Delhi High Court
Om Prakash vs Central Bureau Of Investigation ... on 5 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 16th March, 2017
Decided on: 5th September, 2017
+ CRL.A. 134/2016
OM PRAKASH ..... Appellant
Represented by: Mr. Devashish Maharishi, for
Mr. Avadh Kaushik, Adv.
versus
CENTRAL BUREAU OF INVESTIGATION (CBI)..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 150/2016
S K AGARWAL ..... Appellant
Represented by: Mr. R.N. Mittal, Sr. Adv. with
Mr. Puneet Mittal, Mr. Amitej
Kr. Nagar, Ms. Vasudha Bajaj,
Advocates.
versus
CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 259/2016
CHANDRESHWAR MANJHI ..... Appellant
Represented by: Mr. P.N. Dhar, Adv.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
CRL.A. 134/2016 & conn. matters Page 1 of 177
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 280/2016
JEET RAM SHARMA ..... Appellant
Represented by: Mr. Nishit Kush, Mr. Shyam S.
Sharma, Mr. Sanjeev Kumar
Baliyan, Advs.
versus
CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 151/2016
OM PRAKASH ..... Appellant
Represented by: Mr. Nagendra Rai, Sr. Adv.
with Mr. Ashish Verma,
Advocate.
versus
CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 240/2016
YESUDANAM ..... Appellant
Represented by: Ms. Kajal Chandra, Ms. Swati
Sinha, Ms. Prerna Chopra,
Advocates.
versus
THE STATE REPRESENTED BY: CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
CRL.A. 134/2016 & conn. matters Page 2 of 177
+ CRL.A. 241/2016
B M GHOSH ..... Appellant
Represented by: Ms. Kajal Chandra, Ms. Swati
Sinha, Ms. Prerna Chopra,
Advocates.
versus
THE STATE REPRESENTED BY: CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 269/2016
OM PRAKASH NARANG ..... Appellant
Represented by: Ms. Sunita Arora, Advocate.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 297/2016
J P SHARMA ..... Appellant
Represented by: Mr. Sunil K. Choudhary, Mr.
B.L. Sharma, Advs.
versus
THE STATE ( CBI) ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
CRL.A. 134/2016 & conn. matters Page 3 of 177
+ CRL.A. 323/2016
Y P SHARMA ..... Appellant
Represented by: Mr. Pramod Kumar Dubey, Mr.
Amit Singh Rathore and Mr.
Akshay Sehgal, Mr. Anurag
Andley, Advocates.
versus
CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 342/2016
SHIV SAGAR NAIK ..... Appellant
Represented by: Ms. Kajal Chandra, Ms. Swati
Sinha, Ms. Prerna Chopra,
Advocates.
versus
THE STATE REPRESENTED BY: CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 347/2016
HAYAT SINGH ..... Appellant
Represented by: Ms. Kajal Chandra, Ms. Swati
Sinha, Ms. Prerna Chopra,
Advocates.
versus
THE STATE REPRESENTED BY: CBI ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
CRL.A. 134/2016 & conn. matters Page 4 of 177
+ CRL.A. 396/2016
JAI KUMAR SINGHAL ..... Appellant
Represented by: Mr. Anunaya Mehta, Advocate.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
+ CRL.A. 847/2016
NATHA RAM SUMAN ..... Appellant
Represented by: Ms. Kajal Chandra, Ms. Swati
Sinha, Ms. Prerna Chopra,
Advocates.
versus
STATE (CBI) ..... Respondent
Represented by: Mr. Nikhil Goel, Spl. PP with
Mr. Ashutosh Ghade, Mr.
Annirudha Deshmukh, Advs.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Gist of prosecution case which led to the conviction of the appellants
initiated on the complaint dated 5th February, 2001 by M.E. Haque, Secretary
& Vigilance Officer (PW-24) is that officials of CWC deviated from the
normal procedure and issued cheques in the name of individuals which they
were not supposed to and failed to do pre-audit of bills. The complaint was
based on special audit which was conducted by an internal division of
Controller of Accounts on the basis of a pseudonymous complaint received
by the Controller of Accounts, Ministry of Water Resources alleging that
CRL.A. 134/2016 & conn. matters Page 5 of 177
fraudulent payments have been made to officials by the accounts office,
DDO/CWC. One of the main irregularities was wrong drawl of pay and
allowances to the tune of `23,67,951/- during July, 1999 to March, 2000.
2. The alleged fraudulent transactions can be categorized into three
categories:
"i) Transactions where cheques issued earlier in the names
of individuals were cancelled and fresh consolidated cheques
were issued by the pay & Accounting Officer (A-17) in the
name of DDO-I (A-2) without following the procedure and the
money withdrawn through these cheques was misappropriated. -
As per the procedure, once a cheque issued in the name of an
individual is cancelled, it could be validated/ made afresh in the
name /category of the earlier beneficiary and not in the name/
category of different person/category. However in the present
case fresh cheques were made in the name of different persons
and in some cases in the name of DDO for the purpose of
wrongful withdrawal and misappropriation of government
funds.
ii) Transactions where cheques were issued on the basis of
false and forged bills. - There are transactions where cheques
have been issued against the bills (LTC, medical, etc.) claimed
by Shiv Sagar Naik (A-7), Jeet Ram Sharma (A-9), B.M. Ghosh
(A-10) and Hayat Singh (A-15) which are forged, fabricated
and/or not showing the correct designation of the person
claiming them and are not supported by sanction order. The
concerned official i.e. Natha Ram Suman (A-16), Chandreshwar
Manjhi (A-2) have passed these bills by intentionally ignoring
the above and thus facilitating wrongful withdrawal of money.
iii) Transactions where cheques were issued without any bill.
- There are the transaction where the cheques have been
fraudulently issued in the name of different officials and other
private persons in the absence of any bill or authorization for
the same. Consequentially, in order to prevent the fraud from
being detected, there are no entries made in the relevant
records."
CRL.A. 134/2016 & conn. matters Page 6 of 177
3. Before dealing with theevidence on record and rival contentions raised
in the appeals separately it would be relevant to decide legal issues which are
common to most of the appeals.
4. CONSPIRACY
4.1. Learned counsels for the appellants challenging their conviction
submit that they performed their duties as assigned to them in the
ordinary course of nature. In case during the procedure followed one
or two appellants over-stepped their duties or misappropriated the
amount, all the appellants cannot be held liable for the offences they
are convicted for with the aid of Section 120B IPC. The Court is
required to see whether there is legal evidence to show that there was
meeting of minds between the accused and the accused acted in
furtherance of the common object of the conspiracy. Learned counsel
for the CBI rebutting the contention submits that once the prosecution
is able to establish prima facie facts which lead to an inference that
the appellants acted with a common object then by virtue of Section
10 of the Indian Evidence Act, the acts of one would be attributable to
others who shared the common object.
4.2. Supreme Court in the decision reported as (1999) 5 SCC 253 State v.
Nalini while discussing the concept of conspiracy observed in sub
para 7 of para 583:
"7. A charge of conspiracy may prejudice the accused
because it forces them into a joint trial and the court may
consider the entire mass of evidence against every accused.
Prosecution has to produce evidence not only to show that each
of the accused has knowledge of the object of conspiracy but
also of the agreement. In the charge of conspiracy the court has
CRL.A. 134/2016 & conn. matters Page 7 of 177
to guard itself against the danger of unfairness to the accused.
Introduction of evidence against some may result in the
conviction of all, which is to be avoided. By means of evidence
in conspiracy, which is otherwise inadmissible in the trial of any
other substantive offence prosecution tries to implicate the
accused not only in the conspiracy itself but also in the
substantive crime of the alleged conspirators. There is always
difficulty in tracing the precise contribution of each member of
the conspiracy but then there has to be cogent and convincing
evidence against each one of the accused charged with the
offence of conspiracy. As observed by Judge Learned Hand
"this distinction is important today when many prosecutors seek
to sweep within the dragnet of conspiracy all those who have
been associated in any degree whatever with the main
offenders".
4.3. Apex Court in the decision reported as (2004) 11 SCC 585 Esher
Singh v. State of A.P., reiterating the principle laid down in (1980) 2
SCC 665 V.C. Shukla v. State (Delhi Admn.) with respect to onus on
the prosecution to prove the alleged conspiracy held:
"38. It was held that the expression "in reference to their
common intention" in Section 10 is very comprehensive and it
appears to have been designedly used to give it a wider scope
than the words "in furtherance of" in the English law; with the
result, anything said, done or written by a co-conspirator, after
the conspiracy was formed, will be evidence against the other
before he entered the field of conspiracy or after he left it.
Anything said, done or written is a relevant fact only
"... 'as against each of the persons believed to be so conspiring
as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person
was a party to it'. ... In short, the section can be analysed as
follows: (1) There shall be a prima facie evidence affording a
reasonable ground for a court to believe that two or more
persons are members of a conspiracy; (2) if the said condition is
fulfilled, anything said, done or written by any one of them in
CRL.A. 134/2016 & conn. matters Page 8 of 177
reference to their common intention will be evidence against the
other; (3) anything said, done or written by him should have
been said, done or written by him after the intention was formed
by any one of them; (4) it would also be relevant for the said
purpose against another who entered the conspiracy whether it
was said, done or written before he entered the conspiracy or
after he left it; and (5) it can only be used against a co-
conspirator and not in his favour." (AIR p. 687, para 8)
We are aware of the fact that direct independent evidence of
criminal conspiracy may not ordinarily and is generally not
available and its existence invariably is a matter of inference
except as rare exceptions. The inferences are normally deduced
from acts of parties in pursuance of a purpose in common
between the conspirators. This Court in V.C. Shukla v. State
(Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561] held
that to prove criminal conspiracy there must be evidence, direct
or circumstantial, to show that there was an agreement between
two or more persons to commit an offence. There must be a
meeting of minds resulting in ultimate decision taken by the
conspirators regarding the commission of an offence and where
the factum of conspiracy is sought to be inferred from
circumstances, the prosecution has to show that the
circumstances give rise to a conclusive or irresistible inference
of an agreement between two or more persons to commit an
offence. As in all other criminal offences, the prosecution has to
discharge its onus of proving the case against the accused
beyond reasonable doubt. The circumstances in a case, when
taken together on their face value, should indicate the meeting
of minds between the conspirators for the intended object of
committing an illegal act or an act which is not illegal, by
illegal means. A few bits here and a few bits there on which the
prosecution relies cannot be held to be adequate for connecting
the accused with the commission of the crime of criminal
conspiracy. It has to be shown that all means adopted and
illegal acts done were in furtherance of the object of conspiracy
hatched. The circumstances relied on for the purposes of
drawing an inference should be prior in point of time than the
CRL.A. 134/2016 & conn. matters Page 9 of 177
actual commission of the offence in furtherance of the alleged
conspiracy."
4.4. Explaining the theory of agency as envisaged under Section 10 of the
Indian Evidence Act, 1872 applicable to the law of conspiracy
Supreme Court in the decision reported as (2001) 1 SCC 378 Saju v.
State of Kerala, observed:
"8. In a criminal case the onus lies on the prosecution to
prove affirmatively that the accused was directly and personally
connected with the acts or omissions attributable to the crime
committed by him. It is a settled position of law that act or
action of one of the accused cannot be used as evidence against
another. However, an exception has been carved out under
Section 10 of the Evidence Act in the case of conspiracy. To
attract the applicability of Section 10 of the Evidence Act, the
court must have reasonable ground to believe that two or more
persons had conspired together for committing an offence. It is
only then that the evidence of action or statement made by one
of the accused could be used as evidence against the other. This
Court in Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609
: 1988 SCC (Cri) 711 : AIR 1988 SC 1883] has held: (SCC pp.
649-51, para 45)
"Section 120-A provides for the definition of criminal
conspiracy and it speaks of that when two or more persons
agree to do or cause to be done an act which is an illegal act
and Section 120-B provides for the punishment for a criminal
conspiracy and it is interesting to note that in order to prove a
conspiracy it has always been felt that it was not easy to get
direct evidence. It appears that considering this experience
about the proof of conspiracy that Section 10 of the Indian
Evidence Act was enacted. Section 10 reads:
'10. Things said or done by conspirator in reference to
common design.--Where there is reasonable ground to believe
that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written
by any one of such persons in reference to their common
CRL.A. 134/2016 & conn. matters Page 10 of 177
intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against
each of the persons believed to be so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.'
This section mainly could be divided into two: the first
part talks of where there is reasonable ground to believe that
two or more persons have conspired to commit an offence or an
actionable wrong, and it is only when this condition precedent
is satisfied that the subsequent part of the section comes into
operation and it is material to note that this part of the section
talks of reasonable grounds to believe that two or more persons
have conspired together and this evidently has reference to
Section 120-A where it is provided 'when two or more persons
agree to do, or cause to be done'. This further has been
safeguarded by providing a proviso that no agreement except
an agreement to commit an offence shall amount to criminal
conspiracy. It will be therefore necessary that a prima facie
case of conspiracy has to be established for application of
Section 10. The second part of section talks of anything said,
done or written by any one of such persons in reference to the
common intention after the time when such intention was first
entertained by any one of them is relevant fact against each of
the persons believed to be so conspiring as well for the purpose
for proving the existence of the conspiracy as for the purpose of
showing that any such person was a party to it. It is clear that
this second part permits the use of evidence which otherwise
could not be used against the accused person. It is well settled
that act or action of one of the accused could not be used as
evidence against the other. But an exception has been carved
out in Section 10 in cases of conspiracy. The second part
operates only when the first part of the section is clearly
established i.e. there must be reasonable ground to believe that
two or more persons have conspired together in the light of the
language of Section 120-A. It is only then the evidence of action
or statements made by one of the accused could be used as
evidence against the other. In Sardar Sardul Singh Caveeshar
v. State of Maharashtra [AIR 1965 SC 682 : (1964) 2 SCR 378 :
CRL.A. 134/2016 & conn. matters Page 11 of 177
(1965) 1 Cri LJ 608 sub nom Bhagwan Swarup Lal Bishan Lal
v. State of Maharashtra] Subba Rao, J. (as he then was)
analysed the provision of Section 10 and made the following
observations: (SCR pp. 389-91)
'This section, as the opening words indicate, will come
into play only when the court is satisfied that there is
reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable
wrong, that is to say, there should be a prima facie evidence
that a person was a party to the conspiracy before his acts can
be used against his co-conspirators. Once such a reasonable
ground exists, anything said, done or written by one of the
conspirators in reference to the common intention, after the
said intention was entertained, is relevant against the others,
not only for the purpose of proving the existence of the
conspiracy but also for proving that the other person was a
party to it. The evidentiary value of the said acts limited by two
circumstances, namely, that the acts shall be in reference to
their common intention and in respect of a period after such
intention was entertained by any one of them. The expression
"in reference to their common intention" is very comprehensive
and it appears to have been designedly used to give it a wider
scope than the words "in furtherance of" in the English law;
with the result, anything said, done or written by a co-
conspirator, after the conspiracy was formed, will be evidence
against the other before he entered the field of conspiracy or
after he left it. Another important limitation implicit in the
language is indicated by the expressed scope of its relevancy.
Anything so said, done or written is a relevant fact only "as
against each of the persons believed to be so conspiring as well
for the purpose of proving the existence of the conspiracy as for
the purpose of showing that any such person was a party to it".
It can only be used for the purpose of proving the existence of
the conspiracy or that the other person was a party to it. It
cannot be used in favour of the other party or for the purpose of
showing that such a person was not a party to the conspiracy.
In short, the section can be analysed as follows: (1) There shall
be a prima facie evidence affording a reasonable ground for a
CRL.A. 134/2016 & conn. matters Page 12 of 177
court to believe that two or more persons are members of a
conspiracy; (2) if the said condition is fulfilled, anything said,
done or written by any one of them in reference to their
common intention will be evidence against the other; (3)
anything said, done or written by him should have been said,
done or written by him after the intention was formed by any
one of them; (4) it would also be relevant for the said purpose
against another who entered the conspiracy whether it was
said, done or written before he entered the conspiracy or after
he left it; (5) it can only be used against a co-conspirator and
not in his favour.' "
It was further held: (SCC pp. 734-35, paras 278-80)
"278. From an analysis of the section, it will be seen that
Section 10 will come into play only when the court is satisfied
that there is reasonable ground to believe that two or more
persons have conspired together to commit an offence. There
should be, in other words, a prima facie evidence that the
person was a party to the conspiracy before his acts can be
used against his co-conspirator. Once such prima facie
evidence exists, anything said, done or written by one of the
conspirators in reference to the common intention, after the
said intention was first entertained, is relevant against the
others. It is relevant not only for the purpose of proving the
existence of conspiracy, but also for proving that the other
person was a party to it. It is true that the observations of Subba
Rao, J., in Sardul Singh Caveeshar v. State of Maharashtra
[AIR 1965 SC 682 : (1964) 2 SCR 378 : (1965) 1 Cri LJ 608
sub nom Bhagwan Swarup Lal Bishan Lal v. State of
Maharashtra] lend support to the contention that the
admissibility of evidence as between co-conspirators would be
(sic more) liberal than in English law. The learned Judge said:
(SCR p. 390)
'The evidentiary value of the said acts is limited by two
circumstances, namely, that the acts shall be in reference to
their common intention and in respect of a period after such
intention was entertained by any one of them. The expression
"in reference to their common intention" is very comprehensive
CRL.A. 134/2016 & conn. matters Page 13 of 177
and it appears to have been designedly used to give it a wider
scope than the words "in furtherance of" in English law; with
the result, anything said, done or written by a co-conspirator,
after the conspiracy was formed, will be evidence against the
other before he entered the field of conspiracy or after he left
it.'
279. But, with respect, the above observations that the words
of Section 10 have been designedly used to give a wider scope
than the concept of conspiracy in English law, may not be
accurate. This particular aspect of the law has been considered
by the Privy Council in Mirza Akbar v. King Emperor [AIR
1940 PC 176 : 41 Cri LJ 871 : 67 IA 336] AIR at p. 180, where
Lord Wright said that there is no difference in principle in
Indian law in view of Section 10 of the Evidence Act.
280. The decision of the Privy Council in Mirza Akbar case
[AIR 1940 PC 176 : 41 Cri LJ 871 : 67 IA 336] has been
referred to with approval in Sardul Singh Caveeshar v. State of
Bombay [AIR 1957 SC 747, 760 : 1958 SCR 161 : 1957 Cri LJ
1325] where Jagannadhadas, J., said: (SCR p. 193)
'The limits of the admissibility of evidence in conspiracy cases
under Section 10 of the Evidence Act have been authoritatively
laid down by the Privy Council in Mirza Akbar v. King
Emperor [AIR 1940 PC 176 : 41 Cri LJ 871 : 67 IA 336] . In
that case, their Lordships of the Privy Council held that
Section 10 of the Evidence Act must be construed in
accordance with the principle that the thing done, written or
spoken, was something done in carrying out the conspiracy and
was receivable as a step in the proof of the conspiracy. They
notice that evidence receivable under Section 10 of the
Evidence Act of "anything said, done, or written, by any one of
such persons" (i.e. conspirators) must be "in reference to their
common intention". But their Lordships held that in the context
(notwithstanding the amplitude of the above phrase) the words
therein are not capable of being widely construed having
regard to the well-known principle above enunciated.' "
CRL.A. 134/2016 & conn. matters Page 14 of 177
4.5. Supreme Court in the decision reported as (2005) 12 SCC 631 K.R.
Purushothaman v. State of Kerala drawing the distinction between
suspicion and legal proof held that even in the case of conspiracy
though inference is required to be drawn but the same should be
based on circumstances giving rise to conclusion or irresistible
inference. It was held:
"14. Suspicion cannot take the place of legal proof and
prosecution would be required to prove each and every
circumstance in the chain of circumstances so as to complete
the chain. It is true that in most of the cases, it is not possible to
prove the agreement between the conspirators by direct
evidence but the same can be inferred from the circumstances
giving rise to conclusive or irresistible inference of an
agreement between two or more persons to commit an offence.
