been attributed to these
appellants in the alleged conspiracy and, therefore, the proceedings against
them ought not to have been sustained. It is further submitted that unless there
is cogent evidence linking these accused persons with the alleged conspiracy to
cause loss to the public exchequer, they cannot be prosecuted; however, no
such tangible material is available on record in the present case. Learned Senior
Counsel also submits that the trial Court has failed to consider the material
evidence essential for proving the alleged offences against the appellants and
has recorded the conviction without any clear and specific findings regarding
their role in the commission of the offence, thereby rendering the impugned
judgment unsustainable in the eyes of law.
(v) Learned counsel further submits that the allegation against the accused
persons under Section 13(1)(d) of the Prevention of Corruption Act pertains to
committing criminal misconduct by abusing their position as public servants to
obtain pecuniary advantage. It is contended that no evidence has been adduced
to establish what pecuniary advantage, if any, was obtained by the accused
persons. Therefore, the essential ingredients required to attract the said
provision have not been proved, and the conviction under the said Section is
not sustainable in law. In support of his contention, learned senior counsel
would place reliance upon the decisions rendered by the Supreme Court in the
matters of A. Sivaprakash v. State of Kerala, reported in (2016) 12 SCC 273,
C.K. Jaffer Sharief v. State (through CBI), reported in (2013) 1 SCC 205, S.
Arul Raja v. State of Tamil Nadu, reported in (2010) 8 SCC 233, Surendra
Kumar and Anr. V. State of U.P., reported in AIR OnLine 2021 SC 238,
Surendra Nath Pandey v. State of Bihar and Anr., reported in (2020) 18
SCC 730 & Sharanappa v. State of Karnataka, reported in (2018) 17 SCC 88.
9. While supporting the impugned judgment learned counsel for the State
would submit that the learned trial Court has rightly appreciated the evidence
on record. It is contended that the material on record sufficiently establishes
that the appellants, in furtherance of a criminal conspiracy, facilitated
preparation of false bills and withdrawal of government funds, thereby causing
loss to the State exchequer. It is thus submitted that the conviction does not call
for any interference.
10. I have heard learned counsel for the parties at length perused the material
available on record.
Analysis :
11. The primary question that arises for consideration in the present appeal
is - whether the prosecution has been able to prove beyond reasonable doubt
that the appellants, in furtherance of a criminal conspiracy, committed offences
punishable under Sections 420, 467, 468, 471 read with Section 120-B IPC and
Section 13(1)(d) of the Prevention of Corruption Act ?
12. Before adverting to the evidence on record, it is necessary to briefly
notice the essential ingredients of the offences alleged. To establish offences
under Sections 467, 468 and 471 IPC, the prosecution must prove the creation
of a false document and its use as genuine. Similarly, for Section 420 IPC,
deception and inducement are sine qua non. For Section 120-B IPC, there must
be evidence of an agreement to commit an illegal act, and under Section 13(1)
(d) of the Prevention of Corruption Act, it must be shown that the accused
obtained pecuniary advantage by corrupt or illegal means or by abusing their
position.
13. PW-17, Laxmi Dodke (Accountant) in the office of CMHO, Jagdalpur,
has deposed that she had been working in the office at Jagdalpur since the year
1973, initially on a lower division post and was subsequently promoted to the
post of Upper Division Clerk and thereafter to the post of Accountant. She
stated that during the relevant period, Dr. R.K. Sen was posted as Chief
Medical and Health Officer. She further deposed that after the merger of the
District Family Welfare Office and the Chief Medical and Health Office, she
continued to handle cash-related work. She stated that one Pradeep Banik (PW-
18), who was working in the department, used to collect salary amounts and
bills of certain employees, namely Jai Singh, Mayaram and Lalmani, on the
pretext of delivering the same to the Chief Medical Officer. She deposed that
on one occasion, she handed over the salary bills and cash pertaining to the said
employees to Pradeep Banik, who returned the bills on the following day
bearing signatures of the concerned employees. She further stated that on
subsequent occasions also, Pradeep Banik demanded the salary amounts of the
said employees, but she objected and insisted that the employees should
personally come to the office to receive their salary. However, she was called
by Dr. Sen to his chamber, who directed her to hand over the salary bills and
amounts, assuring that the same would be delivered to the concerned
employees. She stated that, though she was not in agreement with such a
practice, she did not raise further objection and handed over the salary and bills
accordingly. She further deposed that despite her insistence, the said employees
did not come to collect their salaries personally and that she later came to know
that they were not attending office duties. She stated that even thereafter, salary
amounts continued to be drawn in their names. She also deposed that she was
not responsible for preparation of salary bills, which were prepared by the
accounts section, though the disbursement of salary was made through her. She
stated that she could not recall the bill numbers due to lapse of time. She
further stated that Dr. Sen had informed her that the said employees were
working at his residence and Pradeep Banik had also conveyed the same to her.
