Jesudoss Mahender vs Uoi & Anr.
2009 Latest Caselaw 4851 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Date of Decision : 26th November, 2009

+                   WP(C) No. 14844/2006

       JESUDOSS MAHENDER                 ....Petitioner
                Through: Mr. Anil Gautam, Advocate

                              Versus

       UOI & ANR.                           ....Respondents
                 Through:     Ms. Anjana Gosain, Advocate


       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be
        allowed to see the judgment?

     2. To be referred to the Reporter or not?     No

     3. Whether the judgment should be reported in the
        Digest?                                   No


PRADEEP NANDRAJOG, J. (Oral)

1. A charge memo was issued to the petitioner,

alleging as under:-

FIRST CHARGE DOING A THING WITH INTENT TO

BSF ACT DEFRAUD

SEC 30(f)

That the petitioner while being posted at New Delhi, on 09.01.2002, while performing the duties of Task holder at Tak No.19, of PG-I, PAD BSF, New Delhi opened a saving bank account No.01190007750 in SBI CGO Complex,

Lodhi Road, New Delhi, in the name of Mahender, with intent to defraud.

SECOND CHARGE DISHONESTLY MISAPPROPRIATING

BSF ACT PROPERTY BELONGING TO THE

SEC 30 (b) GOVERNMENT

That the petitioner at New Delhi between 09.01.2002 to 31.12.2003, while performing the duties of Task holder at Task No. 19, of PG-I, PAD BSF, New Delhi, misappropriated Rs.8,75,711.00 (Rupees eight lacs seventy five thousands seven hundred eleven) only as per details mentioned below, the property belonging to the government by withdrawing the same from Saving bank account No.01190007750 of SBI CGO Complex, Lodhi Road, New Delhi.

                    i)    Pay & allowances Rs. 4,97,548.00
                    ii)   Transfer TA        Rs.74,164.00

iii) Uniform grant/KMA Rs.9,750.00

iv) Leave encashment Rs.2,38,566.00

v) Medal allowance Rs.17,250.00

vi) CGEGIS Rs.38,433.00 Total Rs.8,75,711.00

THIRD CHARGE DOING A THING WITH INTENT TO BSF ACT DEFRAUD SEC 30(F) That the petitioner at Pad BSF, New Delhi, on 19th March 2004, while posted in 45 Bn BSF, submitted a false bill, amounting to Rs.1,69,340/- (Rupees one lack sixty nine thousand three hundred forty) only, towards leave encashment in the fictitious name of Sh.Mahender, AC, with intent to defraud.

FOURTH CHARGE       DOING A THING WITH INTENT TO
BSF ACT             DEFRAUD


 SEC.30 (f)             That the petitioner at PAD BSF, New

Delhi, on 19th March 2004, while posted in 45 Bn. BSF, submitted a false bill amounting to Rs.32,818/- (Rupees thirty two thousand eight hundred eighteen) only towards CGEGIS, in the fictitious name Sh.Mahender, AC, with intent to defraud.

2. The Court of Inquiry ordered by DIG BSF, Signal

Training School returned a finding of guilt. Based thereon,

after following the process of law the petitioner was inflicted

with a penalty of dismissal from service. The petitioner was

also sentenced to undergo three year rigorous imprisonment.

It may be noted here that the inquiry was actually a trial

before the General Security Force Court. The order of

dismissal is dated 14.10.2005. The petitioner has undergone

the sentence. Confirmation petition has been dismissed.

3. Two points have been urged at the hearing of the

appeal. Both points are of a technical nature. It is firstly urged

that there were three civilian employees concerned with the

clearance of the bills and their names are Shri A.K.Tiwari, Shri

Shiv Dutt and Shri Shyam Lal Singh; submission made is that

the convening authority ought to have referred the trial of the

petitioner to the Civilian Court i.e. the Magistrate competent to

take cognizance under the Code of Criminal Procedure.

Second submission made is that the said three persons were

cited as witnesses of the prosecution; meaning thereby, the

petitioner has been convicted on the tainted testimony of

persons who are co-accused.

4. Learned counsel for the petitioner has not been

able to show to us that when the General Security Force Court

was convened the petitioner made any representation that his

trial be conducted before the Civil Court. In that view of the

matter, having taken his chance before the Summary Security

Force Court, the petitioner cannot make any grievance on said

count.

5. With respect to the second plea, suffice would it be

note that the evidence held duly proved against the petitioner

at the trial is that the petitioner was the one who opened a

fictitious account in the name of Shri Mahender and it was he

who took the benefit of the money which was credited in the

said account. That the three civilian employees had dealt with

the scrutiny of the bills submitted under the forged signatures

of Mahender Singh would not make them co-conspirators.

6. Learned counsel for the petitioner has urged no

submissions with respect to the merits of the findings returned

against the petitioner.

7. Noting that the petitioner has defalcated

Rs.8,75,711/-, Rs.1,69,340/- and Rs.32,818/- which actually

belonged to Mahender, we find no merit in the writ petition.

8. The writ petition is dismissed.

9. No costs.

(PRADEEP NANDRAJOG) JUDGE

(SURESH KAIT) JUDGE November 26, 2009 Hk / dk