It is held in Noor Mohd. Mohd. Yusuf Momin v. State of
Maharashtra [(1970) 1 SCC 696 : 1970 SCC (Cri) 274 : AIR
1971 SC 885] , that: (SCC pp. 699-700, para 7)
"[I]n most cases proof of conspiracy is largely inferential
though the inference must be founded on solid facts.
Surrounding circumstances and antecedent and subsequent
conduct, among other factors, constitute relevant material."
4.6. From the decisions noted above, the following principles can be culled
out to be applied while fastening the liability of an accused with the
aid of Section 120B IPC:
a) The prosecution has to lead prima facie evidence to show that
there is a reasonable ground for the Court to believe that two or
more persons are members of a conspiracy.
b) The onus lie on the prosecution to prove affirmatively either by
direct or circumstantial evidence that the accused was connected
with the acts or omissions attributable to the crime committed.
CRL.A. 134/2016 & conn. matters Page 15 of 177
c) The foundational fact of a prima facie involvement of the accused
having been established showing meeting of minds between the
accused to commit the offence, then Section 10 of the Evidence
Act is attracted, whereby anything said, done or written by any
one of them in reference to their common intention will be
evidence against the other.
5. LEGAL POSITION ON EVIDENCE OF BANK RECORDS
5.1. One of the contentions of the learned counsels for the appellants in the
present appeals is the manner in which evidence has been led by the
prosecution in respect of the bank accounts. In the present case only
few witnesses of the bank have appeared and deposed about the bank
opening form and the statement of accounts. Rest of the evidence has
been exhibited by the hand-writing expert PW-51 who has proved the
hand-writing of the various accused on the documents i.e. pay-in-
slips/ cheques and the investigating officer PW-54 who has exhibited
major portion of the documents relating to banks in the form of
statement of accounts and pay-in-slips etc.
5.2. Learned counsel for the CBI referring to the decision of the Supreme
Court in (2003) 8 SCC 752 R.V.E. Venkatachala Gounder Vs.
Arulmigu Viswesaraswami & V.P. Temple & Anr. contends that an
objection as to the admissibility of the evidence or mode of proof
thereof can be taken when it is tendered and not subsequently. The
documents having been tendered in evidence and no objection having
been taken, now in the present appeals the appellants cannot turn
around and contend that the documents have not been proved and thus
CRL.A. 134/2016 & conn. matters Page 16 of 177
the same cannot be read in evidence against them. In the alternate
referring to Section 4 of the Bankers' Book Evidence Act and Section
34 of the Indian Evidence Act, learned counsel contends that certified
copies of the entries in the Bankers' book are per se admissible in
evidence and no formal proof of the same are required. Since
certified copies of the documents relating to the bank accounts have
been exhibited by the prosecution, the evidence led on this count is
admissible in evidence.
5.3. Learned counsel for Jai Kumar Singhal rebutting the arguments of
learned counsel for the CBI contends that Section 34 of the Indian
Evidence Act does not relate to the proof of documents. It provides
only for the relevancy of the books of accounts including those
maintained in an electronic form and not the admissibility. The
decision in R.V.E. Venkatachala Gounder (supra) relied upon by
learned counsel for the CBI has no application to the facts of the
present case because the said case dealt with proof of documents in
civil matters. Mere non-objection to the mode of proof would not
permit a document to be read in evidence if it is inadmissible.
Relying upon the decision of the Supreme Court reported as (2009) 9
SCC 221 Malay Kumar Gangulay Vs. Dr. Sukumar Mukherjee & Ors.
it is contended that in a criminal trial a document becomes
inadmissible in evidence unless the author thereof is examined, and
the contents of the documents cannot be held to have been proved
unless the author is examined and subjected to cross-examination in a
Court of law. It is also contended that Section 2A of the Bankers'
Book Evidence Act is para materia Section 65B of the Indian
CRL.A. 134/2016 & conn. matters Page 17 of 177
Evidence Act and in view of the decision of the Supreme Court in
(2014) 10 SCC 473 Anvar P.V. Vs. P.K. Basheer & Ors. a computer
generated document would be admissible only when accompanied by
a certificate otherwise the same would be inadmissible in law.
5.4. Learned counsel for the appellants Yesudanam, B.M. Ghosh, Shiv
Sagar Naik, Hayat Singh and N.R. Suman relying upon the decision
in (1967) 1 SCR 898 Chandradhar Goswami & Ors. Vs. The Gauhati
Bank Ltd. contends that original entries alone would not be sufficient
to charge any person with liabilities under Section 34 of the Indian
Evidence Act. When the entries are not admitted, if the prosecution
relies upon such entries it is the duty of the prosecution to produce
evidence in support of the entries. Reliance is also placed on the
decisions reported as AIR 1999 Kerala 279 Arakkan Narayanan Vs.
M/s. Indian Handloom Traders & Ors. and AIR 1972 Gujarat 208
Shubhkaran Rameshwarlal Agarwal vs. Durgaprasad Private Ltd..
5.5. Before adverting to the rival contentions it would be apt to note
Section 34 of the Indian Evidence Act and the relevant provisions of
Bankers' Book Evidence Act. Section 34 of the Indian Evidence Act
reads as under:
"34. [Entries in books of account including those maintained
in an electronic form] when relevant.--[Entries in books of
accounts including those maintained in an electronic form],
regularly kept in the course of business, are relevant whenever
they refer to a matter into which the Court has to inquire, but
such statements shall not alone be sufficient evidence to charge
any person with liability."
5.6. A bare perusal of Section 34 of the Indian Evidence Act reveals that it
does not provide for the admissibility or the mode of proof of the
CRL.A. 134/2016 & conn. matters Page 18 of 177
statement of account but its relevancy. Further the mode to prove a
relevant fact is governed by Part II Chapters III to VI of the Indian
Evidence Act.
5.7. Sections 2(8), 2A and Section 4 of the Bankers' Book Evidence Act,
1891 (in short 'the Act') read as under:
"2. Definitions. In this Act, unless there is something
repugnant in the subject or context,
(8) "certified copy" means when the books of a bank,--
(a) are maintained in written form, a copy of any entry
in such books together with a certificate written at the
foot of such copy that it is a true copy of such entry, that
such entry is contained in one of the ordinary books of
the bank and was made in the usual and ordinary course
of business and that such book is still in the custody of the
bank, and where the copy was obtained by a mechanical
or other process which in itself ensured the accuracy of
the copy, a further certificate to that effect, but where the
book from which such copy was prepared has been
destroyed in the usual course of the bank's business after
the date on which the copy had been so prepared, a
further certificate to that effect, each such certificate
being dated and subscribed by the principal accountant
or manager of the bank with his name and official title;
and
(b) consist of printouts of data stored in a floppy, disc,
tape or any other electro-magnetic data storage device, a
printout of such entry or a copy of such printout together
with such statements certified in accordance with the
provisions of section 2A.
[(c) a printout of any entry in the books of a bank
stored in a micro film, magnetic tape or in any other form
of mechanical or electronic data retrieval mechanism
obtained by a mechanical or other process which in itself
CRL.A. 134/2016 & conn. matters Page 19 of 177
ensures the accuracy of such printout as a copy of such
entry and such printout contains the certificate in
accordance with the provisions of section 2A.]
2A. Conditions in the printout.--A printout of entry or a copy
of printout referred to in sub-section (8) of section 2 shall be
accompanied by the following, namely:
(a) a certificate to the effect that it is a printout of such entry
or a copy of such printout by the principal accountant or
branch manager; and
(b) a certificate by a person in-charge of computer system
containing a brief description of the computer system and the
particulars of--
(A) the safeguards adopted by the system to ensure
that data is entered or any other operation performed
only by authorised persons;
(B) the safeguards adopted to prevent and detect
unauthorised change of data;
(C) the safeguards available to retrieve data that is
lost due to systemic failure or any other reasons;
(D) the manner in which data is transferred from the
system to removable media like floppies, discs, tapes or
other electro-magnetic data storage devices;
(E) the mode of verification in order to ensure that
data has been accurately transferred to such removable
media;
(F) the mode of identification of such data storage
devices;
(G) the arrangements for the storage and custody of
such storage devices;
(H) the safeguards to prevent and detect any tampering
with the system; and
(I) any other factor which will vouch for the integrity
and accuracy of the system.
(c) a further certificate from the person in-charge of the
computer system to the effect that to the best of his knowledge
and belief, such computer system operated properly at the
CRL.A. 134/2016 & conn. matters Page 20 of 177
material time, he was provided with all the relevant data and
the printout in question represents correctly, or is appropriately
derived from, the relevant data.
4. Mode of proof of entries in bankers' books.--Subject to
the provisions of this Act, a certified copy of any entry in a
bankers' books shall in all legal proceedings be received as
prima facie evidence of the existence of such entry, and shall
be admitted as evidence of the matters, transactions and
accounts therein recorded in every case where, and to the same
extent as, the original entry itself is now by law admissible, but
not further or otherwise."
5.8. As noted above, Section 4 of the Act which provides for a certified
copy of the entry in the Bankers' books to be received as prima facie
evidence of existence of such entry in all legal proceedings is subject
to other provisions of the Act which include Section 2A. Section 2A
of the Act, inter alia, provides that print-out of the entry or a copy of
the print-out is required to be accompanied by a certificate to the
affect that it is a print-out of such entry by the principal accountant or
a Branch Manager and a certificate by in-charge of the computer
system containing a brief description of the computer system and the
particulars. Further Section 2(8)(c) of the Act also provides that the
print-out of an entry in the book of an account should ensure the
accuracy of such print-out and contain the certificate in accordance
with provisions of Section 2A of the Act. Thus, a computer print-out
of the entries in the book which does not contain certificate as
provided under Section 2A of the Act would not be a certified copy
within the meaning of Section 2(8) of the Act and would not be then
admissible as the original entry itself under Section 4 of the Act.
CRL.A. 134/2016 & conn. matters Page 21 of 177
5.9. Section 65B of the Indian Evidence Act which is para materia Section
2A of the Act came up consideration before the Supreme Court in the
decision Anvar P.V. (supra) wherein it was held that a computer
generated document would be admissible only when accompanied by
a certificate under Section 65B Indian Evidence Act and in the
absence thereof it would be inadmissible. The three Judge Bench of
the Supreme Court in Anvar P.V. (supra) over-ruling its earlier
decision in (2005) 11 SCC 600 State (NCT of Delhi) Vs. Navjot
Sandhu held:
"14. Any documentary evidence by way of an electronic
record under the Evidence Act, in view of Sections 59 and 65-A,
can be proved only in accordance with the procedure
prescribed under Section 65-B. Section 65-B deals with the
admissibility of the electronic record. The purpose of these
provisions is to sanctify secondary evidence in electronic form,
generated by a computer. It may be noted that the section starts
with a non obstante clause. Thus, notwithstanding anything
contained in the Evidence Act, any information contained in an
electronic record which is printed on a paper, stored, recorded
or copied in optical or magnetic media produced by a computer
shall be deemed to be a document only if the conditions
mentioned under sub-section (2) are satisfied, without further
proof or production of the original. The very admissibility of
such a document i.e. electronic record which is called as
computer output, depends on the satisfaction of the four
conditions under Section 65-B(2).
17. Only if the electronic record is duly produced in terms of
Section 65-B of the Evidence Act, would the question arise as to
the genuineness thereof and in that situation, resort can be
made to Section 45-A--opinion of Examiner of Electronic
Evidence.
18. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if requirements
CRL.A. 134/2016 & conn. matters Page 22 of 177
under Section 65-B of the Evidence Act are not complied with,
as the law now stands in India.
20. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions under the
Evidence Act. The very caption of Section 65-A of the Evidence
Act, read with Sections 59 and 65-B is sufficient to hold that the
special provisions on evidence relating to electronic record
shall be governed by the procedure prescribed under Section
65-B of the Evidence Act. That is a complete code in itself.
Being a special law, the general law under Sections 63 and 65
has to yield.
22. The evidence relating to electronic record, as noted
hereinbefore, being a special provision, the general law on
secondary evidence under Section 63 read with Section 65 of
the Evidence Act shall yield to the same. Generalia specialibus
non derogant, special law will always prevail over the general
law. It appears, the court omitted to take note of Sections 59
and 65-A dealing with the admissibility of electronic record.
Sections 63 and 65 have no application in the case of
secondary evidence by way of electronic record; the same is
wholly governed by Sections 65-A and 65-B. To that extent, the
statement of law on admissibility of secondary evidence
pertaining to electronic record, as stated by this Court
in Navjot Sandhu case [State (NCT of Delhi) v. Navjot Sandhu,
(2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , does not lay
down the correct legal position. It requires to be overruled and
we do so. An electronic record by way of secondary evidence
shall not be admitted in evidence unless the requirements
under Section 65-B are satisfied. Thus, in the case of CD,
VCD, chip, etc., the same shall be accompanied by the
certificate in terms of Section 65-B obtained at the time of
taking the document, without which, the secondary evidence
pertaining to that electronic record, is inadmissible.""
5.10. This Court in the decision reported as 2015 SCC Online Del 13647
Kundan Singh Vs. State held that the decision in Anvar P.V. (supra)
did not hold that the said certificate cannot be produced in exercise of
CRL.A. 134/2016 & conn. matters Page 23 of 177
powers of the Trial Court under Section 311 Cr.P.C. or at the
appellate stage under Section 391 Cr.P.C. It was held that Evidence
Act is a procedural law and in view of the pronouncement in Anvar
P.V. (supra) partly overruling Navjot Sandhu (supra), the prosecution
may be entitled to invoke the aforementioned provisions, when
justified and required.
5.11. Legal position on the point is thus well settled that is if the document
is otherwise inadmissible for want of a certificate or any other
requirement of law, it being exhibited in the course of trial does not
make the document admissible in law and though an objection as to
the mode of proof can be waived off and should be taken at the first
instance, however the objection as to the admissibility of a document
which goes to the root of the matter can be taken at any stage.
Supreme Court in the decision reported as R.V.E. Venkatachala
Gounder (supra) held:
"20. The learned counsel for the defendant-respondent has
relied on Roman Catholic Mission v. State of Madras [AIR
1966 SC 1457] in support of his submission that a document
not admissible in evidence, though brought on record, has to
be excluded from consideration. We do not have any dispute
with the proposition of law so laid down in the abovesaid case.
However, the present one is a case which calls for the correct
position of law being made precise. Ordinarily, an objection to
the admissibility of evidence should be taken when it is
tendered and not subsequently. The objections as to
admissibility of documents in evidence may be classified into
two classes: (i) an objection that the document which is sought
to be proved is itself inadmissible in evidence; and (ii) where
the objection does not dispute the admissibility of the document
in evidence but is directed towards the mode of proof alleging
CRL.A. 134/2016 & conn. matters Page 24 of 177
the same to be irregular or insufficient. In the first case, merely
because a document has been marked as "an exhibit", an
objection as to its admissibility is not excluded and is available
to be raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken when the
evidence is tendered and once the document has been admitted
in evidence and marked as an exhibit, the objection that it
should not have been admitted in evidence or that the mode
adopted for proving the document is irregular cannot be
allowed to be raised at any stage subsequent to the marking of
the document as an exhibit. The latter proposition is a rule of
fair play. The crucial test is whether an objection, if taken at
the appropriate point of time, would have enabled the party
tendering the evidence to cure the defect and resort to such
mode of proof as would be regular. The omission to object
becomes fatal because by his failure the party entitled to object
allows the party tendering the evidence to act on an
assumption that the opposite party is not serious about the
mode of proof. On the other hand, a prompt objection does not
prejudice the party tendering the evidence, for two reasons:
firstly, it enables the court to apply its mind and pronounce its
decision on the question of admissibility then and there; and
secondly, in the event of finding of the court on the mode of
proof sought to be adopted going against the party tendering
the evidence, the opportunity of seeking indulgence of the court
for permitting a regular mode or method of proof and thereby
removing the objection raised by the opposite party, is
available to the party leading the evidence. Such practice and
procedure is fair to both the parties. Out of the two types of
objections, referred to hereinabove, in the latter case, failure to
raise a prompt and timely objection amounts to waiver of the
necessity for insisting on formal proof of a document, the
document itself which is sought to be proved being admissible
in evidence. In the first case, acquiescence would be no bar to
raising the objection in a superior court."
5.12. In Malay Kumar Ganguly (supra) relied upon by learned counsel for
the appellants, Supreme Court while dealing with a claim under the
CRL.A. 134/2016 & conn. matters Page 25 of 177
Consumer Protection Act, 1986 observed the nature of evidence
required for the purposes of criminal proceedings and before the
National Consumer Disputes Redressal Commission (NCDRC). It is
in this context that the Supreme Court noted that in a criminal
proceeding subject to the shifting of burden depending upon the
Statute and/or the decisions of the Supreme Court, the right of an
accused is protected in terms of Article 21 of the Constitution of India
and that ordinarily if a party to a action does not object to a document
being taken on record and the same is marked as an exhibit, he is
estopped and precluded from questioning the admissibility thereof at
a later stage. However the documents become inadmissible in
evidence unless the author thereof is examined as the contents thereof
cannot be held to be proved unless he is examined and subjected to
cross-examination in a Court of law and a document which is
otherwise inadmissible cannot be taken in evidence only because no
objection to the admissibility thereof was taken. In respect of the
proceedings before the NCDRC Supreme Court relying upon R.V.E.
Venkatachala Gounder (supra) held that the documents thereof were
admissible as no objection to the admissibility was taken and that
provisions of Evidence Act were not applicable to the proceedings
before the Commission and it is to merely comply with the principles
of natural justice, save and except the ones laid down under Sub-
Section 4 of Section 13 of the Consumer Protection Act, 1986. As
noted above, Supreme Court in Malay Kumar Ganguly relied upon
the decision in R.V.E. Venkatachala Gounder (supra).
CRL.A. 134/2016 & conn. matters Page 26 of 177
5.13. After the arguments were heard in the appeals, Supreme Court
rendered its decision reported as 2017 SCC Online SC 765 Sonu @
Amar Vs. State of Haryana in respect of the mode of proof dealing
with an offence wherein the appellants were guilty of abduction and
murder. It was held that from the judgments of the Supreme Court in
Anvar P.V. (supra), Navjot Sandhu (supra) and R.V.E. Venkatachala
Gounder (supra) it is clear that an objection relating to the mode or
method of proof has to be raised at the time of marking of the
document as an exhibit and not later. It has been held:
"32. It is nobody's case that CDRs which are a form of
electronic record are not inherently admissible in evidence. The
objection is that they were marked before the Trial Court
without a certificate as required by Section 65B (4). It is clear
from the judgments referred to supra that an objection relating
to the mode or method of proof has to be raised at the time of
marking of the document as an exhibit and not later. The
crucial test, as affirmed by this Court, is whether the defect
could have been cured at the stage of marking the document.
Applying this test to the present case, if an objection was taken
to the CDRs being marked without a certificate, the Court could
have given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that
objections regarding admissibility of documents which are per
se inadmissible can be taken even at the appellate stage.
Admissibility of a document which is inherently inadmissible is
an issue which can be taken up at the appellate stage because it
is a fundamental issue. The mode or method of proof is
procedural and objections, if not taken at the trial, cannot be
permitted at the appellate stage. If the objections to the mode of
proof are permitted to be taken at the appellate stage by a
party, the other side does not have an opportunity of rectifying
the deficiencies. The learned Senior Counsel for the State
referred to statements under Section 161 of the Cr. P.C 1973 as
an example of documents falling under the said category of
CRL.A. 134/2016 & conn. matters Page 27 of 177
inherently inadmissible evidence. CDRs do not fall in the said
category of documents. We are satisfied that an objection that
CDRs are unreliable due to violation of the procedure
prescribed in Section 65 B (4) cannot be permitted to be raised
at this stage as the objection relates to the mode or method of
proof.
33. Another point which remains to be considered is whether
the accused is competent to waive his right to mode of proof.