She admitted that there was no departmental order permitting disbursement of
salary outside the office, and that she had handed over the amounts only on the
instructions of Dr. Sen. She also stated that she had raised objections regarding
such payment but did not lodge any formal complaint with higher authorities.
She further deposed that during the Lokayukta enquiry, her statement was
recorded and she had submitted her explanation through the Chief Medical
Officer. In her cross-examination, she admitted that she had not independently
verified whether the said employees were actually working and that she had
acted on the directions of her superior officers. This witness further deposed
that she does not know as to on which date A1 was posted as CMHO at
Jagdalpur. She further deposed that in the year 1984, Dr. P. Agrawal, Surgeon,
had issued orders regarding the procedure for withdrawal and disbursement of
bills in the office. She further deposed that she had knowledge of only one
person, namely Santosh, who was working under the said doctor and who used
to visit the office every month to collect his salary. She further deposed that as
per the orders of A1, other persons used to prepare bills, and on the basis of
such bills, she used to decide whether payment was to be made to the three
employees or not. She further deposed that unless any information was
received to the effect that a particular employee was not working, the bills used
to be typed under her directions in accordance with the prescribed procedure.
14. PW-18, Pradeep Kumar Banik (PW-18), Lower Division Clerk in the
office of the CMHO, Jagdalpur, has deposed that he knew the accused persons
as well as the concerned employees, namely Jai Singh, Laxman and Mayaram.
He stated that he was working as an Assistant to PW-17, Laxmi Dodke, who
was discharging cashier duties. He further deposed that on the instructions of
A1, Dr. R.K. Sen, he collected the salary amounts and bills pertaining to the
said three employees for the months of August and September and handed over
the same to Dr. Sen. He stated that on the following day, Dr. Sen returned the
bills to him, which, he, in turn, handed back to PW-17, Laxmi Dodke. He
further stated that PW-17 had objected that the concerned employees should
personally come and receive their salary, as was the usual practice in the office.
Thereafter, according to him, the payment of salary to the said employees was
discontinued. He has deposed that he prepared the entries after perusing the
bills contained at pages 1 to 69 of the Contingency Payment Register (Ex.P-33)
and further stated that on the said register, he obtained the counter-signatures of
Dr. Sen. He further deposed that he was initially appointed as a cook and was
later promoted to the post of Lower Division Clerk on 02.04.1985. Prior to his
promotion, he was working as a cook at Maharani Hospital, Jagdalpur, and
from the year 1983, he was entrusted with making entries in the salary/payment
register of the District Family Welfare Office on the basis of bills. He clarified
that he used to enter only the name of the payee and the amount payable as per
the bills, and that the actual disbursement of salary and obtaining of signatures
on revenue stamps were carried out by the cashier, namely PW-17, Laxmi
Dodke. He denied that he ever made payments personally or obtained
signatures from the employees. He further admitted that in respect of the month
of September, 1984, the payment register did not reflect the dates of payment,
although such dates were mentioned in the bills. He also stated that the
payment register was required to be separately maintained due to audit
objections, and that in the said register, all relevant columns were to be duly
filled. He further admitted that the payment register for the said period did not
bear the signatures of the Drawing and Disbursing Officer. He further deposed
that his statement was recorded by the Lokayukt Police, though he was unable
to recall the exact date and stated that his statement was recorded only once. He
further stated that the statement was recorded by the police on the basis of
records and not by him, and that his signatures were not obtained on the said
statement. He denied having been called upon to furnish any explanation in the
matter. He reiterated that he was working under oral instructions of Dr. Sen
while assisting the cashier and making entries in the register. He further
deposed that prior to his appointment, he had come to Jagdalpur from West
Bengal and was appointed without any formal advertisement by Dr. R.K. Sen.