Mr. Luthra's submission is that such a waiver is permissible in
civil cases and not in criminal cases. He relies upon a judgment
of the Privy Council in Chainchal Singh's case in support of the
proposition. The Privy Council held that the accused was not
competent to waive his right. Chainchal Singh's case may have
no application to the case in hand at all. In that case, the issue
was under Section 33 of the Evidence Act, and was whether
evidence recorded in an earlier judicial proceeding could be
read into, or not. The question was whether the statements
made by a witness in an earlier judicial proceeding can be
considered relevant for proving the truth or facts stated in a
subsequent judicial proceeding. Section 33 of the Evidence Act
allows for this inter alia where the witness is incapable of
getting evidence in the subsequent proceeding. In Chainchal
Singh, the accused had not objected to the evidence being read
into in the subsequent proceeding. In this context, the Privy
Council held that in a civil case, a party can waive proof but in
a criminal case, strict proof ought to be given that the witness is
incapable of giving evidence. Moreover, the judge must be
satisfied that the witness cannot give evidence. Chainchal
Singh also held that:
"In a civil case a party can, if he chooses, waive the
proof, but in a criminal case strict proof ought to be given
that the witness is incapable of giving evidence".
34. The witness, who had deposed earlier, did not appear in
the subsequent proceeding on the ground that he was unable to
move from his house because of tuberculosis, as deposed by the
process server. There was no medical evidence in this regard.
The Court observed that the question of whether or not he was
CRL.A. 134/2016 & conn. matters Page 28 of 177
incapable of giving evidence must be proved in this context, and
in the proof of such a fact it was a condition that statements
given in an earlier proceeding can be taken as proved in a
subsequent proceeding. Chainchal Singh's case therefore, does
not lay down a general proposition that an accused cannot
waive an objection of mode of proof in a criminal case. In the
present case, there is a clear failure to object to the mode of
proof of the CDRs and the case is therefore covered by the test
in R.V.E Venkatachala Gounder.
35. We proceed to deal with the submission of Mr. Luthra
that the ratio of the judgment of the Bombay High Court
in Shaikh Farid's case is not applicable to the facts of this case.
It was held in Shaikh Farid's case as under:
"6. In civil cases mode of proof can be waived by the
person against whom it is sought to be used. Admission
thereof or failure to raise objection to their tendering in
evidence amount to such waiver. No such waiver from the
accused was permissible in criminal cases till the enactment
of the present Code of Criminal Procedure in 1973. The
accused was supposed to be a silent spectator at the trial,
being under no obligation to open his mouth till the
occasion to record his statement under section 342 (present
S. 313) of the Code arose. Even then he was not bound to
answer and explain the circumstances put to him as being
appearing against him. In the case of Chainchal
Singh v. Emperor AIR 1946 PC 1 it was held by the Privy
Council that the accused was not competent to waive his
right and the obligation of the prosecution to prove the
documents on which the prosecution relied. Resultantly, the
prosecution was driven to examine witnesses even when the
accused was not interested in challenging the facts sought
to be proved though them. The inconvenience and the delay
was avoidable.
7. Section 294 of the Code is introduced to dispense with
this avoidable waste of time and facilitate removal of such
obstruction in the speedy trial. The accused is now enabled
to waive the said right and save the time. This is a new
CRL.A. 134/2016 & conn. matters Page 29 of 177
provision having no corresponding provision in the
repealed Code of Criminal Procedure. It requires the
prosecutor or the accused, as the case may be, to admit or
deny the genuineness of the document sought to be relied
against him at the outset in writing. On his admitting or
indicating no dispute as to the genuineness, the Court is
authorised to dispense with its formal proof thereof. In fact
after indication of no dispute as to the genuineness, proof of
documents is reduced to a sheer empty formality. The
section is obviously aimed at undoing the judicial view by
legislative process.
8. The preceding Section 293 of the Code also dispenses
with the proof of certain documents. It corresponds with
Section 510 of the repealed Code of Criminal Procedure. It
enumerates the category of documents, proof of which is not
necessary unless the Court itself thinks it necessary. Section
294 makes dispensation of formal proof dependent on the
accused or the prosecutor, not disputing the genuineness of
the documents sought to be used against them. Such
contemplated dispensation is not restricted to any class or
category of documents as under section 293, in which
ordinarily authenticity is dependent more on the mechanical
process involved than on the knowledge, observation or the
skill of the author rendering oral evidence just formal. Nor
it is made dependent on the relative importance of the
document or probative value thereof. The documents being
primary or secondary or substantive or corroborative, is not
relevant for attracting Sec. 294 of the Code. Not disputing
its genuineness is the only solitary test therefor.
9. Now the post-mortem report is also a document as any
other document. Primary evidence of such a document is the
report itself. It is a contemporaneous record, prepared in
the prescribed form, of what the doctor has noticed in the
course of post-mortem of the dead body, while investigation
the cause of the death. It being relevant, it can be proved by
producing the same. But production is only a step towards
proof of it. It can be received in evidence only on the
CRL.A. 134/2016 & conn. matters Page 30 of 177
establishment of its authenticity by the mode of its proof as
provided under sections 67 to 71 of the Evidence Act.
Section 294(1) of the Code enables the accused also, to
waive this mode of proof, by admitting it or raising no
dispute as to its genuineness when called upon to do so
under sub-section (1). Sub-section (3) enables the Court to
read it in evidence without requiring the same to be proved
in accordance with the Evidence Act. There is nothing in
Section 294 to justify exclusion of it, from the purview of
"documents" covered thereby. The mode of proof of it also
is liable to be waived as of any other document."
36. Section 294 of the Cr. P.C 1973 provides a procedure for
filing documents in a Court by the prosecution or the accused.
The documents have to be included in a list and the other side
shall be given an opportunity to admit or deny the genuineness
of each document. In case the genuineness is not disputed, such
document shall be read in evidence without formal proof in
accordance with the Evidence Act. The judgment in Shaikh
Farid's case is not applicable to the facts of this case and so, is
not relevant."
5.14. From the conjoint reading of the provisions of Evidence Act and as
held in the various decisions of the Supreme Court noted above, it is
evident that mode of proof of a document is distinct from standard of
proof. The mode of proof of a document which is governed by
Section 63 to 65 and 65B Indian Evidence Act in case of electronic
evidence remains the same whether it is a civil or a criminal
proceeding and can be waived off unless the document is per-se
inadmissible in evidence as then the objection before the Appellate
Court would be to the admissibility of the document and not to the
mode of proof of the document. Having not objected to the mode of
proof of an admissible document during the trial, the party is, whether
in civil or criminal proceeding, is estopped from challenging the
CRL.A. 134/2016 & conn. matters Page 31 of 177
mode of proof thereon. The concept of mode of proof of a document
cannot be confused with standard of a proof which is proof beyond
reasonable doubt in a criminal proceeding whereas by way of
preponderance of probability in civil proceeding. The mode of proof
required in proceedings before the NCDRC or any other quasi
judicial authority or disciplinary proceedings cannot be equated with
the mode of proof required in a civil proceeding and a criminal
proceeding for the reason the latter two are covered by the Indian
Evidence Act whereas the earlier proceedings are not covered by the
strict rules of Evidence Act. Thus if a document is admissible in
evidence and no objection to the mode of proof is taken thereof at the
stage of tendering the same in trial, the party is estopped to challenge
the same before the Appellate Court or thereafter, however if the
document is per-se inadmissible then even if marked as an exhibit the
same cannot be read in evidence.
5.15. The Supreme Court while noting the distinction between mode of
proof and standard of proof observed in the decision reported as
(1975) 4 SCC 769 Razik Ram v. Jaswant Singh Chouhan :
"15. Before considering as to whether the charges of corrupt
practice were established, it is important to remember the
standard of proof required in such cases. It is well settled that a
charge of corrupt practice is substantially akin to a criminal
charge. The commission of a corrupt practice entails serious
penal consequences. It not only vitiates the election of the
candidate concerned but also disqualifies him from taking part
in elections for a considerably long time. Thus, the trial of an
election petition being in the nature of an accusation, bearing
the indelible stamp of quasi-criminal action, the standard of
proof is the same as in a criminal trial. Just as in a criminal
CRL.A. 134/2016 & conn. matters Page 32 of 177
case, so in an election petition, the respondent against whom
the charge of corrupt practice is levelled, is presumed to be
innocent unless proved guilty. A grave and heavy onus
therefore, rests on the accuser to establish each and every
ingredient of the charge by clear, unequivocal and
unimpeachable evidence beyond reasonable doubt. It is true
that there is no difference between the general rules of evidence
in civil and criminal cases, and the definition of "proved" in
Section 3 of the Evidence Act does not draw a distinction
between civil and criminal cases. Nor does this definition insist
on perfect proof because absolute certainty amounting to
demonstration is rarely to be had in the affairs of life.
Nevertheless, the standard of measuring proof prescribed by the
definition, is that of a person of prudence and practical good
sense. "Proof" means the effect of the evidence adduced in the
case. Judged by the standard of prudent man, in the light of the
nature of onus cast by law, the probative effect of evidence in
civil and criminal proceedings is markedly different. The same
evidence which may be sufficient to regard a fact as proved in a
civil suit, may be considered insufficient for a conviction in a
criminal action. While in the former, a mere preponderance of
probability may constitute an adequate basis of decision, in the
latter a far higher degree of assurance and judicial certitude is
requisite for a conviction. The same is largely true about proof
of a charge of corrupt practice, which cannot be established by
mere balance of probabilities, and, if, after giving due
consideration and effect to the totality of the evidence and
circumstances of the case, the mind of the Court is left rocking
with reasonable doubt -- not being the doubt of a timid, fickle
or vacillating mind -- as to the veracity of the charge, it must
hold the same as not proved."
5.16. As noted above Section 34 of the Indian Evidence Act is in two parts
while its first part provides for the relevancy of the entry as evidence,
the second part is in the negative providing that such statement alone
is not sufficient for charging a person with a liability, thus providing
for its evidentiary value. Supreme Court in the decision reported as
CRL.A. 134/2016 & conn. matters Page 33 of 177
(1998) 3 SCC 410 Central Bureau of Investigation Vs. V.C. Shukla
dealing with Section 34 of Indian Evidence Act held:
"17. From a plain reading of the section it is manifest that to
make an entry relevant thereunder it must be shown that it has
been made in a book, that book is a book of account and that
book of account has been regularly kept in the course of
business. From the above section it is also manifest that even if
the above requirements are fulfilled and the entry becomes
admissible as relevant evidence, still, the statement made
therein shall not alone be sufficient evidence to charge any
person with liability. It is thus seen that while the first part of
the section speaks of the relevancy of the entry as evidence, the
second part speaks, in a negative way, of its evidentiary value
for charging a person with a liability. It will, therefore, be
necessary for us to first ascertain whether the entries in the
documents, with which we are concerned, fulfil the
requirements of the above section so as to be admissible in
evidence and if this question is answered in the affirmative then
only its probative value need be assessed."
5.17. Further Section 4 of the Banker's Book Evidence Act came up for
consideration before the Supreme Court in (1967) 1 SCR 898
Chandradhar Goswami & Ors. Vs. Gauhati Bank Limited and it was
held:
"6. ...... It will be clear that Section 4 gives a special
privilege to banks and allows certified copies of their accounts
to be produced by them and those certified copies become
prima facie evidence of the existence of the original entries in
the accounts and are admitted as evidence of matters,
transactions and accounts therein, but such admission is only
where, and to the same extent as, the original entry itself would
be admissible by law and not further or otherwise. Original
entries alone under Section 34 of the Evidence Act would not
be sufficient to charge any person with liability and as such
copies produced under Section 4 of the Bankers' Books
CRL.A. 134/2016 & conn. matters Page 34 of 177
Evidence Act obviously cannot charge any person with
liability. Therefore, where the entries are not admitted it is the
duty of the bank if it relies on such entries to charge any
person with liability, to produce evidence in support of the
entries to show that the money was advanced as indicated
therein and thereafter the entries would be of use as
corroborative evidence. But no person can be charged with
liability on the basis of mere entries whether the entries
produced are the original entries or copies under Section 4 of
the Banker's Books Evidence Act. "
5.18. A conjoint reading of Section 34 of the Indian Evidence Act, Sections
2(8), 2A and 4 of the Banker's Book Evidence Act and the various
pronouncements of the Supreme Court lead to the conclusion that
firstly, the prosecution is required to lead admissible evidence to
prove the entries in the books of accounts and after having led
admissible evidence link the same with other evidence on record to
prove the guilt of the accused beyond reasonable doubt. Thus, in case
the statements of accounts exhibited on record are accompanied by
certificate as envisaged under Section 2A of the Bankers' Books
Evidence Act, the statements of accounts would be admissible in
evidence. An objection as to the person exhibiting the said
statements of account i.e. an objection to the mode of proof and not
admissibility, has to be taken at the time of exhibition of the
documents. Therefore if certified copies of the statements of
accounts have been exhibited as per the requirement of Section 2A of
the Act, the statement of account would be admissible and in case no
objection to the witness proving the same is taken at the time when
the document is exhibited, the document would be validly read in
evidence. However, if the statements of accounts have been
CRL.A. 134/2016 & conn. matters Page 35 of 177
exhibited without the necessary certificate as contemplated under
Section 2A of the Act, the same being inadmissible in evidence, even
in the absence of an objection taken as to the mode of proof during
trial, this Court cannot read the same in evidence even though marked
as an exhibit.
6. OPINION OF HANDWRITING EXPERT
6.1. Besides the issues discussed above learned counsels for the appellants
also contend that the appellants cannot be convicted merely on the
report of the hand-writing expert and that since the specimen/
admitted handwriting of the appellants were not taken pursuant to the
directions of the Magistrate, the opinion rendered on the said
handwriting cannot be read in evidence. It is contended that most of
the documents of the prosecution have been proved by the
handwriting expert which is impermissible in law.
6.2. It is trite law that unlike the science of finger printing which is quite
accurate, science of matching the handwriting is not an exact science
and thus opinion of an expert in handwriting must be received with
great caution and before a conviction is based, there should be other
cogent and convincing evidence proved by the prosecution to base a
conviction thereon. In the decision reported as (1977) 2 SCC 2010
Magan Bihari Lal Vs. State of Punjab Supreme Court following its
earlier decision in AIR 1957 SC 381 Ram Chander Vs. State of U.P.
held that it is unsafe to treat opinion of the handwriting expert as
sufficient basis for conviction though it may be relied upon when
supported by other items of internal and external evidence. It was
held:
CRL.A. 134/2016 & conn. matters Page 36 of 177
"7. ....It is now well settled that expert opinion must always
be received with great caution and perhaps none so with more
caution than the opinion of a handwriting expert. There is a
profusion of precedential authority which holds that it is unsafe
to base a conviction solely on expert opinion without substantial
corroboration. This rule has been universally acted upon and it
has almost become a rule of law. It was held by this Court
in Ram Chandra v. State of U.P. [AIR 1957 SC 381 : 1957 Cri
LJ 559] that it is unsafe to treat expert handwriting opinion as
sufficient basis for conviction, but it may be relied upon when
supported by other items of internal and external evidence. This
Court again pointed out in Ishwari Prasad Mishra v. Md.
Isa [AIR 1963 SC 1728 : (1963) 3 SCR 722] that expert
evidence of handwriting can never be conclusive because it is,
after all, opinion evidence, and this view was reiterated
in Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR
1964 SC 529] where it was pointed out by this Court that
experts evidence as to handwriting being opinion evidence can
rarely, if ever, take the place of substantive evidence and before
acting on such evidence, it would be desirable to consider
whether it is corroborated either by clear direct evidence or by
circumstantial evidence. This Court had again occasion to
consider the evidentiary value of expert opinion in regard to
handwriting in Fakhruddin v. State of M.P. [AIR 1967 SC 1326
: (1967) 2 SCJ 885 : 1967 Cri LJ 1197] and it uttered a note of
caution pointing out that it would be risky to found a conviction
solely on the evidence of a handwriting expert and before acting
upon such evidence, the court must always try to see whether it
is corroborated by other evidence, direct or circumstantial. It is
interesting to note that the same view is also echoed in the
judgments of English and American courts.
Vide Gurney v. Langlands [1822 5 B and Ald 330] and Matter
of Alfred Foster's Will[34 Mich 21] . The Supreme Court of
Michigan pointed out in the last-mentioned case:
"Every one knows how very unsafe it is to rely upon any one's
opinion concerning the niceties of penmanship -- Opinions are
necessarily received, and may be valuable, but at best this kind
of evidence is a necessary evil."
CRL.A. 134/2016 & conn. matters Page 37 of 177
We need not subscribe to the extreme view expressed by the
Supreme Court of Michigan, but there can be no doubt that this
type of evidence, being opinion evidence is by its very nature,
weak and infirm and cannot of itself from the basis for a
conviction. We must, therefore, try to see whether, in the
present case, there is, apart from the evidence of the
handwriting expert B. Lal, any other evidence connecting the
appellant with the offence.""
6.3. Thus, opinion of a handwriting expert is only to identify the
handwriting of an individual on the document which is only a piece of
evidence in the entire chain of evidences required to prove the
incriminating circumstance.
6.4. The issue whether the evidence of the opinion of the handwriting
expert based on the specimen handwriting/ signatures obtained from a
person accused of having committed an offence during the course of
investigation of a crime by the investigating officer without
permission of the Court came up for consideration before the three
Judge Bench of this Court in the decision reported as 191 (2012) DLT
225 (FB) Sapan Haldar & Anr. Vs. State. The three Judge Bench of
this Court held that an investigating officer during investigation
cannot obtain a handwriting sample or a signature sample from a
person accused of having committed an offence after June 23, 2006
when Act No.25 of 2005 was notified and Section 311A inserted in
the Code of Criminal Procedure, 1973. Prior to June 23, 2006 even a
Magistrate could not direct a person accused to give specimen
signatures or handwriting samples. Even if the Magistrate directed,
the said evidence was held to be inadmissible as per the decision of
the Supreme Court in AIR 1980 SC 791 State of U.P. Vs. Ram Babu
CRL.A. 134/2016 & conn. matters Page 38 of 177
Mishra. The full Bench however carved out a distinction and held
that Section 4 of the Identification of Prisoners Act, 1920 would not
be applicable where the person is accused of an offence punishable
with death or imprisonment for life because the said provision
specifies a prerequisite i.e. that the person concerned is accused of
having committed an offence which is punishable with the sentence to
undergo rigorous imprisonment for a term of one year or upwards.
6.5. In the present case the appellants were charged and tried for offence
punishable under Section 409 IPC vide order dated 29th April, 2008
by the learned Special Judge which provides for sentence of
imprisonment of life as well. Hence in view of the exception laid
down by the full Bench in Sapan Haldar (supra) the objection of
learned counsels for the appellants that the specimen handwriting/
signatures of the appellant having been taken without the prior
permission of the Court concerned, the opinion of the handwriting
expert thereon is inadmissible in evidence is liable to be rejected.
7. EXPLANATION RENDERED BY ACCUSED UNDER SECTION
313 CR.P.C.
7.1. One of the contentions raised by learned counsel for the appellants is
that they have been convicted solely on the basis of the explanation
rendered by them in their statement under Section 313 Cr.P.C. which
is impermissible. It is contended that the prosecution has to stand on
its own legs and cannot use the answers to the question put to the
accused in his statement under Section 313 Cr.P.C. to convict the
accused.
7.2. Section 313 Cr.P.C. provides as under:
CRL.A. 134/2016 & conn. matters Page 39 of 177
"313. Power to examine the accused.
(1) In every inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances appearing in
the evidence against him, the Court-
(a) may at any stage, without previously warning the
accused, put such questions to him as the Court considers
necessary;
(b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his defence,
question him generally on the case: Provided that in a
summons- case, where the Court has dispensed with the
personal attendance of the accused, it may also dispense
with his examination under clause (b).
(2) No oath shall be administered to the accused when he is
examined under sub- section (1).
(3) The accused shall not render himself liable to punishment
by refusing to answer such questions, or by giving false answers
to them.
(4) The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial for, any other
offence which such answers may tend to show he has
committed."
7.3. Supreme Court in the decision reported as (2013) 5 SCC 753
Khairuddin Vs. State of W.B. explaining the evidentiary value of the
statement under Section 313 Cr.P.C. of the accused held:
"14. That brings us to the cases of three other appellants viz.
Monglu, Hafijuddin and Motilal Motin. None of them
admittedly was named in the FIR, which was lodged by PW 1
Budhu Md. who was present on the spot and claims to have
witnessed the occurrence. Absence of the names of these three
appellants from the FIR which gave details of the incident and
named several others who were allegedly participating in the
occurrence assumes importance and would require a cautious
approach towards the evidence. That is because omission of the
CRL.A. 134/2016 & conn. matters Page 40 of 177
names of those who are alleged to have participated in the
commission of the crime would be a significant circumstance
which cannot be lightly ignored. Possible false implication by
subsequent deliberations and consultations to cast the net wider
and accuse even those who may not have been actually present
on the spot, cannot be ruled out. No explanation is in any case
coming forth from the witnesses for the omission of the names of
these appellant-accused. Having said that, we cannot ignore the
fact that out of these three appellants, appellant Monglu Md.
has in his statement under Section 313 CrPC answered
Question 14, as under:
"I am also a pattadar. A few days (4/5) before I had
sown 'tisi' in my lands. On the day of the occurrence I
heard that the gang of Akalu was ploughing our land. Then
Isa Haque, myself, Hafij, Kusrat and Tamij went. We asked
them not to do so. There began fighting. I was assaulted on
my finger. Darbaru, Betu and Sudhu were ploughing.
Kusrat (my elder brother) had a great fight with Darbaru.
Then I also hit Darbaru. Then I fled away."
The above shows that appellant Monglu Md. was present on
the spot at the time of the occurrence according to his own
admission. Not only that, he had according to his own
statement, participated in the incident and even assaulted the
deceased Dabaru, before fleeing from the spot.
15. That the statement of an accused made under Section 313
CrPC can be taken into consideration is not in dispute; not only
because of what Section 313(4) of the Code provides but also
because of the law laid down by this Court in several
pronouncements. We may in this regard refer to the decision of
this Court in Sanatan Naskar v. State of W.B. [(2010) 8 SCC
249 : (2010) 3 SCC (Cri) 814] where this Court observed: (SCC
pp. 258-59, paras 21-24)
"21. The answers by an accused under Section 313
CrPC are of relevance for finding out the truth and
examining the veracity of the case of the prosecution. ...
22. As already noticed, the object of recording the
statement of the accused under Section 313 CrPC is to put
CRL.A. 134/2016 & conn. matters Page 41 of 177
all incriminating evidence to the accused so as to provide
him an opportunity to explain such incriminating
circumstances appearing against him in the evidence of the
prosecution. At the same time, also permit him to put
forward his own version or reasons, if he so chooses, in
relation to his involvement or otherwise in the crime. ...
Once such a statement is recorded, the next question that
has to be considered by the court is to what extent and
consequences such statement can be used during the
enquiry and the trial. Over the period of time, the courts
have explained this concept and now it has attained, more
or less, certainty in the field of criminal jurisprudence.
23. The statement of the accused can be used to test the
veracity of the exculpatory nature of the admission, if any,
made by the accused. It can be taken into consideration in
any enquiry or trial but still it is not strictly evidence in the
case. The provisions of Section 313(4) CrPC explicitly
provide that the answers given by the accused may be taken
into consideration in such enquiry or trial and put in
evidence for or against the accused in any other enquiry
into or trial for any other offence for which such answers
may tend to show he has committed. In other words, the use
is permissible as per the provisions of the Code but has its
own limitations. The courts may rely on a portion of the
statement of the accused and find him guilty in
consideration of the other evidence against him led by the
prosecution, however, such statements made under this
section should not be considered in isolation but in
conjunction with evidence adduced by the prosecution.
24. Another important caution that courts have declared
in the pronouncements is that conviction of the accused
cannot be based merely on the statement made under
Section 313 CrPC as it cannot be regarded as a substantive
piece of evidence."
To the same effect is the decision of this Court in Ashok
Kumar v. State of Haryana[(2010) 12 SCC 350 : (2011) 1
SCC (Cri) 266] .
CRL.A. 134/2016 & conn. matters Page 42 of 177
16. Reference may also be made to the decision of this Court
in Brajendrasinghv. State of M.P. [(2012) 4 SCC 289 : (2012) 2
SCC (Cri) 409] where this Court said: (SCC p. 297, para 15)
"15. It is a settled principle of law that the statement of
an accused under Section 313 CrPC can be used as
evidence against the accused, insofar as it supports the case
of the prosecution. Equally true is that the statement under
Section 313 CrPC simpliciter normally cannot be made the
basis for conviction of the accused. But where the statement
of the accused under Section 313 CrPC is in line with the
case of the prosecution, then certainly the heavy onus of
proof on the prosecution is, to some extent, reduced."
17. Time now to examine whether Monglu's participation in
the crime is proved by the prosecution evidence adduced at the
trial. PW 4 Samsul has in his deposition specifically stated that
Monglu was one of those who had assaulted deceased Darbaru.
Similarly, PW 5 Monglu Md., an injured witness, has also
implicated Appellant 16, and stated that "Darbaru was
assaulted by Yusuf, Bhaka, Monglu and Jabbar. I also stated to
the IO the fact regarding assault on Darbaru...". PW 6 Lal
Khan is yet another injured witness who incriminates Appellant
16 Monglu. He stated, "At first Jabbar, Yusuf Amin and Monglu
assaulted Darbaru with a dagger, ballam, etc. who sustained
multiple injuries on his person and succumbed to such
injuries...". PW 17 Bholu Md. is also an injured witness who
corroborated the version given by the other eyewitnesses and
stated "Sabdul, Khairuddin, Ishahaque, Nasiruddin, Monglu
and others assaulted Darbaru severely".
18. It is evident from the above that Appellant 16 Monglu's
presence on the spot and participation in the commission of the
offence is proved by the evidence led by the prosecution and
supported by his own statement recorded under Section 313
CrPC. That is not, however, true about the remaining two
appellants, namely, Hafijuddin and Motilal who were neither
named in the FIR nor is there any cogent evidence to suggest
their complicity or participation in the commission of the
offence. In the circumstances, therefore, while the appeal filed
CRL.A. 134/2016 & conn. matters Page 43 of 177
by Monglu shall have to be dismissed, that filed by Hafijuddin
and Motilal shall have to be allowed giving to the said two
appellants also the benefit of doubt."
7.4. The Supreme Court in (2014) 4 SCC 747 Ashok Debbarma Vs. State of
Tripura clearly laid down that the conviction cannot be based only on
the statement under Section 313 Cr.P.C. as the same is not
substantiative evidence and it can only be taken as a piece of evidence
to lend credence to the case of the prosecution. It was held:
"23. The learned counsel appearing for the accused has
raised the question that incriminating questions were not put to
the accused while he was examined under Section 313 CrPC.
The object of Section 313 CrPC is to empower the court to
examine the accused after evidence of the prosecution has been
taken so that the accused is given an opportunity to explain the
circumstances which may tend to incriminate him. The object of
questioning an accused person by the court is to give him an
opportunity of explaining the circumstances that appear against
him in the evidence. In the instant case, the accused was
examined in the court on 23-4-2005 by the Additional Sessions
Judge, West Tripura, Agartala, which, inter alia, reads as
follows:
Question: It transpires from the evidence of PWs
10, 11 and 13 that they had recognised
you amongst the extremists. Is it true?
Answer: False.
Question: It transpires from the evidence of the
above witnesses that Dulal, Ajit,
Saraswati and Hemender sustained
severe bullet injuries by the firing of
you and your associates. What do you
have to say regarding this?
Answer: Yes.
Question: It is evident from the evidence of these
CRL.A. 134/2016 & conn. matters Page 44 of 177
witnesses and other information that on
that night Sachindra Sarkar, Archana
Garkar, Dipak Sarkar, Gautam Sarkar,
Shashi Sarkar, Prosenjit Sarkar,
Saraswati Biswas, Tulsi Biswas,
Narayan Das, Mithu Das, Bitu Das,
Khelan Sarkar, Sujit Sarkar, Bipul
Sarkar and Chotan Sarkar were killed
by the bullets of firearms and fire. What
do you have to say regarding this?
Answer: ................... (blank).
The second question put to the accused was that, from the
deposition of PW 10, PW 11, PW 13, it had come out in
evidence that it was due to the firing of the accused and his
associates that Dulal, Ajit, Saraswati and Hemender had
sustained severe bullet injuries, to which the answer given by
the accused was "Yes". In other words he has admitted the fact
that in the incident, Dulal, Ajit, Saraswati and Hemender had
sustained severe bullet injuries by the firing of the accused and
his associates. Further, for the question that from the evidence
of those witnesses and other information, on that night,
Sachindra Sarkar, Archana Garkar, Dipak Sarkar, Gautam
Sarkar, etc. were killed by the bullets of firearms and fire, the
accused kept silent.
24. We are of the view that, under Section 313 statement, if
the accused admits that from the evidence of various witnesses,
four persons sustained severe bullet injuries by the firing by the
accused and his associates, that admission of guilt in Section
313 statement cannot be brushed aside. This Court in State of
Maharashtrav. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC
(Cri) 705] held that since no oath is administered to the
accused, the statement made by the accused under Section 313
CrPC will not be evidence stricto sensu and the accused, of
course, shall not render himself liable to punishment merely on
the basis of answers given while he was being examined under
Section 313 CrPC. But, sub-section (4) says that the answers
given by the accused in response to his examination under
CRL.A. 134/2016 & conn. matters Page 45 of 177
Section 313 CrPC can be taken into consideration in such an
inquiry or trial. This Court in Hate Singh Bhagat Singh [Hate
Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC
468 : 1953 Cri LJ 1933] held that the answers given by the
accused under Section 313 examination can be used for proving
his guilt as much as the evidence given by the prosecution
witness. In Narain Singh v. State of Punjab [(1964) 1 Cri LJ
730 : (1963) 3 SCR 678] this Court held that when the accused
confesses to the commission of the offence with which he is
charged, the court may rely upon the confession and proceed to
convict him.
25. This Court in Mohan Singh v. Prem Singh [(2002) 10
SCC 236 : 2003 SCC (Cri) 1514] held that: (SCC p. 244, para
27)
"27. The statement made in defence by the accused
under Section 313 CrPC can certainly be taken aid of to
lend credence to the evidence led by the prosecution, but
only a part of such statement under Section 313 CrPC
cannot be made the sole basis of his conviction."
In this connection, reference may also be made to the
judgments of this Court in Devender Kumar Singla v. Baldev
Krishan Singla [(2005) 9 SCC 15 : 2005 SCC (Cri) 1185]
and Bishnu Prasad Sinha v. State of Assam [(2007) 11 SCC 467
: (2008) 1 SCC (Cri) 766] . The abovementioned decisions
would indicate that the statement of the accused under Section
313 CrPC for the admission of his guilt or confession as such
cannot be made the sole basis for finding the accused guilty, the
reason being he is not making the statement on oath, but all the
same the confession or admission of guilt can be taken as a
piece of evidence since the same lends credence to the evidence
led by the prosecution."
7.5. The very purpose of recording statement under Section 313 Cr.P.C. is
to put the incriminating circumstance against the accused to him and
afford an opportunity to explain such incriminating circumstance. In
case there is no incriminating circumstance against the accused, the
CRL.A. 134/2016 & conn. matters Page 46 of 177
same cannot be put to him under Section 313 Cr.P.C. and an
explanation sought. Where the prosecution has led no incriminating
evidence against the accused, the Court is required to dispense with
recording of the statement of the accused under Section 313 Cr.P.C.
and acquit him. [See 1991 Crl.L.J. 3208 State Vs. Sheikh Kadher
Sheik Budin].
7.6. Under Section 30 of the Indian Evidence Act when two or more
persons are jointly tried for the same offence confession made by one
such person affecting the other, if proved, may be taken into
consideration against such other person as well as the person who
makes such confession. The phrase Court may take into consideration
such confession has come up for consideration in various decisions
and it has been held that in law the confession of a co-accused cannot
be treated as a substantive evidence to convict, other than the maker of
it on the evidentiary value of it alone. But if on the basis of the
consideration of other evidence on record the Court is inclined to
accept the other evidence, but not prepared to act on such evidence
alone, the confession of a co-accused can be pressed into service to
fortify its belief to act on it also. [See (2003) 10 SCC 586 Govt. of
NCT of Delhi Vs. Jaspal Singh]. Similar phraseology has been used in
Section 313(4) Cr.P.C. and it is trite law that no conviction can be
based simplicitor on the statement of the accused under Section 313
Cr.P.C. as the same is not given on oath, however if on consideration
of the material placed by the prosecution and duly proved the Court
looks for an assurance, the statement of the accused under Section 313
Cr.P.C. can be pressed into service.
CRL.A. 134/2016 & conn. matters Page 47 of 177
7.7. Thus, when there are some incriminating circumstances against the
accused, confession of a co-accused and similarly the explanation of
the accused under Section 313 Cr.P.C. can be taken into consideration
as an additional circumstance.
8. Crl.A. 323/2016 - Y.P. Sharma (A-1) v. CBI :
8.1. Learned counsel for the appellant contends that the prosecution has
not proved that any government/treasury cheque was either issued in
the name of the appellant or he withdrew the said amount. Neither
any pay-in-slip in the handwriting of the appellant nor statement of
account of the appellant has been proved. The only evidence in
respect of the first allegation against the appellant is the statement of
B.V. Jagdish (PW-50), an employee in the CWC who deposed that
the appellant deposited and withdrew the amount from the account of
R.L. Kawale (A-5 since deceased) through bearer cheques. Thus,
there is no evidence as to the role played by the appellant in the so
called conspiracy nor is the appellant beneficiary of the amount
deposited.
8.2. Second set of allegations of the prosecution against the appellant is
that bank draft No.846597 mark X-12 (not exhibited) was prepared in
the name of A.V. Reddy for `62,000/-. Learned counsel for the
appellant submits that the learned Trial Court failed to note that this
draft was subsequently cancelled and a cheque was issued in the name
of R.L. Kawale for `62,000/-. Thus, the allegation of
misappropriation against the appellant is not made out. The third
allegation is based on the oral testimony of the witnesses that the
CRL.A. 134/2016 & conn. matters Page 48 of 177
appellant withdrew the amount. Oral evidence of the witnesses is not
supported by any documentary evidence hence cannot be relied upon
to base the conviction. Further, no charge was framed on this count
and hence the appellant cannot be convicted for the same.
8.3. It is further urged that questions have been put to the appellant in the
statement recorded under Section 313 Cr.P.C. on the basis of charge
sheet and not as per the evidence adduced by the prosecution. Thus
the so-called incriminating facts cannot be used against the appellant.
The appellant had no dominion over the property hence he cannot be
convicted for offences punishable under Sections 403/409 IPC.
Learned Trial Court without returning any finding as to how offences
punishable under Sections 403/409 IPC were made out, convicted the
appellant for the said offences. There is no evidence on record to
show that the appellant acted in conspiracy with the other co-convicts.
Sanction granted under Section 197 Cr.P.C. is vitiated as the same
does not mention the offences for which it is granted and merely
states that the sanction is granted for any other offence punishable.
Reliance is placed on the decisions reported as (1996) 1 SCC 478 R.
Balakrishna Pillai Vs. State of Kerala & Anr. , (2009) 8 SCC 617
State of M.P. Vs. Sheetla Sahai and 1991 Crl.L.J 462 Harekrushna
Patnaik Vs. State of Orissa. Even if the conviction of the appellant is
to be upheld, he has been awarded harsh sentence of imprisonment
for seven years, thus, in the alternative he be released on the period
already undergone.
8.4. As per the CBI there are 7 sets of allegations against the appellant as
under:
CRL.A. 134/2016 & conn. matters Page 49 of 177
"(i) Appellant deposited fraudulently issued CWC cheques in
the account of R.L. Kawale, Director, CWC. Appellant had
received the funds, so credited through two cheques and on six
occasions in cash.
(ii) A bank draft in the name of A.V. Reddy in the sum of
₹62,000/- was issued, but it was not delivered to him. It is
alleged that Appellant picked it up and thereafter got it
converted in to a Govt. cheque in the name of R.L. Kawale (A-
5), deposited the same in the bank account of A-5 and thereafter
withdrew the same amount.
(iii) Appellant had deposited in his bank account huge amount
of ₹1,15,000/-, ₹80,000/- and ₹60,000/- in the month of March
1999.
(iv) On 30.08.1999 Appellant deposited cash of ₹7,25,000/-
and withdrew ₹8,45,000/-.
(v) Appellant had also received ₹20,000/- & ₹35,000/-
through cheques from co-accused O.P. Narang.
(vi) Appellant had prepared six slips and initialled them for
issuance of open cheque in favour of DDO-I in lieu of 21 A/c
payee cheques.
(vii) Appellant had prepared fake pay arrears of ₹54,202/- and
₹74,874/- in the name of Om Prakash (A-11) and B.M. Ghosh
(A-10) showing the designation as Dy. Director falsely."
8.5. Appellant has been convicted by the learned Trial Court for
allegations No. (i), (ii) and (vi) and acquitted for allegations No. (iii),
(iv), (v) and (viii). Learned counsel for the CBI prays that in addition
to upholding the conviction for allegations No. (i), (ii) & (vi)
Appellant is required to be convicted for allegations No.(v) and (vii)
also though he does not press allegations No.(iii) and (iv).
CRL.A. 134/2016 & conn. matters Page 50 of 177
8.6. Learned counsel for the CBI submits that appellant was posted as
Professional Assistant in CWC during the relevant period and was a
dealing hand who used to prepare the bills of the employees above the
rank of Deputy Director. B.V. Jagdish (PW-50) the then LDC used to
assist the appellant in the maintenance of Pay Bill Register (PBR) of
the Deputy Directors. Besides relying on the testimony of B.V.
Jagdish Kumar, learned counsel also relies on the evidence showing
deposit of 8 CWC cheques in account No.42861 maintained at State
Bank of India, R.K. Puram in the name of R.L. Kawale (A-5) since
deceased and amount transferred to appellant in cash or by cheque in
his account No.36903 State Bank of India, R.K. Puram. Learned
counsel for the CBI also relies upon the statement of Ratan Lal (PW-
16) Senior Accountant CWC who proved four cheques issued in the
name of R.L. Kawale and B.S. Yadav (PW-29) P&AO who proved
the counterfoil of the cheque. Learned counsel for the CBI further
contends that the appellant prepared six slips and initialed them for
issuance of open cheque in favour of DDO-I in lieu of 21 account
paying cheques in the name of different persons and collected/
distributed the money to existing/ non-existing employees. Reliance
is placed on the testimonies of Chander Shekhar (PW-47) S/o J.P.
Sharma (A-6), Sunil Kumar (PW-42) running a chemist shop and
Kamal Sharma (PW-40) nephew of J.P. Sharma (A-6). Learned
counsel for the CBI further contends that the appellant in conspiracy
with Om Prakash Narang (A-3) after depositing illegal cheques in the
account of O.P. Narang transferred the amount of ₹20,000/- and
₹35,000/- respectively by two cheques to his account, as proved by
CRL.A. 134/2016 & conn. matters Page 51 of 177
the evidence of Anil Kathuria (PW-4) Special Assistant, Allahabad
Bank. In his statement under Section 313 Cr.P.C. the claim of the
appellant was that these were private transactions without any further
explanation.
8.7. Evidence in respect of Allegation (i): It is the case of prosecution that
eight cheques of CWC amounting to ₹5,12,857/- were deposited in
the account No. 42861 in the name of R.L. Kawale (A-5) (since
deceased) by appellant maintained at State Bank of India, R.K.
Puram. Out of the eight cheques so deposited in the account of R.L.
Kawale, three were deposited by B.V. Jagdish Kumar (PW-50).