He denied the suggestion that he had made any false statement before the
Lokayukt for securing his employment.
In his cross-examination, he admitted that he could not state whether the
concerned employees continued to work with Dr. Sen till the stoppage of their
salary, however, he categorically stated that except Dr. Sen, none of the other
accused persons had any role in the withdrawal or payment of salary to the said
employees, and that the salary was withdrawn on the instructions of Dr. Sen,
while other officials performed their duties in accordance with their respective
postings.
15. PW-22, Jai Singh, Cook deposed that he has been working at Maharani
Hospital, Jagdalpur since the year 1983 and is educated up to Class VIII. He
stated that, at the relevant time, he was drawing a salary of Rs. 315/- approx.
per month. He further deposed that whenever his salary was disbursed, he used
to sign and receive the same and had never received any payment by affixing
his thumb impression. He also stated that he was not appointed to any other
post. In his cross-examination, he stated that after his appointment, he regularly
received his salary every month upon signing the payment register and that no
part of his salary was ever withheld.
16. PW-8, Jai Singh, deposed that he knew Dr. R.K. Sen and had performed
tasks such as wood handling, stitching books, and other related work under his
direction. He stated that he was brought to Dr. Sen by Maya Ram, where
discussions regarding the scope of work took place with Dr. Sen's wife. He was
assured by Dr. Sen's wife a salary of Rs.150/- per month. He worked at Dr.
Sen's residence for about two months and received the agreed salary.
Thereafter, he discontinued working at Dr. Sen's residence. He stated that he
had studied up to Class III and knew how to sign his name. This witness further
deposed that while he was employed, two other temporary workers, Lal Meen
and Mayaram, were also engaged in similar work at Dr. Sen's residence.
17. PW-19, Laxman Pandey, Ward Boy, deposed that he knew all the accused
persons, who were officials in the Health Department. He stated that he was
appointed in the Health Department in 1974. He further deposed that in 1974,
he had worked at the bungalow of the Chief Medical Officer, and thereafter
served under the Additional Civil Surgeon before returning to work at
Maharani Hospital. He deposed that he initially received a salary of Rs. 140/-
per month, which increased over time in accordance with departmental
provisions. He further deposed that he regularly received departmental
allowances and his salary by signing the payment register and that he never
received any payment by affixing his thumb impression. In cross-examination,
he deposed that he had never received his salary by affixing his thumb
impression in the office payment register, that his appointment in the Health
Department, Jagdalpur, was in 1974 at the clerical level, and that he had been
continuously serving in the department since then. He further deposed that Dr.
R.K. Sen had never personally disbursed his salary or authorized his payments.
18. PW-21, Laxman, Ward Boy in Ayurved Hospital deposed that he knew
the accused persons, who were officials in the Health Department. He stated
that he was appointed in 1983 at Health Department, where he initially
received a salary of Rs. 155/- per month, which he received from the CMHO
office. He further deposed that he studied up to Class V and knew how to sign
his name. He stated that he personally received his salary and never relied on
anyone else for the same. He deposed that in 1983, he had also worked at Dr.
Sen's bungalow, where he, along with Sukh Singh and Naresh Kashyap,
performed household work as directed by A1. In cross-examination, he deposed
that he has personally received his salary and that Dr. Sen never personally
handed over his salary to him.
19. PW-26, Lalman Pandey, deposed that he had worked at Maharani
Hospital for about 20-22 years. He stated that his first appointment was as a
sweeper. He further deposed that he knew how to sign his name and that he
always received his salary by signing the respective salary bills. He clarified
that he had never received any payment by affixing his thumb impression. In
cross-examination, he deposed that Shri Gopal Pandey, who was working as a
subordinate officer in the Health Department, had facilitated his employment.
He stated that he could not provide details of the work performed by other
employees, namely Lalman, Laxman, and Jai Singh, in the department. He
further deposed that from the time of his appointment until retirement, he
personally received his salary every month, and no one else ever received it on
his behalf. He reiterated that he had never received any salary for himself or on
behalf of anyone else by affixing a thumb impression.
20. PW-7, Lalmani, deposed that he knew the accused Dr. R.K. Sen. He
stated that he was brought from Kalipur to work at Dr. Sen's residence. At that
place, he was instructed by Dr. Sen's wife regarding the work to be performed.
He further deposed that he agreed to work and was promised a monthly salary
of Rs. 150/- for his services. He worked there for about one year and received
the agreed salary. He stated that he had studied up to Class VII and knew how
to sign his name. He further deposed that the work caused him difficulty, and
he fell ill, after which he left the place and returned home. He also stated that
he performed porter duties there and continued to perform such duties
subsequently.
In cross-examination, he deposed that he was brought from his home to
Jagdalpur Rest House, where his statement was recorded by a senior officer in
civilian clothes. He further deposed that his statement was taken on a blank
sheet, after which his signatures were obtained on both sides of the paper, and
he was then sent back home in a jeep. He confirmed that he had worked at Dr.
Sen's bungalow in Lalbagh as a domestic worker and that his engagement was
supervised by Dr. Sen's wife, who paid him Rs. 150/- per month. He further
deposed that due to severe illness, he had to leave the work and return home.
21. PW29, M.C. Sharma deposed that at the relevant time he was posted as
an Inspector in the Lokayukta Office and was working under Superintendent of
Police, Madangopal Pandey. In the year 1985, he was assigned the
investigation of the case relating to Dr. R.K. Sen and others, and he conducted
the investigation under the directions of his superior officer. He stated that, as
per instructions, he summoned officials of the Health Department, including
accountants and other staff, to the Jagdalpur Rest House and, based on the
information provided by them, prepared a panchnama regarding the sweepers
Jai Singh, Mayaram and Lalmani (Exhibit P-40), bearing his signatures. During
investigation, he seized documents (Exhibit P-2, documents 1 to 18) from
Yamuneshwar Pandey (Accountant) and other officials in the presence of
witnesses and prepared a seizure memo. He further stated that the documents
were later returned on Supurdnama (Exhibit P-3). He referred to entries in the
cash book (Exhibit P-43), particularly page 71 and other pages (Exhibits P-44,
P-45, P-46, P-47), which contained entries relating to payment of salary to the
said sweepers. He recorded the statements of several persons, including Jai
Singh (resident of Kodekursi), who stated that he had worked for about three
years and received salary for the said period. He also recorded statements of
various persons namely; Laxman son of Dukaru, Dhurwa village Pushval,
Laxman s/o Vasudev Pandey R/o Karitgao, Laxman S/o Sukhram Mahra, and
Laxman S/o Jagannath Mahra. Laxman son of Dukaru, stated that he had
worked as a sweeper at a Primary Health Centre for about two months and
received salary for the same. Laxman Pandey stated that he was working at the
residence of the District Health Officer and was receiving salary, and continued
to be in service at the time his statement was recorded. Laxman, son of
Sukhram Mahra, stated that he worked as a ward boy at Maharani Hospital
during 1983-84 and was still in service at the relevant time. Laxman son of
Jagannath Mahra, stated that Mayaram had worked under the District Health
Officer at Jagdalpur. Jai Singh further stated that he had been working as a
gardener at Maharani Hospital for about 30 years and had been receiving salary
regularly. Another witness, Vasudev Thakur, stated that Jai Singh was posted
as a sweeper at a Primary Health Centre and produced a bill relating to
payment. This witness further deposed that Mayaram, son of Ramanand,
resident of village Kalipur, stated in his statement that he had worked at the