Further amount of six cheques was transferred from the account of
R.L. Kawale to that of appellant and was withdrawn in cash which
fact has also been proved by B.V. Jagdish Kumar who was then
posted as LDC in the Account Section III of CWC Delhi and deposed
that while working with appellant he had seen him signing and
writing. He identified D-277 as a cheque issued by R.L. Kawale in
favour of appellant which was signed by appellant on the back side at
point 'A'. B.V. Jagdish further deposed that he encashed the
aforesaid cheque from the State Bank of India, R.K. Puram by signing
at point 'B' on the back side of the cheque Ex.PW-50/A and handed-
over the said amount to appellant. He further identified cheques as D-
274 to D-279 issued by R.L. Kawale from his account No. 42861 in
favour of appellant and identified the signatures of appellant on the
back side of the cheques at point 'A' and exhibited the cheques as
Ex.PW-50/D-1 to D-5. Ratan Lal (PW-16), Senior Accountant CWC
proved entries of four of the eight cheques i.e. cheque Nos. 242361,
CRL.A. 134/2016 & conn. matters Page 52 of 177
4275474, 276267 and 277093 for a sum of ₹67,445/-, ₹59,548/-,
₹56,194/- and ₹51,480/- being the CWC cheques issued in the name
of R.L. Kawale. B.S. Yadav (PW-29) the then Pay & Accounts
Officer proved the counterfoil of cheque No. 274501 for a sum of
₹60,000/- and that it was issued in the name of R.L. Kawale. B.V.
Jagdish Kumar also proved counter issuance of certain cheques by
R.L. Kawale in favour of Y.P. Sharma vide Ex.PW-50/D-1 to PW-
50/D-5 and Ex.PW-50/A withdrawn by appellant. The signatures of
appellant on the back side of the cheques proving that he withdrew
the cheques have been proved by the hand-writing expert PW-51.
Appellant was posted as Professional Assistant and used to prepare
bills of officers above the rank of Deputy Director. Thus deposit of
amount by four cheques in the account of R.L. Kawale has been
proved by the oral testimony of Ratan Lal coupled with documentary
evidence which amount was withdrawn by appellant as proved by the
testimony of B.V. Jagdish Kumar. The explanation rendered under
Section 313 Cr.P.C. that the same was a private transaction cannot be
accepted. As per Section 16(4) of the All India Service Conduct
Rules 1968, every member of the service is required to intimate the
Government in respect of transactions exceeding ₹15,000/- within a
month of completion of transaction, which onus has not been
discharged by the appellant. Contention of learned counsel for the
appellant that only oral evidence was led deserves to be rejected in
view of documentary evidence noted. Thus, the learned Additional
Sessions Judge committed no error in coming to the conclusion that
CRL.A. 134/2016 & conn. matters Page 53 of 177
allegation (i) has been proved beyond reasonable doubt by the
prosecution against appellant.
8.8. Evidence in respect of Allegation (ii): The second allegation against
the appellant that a bank draft was prepared in the name of A.V.
Reddy in the sum of ₹62,000/- but was not delivered to him, and that
the appellant picked it up, got it converted into a Government cheque
in the name of R.L. Kawale, deposited the same in the account of
R.L. Kawale and thereafter withdrew the said amount stands proved
by the testimony of B.S. Yadav (PW-29) the then Pay & Accounts
Officer, CWC. B.S. Yadav deposed that he was conversant with the
process of issuance of cheque in the P&AO office as well as issuance
of fresh cheque after cancellation of the cheque already issued. He
deposed that three categories of cheques were prepared i.e. a cheque
issued in favour of private party/ individual, a cheque issued in favour
of DDO for disbursement of pay and allowances of the staff and a
cheque issued in favour of Department/ Government transaction. The
entire transaction of the accounts is guided by Civil Accounts Manual
issued by Controller General Accounts. He identified the notings
mark 'XN' on the back side of the file noting 7/N vide which a
demand draft No. 846597 dated 18th September, 1999 was issued in
favour of A.V. Reddy received from CWC for cancellation and a
fresh cheque was issued in favour of R.L.Kawale in lieu thereof. As
per Page No. 67 of the file Ex.PW-23/A, a request was received by
the DDO from the P&AO for issuance of the fresh cheque in the
name of R.L. Kawale for ₹62,000/-. The said cheque was given to
S.K. Aggarwal, Senior Accounts Officer (A-17) vide noting marked
CRL.A. 134/2016 & conn. matters Page 54 of 177
as 'X-10'. He further deposed that as per register of demand draft
Ex.PW-15/A at serial No. 536 vide cheque No. 242670 dated 17 th
September, 1999 bank draft bearing No. 846597 dated 18th
September, 1999 was got issued from the bank in favour of A.V.
Reddy payable at Nagpur and according to this register the said draft
was received by appellant and he identified his signatures at 'X-11'
and copy of the said bank draft in file Ex.PW-23/A at page 66 as 'X-
12' for identification. Thus, from the evidence of B.S. Yadav (PW-
29) the allegation that a bank draft in the name of A.V. Reddy for a
sum of ₹62,000/- was got issued but not delivered to him and received
by the appellant, later got cancelled and a cheque for the same amount
prepared by S.K. Aggarwal (A-17) in the name of R.L. Kawale, and
encashed stands proved beyond reasonable doubt.
8.9. Evidence in respect of Allegation (v): The fifth allegation against
appellant is that he in conspiracy with O.P. Narang (A-3) got
transferred two cheques into his account for a sum of ₹20,000/- and
₹35,000/-. This fact stands proved by the testimony of Anil Kathuria
(PW-4), Special Assistant posted at Tilak Nagar Branch of Allahabad
Bank who proved the bank statement of the account of O.P. Narang
(A-3) vide Ex.PW-4/5 which is certified under Section 2A of the Act.
Vide Ex.PW-4/4 and 4/5 a debit entry in favour of appellant for a sum
of ₹35,000/- clearing on 30th July, 1999 stands proved. This witness
has not been cross-examined by appellant. Thus, the fifth allegation
to the extent of transfer of ₹35,000/- from the account of O.P. Narang
(A-3) to the account of the appellant is proved beyond reasonable
doubt.
CRL.A. 134/2016 & conn. matters Page 55 of 177
8.10. Evidence in respect of Allegation (vi): The sixth allegation of the
prosecution against the appellant is that six slips were prepared for
issuance of open cheques in favour of DDO-I in lieu of 21 account
payee cheques in the name of different persons. The amount of
cheques were collected and distributed to various existing/ non-
existing employees of CWC by making Acquittance Rolls. Despite
the fact that it was not part of the duty of appellant to initiate
cancellation and re-issuance process, however he performed the said
function and signatures of appellant stand proved on the slips Ex.PW-
26/L, Ex.PW-26/19, Ex.PW-26/N, Ex.PW-30/A-8, Ex.PW-30/A-12
and Ex.PW-30/A-14 by the opinion and deposition of the handwriting
expert PW-51. In response to question No.25 in his statement under
Section 313 Cr.P.C. the response of appellant is of denial and that the
DDO under whom he was functioning as Professional Assistant had
given him the number of certain cheques and had asked him to enter
the cheques in the paper slips for claiming the fresh cheques in the
name of DDO-I. Thus the sixth allegation against Y.P. Sharma also
stands proved beyond reasonable doubt.
8.11. As regards allegation No.(vii) though the prosecution has proved
beyond reasonable doubt this allegation qua C.Manjhi (A-2), B.M.
Ghosh (A-10) and Om Prakash (A-11) as noted in Paras 9.16, 15.3
and 16.4 respectively, however the prosecution has led no evidence to
prove the complicity of the appellant in these transactions. Hence the
allegation No.(vii) is not proved against the appellant.
8.12. Though not argued by learned counsels for the parties however one
more allegation proved against the appellant is in the respect of fake
CRL.A. 134/2016 & conn. matters Page 56 of 177
bills of S.S. Naik (A-1) is that after money was deposited in the
account of S.S. Naik, appellant withdrew ₹1,06,000/- from the
account of Shiv Sagar Naik.
8.13. Learned counsel for CBI also relies on the deposition of Kamal
Sharma PW-40 who deposed that his maternal uncle J.P. Sharma (A-
6) had borrowed a loan in the name of Kamal Kumar Sharma for
purchasing a car for himself. For this J.P. Sharma gave him two
demand drafts for ₹87,379/- and ₹67,445/- in the month of July and
October, 1999 respectively. He deposited both the drafts in his
account bearing No.16103 in Syndicate Bank, Raj Nagar, Ghaziabad,
U.P. He withdrew the aforesaid amount so deposited and paid over
the same to his maternal uncle J.P. Sharma. Though in his
examination-in-chief Kamal Sharma did not state anything as to
whom he handed-over the draft but in his cross-examination on behalf
of J.P. Sharma he clarified that he handed-over the amount to his
maternal uncle J.P. Sharma who was accompanied by appellant and
that they had come in a new Maruti car. The evidence of Kamal
Kumar Sharma establishes the conspiracy between J.P. Sharma and
appellant in respect of the withdrawal of the amount through the
demand draft got prepared in the name of Kamal Sharma.
8.14. Learned counsel for the appellant has also taken an objection that
though sanction for prosecution for the offences punishable under the
Prevention of Corruption Act, 1988 has been taken under Section 19
of the Prevention of Corruption Act, however no sanction has been
taken under Section 197 Cr.P.C. The sine qua non for requirement of
sanction under Section 197 Cr.P.C. is that the public servant is
CRL.A. 134/2016 & conn. matters Page 57 of 177
removable by the Government. No arguments have been addressed
by learned counsel for the appellant to show that appellant is a public
servant who is removable by the Government.
8.15. The complicity of the appellant with the other co-accused particularly
Om Prakash Narang is also proved by the evidence of Sunil Kumar
PW-42 who deposed that his brother runs a chemist shop. Om
Prakash Narang used to visit their shops to purchase medicines and
ask him about his bank accounts. He informed Om Prakash about his
two bank accounts and exhibited the account opening form, specimen
signature card and the statement of account vide Ex.PW-42/A to PW-
42/C. He exhibited the specimen signature card and the account
opening form of the bank account at State Bank of India, Vikas Puri
as Ex.PW-8/3 and the statement of account as Ex.PW-42/D. Om
Prakash Narang informed him that some cheques in the name of Sunil
Kumar has been prepared in his office and he had to deposit those
cheques in the account of Sunil Kumar to which he refused. After
some time Om Prakash Narang along with the appellant came to his
shop and stated that it was their departmental matter. On their
assurance he agreed to deposit of the cheques and three cheques for a
sum of ₹45,000/-, ₹62,000/- and ₹58,000/- were deposited in the
account of Sunil Kumar and after some time Om Prakash came to his
shop and demanded cash in lieu of the three cheques deposited which
he paid. He also exhibited the pay-in-slips and the cheques vide
Ex.PW-42/E collectively.
8.16. Though as discussed later while dealing with the appeals of C.Manjhi
(A-2) and Om Prakash (A-11) one more allegation proved against the
CRL.A. 134/2016 & conn. matters Page 58 of 177
appellant is in respect of the fraudulent withdrawal of a sum of
₹2,72,475/- sanctioned in favour of S.P. Garg (PW-32) based on a
combined cheque for a sum of ₹4,25,875/- signed by the appellant,
however since this allegation was not put to the parties and no
arguments advanced by them on this count, this Court is refraining
from considering this allegation against the appellant.
8.17. Contention of learned counsel for the appellant that since he had no
dominion over the property, hence he could not be convicted for
offences punishable under Section 403/409 IPC. From the discussion
aforesaid it is evident that the appellant in conspiracy with other
accused defalcated funds of the Government and misappropriated the
same. Even if an accused holds dominion of a property for a short
duration and misappropriates the same to his own use, ingredients of
offene punishable under Section 403/409 IPC are attracted. Thus the
contention of learned counsel on this count deserves to be rejected.
8.18. From the discussion aforesaid and the evidence led by the prosecution
allegations No. (i), (ii), (v) and (vi) only stand proved against the
appellant and thus his conviction from the offences punishable under
Sections 13(1)(d) read with 13(2) PC Act and Sections 403, 120B
read with 403/409 IPC is upheld.
9. Crl.A. 259/2016 - Chandreshwar Manjhi v. CBI (A-2) :
9.1. Learned counsel for the appellant at the outset submits that four
charge-sheets were filed against the appellant on the complaint of
M.E. Haque (PW-24), however the appellant has been acquitted in
three charge-sheets i.e. CC No.65/2, 14/2011 and 18/2011 whereas
CRL.A. 134/2016 & conn. matters Page 59 of 177
the learned Judge by the impugned judgment took a different view
and convicted the appellant in the present chargesheet. It is
contended that the appellant neither forged any document nor made
any withdrawal nor were the cheques issued in his name. The only
role attributed to him is that he forwarded the bills. Before the
appellant initialled the bills and the cheques, they were scrutinized
and verified at various levels. M.E. Haque admitted that whatever
payment are made to any person was checked at four to five different
levels in the hierarchy. M.E. Haque in his cross-examination
admitted that GR-VI/TR-V was an important document with regard
to disbursement and the same was not given with the complaint to the
CBI.
9.2. Learned counsel further contends that the appellant neither benefited
from the transactions nor was any claim passed in the name of the
appellant. The bills and cheques were verified by the appellant which
were processed as per the prevailing practices in the department. No
evidence has been led by the prosecution to show that the appellant
had mens rea to commit the offence which is an essential ingredient
as proof of dishonest intention for a wrongful benefit or gain is
essential to be proved. The appellant can at best be held to be
negligent, for which he cannot be convicted. Reliance is placed on
the decisions of the Supreme Court reported as (1996) 10 SCC 193 C.
Cenga Reddy and Ors. Vs. State of U.P., (2003) 9 SCC 700 R.
Balakrishna Pillai Vs. State of Kerala and (2012) 9 SCC 512 CBI Vs.
K. Naryan Rao. Reliance is further placed on the decision of the
Jharkhand High Court in Crl.M.P. No.506/2015 decided on 5 th
CRL.A. 134/2016 & conn. matters Page 60 of 177
February, 2016 titled as Anoop Kumar Sain Gupta Vs. State of
Jharkhand wherein it was held that if the accused is not even aware
that a particular person would be awarded work it cannot be said that
the accused acted with an intention to confer pecuniary benefits to the
said contractor. It is thus prayed that the appellant be acquitted. In
the alternative it is submitted that the appellant has been awarded
sentence of rigorous imprisonment for a period of five years whereas
persons who have benefited and in whose name cheques had been
issued have been awarded lesser sentence, thus the sentence of the
appellant be reduced to the period already undergone.
9.3. Learned counsel for the CBI submits that the appellant was posted as
DDO in the Accounts Section of CWC and drew a salary of ₹8723/-
including various allowances such as DA, HRA, CCA, conveyance
allowance etc., as is evident from the pay bill register (D-557)
exhibited as Ex.PW-54/Z-11. The two allegations against the
appellant of defalcating Government funds by forwarding fake bills
supported by fake documents without being recorded in the bill
register and signing and sending undated slips with no dispatch
number along with outdated and old cheques for issuance of cheques
in favour of DDO-I are proved by the evidence of B.S. Yadav (PW-
29), R.C. Tully (PW-26), N.R. Meena (PW-30), B.V. Jagdish Kumar
(PW-50) coupled with the report of the handwriting expert and the
documents duly exhibited by the prosecution.
9.4. The two allegations against the appellant claimed to be proved by the
prosecution and dealt by the Trial Court are:
CRL.A. 134/2016 & conn. matters Page 61 of 177
"(i) Appellant worked as DDO-I in CWC, New Delhi during
the relevant period, in pursuance of the criminal conspiracy in
order to defalcate Govt. funds forwarded fake bills supported
with fake documents to P&AO, CWC for passing of payment
which were not recorded in the bill register. Appellant signed
and sent seven undated and bearing no dispatch number slips
along with 21 outdated/ old cheques to P & AO for issue of
cheque in favour of DDO-I. Co-accused S.K. Agarwal issued 7
cheques in favour of DDO-I. The disbursement of payment
against thereof was shown to different persons by the co-
accused J.K. Singhal, A-4 (Cashier) in conspiracy with the
appellant and Y.P. Sharma.
(ii) Appellant has forwarded fake pay arrears bill of ₹54,202/-
and ₹74,874/- in the name of Om Prakash and B.M. Ghosh,
showing their designation as Deputy Directors falsely and
projecting their high basic pay ₹15,100/- and ₹14,400/- of
Jan.96. As per PBR Record the basic pay of Shri Om Prakash
D/M Gr.I was ₹6900/- in Jan. 2004 and basic pay of Shri B.M.
Ghosh, EAD was ₹9,700/- as on August 1998."
9.5. Before dealing with the respective contentions it would be appropriate
to note the testimonies of A.S. Gautam (PW-25) and B.S. Yadav
(PW-29) who deposed about the procedure for preparation and
issuance of cheques in the department.
9.6. Mr. A.S. Gautam who was a Senior Accounts Officer in P&AO of
CWC with effect from April 2001 to August 2002 in his examination-
in-chief deposed about the procedure for issuance of cheque in
respect of any bill as under:
"Q. What was the procedure prescribed for issuance of
cheque in respect of any bills that were passed?
CRL.A. 134/2016 & conn. matters Page 62 of 177
Ans. The bills are submitted at the counter of P&AO by the
DDO against which a token is issued to the DDO. The bill is
then diaried at the counter of the P&AO and thereafter it is sent
to the payment section. The bill is then scrutinized by the
concerned accountant so as to see if it is in order i.e. whether it
is made according to the Civil Accounts Manual. If the bill is in
order, it is submitted to the Asstt. Accounts Officer who is the
Section Incharge for payment. If it is not in order then it is
returned back to the DDO. Thereafter, the Asstt. Accounts
Officer is supposed to examine the bill in terms of Civil
Accounts Manual, Receipt and Payments and GFR and on
finding it in order, he signs on the pay order and the same is
sent to the Sr. Accounts Officer for approval/ signature. The
bill with the Pay Order sent back to the Asstt. Accounts Officer
and then it is routed to the Accounts Officer for preparation of
cheque which is sent to the cheque section. The cheque is
prepared by the Cheque Clerk which is then put up before the
Sr. Accounts Officer (not the one who earlier signed the pay
order but the second one) for signatures. The cheque is then
sent to the counter by the Cheque Clerk which is issued to the
DDO concerned after retrieving the token issued."
9.7. B.S. Yadav proved the procedure of issuance of cheque in P& AO as
well as issuance of fresh cheque after cancellation of cheque already
issued in his deposition as under:
"I remained posted and functioning as Pay & Accounts
Officer in Central Water Commission (CWC) in October, 2002
to November, 2005. I am well conversant with the procedure of
issuance of cheque in P&AO as well as issuance of fresh
cheque after cancellation of the cheque already issued. There
are three categories of cheques i.e. (a) issue in favour of private
party/ individual; (b) cheque is issued in favour of DDO for
disbursement of pay and allowances of the staff and (c) cheque
is issued in favour of department/ govt. transactions. The entire
transaction of accounts has to be guided by Civil Account
Manuals issued by controller General Accounts. Revalidation
of time barred cheque according to manual was permissible at
CRL.A. 134/2016 & conn. matters Page 63 of 177
the relevant time. After issuance of the cheque, the bank has to
return paid cheque along with payment scroll to the P&AO of
CWC for reconciliation purposes.
There are two types of DDOs i.e. first, local DDOs are
required to submit the bill to P&AO. Bills received from local
DDOs in P&AO are allotted token numbers in the cheque
section and after that they are sent to the concerned payment
section for pass and payment. The number of bills received in
the payment section are again diarised in that section by the
dealing clerk and handed over to the concerned Accountants.
Outstation DDOs are empowered to issue cheques and cheques
are issued to them by P&AO.