residence of Dr. R.K. Sen and had received salary for about 11 months. The
witness further referred to the contingency payment register (Article A-2) and
stated that on page 1, a person named Laxman had signed in the relevant
column indicating receipt of salary in the capacity of a ward boy, and similar
signatures were found on page 3. He further stated that on page 1 itself, a
person named Laxman (Sweeper) had affixed his thumb impression in token of
receipt of salary. On page 14, in the relevant portion, Lalman (Sweeper) had
signed on behalf of Laxman and received payment, below which Laxman
Pandey had signed for receipt of his salary, and further below, Laxman
(Sweeper) had affixed his thumb impression. On page 16, Laxman (Sweeper)
had affixed his thumb impression, and Mayaram had also affixed his thumb
impression in token of receipt of salary as a sweeper. On page 21, Laxman
(Sweeper) had affixed his thumb impression for receiving salary, and similarly,
Jai Singh (Sweeper) and Mayaram had also affixed their thumb impressions
indicating receipt of salary. On page 22, Laxman (Sweeper), Jai Singh
(Sweeper), and Mayaram had similarly affixed thumb impressions in token of
receipt of salary. Further, on page 24, Laxman had received salary in the
capacity of a ward boy, and on page 25, Laxman had signed for receipt of
salary as a ward boy, whereas in another entry on the same page, Laxman
(Sweeper) had affixed his thumb impression in token of receipt of salary.
This witness has further deposed that he had seized a total 51 bills, as per
Ex.P.1, from Yamuneshwar Prasad Pandey (Accountant) at the Circuit House.
The seizure memo was prepared in four pages and duly signed. He deposed that
the said bills were sent to the Fingerprint Expert for examination (Ex.P.123). As
per report, the thumb impression Specialist Inspector had informed that the
disputed Fingerprint were considered unfit for Examination and hence
comparison was not possible.
In cross examination, this witness admitted that The witness admitted
that, except Dr. R.K. Sen, all other accused persons were subordinate
employees working under him. He further admitted that it was obligatory for
the other accused persons to comply with the directions issued by Dr. R.K. Sen
and that the office work was being carried out by them in accordance with his
instructions.
22. Upon a careful and holistic appreciation of the entire oral and
documentary evidence on record, this Court finds that the substratum of the
prosecution case rests upon the allegation that false salary bills were prepared
in the names of certain sweepers and amounts were withdrawn without actual
work being performed. However, a closer scrutiny of the evidence led by the
prosecution reveals significant inconsistencies and gaps which go to the root of
the matter.
23. In this backdrop, the evidence on record clearly establishes that the acts
relating to preparation, processing, and disbursement of the alleged salary
payments were carried out under the directions and supervision of A1, Dr. R.K.
Sen, who was the competent authority at the relevant time. The material
witnesses, particularly PW-17 and PW-18, have consistently deposed that they
acted in compliance with his instructions and had no independent role in the
execution of the transactions in question. The evidence further demonstrates
that the functioning of the office, in this regard, was entirely dominated by A1,
under whose authority the subordinate staff operated without exercising any
independent discretion. At best, the appellants can be said to have mechanically
carried out official instructions in the ordinary course of their duties.
Significantly, there is no cogent or reliable evidence on record attributing any
specific overt act to the present appellants (A2 to A10), nor is there any
material to establish their culpable intent or active participation in the alleged
offences. The allegations against them remain general and omnibus in nature,
without any substantive evidentiary foundation. Mere compliance with the
directions of a superior officer, in the absence of proof of mens rea or wrongful
gain, cannot fasten criminal liability upon them.
24. This position is further reinforced by the testimony of the material
witnesses, particularly PW-17 and PW-18, who have consistently deposed that
the withdrawal and disbursement of salary amounts were undertaken strictly
under the directions of A1, Dr. R.K. Sen, and that they had no independent role
in preparation, processing, or disbursement of the bills in question. Their
evidence clearly reflects that they were functioning within the administrative
framework of the office and were required to act in accordance with the
instructions issued by the competent authority.