In LOP (List of payment) a detailed entry regarding the
amount already paid has to be mentioned along with voucher
number as well as cheque number. After that the said LOP has
to be sent to compilation section of the P&AO for compilation
of monthly accounts for its submission to Principal Accounts
Office of concerned Ministry i.e. CWC. "
9.8. In respect of the first set of allegations prosecution examined R.C.
Tully (PW-26) the then Personal Assistant at CWC who deposed that
D-381 (Ex.PW-26/L) was a slip without any dispatch number
containing a note for re-validation of certain cheques particulars
whereof have been mentioned in the document which was duly signed
by the appellant at point A and no other officer had endorsed the
same. On the strength of slip D-381 S.K. Aggarwal (A-17) issued a
fresh cheque No.018289 Ex.PW-26/O for a sum of ₹42,202/- in the
name of DDO-I against seven cancelled cheques in the name of
different persons. As per the requirement of Rule 2.1.1 of Civil
Accounts Manual (CAM), the note for re-validation was required to
be endorsed which was not endorsed to anyone and it was also a pre-
requisite in terms of the P&AO being told as to in whose favour the
CRL.A. 134/2016 & conn. matters Page 64 of 177
re-issued cheque is to be issued. D-381 besides not noting these
relevant facts also did not note any dispatch number/ diary number
from the concerned DDO. Further from the testimony of R.C. Tully it
has been proved that separate Acquittance register was made for these
7 cheques and they were re-issued as one consolidated cheque in the
name of the appellant. N.R. Meena (PW-30) also identified D-381
the requisition slip from the appellant identifying his signatures at
point 'A' on the said document. N.R. Meena also identified the
signature of S.K. Aggarwal (A-17) on the fresh cheque issued in
favour of the appellant and also identified the signatures of S.K.
Aggarwal (A-17) on the 7 cancelled cheques. Further from the
deposition of R.C. Tully, B.S. Yadav and N.R. Meena it is evident
that the cheque re-issued was without any entry in dispatch register in
the name of the appellant and money was withdrawn by J.K. Singhal
(A-4). The Acquittance register prepared for this amount was proved
by R.C. Tully. The re-issued cheque bears the stamps paid off and
received payment. The money so received was mentioned on a
separate page of cash disbursement book Ex.PW-26/P(E) (D-516).
The prosecution having proved the entire chain of transaction from
cancellation of 7 cheques issued in the name of different persons to
issuance of one cheque in the name of the appellant thereafter cash
having been withdrawn, from the evidence of PW-26, PW-29, PW-30
and the hand-writing of the appellant having been proved by the
opinion of hand-writing expert PW-51 also vide Ex.PW-51/B-1 & B-
3, onus shifts to the appellant under Section 106 of the Evidence Act
to show as to whose credit money has gone. Even though it was not
CRL.A. 134/2016 & conn. matters Page 65 of 177
the duty of the appellant to prepare Acquittance Roll but that of J.K.
Singhal (A-4), however in this particular case the Acquittance Roll
has been prepared by the appellant as deposed to by the witnesses. In
response to the circumstances put under Section 313 Cr.P.C. the reply
of the appellant is, "it is incorrect". Thus, the appellant failed to
discharge the onus to prove the facts especially within his knowledge.
Even if the prosecution has not been able to prove as to who withdrew
the bearer cheque in the name of the appellant, however the facts
proved by the prosecution as noted above proves beyond reasonable
doubt the complicity of the appellant in the offences alleged.
9.9. D-177 exhibited as Ex.PW-26/M was sent by the appellant without
any dispatch number on the basis of which a fresh cheque No. 039426
Ex.PW-30/A was issued by S.K. Aggarwal (A-17) for a sum of
₹15,609/- in the name of the appellant against 1 cancelled cheque No.
278285 i.e. Ex.PW-30/A-7 for a sum of ₹15,609/-. N.R. Meena
identified signatures and notes in the hand-writing of the appellant.
The said cheque was again withdrawn in cash. Further R.C. Tully
proved the requisition slip (Ex.PW-26/M) which contained the note
for re-validation of the cheque issued earlier, not endorsed to anyone.
Again in his statement under Section 313 Cr.P.C. no explanation was
offered by the appellant when the circumstances were put to him.
9.10. On the basis of a requisition slip Ex.PW-26/N again without any
dispatch number prepared by the appellant, S.K. Aggarwal (A-17)
issued a fresh cheque No.018424 for a sum of ₹34,449/- vide Ex.PW-
30/B in the name of the appellant in lieu of four cancelled cheques
Ex.PW-30/A-4 to A-7 in the name of A.S.P. Sinha. The said fresh
CRL.A. 134/2016 & conn. matters Page 66 of 177
cheque Ex.PW-30/B was encashed by the appellant through J.K.
Singhal (A-4). The signatures of the appellant on the requisition slip
No.4 have been duly identified by N.R. Meena. An Acquittance Roll
was prepared in the name of R.P. Gupta, Chander Shekhar and
Narender Kumar for ₹12,450/-, ₹11,340/- and ₹10,659/- totalling to
₹34,449/- as proved by R.C. Tully vide Ex.PW-26/F. R.C. Tully also
identified the signatures of the appellant on Ex.PW-26/F and that the
same was also signed by J.K. Singhal and the appellant released the
said sum in three portions to three persons as noted above. Evidence
of R.C. Tully and N.R. Meena is further corroborated by evidence of
B.S. Yadav who deposed that vide note No.11N Ex.PW-23/A[19]
four cheques were received for cancellation with the request to issue
fresh cheque in favour of the appellant and he had issued a fresh
cheque bearing No.018424 for ₹34,449/- in favour of the appellant.
Chander Shekhar was examined as PW-47 who deposed that he was
the son of accused J.P. Sharma and was selling food items on rehri.
He deposed that J.P. Sharma was his father and employee in CWC.
J.P. Sharma gave him 7-8 cheques to deposit in his own account. On
the directions of his father he opened an account in Canara Bank,
Shastri Nagar Branch, New Delhi. He exhibited the account opening
form as Ex.PW-41/E the specimen signatures on cards as Ex.PW-41/F
and the statement of account as Ex.PW-41/B. He deposed that four
pay-in-slips for depositing the aforesaid cheques were filled up by his
father which were Ex.PW-41/1 to 4 but he did not know in whose
hand-writing the remaining pay-in-slips were filed. Even in response
CRL.A. 134/2016 & conn. matters Page 67 of 177
to question No.9 on this aspect in his statement under Section 313
Cr.P.C. the explanation of the appellant is, "it is incorrect".
9.11. N.R. Meena proved that Ex.PW-30/A8 was a slip again without any
dispatch number sent by the appellant on the basis of which S.K.
Aggarwal (A-17) issued a fresh cheque No.018298 for a sum of
₹50,110/- vide Ex.PW-51/7 in lieu of one cancelled cheque bearing
No.242509 dated 8th September, 1999 for a sum of ₹50,110/- Ex.PW-
30/A-10 in the name of NWDA. The fresh cheque was encashed by
the appellant through J.K. Singhal (A-4). The Acquittance Roll
prepared in this regard has been proved by R.C. Tully vide Ex.PW-
26/P2 in the name of V.S. Khatri for a sum of ₹50,110/- wherein
signatures of the appellant have been identified vide Ex.PW-26/3.
The Acquittance Roll was prepared by J.K. Singhal (A-4) and
released by the appellant vide Ex.PW-26/B. Further N.R. Meena
exhibited the requisition slip No.5 vide Ex.PW-30/A8 identifying
signatures of the appellant thereon wherein one cheque for ₹50,110/-
was cancelled and a fresh cheque bearing No.018298 Ex.PW-30/A9
for a sum of ₹50,110/- was prepared in favour of the appellant and
withdrawn in cash. The cheque was issued by S.K. Aggarwal (A-17)
and encashed by the appellant through J.K. Singhal (A-4) whose
signatures have been proved by the hand-writing expert PW-51.
9.12. N.R. Meena also proved the requisition slip Ex.PW-30/A-11 which
was again sent by the appellant without any dispatch number on the
basis of which six cancelled cheques were issued as a fresh cheque
No.018530 for a sum of ₹50,570/- in the name of different
individuals. The fresh cheque was prepared by S.K. Aggarwal (A-17)
CRL.A. 134/2016 & conn. matters Page 68 of 177
and encashed by the appellant through J.K. Singhal (A-4) whose
hand-writing have been proved by the hand-writing expert PW-51 on
the questioned documents. The evidence of N.R. Meena is further
supported by deposition of B.V. Jagdish Kumar (PW-50) who proved
that Ex.PW-30/A-11 was prepared by Y.P. Sharma on the request of
the appellant to issue a fresh cheque in his name amounting to
₹50,570/-. The six cancelled cheques were in the name of H.C.
Chaudhary, V.S.Rao, M. Ram, M.S. Baig (two cheques) and A.K.
Bhatia. Further R.C. Tully proved that Acquittance Roll Ex.PW-26/P
regarding disbursement of cash was in the name of V.S. Rao, Chander
Shekhar, Narender Kumar and Om Prakash totalling to sum of
₹50,570/-. He identified the signatures of the appellant at point 'A'
on Ex.PW-26/E and that the Acquittance Roll Ex.PW-26/P was
prepared by J.K. Singhal and money released by the appellant to the
aforesaid four persons vide Ex.PW-26/E. As noted above Chander
Shekhar appeared as PW-47 who deposed that he was son of J.P.
Sharma (A-6) and was running a rehri of fruits and that his father
gave him 7 cheques to deposit which he deposited in his account.
The evidence of these three witnesses i.e. R.C. Tully, N.R. Meena &
B.V. Jagdish Kumar is further supported by evidence of B.S. Yadav
who proved Ex.PW-23/A[19] noting that six cheques had been
received for cancellation and a fresh cheque issued in favour of the
appellant. He also identified that the fresh cheque was given to S.K.
Aggarwal vide noting X-8. In response to questions No.5, 10 and 37
on this circumstance, the explanation of the appellant is, "it is
incorrect".
CRL.A. 134/2016 & conn. matters Page 69 of 177
9.13. N.R. Meena further proved that a requisition slip Ex.PW-30/A-15 was
prepared by the appellant without any dispatch number and a fresh
cheque was issued by S.K.Aggarwal (A-17) being No.018394 for a
sum of ₹31,131/- in lieu of two cancelled cheques in the name of S.N.
Chaudhary and H.S. Chaudhary. R.C. Tully proved the Acquittance
Roll Ex.PW-26/P4 prepared by J.K. Singhal (A-4) and released by the
appellant to two different persons namely Chander Shekhar and
Naresh Kumar. As noted above Chander Shekhear is son of J.P.
Sharma and not an employee of CWC. Again no explanation has
been given by the appellant in response to the questions put on these
circumstances under Section 313 Cr.P.C.
9.14. Further from the deposition of R.C. Tully (PW-26) the prosecution
has also proved that Acquittance Roll Ex.PW-26/P3 was prepared for
disbursement of ₹25,126/- to one Rakesh Kumar Gupta. The
Acquittance Roll was filled and signed for withdrawal by the
appellant despite the fact it was not the job of the appellant to deal
with disbursement of amount and was the role of J.K. Singhal (A-4).
9.15. Thus, from the evidence adduced as noted above, the prosecution has
been able to prove that bye-passing the procedure required to be
adopted as per CAM, cheques issued already were cancelled and fresh
cheques issued in the name of the appellant and disbursement of
payment against the fresh cheque was shown to different persons by
J.K. Singhal (A-4) the cashier in conspiracy with the appellant and
S.K. Aggarwal (A-17).
9.16. In respect of the second allegation against the appellant is that he
forwarded pay arrear bills of ₹54,202/- and ₹74,874/- in the name of
CRL.A. 134/2016 & conn. matters Page 70 of 177
Om Prakash (A-11) and B.M. Ghosh (A-10) showing their
designation as Deputy Directors falsely and projecting their basic pay
higher than they received as ₹15,100/- and ₹14,400/- on January 19,
1996 respectively, prosecution examined PW-25 A.S. Gautam. As
per the prosecution bill dated 19th February, 1992 being Bill No. P-
1251/III being D-559 Ex.PW-51/11-14 was submitted and seized
from S.K. Jindia the then AAO, P&AO, CWC, R.K. Puram vide
seizure memo Ex.PW-54/J/11. Though cited as witness, S.K. Jindia
could not be examined as he has shifted to London. The signatures of
the appellant on the said bill D-559 have been proved by the opinion
of the handwriting expert Ex.PW-51. As would be noted while
dealing with Crl.A. 241/2016 of B.M. Ghosh (A-10) and Crl.A.
134/2016 Om Prakash (A-11) the prosecution has proved that they
were not the Deputy Directors and thus the appellant falsely
projecting their high basic pay than their entitlement facilitated them
in getting fake bills cleared. Thus this allegation is proved beyond
reasonable doubt against the appellant.
9.17. Further though not dealt by the learned Trial Court from the evidence
on record the prosecution has proved the allegation against the
appellant in respect of cancellation of draft issued in the name of A.V.
Reddy and re-issuance of the same in the name of R.L. Kawale
(deceased A-5). In this regard prosecution has recorded the evidence
of B.V. Jagdish Kumar then immediate junior of Y.P. Sharma who
deposed that he used to make entries in the pay bill register given to
him by Y.P. Sharma and used to deposit the accounts payee
Government cheques issued by P&AO. He deposed that three
CRL.A. 134/2016 & conn. matters Page 71 of 177
cheques were deposited in the account of R.L. Kawale (deceased A-5)
by him including a cheque for a sum of ₹62,000/- exhibited as
Ex.PW-50/B-1. He also deposed that six hand-written paper slips
pertaining to issue of open cheque in favour of the appellant were
prepared. He identified the signatures of the appellant on the slips
Ex.PW-26/L, PW-26/19, PW-26/N, PW-30/A-8, PW-30/A-11 &
Ex.PW-30/A-14. He also identified the signatures of Y.P. Sharma
(A-1) on the said slips. Further B.S. Yadav proved the files Ex.PW-
23/A seized vide seizure memo also exhibited as Ex.PW-23/A. Page
67 of the file was a requisition by the appellant for cancellation of a
draft issued in name of one A.V. Reddy and re-issuance of the same
in the name of R.L. Kawale. The amount was received by Y.P.
Sharma (A-1), whose explanation in respect of the amount received is
that it was a private transaction between him and R.L. Kawale. In
any case, the complicity of the appellant is proved by the evidence of
B.V. Jagdish Kumar who identified the hand-written slips pursuant
whereto cheques issued were prepared in favour of the appellant.
9.18. Prosecution has also sought to prove tampering with the Acquittance
Roll. In this respect evidence of S.P. Garg (PW-32) is relevant who
deposed that he had applied for GPF withdrawal of ₹3 lakhs on
account of the marriage of his niece. ₹2,72,475/- was sanctioned in
his favour on 22nd November, 2000 which fact was informed to him
on 14th December, 2000, however the amount had already been
withdrawn on 1st December, 2000. Since he did not receive any
amount on account of sanction he did not know who had embezzled
the money. He stated that he came to know about this fact when he
CRL.A. 134/2016 & conn. matters Page 72 of 177
applied for cancellation of the withdrawal since the engagement of his
niece was cancelled due to some problem. He deposed that on the
Acquittance Roll Ex.PW-32/A signatures at point 'A' across the
revenue stamp were not his and had been forged by someone. S.P.
Garg further deposed that he met the senior officers and made a
representation. Since the senior officers did not take any action he
filed a writ petition before the High Court wherein the authority was
directed to credit the amount back to his GPF. Evidence of P.K.
Rooprai (PW-36) further shows that a combined cheque was prepared
in the name of the appellant for a sum of ₹4,25,875/- which included
amount to be disbursed to S.P. Garg and though the disbursement was
in the name of S.P. Garg but the same was signed by Y.P.Sharma.
9.19. B.S. Yadav (PW-29) further deposed that 10 cheques Ex.P-1 to P-10
were forwarded for cancellation for a total sum of ₹87,379/- for
which one cheque was required to be issued. From the counterfoil of
the cheque book bearing serial No.241001 to 241100 (D-360) Ex.PW-
29/A he proved that a fresh cheque bearing No.241009 for a sum of
₹87,379/- was issued in lieu of 10 cancelled cheques in favour of
State Bank of India, R.K. Puram Branch vide Ex.P-11. As per the
demand draft register Ex.PW-15/A vide entry at serial No.341 on
page No.35 the said cheque No.241009 for ₹87,379/- was issued in
the name of Kamal Sharma and as per record S.K. Aggarwal (A-17)
received a demand draft on 16th July, 1999 by putting the signature.
Though it is the claim of CBI that the said 10 cheques were sent for
cancellation by the appellant, however PW-29 has not deposed about
CRL.A. 134/2016 & conn. matters Page 73 of 177
the same and thus this circumstance does not prove the complicity in
respect of the 10 cheques cancelled against the appellant.
9.20. A.S. Gautam (PW-25) who was posted and functioning as Senior
Accounts Officer in the Pay and Accounts office of CWC with effect
from April 2001 to August 2002 deposed that as a Senior Accounts
Officer his duties in general were to process the bills submitted by the
DDO by checking the same with the various accounts manuals and
passing the same if found in order. His attention was drawn to the
documents D-487 and D-488 which were two LTC bills in favour of
Shiv Sagar and his family for a sum of ₹72,000/- and ₹54,000/-
respectively. Further D-490 and D-490/2 were other LTC & TTA
bills dated 17th May, 1999 and 1st December, 1999 for ₹15,000/- and
₹65,000/- respectively in favour of Hayat Singh and H. Singh and the
family members along with the sanction order dated 29th November,
1999. He identified the documents and the signatures and stated that
they were prepared in the ordinary course of business. His attention
was further drawn to the document D-492, bill dated 30th November,
1999 for ₹57,000/- as transfer TA and ₹12,600/- paid as advance in
favour of L. Ram along with the sanction order dated 26th November,
1999 in favour of L. Ram and his family members. As per the
Government LTC Rules a Government employee is entitled to get one
LTC in one block of four years and as noted within one year two LTC
bills were passed in favour of one officer for the same destination.
Documents D-487, D-488, D-490, D-490/2, D-489, D-492 were duly
examined by the handwriting expert PW-51 and it was opined that the
signatures on the bills belonged to the appellant.
CRL.A. 134/2016 & conn. matters Page 74 of 177
9.21. Further B.S. Yadav PW-39 identified the cash books exhibited by him
as Ex.PW-39/B and R.C. Tully (PW-26) identified the cash books
exhibited by him as Ex.PW-26/H. B.S. Yadav also identified the
challans vide Ex.PW-39/A-1 to A-27 bearing the signatures of the
appellant whom he had seen writing and signing.
9.22. Prosecution also examined R.C. Tully (PW-26) who deposed about
the medical bill No. M-1393/I in the name of J.R. Sharma running
into four pages back to back vide D-562 which neither contained a
sanction nor the designation of the person in whose favour it was
cleared was mentioned. R.C. Tully further identified that against the
claim of ₹1,25,785/- a bill for ₹80,325/- was prepared duly signed by
the appellant whose signatures he identified at point 'A' on the bill
format Ex.PW-26/A. Thus complicity of the appellant in preparing
the false claim bill in the name of Smt. Bhagwati, mother of J.R.
Sharma also stands proved beyond reasonable doubt.
9.23. From the evidence as noted above the prosecution has been able to
prove beyond reasonable doubt that appellant committed offences
punishable under Sections 13(1)(d) read with Section 13(2) of the PC
Act and Section 120B read with Section 403/409 IPC.
10. Om Prakash Narang Crl.A. 269/2016 (A-3) :
10.1. Learned counsel for the appellant submits that as per the prosecution
case, appellant had fraudulently deposited 11 cheques issued by Pay
and Accounts Office (P&AO) amounting to `5,72,648/- in his bank
accounts with State Bank of India and Punjab National Bank, R.K.
Puram and Allahabad Bank, Tilak Nagar. However, only 5 cheques
CRL.A. 134/2016 & conn. matters Page 75 of 177
have been proved by the prosecution to be issued in the name of
appellant amounting to `2,72,475/-. I.S.U. Puram, Sr. Assistant, State
Bank of India, R.K. Puram (Retired) (PW-33) stated in his testimony
that the aforesaid amount of `2,72,475/- was credited to the account of
B.K.Khullar. Thus, no pecuniary benefit was received by the appellant
and the act, if any, of the appellant was only at the behest of his senior
officers. Role of the appellant was only to prepare bills on the
instructions of superior officers. Lastly, it is submitted that the
appellant was sentenced to imprisonment for a period of seven years
for offence punishable under Section 409 IPC. The sentence is too
harsh. Appellant is not a previous convict and he be released on the
period undergone.