25. PW-29, the Investigating Officer, has primarily proved the seizure of
documents and entries in the registers, and his testimony remains largely
formal in nature. Significantly, he has not attributed any specific overt act to
the present appellants (A2 to A10). On the contrary, he has admitted in his
cross-examination that the appellants were subordinate officials working under
A1 and were duty-bound to comply with his directions, and that the office work
was carried out in accordance with such instructions. Further, the statements
recorded during the course of investigation, as deposed by PW-29, indicate that
the alleged beneficiaries had, in fact, worked for certain periods and received
salary. This aspect assumes significance, as it substantially weakens the
prosecution case that the payments were wholly fictitious or made without any
work being performed, thereby creating a serious dent in the substratum of the
prosecution story.
26. The employees namely Jai Singh (PW22), Jai Singh (PW8), Laxman
Pandey (PW19), Laxman (PW21), Lalmani (PW7), who were working in the
house/bungalow of A1, have been examined. They have not stated the exact
period for which they worked in A1's bungalow or the period for which they
received their salaries. All these witnesses have only said that they were paid
for the time they worked and that they signed the relevant register while
receiving their salaries. In absence of clear evidence about the period of work,
presumption cannot be drawn that the salary was withdrawn inspite of the fact
that they had not worked that period. On the basis of mere presumption, the
conviction of the appellants is not sustainable. Even the prosecution failed to
show any evidence of what specific acts were done by A2 to A10 that would
make them liable for offences under Sections 420, 467, 468, and 471 read with
Section 120-B IPC, and Section 13(1)(b) of the Prevention of Corruption Act.
27. The documentary evidence relied upon by the prosecution, particularly
the contingency registers (Article A-2), merely reflects entries relating to
payment of salary, either through signatures or thumb impressions. At the
highest, such entries may give rise to suspicion regarding procedural
irregularities in the mode of disbursement; however, suspicion alone cannot
form the basis of a criminal conviction.
28. It is well settled that to bring home a charge under Sections 467, 468, and
471 of the IPC, the prosecution must establish, by cogent and reliable evidence,
the creation of a false document within the meaning of Section 463 IPC and its
subsequent use as genuine. In the present case, the prosecution has failed to
adduce any expert evidence or other reliable material to demonstrate that the
signatures or thumb impressions appearing on the documents were forged or
fabricated. There is also no evidence to show that the appellants were involved
in the preparation of any such false document. Similarly, the essential
ingredients of the offence under Section 420 IPC, namely deception and
dishonest inducement leading to delivery of property, are conspicuously absent.
There is no material on record to indicate that the appellants had deceived any
authority or induced the delivery of funds by fraudulent means. In the absence
of proof of these foundational facts, the conviction under the aforesaid
provisions cannot be sustained.
29. In the matter of Sharanappa (supra) the Supreme Court observed thus at
para 11 :
11......A perusal of the judgments of the trial
Court as well as the first appellate Court and also
the subsequent judgment of the High Court makes it
clear that unfortunately, none of the Courts has
looked into the material which is very important to
prove the guilt and there is no clear finding about
the alleged commission of offence by the present
appellant. Without going into the role of the
appellant-accused, the Courts have awarded
conviction to the appellant as if he had colluded
with the other accused in sanctioning the loan as
shown in Exhibits P-40 to P-43. In our opinion, the
appellant-accused has no role in sanctioning the
loan or entering into the agreement with the owners
of the land Accused 1 and 2. He discharged his
duties as Block Development Officer and only on the
basis of the report submitted by Junior Engineer
(Accused 6), who was the competent person in
submitting and recommending the issue of cheques
in question. The appellant has merely sanctioned
those cheques based on the factual and verification
report furnished by the Junior Engineer.....
30. The charge under Section 13(1)(d) of the Prevention of Corruption Act
also does not stand proved. In order to attract the said provision, it must be
established that the accused, being a public servant, obtained for himself or for
any other person any pecuniary advantage by corrupt or illegal means or by
abusing his official position. In the present case, there is a complete absence of
evidence to show that the appellants derived any pecuniary benefit or
facilitated the same for any other person through corrupt or illegal means. The
prosecution has not placed on record any material to demonstrate either
wrongful gain to the appellants or corresponding loss to the State attributable to
their individual acts. Mere participation in routine official work, carried out
under the directions of a superior officer, cannot by itself be construed as
criminal misconduct within the meaning of the Act, particularly in the absence
of proof of dishonest intention or abuse of position.
31. In the matter of A. Sivaprakash (supra) the Supreme Court held that in
respect of allegation on accused under Section 13(1)(d)(ii) of committing
criminal misconduct by abusing his position as public servant in obtaining
pecuniary advantage for himself no evidence has been led to establish as to
what kind of pecuniary advantage was obtained by accused and as such
mandatory ingredients to implicate the accused under the said provision not
proved and therefore, the charge not established beyond reasonable doubt.
32. The Supreme Court in the matter of C.K. Jaffer Sharief (supra) held
thus at paras 14 to 17 :
"14. Section 13(1)(d) of the Act may now be extracted below:
"13. Criminal misconduct by a public servant.- (1) A public
servant is said to commit the offence of criminal
misconduct-
(a)-(c) xxx xxx xxx
(d) if he-
(i) by corrupt or illegal means, obtains for himself or for
any other person any valuable thing or pecuniary
advantage; or
(ii) by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or
pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage without
any public interest; or
(e) xxx xxx xxx xxx
A bare reading of the aforesaid provision of the Act would go to
show that the offence contemplated therein is committed if a
public servant obtains for himself or any other person any
valuable thing or pecuniary advantage by corrupt or illegal
means; by abusing his position as public servant or without any
public interest. The aforesaid provision of the Act i.e. Section 13
(1) (d) are somewhat similat to the offence under Section 5 (1) (d)
of the Prevention of Corruption Act, 1947.
15. Adverting to the facts of the present case it has already been
noticed that the only allegation against the appellant is that he
had prevailed upon RITES and IRCON to take the four employees
in question on "deputation" for the sole purpose of sending them
to London in connection with the medical treatment of the
appellant. It is also alleged that neither RITES nor IRCON had
any pending business in London and that none of the four persons
had not (sic) performed any duty pertaining to RITES or IRCON
while they were in London; yet the to and fro air fare of all the
four persons was paid by the above two public sector
undertakings. On the said basis it has been alleged that the
appellant-accused had abused his office and caused pecuniary
loss to the two public sector undertakings by arranging the visits
of the four persons in question to London without any public
interest. This, in essence, is the case against the appellant-
accused.
16. A fundamental principle of criminal jurisprudence with
regard to the liability of an accused which may have application
to the present case is to be found in the work Criminal Law by
K.D. Gaur. The relevant passage from the above work may be
extracted below:
"Criminal guilt would attach to a man for violations of
criminal law. However, the rule is not absolute and is
subject to limitations indicated in the Latin maxim, actus
non facit reum, nisi mens sit rea. It signifies that there can
be no crime without a guilty mind. To make a person
criminally accountable, it must be proved that an act, which
is forbidden by law, has been caused by his conduct, and
that the conduct was accompanied by a legally blameworthy
attitude of mind. Thus, there are two components of every
crime, a physical element and a mental element, usually
called actus reus and mens rea respectively."