10.2. Learned counsel for the CBI contends that the case of the prosecution
against the appellant is that while working as UDC in the Accounts
section of CWC, he maintained three bank accounts, one at State Bank
of India, R.K. Puram, the second at Allahabad Bank, Tilak Nagar and
the third at Punjab National Bank, R.K. Puram. Eleven cheques
amounting to ₹5,72,648/- issued by S.K. Aggarwal (A-17) Pay &
Accounts Officer were deposited fraudulently in appellant's account
by himself. Besides the appellant fraudulently deposited cheques in
the Account No.5945 Bank of India and Account No.7733 State Bank
of India Vikas Puri of Sunil Kumar who was his friend. Appellant
also issued two counter cheques for a sum of ₹20,000/- and ₹35,000/-
in favour of Y.P. Sharma. He also deposited cheques received from
Subhash Chander and Gulshan Kumar in his account No. 9778
maintained at Punjab National Bank, R.K. Puram. Appellant further
CRL.A. 134/2016 & conn. matters Page 76 of 177
got deposited such fraudulently issued cheques in the account of
Subhash Chander, Assistant Fitter in DTC in his account No. 5160,
Canara Bank, Tagore Garden, New Delhi and account No. 6565
Syndicate Bank, Hari Nagar. He also deposited fraudulently issued
cheques in the account of Gulshan Kumar, brother of Sunil Kumar in
his account No. 8490 UCO Bank, Janakpuri. Thus contention of
learned counsel for the appellant that he prepared the bills at the
instance of the superior authorities is incorrect. Appellant is both a
perpetrator of the offences as well as the beneficiary.
10.3. A perusal of the record reveals that the prosecution has been able to
prove 5 out of the 11 cheques deposited in the various accounts of the
appellant. Rajesh Kumar Chadha, (PW-8) Assistant Manager State
Bank of India R.K. Puram exhibited the seizure memo Ex.PW-8/1 by
which documents were collected by the CBI. He also identified the
signatures of Shri K.C. Likha, Branch Manager as Ex.PW-8/2.
Statement of account No.26936 maintained at State Bank of India
R.K. Puram in the name of the appellant and Neeru Narang was placed
on record as Mark 'B' and thus not exhibited, however the account
opening form was exhibited as Ex.PW-8/3. It is thus evident neither
the cheques No. 237918, 24150, 274739 and 276837 were proved nor
was the statement of account of State Bank of India R.K. Puram. The
only evidence proved in relation to the transaction of State Bank of
India R.K. Puram was D-48, a P&AO Cheque No.233892 dated 20th
October, 1998 for ₹52,000/- issued in favour of Om Prakash proved as
Ex.PW-51/35. By the opinion of the handwriting expert, only fact
proved is that S.K. Aggarwal (A-17) prepared a cheque for a sum of
CRL.A. 134/2016 & conn. matters Page 77 of 177
₹52,000/- in favour of Om Prakash. In the absence of proof of
collection or deposit of the cheque in the account of the appellant, the
onus does not shift on the appellant under Section 106 Evidence Act to
explain the transaction.
10.4. In respect of the Account No. 109020 Allahabad Bank, Tilak Nagar in
the name of O.P. Narang, prosecution has exhibited four cheques of
P&AO CWC bearing No.231363 dated 22nd July, 1998 for a sum of
₹51,028/- as Ex.PW-51/34, cheque No. 235939 dated 1st January, 1999
for ₹53,000/- vide Ex.PW-51/36, cheque No.238522 dated 31st
February, 1999 for a sum of ₹88,937/- and cheque No.241861 dated
13th August, 1999 for a sum of ₹33,000/- vide Ex.PW-51/38 issued in
favour of Om Prakash. Further Anil Kathuria (PW-4), Special
Assistant Allahabad Bank, Tilak Nagar produced the certified copy of
the statement of account No.109020 along with debit vouchers vide
Ex.PW-4/5 and Ex.PW-4/3 respectively. Ex.PW-4/5 which has been
duly proved shows four credit entries in Account No. 109020
Allahabad Bank of the appellant. Nothing has been elicited in the
cross-examination of this witness, hence it can be safely held that
prosecution has been able to prove the evidence in relation to the
transactions in the account at Allahabad Bank, Tilak Nagar Branch
against the appellant.
10.5. In respect of Account No.9778 Punjab National Bank, R.K. Puram
cheque No.997181 for ₹22,000/-, cheque No. 997184 for ₹27,570/-,
cheque No. 631230 for ₹18,000/- and cheque No. 997816 for
₹21,000/- have been proved by the investigating officer PW-54 vide
Ex.PW-54/Z-51. Since the cheques are not akin to the statement of
CRL.A. 134/2016 & conn. matters Page 78 of 177
bank account which are required to be proved as per Section 4 and
Section 2A of the Act and no objection to the mode of proof was taken
during trial, prosecution has proved that the appellant deposited four
cheques in his account No.9778 Punjab National Bank, R.K. Puram.
10.6. Subhash Chander (PW-44) who was working as an Assistant Fitter in
DTC Hari Nagar Depot-I deposed that he had two bank accounts one
in Canara Bank, Tagore Garden Branch and other in Syndicate Bank,
Hari Nagar Branch. He proved his account opening form-cum-
specimen signature and statement of account at Syndicate Bank as
Ex.PW-44/A and Ex.PW-44/B respectively and in respect of the
Canara Bank Branch at Tagore Garden as Ex.PW-44/C and Ex.PW-
44/D respectively. He knew the appellant as he used to visit his
brother. He further deposed that a sum of ₹57,000/- was deposited in
his bank account No.6565 Syndicate Bank by the appellant by cheque
No.241538 dated 28th July, 1999 vide pay-in-slip dated 29th July, 1999
(D-149). He identified the signatures of the appellant and his own
signatures on the pay-in-slip. He exhibited the cheque as Ex.PW-
44/F-1 and pay-in-slip as Ex.PW-44/F-2. He further deposed that after
two days on the asking of the appellant, he withdrew the amount of
₹55,100/- vide cheque No. 3533965 [Ex.PW-44/F-3] dated 2nd August,
1999 from his account and paid the amount to the appellant. The
balance amount of ₹1900/- was paid to the appellant in cash. He
further deposed that a sum of ₹49,470/- were deposited in his bank
account 15160 Canara Bank through cheque No. 242363 dated 1 st
September, 1999 by the appellant. He identified signatures of the
appellant on the pay-in-slip and exhibited the cheque as Ex.PW-44/G-
CRL.A. 134/2016 & conn. matters Page 79 of 177
1 and pay-in-slip as PW-44/G-2. He further proved the pay-in-slip
Ex.PW-44/G-3 dated 10th December, 1999 by which a sum of
₹57,000/- was deposited in his account No.15160 Canara Bank
through cheque No. 276232 dated 7th December, 1999 by the appellant
and identified signature of the appellant on the pay-in-slip. He also
deposed that on the asking of the appellant he handed-over an amount
of ₹27,570/- vide cheque No. 997184 [Ex.PW-44/G-4] dated 10th
September, 1999 and ₹21,000/- vide cheque No.997186 [Ex.PW-
44/G-5] dated 14th December, 1999. The balance amount of ₹57,900/-
was also paid to the appellant in cash after withdrawing the amount
from bank through self-cheques amounting to ₹20,000/- vide cheque
No.997183 [Ex.PW-44/G-6] and ₹38,000/- vide cheque No.997185
[Ex.PW-44/G-7] dated 14th December, 1999. In cross-examination on
behalf of the appellant, Subhash Chander further clarified that the
cheques were never handed-over by the appellant to him but deposited
in his account directly. Rest of the cross-examination hinges on as to
how much time he remained in judicial custody and it was suggested
that he was falsely deposing at the instance of CBI.
10.7. Prosecution also examined Sunil Kumar (PW-42) who was running a
chemist shop with his brother and knew the appellant as he used to
visit their shop to purchase medicines. Sunil Kumar deposed that the
appellant asked him about his bank account to which he replied that he
had two bank accounts. He exhibited the documents relating to his
account bearing No.5945 in Bank of India, Keshopur Gaon i.e.
account opening form as Ex-PW-42/A and specimen signature card as
Ex.PW-42/B. Certified copy of the statement of account was
CRL.A. 134/2016 & conn. matters Page 80 of 177
exhibited as Ex.PW-42/C. Objection was taken only in respect of the
account opening form that it was not certified as per the provisions of
the Act and hence inadmissible in evidence, which objection is
required to be rejected as Section 2A and 4 of the Act has application
to the entries in the books of accounts and not other documents. Sunil
Kumar also proved his account opening form already exhibited as
Ex.PW8/3 for account No.7733 State Bank of India Vikas Puri and its
statement of account vide Ex.PW-42/D. He deposed that the appellant
told him that some cheques were prepared in the name of Sunil Kumar
in his office and asked him to deposit those cheques in his account.
After some time appellant along with Y.P. Sharma came to his shop
and told that he would not be troubled because it was their
departmental matter. On their assurance he agreed to deposit the
cheques in his account. He deposited cheques for ₹45,000/-, 62,000/-
and 58,000/- in his bank accounts. After some time appellant
demanded cash in lieu of the three cheques which he paid to him.
Even in his cross-examination Sunil Kumar reiterated his version in
the examination-in-chief and stated that he doubted the bona-fide of
the appellant and Y.P. Sharma as the cheques were Government
cheques but he was assured by the accused persons that no harm
would come to him.
10.8. Though learned counsel for CBI presses that some cheques were
deposited in the account of Gulshan Kumar who was the brother of
Sunil Kumar, however Gulshan Kumar has not been produced as a
witness. Further statement of account relating to Gulshan Kumar's
bank account has been exhibited by the investigating officer as
CRL.A. 134/2016 & conn. matters Page 81 of 177
Ex.PW-54/Z-60. Though Ex.PW-54/Z-60 can be read in evidence as it
is certified copy of the statement of account of Gulshan Kumar,
however in the absence of the testimony of Gulshan Kumar, there is
no evidene of appellant being associated with the cheques deposited in
the account of Gulshan Kumar.
10.9. The allegation of appellant issuing two counter cheques for sum of
₹20,000/- and 35,000/- in favour of Y.P. Sharma has already been
dealt in Para 8.9 above while dealing with the appeal of Y.P. Sharma
(A-1). In view of the evidence discussed in Para 8.9 above this
allegation stands proved beyond reasonable doubt against the
appellant as well.
10.10. Statements of Subhash Chander (PW-44) Sunil Kumar (PW-42),
Gulshan Ahuja (PW-6), Bank Officer, Bank of India, Keshopur
Branch coupled with the transactions prove the case of the prosecution
against the appellant beyond reasonable doubt. From the evidence on
record led by the prosecution it can be safely held that the prosecution
has proved the case against the appellant for offences punishable
under Section 13(2) read with 13(1)(d) PC Act, Section 403 IPC and
120-B read with 403/409 IPC.
11. Jai Kumar Singhal Crl.A. 396/2016 (A-4) :
11.1. Learned counsel for the appellant contends that there are three sets of
allegations which have been found to be proved by the learned Trial
Court against the appellant i.e.
"(i) First, that 8 cheques issued by the P&AO in the name of
the appellant totalling ₹8,62,544/- were deposited by the
CRL.A. 134/2016 & conn. matters Page 82 of 177
appellant in his accounts without any bill or entitlement and as
such the amount was misappropriated by appellant.
(ii) Secondly, that appellant and accused No.1, 2, 17 and in
conspiracy with each other cancelled 21 account payee cheques
issued in favour of various officers of the CWC and in lieu
thereof, issued nine fresh cheques in favour of the DDO/CWC
and amounts were disbursed to officers who did not figure in
the above list of 21 account payee cheques.
(iii) Thirdly, that the appellant prepared a bill for Hayat Singh
(peon) in the name of H.Singh for an amount of ₹65,000/- so that the
claim for TTA of H.S. Singh Dy. Director could be embezzled by
Hayat Singh (peon)
(iv) Fourthly, the appellant did not disburse the GPF withdrawal of
₹2,72,475/- which was sanctioned in favour of S.P. Garg."
11.2. In respect of allegation No.1 learned counsel for the appellant submits
that the appellant was cashier in the CWC and as per the duty
assigned to the appellant, once cheque prepared in the name of DDO
was received by the appellant, who thereafter got it encashed from
the bank and after the money was withdrawn appellant was required
to prepare a note for acquittance so that the money could be
disbursed to the concerned person. Prosecution has not proved that
the appellant committed any act beyond the permissible duty.
Prosecution was required to prove that the cheques in question were
issued without proper bills/sanction and that they were
misappropriated by the appellant which it failed to prove. Bills
mentioned in Ex.PW-52/B and PW-52/C do not relate to the
appellant. Further Exhibit PW-52/A are acquittance roll, challan
register, receipt books etc. and by these documents no bills were
CRL.A. 134/2016 & conn. matters Page 83 of 177
proved which related to the appellant. In the three requisition memos
sent by Yashpal Gera (PW-52) no bills relating to the appellant have
been requisitioned. Thus no evidence has been led by the
prosecution to prove that the bills relating to the appellant were
sought and denied. Even otherwise it was the duty of the prosecution
to lead positive evidence to show that the cheques were issued
without bills/ sanctions. The prosecution did not lead any evidence
and by the impugned judgment the Court reversed the onus on the
appellant holding that "why these cheques were issued to J.K.
Singhal has neither been explained by A-17 nor by A-4 hence it is
clear that cheques were issued by A-17 fraudulently without any bill/
sanction etc." A.S. Gautam (PW-25) deposed that it was the
responsibility of the DDO to prepare/ clear the bills for pay and
allowances on the basis of sanction. No evidence has been adduced
by the prosecution that the cheques in question were wrongly issued.
Allegation that the details of the cheque had not been entered in the
cheque acquittance register can also not be used against the appellant,
since the same was not put to him under Section 313 Cr.P.C. nor
does the cheque acquittance register for the year 1998-99 form part
of the record nor has the same been proved. Thus, learned Trial
Court rightly did not return any finding on this count against the
appellant.
11.3. It is further contended that the prosecution failed to prove that the
cheques in question were misappropriated by the appellant. No bank
official from State Bank of India, R.K. Puram was examined and
only a bank official from Syndicate Bank, Sonipat was examined.
CRL.A. 134/2016 & conn. matters Page 84 of 177
Thus, the pay-in-slips and the cheques relating to State Bank of India,
R.K. Puram have not been proved in accordance with law. Hand-
writing expert who has rendered the opinion is not a person
competent to depose about the documents of the bank. In the
absence of any bank official, mere proof of signature of appellant on
the documents does not prove that the pay-in-slips and self-cheques
were given effect to i.e. cheques were deposited with the pay-in-slips
and the amount credited to the account of the appellant where after
the amount was withdrawn using self-cheques and debited from the
account of the appellant. In view of the hand-writing expert's
opinion even if the document is held to be proved the content thereof
cannot be held to be proved. Further Kanhaiya Lal (PW-1) who is a
witness from State Bank of India, R.K. Puram only identifies the
signature on a seizure memo and does not state about the relevant
transactions or the account numbers. The investigating officer (PW-
54) exhibited the bank account opening form and account statement,
however, he is not the competent witness to prove the said
documents. Therefore, bank account statement is to be taken as not
proved and in the absence of the bank account statement having been
proved, no finding can be returned that the amounts were credited to
the account of the appellant and later withdrawn. Reliance is placed
on the decision of the Supreme Court in Malay Kumar Ganguly
(supra) to contend that there is a distinction between exhibition of a
document and proof of a document. Even if the document is
exhibited without any objection if the same is inadmissible, mere
exhibiting the same would not make the document admissible or the
CRL.A. 134/2016 & conn. matters Page 85 of 177
contents thereof as proved in the absence of the author of the
document being examined as a witness.
11.4. With regard to allegation No.2, it is the contention of learned counsel
for the appellant that the case of the prosecution is in two parts;
firstly that 21 account payee cheques were cancelled and 9 fresh
cheques were issued in the name of DDO for the same amount and
secondly cheques were encashed and amounts disbursed to persons
other than persons in whose names the cheques had originally been
signed. Learned counsel for the appellant contends that the appellant
was only a cashier and had no role in either cancellation of a cheque
or issuance of a fresh cheque. Prosecution examined B.S. Yadav,
(PW-29) Pay & Accounts Officer CWC and N.R. Meena (PW-30)
Assistant Accounts Officer, Regional Pay & Accounts Office, CWC
who deposed about the procedure to be followed while cancellation
of accounts payee cheques and issuance of fresh cheques. However,
in the deposition of the two witnesses there is no allegation
whatsoever as to the role played by the appellant in the conspiracy.
The notes on the basis of which cheques were issued were sent by the
DDO and the cheques were issued by the P&AO. The only role, if at
all, ascribed to the appellant is that after fresh 9 cheques were issued
by the P&AO in the name of DDO, these cheques were encashed by
the appellant and upon receipt of the money from the bank, the
appellant prepared a note for preparation of the acquittance roll for
disbursement of the amounts which amounts were disbursed by the
DDO. No document whatsoever has been signed by the appellant
except a forwarding letter asking for preparation of the acquittance
CRL.A. 134/2016 & conn. matters Page 86 of 177
roll. All the acquittance rolls have been signed by C.Manjhi who
was the DDO and money was also released by him. Even R.C. Tuli
(PW-26) who deposed about the acquittance rolls, identified the
signatures of C.Manjhi, DDO and did not identify any document
signed by the appellant. Forwarding letters for preparing the
acquittance rolls was a part of the appellant's normal duty. Appellant
neither disbursed the money nor cancelled the cheques nor prepared
the cheques. Thus, no criminality can be attached to the actions of
the appellant. The hand-writing expert PW-51 only proved the
signatures of appellant on three notes for preparation of acquittance
rolls. Thus even the second allegation against the appellant has not
been proved by the prosecution.
11.5. Learned counsel further contends that the third allegation against the
appellant is that he filled up the application/ bill for Transfer Travel
Allowance (TTA) for Hayat Singh, the co-convict. Merely filling up
the application/ bill of TTA for Hayat Singh will not impute any
criminal liability to the appellant for the reason it is not unknown that
applications of illiterate or less-educated staff are filled up by the
senior officers. Further the said form is neither signed by the
appellant nor the appellant has derived any benefit out of the same.
Merely on the strength of the hand-writing expert's opinion that the
appellant filled up the application/ bill for TTA which is not
corroborated by any other evidence, appellant cannot be convicted on
the ground that he conspired with Hayat Singh for misappropriating
the amount. Reliance is placed on the decision reported as 190
(2012) DLT 600 Sandeep Dixit Vs. State.
CRL.A. 134/2016 & conn. matters Page 87 of 177
11.6. In respect of the fourth allegation learned counsel submits that the
appellant did not disburse the GPF withdrawal of ₹2,72,475/-
sanctioned in favour of S.P. Garg, learned Trial Court has already
held the same to be not proved against the appellant.
11.7. Learned counsel for the appellant, lastly, submits that the order on
sentence passed by the learned Trial Court is bereft of reasoning.
Learned Trial Court has not even noted the mitigating and
aggravating circumstances much less rejecting the same and awarded
disproportionate punishment. Though C.Manjhi, the main accused
has been granted 5 years rigorous imprisonment, the sentence
awarded to the appellant is 7 years. It is thus prayed that in the
alternative sentence of the appellant be reduced.