17. It has already been noticed that the appellant besides
working as the Minister of Railways was the head of the two
public sector undertakings in question at the relevant time. It also
appears from the materials on record that the four persons while
in London had assisted the appellant in performing certain tasks
connected with the discharge of duties as a Minister. It is difficult
to visualise as to how in the light of the above facts, demonstrated
by the materials revealed in the course of investigation, the
appellant can be construed to have adopted corrupt or illegal
means or to have abused his position as a public servant to obtain
any valuable thing or pecuniary advantage either for himself or
for any of the aforesaid four persons. If the statements of the
witnesses examined under Section 161 CrPC show that the
aforesaid four persons had performed certain tasks to assist the
Minister in the discharge of his public duties, however
insignificant such tasks may have been, no question of obtaining
any pecuniary advantage by any corrupt or illegal means or by
abuse of the position of the appellant as a public servant can
arise. As a Minister it was for the appellant to decide on the
number and identity of the officials and supporting staff who
should accompany him to London if it was anticipated that he
would be required to perform his official duties while in London. If
in the process, the rules or norms applicable were violated or the
decision taken shows an extravagant display of redundance it is
the conduct and action of the appellant which may have been
improper or contrary to department norms. But to say that the
same was actuated by a dishonest intention to obtain an undue
pecuniary advantage will not be correct. That dishonest intention
is the gist of the offence under Section 13(1)(d) is implicit in the
words used i.e. corrupt or illegal means and abuse of position as a
public servant. A similar view has also been expressed by this
Court in M. Narayanan Nambiar v. State of Kerala while
considering the provisions of Section 5 of the 1947 Act.
33. The allegation of criminal conspiracy under Section 120-B IPC also
remains unsubstantiated. It is trite law that to establish a charge of conspiracy,
the prosecution must prove the existence of an agreement or meeting of minds
between two or more persons to commit an illegal act or a legal act by illegal
means. Such an agreement must be established either by direct evidence or by
circumstances which unerringly point towards a common design.
34. In respect of the allegation of criminal conspiracy levelled against the
appellants herein is concerned, the Supreme Court in the matter of Surendra
Kumar (supra) held that conspiracy is a matter of inference and inference must
be based on solid evidence. It further held that in case of any doubt the benefit
must inevitably go to the accused.
35. In the present case, no such evidence has been brought on record. There
is neither any direct material nor any circumstantial evidence to indicate that
the appellants had entered into any agreement with A1 or with each other to
commit the alleged offences. The evidence, at best, shows that the appellants
acted in discharge of their official duties and in compliance with the directions
of their superior officer. Such conduct, in the absence of any material indicating
a shared criminal intent, cannot be elevated to the level of a criminal
conspiracy.
36. In essence, the entire prosecution case revolves around the role attributed
to A1, under whose authority and supervision the alleged acts were carried out.
No independent or specific role has been assigned to the present appellants, nor
has any material been brought on record to establish their culpable intent or
conscious involvement in the alleged illegal acts.
37. In view of the foregoing analysis, this Court is of the considered opinion
that the prosecution has failed to establish the charges against the appellants
(A2 to A10) beyond reasonable doubt. The evidence on record, at best, creates
suspicion; however, it is well settled that suspicion, howsoever strong, cannot
take the place of legal proof.
38. The appellants, being subordinate officials, acted in compliance with the
directions of their superior officer, namely Dr. R.K. Sen (A1), and there is no
evidence to indicate any independent involvement, dishonest intention, or
wrongful gain on their part. The essential ingredients of the offences alleged
have not been proved, and the conviction recorded by the learned trial Court
cannot be sustained.
39. Accordingly, the conviction of the appellants (A2 to A10) under Sections
420, 467, 468, 471 read with Section 120-B of the IPC and Section 13(1)(d) of
the Prevention of Corruption Act is unsustainable in law and is hereby set
aside.
40. The appeal is, therefore, allowed. The impugned judgment of conviction
and order of sentence are hereby set aside, and the appellants are acquitted of
all the charges.
41. The appellant No. 5, 7, 8 & 9 are reported to be on bail. Their bail bonds
shall remain in force for a further period of six months in terms of Section 437-
A of the Cr.P.C. (481 of Bharatiya Nagarik Suraksha Sanhita (BNSS)). The
Registry is directed to transmit the trial Court record forthwith for necessary
information and follow up action.
Sd/-
(Bibhu Datta Guru)
Judge
Rahul/Gowri
HEAD NOTE
To establish a charge of conspiracy, the prosecution must prove the
existence of an agreement or meeting of minds between two or more persons to
commit an illegal act or a legal act by illegal means. Such an agreement must
be established either by direct evidence or by circumstances which unerringly
point towards a common design.