11.8. Learned counsel for the CBI countering the arguments of learned
counsel for the appellant submits that the appellant was working as
an Assistant-cum-Cashier drawing a salary of ₹10,142/- including
various allowances such as DA, HRA, CCA and conveyance
allowance etc., as proved vide Ex.PW-54/Z-11 which document
when exhibited was not objected to. As per the statement of bank
account No.126205 of State Bank of India, R.K. Puram of appellant,
7 CWC cheques were deposited by him in his account. The
statement of bank account was exhibited by PW-54 as Ex. PW-54/Z-
58 without any objection to the same. Further, the appellant
withdrew a sum of ₹5,15,000/- through 10 cheques as is evident from
documents Ex.PW-51/202 to 51/211. The said cheques bear the
signature of the appellant on the front side as well as back side
establishing the encashment by him and his signatures stand duly
CRL.A. 134/2016 & conn. matters Page 88 of 177
proved by the testimony of handwriting Expert (PW-51). The pay-
in-slips Ex.PW-51/194 to 200 have also been filled and signed by the
appellant whose hand-writing has been proved by PW-51. Thus, the
appellant deposited CWC cheques in his own account bearing No.
126205 at State Bank of India, R.K. Puram. Further the appellant
deposited a CWC cheque No. 277100 dated 6th January, 2000 for a
sum of ₹41,166/- in his account No. 6956 Syndicate Bank, Sonipat
vide pay-in-slip dated 8th January, 2000 which fact has been proved
from the testimony of Ashok Kumar Kathpal, (PW-12) Manager,
Syndicate Bank who was in the year 2001 posted at Sonipat Branch
of Syndicate Bank as Manager. He has proved the certified copy of
the account opening form vide Ex.PW-12/A and that later it was
converted into a joint account of the appellant with his wife Kamlesh
Singhal and certified copy thereof was also exhibited as Ex.PW-
12/B. Certified copy of the statement of account of the aforesaid
account was exhibited as Ex.PW-12/E and the collection voucher of
outstation cheque collected by the bank and signed by the account
holder vide Ex.PW-12/F. It is deposed that payment of cheque
No.277100 dated 6th January, 2000 for an amount of ₹41,166/- drawn
on the State Bank of India R.K. Puram Branch was credited in
account No.6956 of the appellant on 21st January, 2000 after
deducting the collection charges. In respect of the third allegation
relating to sanction of advance TTA for a sum of ₹65,000/- in favour
of H.S. Singh, Deputy Director, prosecution has proved two bills
Ex.P-5 and Ex.P-6 claiming sums of ₹15,000/- and ₹65,000/-
respectively duly written by the appellant showing the name of
CRL.A. 134/2016 & conn. matters Page 89 of 177
claimant as Hayat Singh and H. Singh respectively. Appellant
fraudulently changed the same to H. Singh or Hayat Singh due to
similarity of name of H.S. Singh, Deputy Director. Further the bill in
relation to sanction order Ex.P-12 for advance TTA for a sum of
₹57,000/- to L.Ram, Deputy Director was also prepared by the
appellant on the basis of fake sanction order P-13 in the name of Lalu
Ram, Deputy Director. The bills were duly proved. On verification
it was found that no such sanction order was issued for a sum of
₹65,000/- in favour of H. Singh or H.S. Singh on his transfer to
Bhubneshwar.
11.9. Rebutting the arguments on behalf of CBI, learned counsel for the
appellant submits that prosecution has failed to discharge the onus to
show that the cheuqes in question were issued without valid bills or
against improper bills and since DDO/ Pay & Accounts Officer/
other officials of the Account Department have not been charged
with taking part in the transaction, presumption arises that the
cheques were duly issued. Reiterating the contention that PW-54 or
PW-51 were not competent to prove the bank account statements or
the bank records it is submitted that there is no legal evidence on
record to prove the first allegation against the appellant. The
objection as to admissibility of the document can be raised at any
stage. Section 34 of the Indian Evidence Act is not applicable as the
same deals with the relevancy of the fact and not of admissibility. In
respect of the cheque deposited at Syndicate Bank, Sonipat
prosecution has failed to prove that the cheque in question had been
issued without a valid bill/ sanction. As regards the allegations
CRL.A. 134/2016 & conn. matters Page 90 of 177
relating to sanctions in favour Hayat Singh and Lachi Ram it is
contended that the testimony of the hand-writing expert, cannot be
the sole basis of conviction as held by the Supreme Court in (1977) 2
SCC 210 Magan Bihari Lal Vs. State of Punjab; (1996) 4 SCC 596 S.
Gopal Reddy Vs. State of A.P. and (1973) 4 SCC 46 Smt. Bhagwan
Kaur Vs. Shri Maharaj Krishan Sharma & Ors.. In respect of fourth
allegation of misappropriation, learned Trial Court has already held
that there is no evidence to connect the appellant to the said
transaction, hence the appellant cannot be convicted for the same.
11.10. In respect of the first set of allegations against appellant prosecution
has proved from the pay bill register Ex.PW-54/Z-11 that appellant
was drawing a salary of ₹10,142/- per month including various
allowances such as DA, HRA, conveyance allowance etc. Further
statement of bank account No.126205 State Bank of India R.K.
Puram has been proved by PW-54 by producing certified copy of the
statement of bank account No.126205 as mandated under Section 2A
of the Bankers' Books Evidence and has been exhibited vide Ex.PW-
54/Z-58. Though it is contended that the said document is not
admissible in evidence, however as earlier held while dealing with
this issue if the certified copy is compliant of Section 2A of the Act
then it is a document admissible in evidence and in respect of the
mode of proof that it was exhibited by the investigating officer, no
objection was taken at the time when the document was exhibited.
Thus certified copy of the statement of account Ex.PW-54/Z-58 is
held to be legally admissible and validly proved document.
Statement of account No.126205 State Bank of India, R.K. Puram in
CRL.A. 134/2016 & conn. matters Page 91 of 177
the name of the appellant i.e. Ex.PW-54/Z-58 reveals that 7 cheques
numbered 237735, 239491, 240060, 238125, 239010, 275095 and
277099 issued in favour of Jai Kumar Singhal, for sum of ₹86,065/-,
1,35,671/-, 86,955/-, 1,29,801/-, 98,546/-, 76,500/- and 53,340/-
respectively were deposited in the account. Further though the last
four cheques were not available, hand-writing on the first three
cheques i.e. cheque numbers 237735, 239491 and 240060 has been
proved to be of S.K. Aggarwal (A-17) vide Ex.PW-51/50, Ex.PW-
51/51 and PW-51/52. From the certified copy of the statement of
bank account No.126205 State Bank of India, R.K. Puram Ex.PW-
54/Z-58 in the name of the appellant it is further evident that he
withdrew a sum of ₹5,15,000/- through 10 self-cheques. Hand-
writing on the self-cheques has been proved to be of appellant vide
the opinion of the expert who examined the said self cheques vide
Ex.PW-51/202 to 51/211. Further from the evidence of Ashok
Kumar Kathpal, (PW-12) the then Manager Syndicate Bank, Sonipat
who proved the joint account No.6956 to be in the name of appellant
and his wife Kamlesh Singhal and exhibited the statement of account
vide Ex.PW-12/E it has been proved that a cheque of ₹41,166/- was
credited to his account on 21st January, 2000 after deducting the
collection charges. As noted above, it has been proved by the
prosecution that the salary of appellant was ₹10,142/- per month
including various allowances. Hence deposit of a sum of ₹8,62,544/-
in his bank accounts within a period of less than one year and
corresponding withdrawals by self-cheques during the same period
proves unaccounted for deposits and withdrawals from his bank
CRL.A. 134/2016 & conn. matters Page 92 of 177
account. The same having been proved by the prosecution, under
Section 106 of the Indian Evidence Act onus shifts on the appellant
to explain facts especially within his knowledge which it could do
either by cross-examining the prosecution witnesses or leading
defence evidence or even probabilising the same in his statement
under Section 313 Cr.P.C. which appellant has failed to prove.
Contention of learned counsel for the appellant that the evidence that
details of cheques had not been entered into in the cheque acquittance
register was not put to him under Section 313 Cr.P.C. and thus
cannot be used in evidence is required to be rejected, firstly for the
reason that the first allegation against the appellant has been proved
on the basis of the evidence noted above and not the cheque
acquittance register and secondly, for the reason that in a statement
under Section 313 Cr.P.C. entire circumstance is required to be put to
the accused and not individual pieces of evidence constituting the
circumstance. Thus, it can safely be held that the first allegation of
the prosecution against the appellant has been proved beyond
reasonable doubt.
11.11. In respect of the second set of allegations against the appellant
regarding cancellation of 21 accounts payee cheques issued in favour
of various officers of CWC and in lieu thereof issuance of 9 cheques
in favour of DDOs/ CWC, where after the amount was disbursed to
officers who did not figure in the list of 21 accounts payee cheques,
this Court has already discussed the evidence while dealing with
appeals of Y.P. Sharma (A-1) in paragraph 8.10, appellant C. Manjhi
in paragraph 9.6 to 9.15, appellant S.K. Aggarwal in Paras 21.9 to
CRL.A. 134/2016 & conn. matters Page 93 of 177
21.14 hereinafter, wherein the role of the appellant has also been
explicated as this offence was committed by appellants Y.P. Sharma
(A-1), C.Manjhi (A-2), J.K. Singhal (A-4) and S.K. Aggarwal (A-17)
in conspiracy and are not being repeated herein.
11.12. The third allegation against the appellant is that he prepared fake bills
in favour of Hayat Singh and Lachi Ram. Learned Trial Court in
respect of Hayat Singh dealt the issue while dealing with case of
Hayat Singh and in respect of Lachi Ram it was held that he was not
inclined to discuss the same as Lachi Ram had died. As per this
allegation the appellant prepared fake bills advance of Transfer
Travel Allowance (TTA) in favour of H.S. Singh, Deputy Director
and L. Ram, Deputy Director. An advance for a sum of ₹65,000/-
was sanctioned vide sanction order Ex.P-7 where after two bills,
Ex.P-5 claiming a sum of ₹15,000/- and Ex.P-6 claiming a sum of
₹65,000/- were prepared by the appellant and his hand-writing stands
proved by the evidence of PW-51 on the bills wherein the claimants
have been named as Hayat Singh and H. Singh respectively. Though
the claim was purportedly made by H.S. Singh, Deputy Director
which was sanctioned vide order dated P-7, however the bills were
cleared in the name of Hayat Singh. Similarly, a sanction order
Ex.P-13 for advance TTA was prepared for a sum of ₹57,000/- in
favour of L. Ram, Deputy Director whereas bill Ex.P-12 claiming a
sum of ₹57,000/- was prepared by the appellant in the name of
claimant L. Ram and the bill was forwarded to C. Manjhi. A.S.
Gautam, (PW-25) Senior Accounts Officer in the CWC appeared in
the witness box and proved the aforesaid bills prepared by the
CRL.A. 134/2016 & conn. matters Page 94 of 177
appellant. On verification it was found that no sanction order was
issued by the Secretary CWC granting LTC of ₹15,000/- in favour of
Hayat Singh. Thus the complicity of the appellant in the third
allegation is also proved beyond reasonable doubt.
11.13. In respect of the fourth allegation relating to the non-disbursal of the
GPF withdrawal of ₹2,72,475/- which was sanctioned in favour of
S.P. Garg the prosecution examined S.P. Garg, PW-32 as a witness.
Though contention of learned counsel for the appellant is that this
allegation has been disbelieved by the Trial Court and he has been
rightly acquitted, however it may be noted that the learned Trial
Court held that it would not be safe to connect the appellant to this
transaction.
11.14. S.P. Garg appeared as PW-32 and deposed that he was posted and
functioning as Deputy Director CWC in the year 1999-2000 and in
the month of November, 2000 he had applied for GPF withdrawal of
₹3 lakhs on account of marriage of his niece. Withdrawal of
₹2,72,475/- was sanctioned on 27th November, 2000 which was
informed to him on 14th December, 2000. He was also informed that
the amount had already been withdrawn on 1st December, 2000.
However he had not received any money on account of such sanction
and he did not know who embezzled the amount. He came to know
about the facts when he applied for the cancellation of the withdrawal
since the engagement of his niece was cancelled due to some
problem. He saw the signatures on the Acquittance Roll (D-485)
across the revenue stamp and stated that they were not his signatures
and had been forged. He exhibited the Acquittance Roll as Ex.PW-
CRL.A. 134/2016 & conn. matters Page 95 of 177
32/A. He deposed that he made representation, however when no
action was taken he filed a writ petition before the High Court of
Delhi when the authorities were directed to credit the account back in
his GPF.
11.15. Further prosecution examined Mr. I.S.U. Puram, (PW-33) Sr.
Assistant (Retired) from State Bank of India, R.K. Puram who
exhibited the bank receipts scroll Ex.PW-33/A which was in his
hand-writing and also the entries in the delivery book made on 1 st
December, 2000 of the said amount. He exhibited the copies of the
delivery book vide Ex.PW-33/B and Ex.PW-33/C and the pay-in-slip
vide Ex.PW-33/D whereby the amount of ₹2,72,475/- was deposited
in the account. He also exhibited photocopy of the account opening
form of B.K. Khullar vide Ex.PW-33/E. The computer generated
certified copy of the statement of account of B.K. Khullar were also
exhibited as Ex.PW-33/F. I.S.U. Puram also deposed that he
received the credit voucher from the appellant and the amount was
credited in bank account of B.K. Khullar No.13061 which shows the
complicity of the appellant in unauthorizedly siphoning off the
cheque from the GP Fund of S.P. Garg (PW-32).
11.16. As noted above, appellant was working as Assistant-cum-Cashier in
the CWC and Rule 13 of the Central Government Accounts, Receipts
and Payments Rule provide that all transactions are required to be
entered into the cash book. In this regard the prosecution examined
Ram Yagya Tiwari, PW-39 who was posted as Accounts Officer in
CWC from 6th December, 1996 to 30th March, 2001 on deputation.
He exhibited 27 challans depositing the amounts in State Bank of
CRL.A. 134/2016 & conn. matters Page 96 of 177
India, R.K. Puram being D-3 to D-29 and exhibited the same as
Ex.PW-39/A-1 to A-27 and the cash books for the period 27th
September, 1999 to 15th March, 2000 and 16th April, 2000 to 10th
November, 2000 exhibited as Ex.PW-26/H and Ex.PW-39/B
respectively. He deposed that all the challans which were in the
name of B.M. Ghosh, B.B. Sharma, Chandrashekhar, Kamal Sharma,
Sandeep Kumar, Gulshan Kumar, Sunil Kumar, Subhash Chander,
Om Prakash, Shiv Sagar and R.L. Kawale were under the signatures
of C.Manjhi (A-2) and he could identify the same as he had seen him
writing and signing and the cash books exhibited as Ex.PW-26/H and
Ex.PW-39/B respectively did not contain entries in respect of the
aforesaid challans Ex.PW-39/A-1 to A-27. This witness also
deposed that it was the duty of the cashier to make entries in the cash
book in the ordinary course of business. Though this witness has
been cross-examined by C.Manjhi, however there is no cross-
examination on behalf of the appellant.
11.17. In view of the discussion aforesaid, the prosecution has been able to
prove all four allegations against the appellant beyond reasonable
doubt and his being a part of larger conspiracy with other appellants.
12. Crl.A. 297/2016 - J.P. Sharma v. CBI (A-6) :
12.1. Learned counsel for the appellant contends that the appellant was
employed as Deputy Director in the CWC and not in the accounts
branch of CWC, thus had no access to the documents of the accounts
branch. There is no evidence on record to infer that the appellant
procured the cheques from Pay & Accounts Office (P&AO). The
CRL.A. 134/2016 & conn. matters Page 97 of 177
cheque payment delivery register/ cheque acquittance register of the
accounts department of CWC reflects no entry showing that the
appellant received the cheques in question. Thus, there is no
evidence that while working as public servant, the appellant was
entrusted with the property i.e. the cheques. No fraudulent or
dishonest intention has been proved by the prosecution. Assuming
though not admitting that the appellant deposited cheques in the
accounts of some persons, the same were deposited in the name of
the persons to whom the cheques belonged. Learned Trial Court
convicted the appellant solely on the basis of the examination-in-
chief of the witnesses recorded without noting the contradictions and
improvements brought out in the cross-examination. Some of the
witnesses admitted that the original documents were not available
and hence not proved. Conviction has been based on allegations
which were not part of the charge.
12.2. Learned counsel for the CBI submits that while the appellant was
working as Deputy Director, CWC, he deposited cheques
fraudulently issued by Pay & Accounts Office, CWC in pursuance of
a criminal conspiracy in the bank accounts of Chander Shekhar his
son, Bhagwan Singh, his friend, Om Prakash, Retired Officer from
CWC, his friend, Sandeep Kumar, his neighbor, B.B. Sharma,
U.D.C. CWC, Yesudanam, Assistant Director and Bhagwan Singh,
Junior Computer, CWC. The appellant was drawing a salary of
₹15,338/- including various allowances such as DA, HRA, CCA,
conveyance allowances etc., as per Ex.PW-54/Z/11. The appellant
maintained one account at State Bank of India, R.K. Puram being
CRL.A. 134/2016 & conn. matters Page 98 of 177
Account No. 36903. Statement of account No. 36903 has been
proved by PW-28 as per which four cheques were deposited in the
account of the appellant for sum of ₹18,139/-, ₹61,140/-, ₹50,000/-
and ₹1,00,000/-. Statement of account also reflects credit entry of
₹5,000/- on 6th March, 1999 from Om Prakash S/o Sohan Lal (A-11)
which has not been explained by the appellant in his statement under
Section 313 Cr.P.C. Appellant also maintained an account at Canara
Bank, Shastri Nagar being account No. 2890 wherein an amount of
₹36,700/- was credited from the account of Om Prakash (A-11)
which fact is proved by the testimony of Sunit Prakash, (PW-41)
Manager, Canara Bank. Further appellant deposited fraudulently
issued 7 cheques in the account of his son Chander Shekhar (PW-47),
one cheque in the account of Brij Bhushan Sharma (PW-14), Canteen
Manager, one cheque in the account of Brij Kishore Sharma (PW-5)
Clerk, Delhi State Cooperative Bank, one cheque in the name of
Sandeep Kumar Maheshwari (PW-49) who was rendering tuitions to
the children of the appellant and three cheques in the name of Kamal
Kumar Sharma (PW-40) nephew of the appellant. Further J.P.
Sharma also deposited one cheque in the account of Bhagwan Singh
for a sum of ₹95,154/-. It is contended that the appellant was an
active participant in the conspiracy and committed the offences, he
has been convicted of.
12.3. To prove the allegations of depositing four cheques in his account No.
36903 State Bank of India, R.K. Puram against the appellant,
prosecution has examined I.S. Ranga, (PW-28) Deputy Manager
State Bank of India who was posted at R.K. Puram Branch of State
CRL.A. 134/2016 & conn. matters Page 99 of 177
Bank of India in July 2000. He exhibited the account opening form
of the appellant as Ex.PW-28/A by virtue of which his saving
accounts No. 36903 was opened on 11th May, 1990. He exhibited the
computerized statement of account running into 23 pages as Ex.PW-
28/B inadvertently noted as Ex.PW-8/B, however the same is an
uncertified copy thus not admissible in evidence. Further Ex.PW-
41/B which is stated to be the statement of account No. 2890 in the
name of Anaro Devi and the appellant is actually statement of
account of Chander Shekhar that too is not a certified copy as per
Section 2A of the Act. However R.C. Tully (PW-26) proved that
there was no corresponding entry in respect to cheque No. 229533
dated 18th May, 1998 issued for ₹18,139/- exhibited as Ex.PW-7/B in
the cheque acquittance register Ex.PW-7/A. In respect of an amount
of ₹36,700/- credited into the account No. 2890 Canara Bank, Shastri
Nagar maintained by the appellant from the account of Om Prakash
(A-11), Sunit Prakash, (PW-41) Manager, Canara Bank appeared in
the witness box and exhibited the pay-in-slip for a sum of ₹36,700/-
vide Ex.PW-41/D and the production-cum-seizure memo vide
Ex.PW-41/C. Statement of account No. 2890 was also placed on
record and exhibited vide Ex.PW-41/B, however the copy placed on
record is not certified in terms of Section 2A of the Act, thus
inadmissible in evidence. Be that as it may, from the pay-in-slip
Ex.PW-41/D duly proved by Sunit Prakash (PW-41), deposition of a
sum of ₹36,700/- in the account of the appellant stands proved and
when asked question No.44 in this respect in his statement under
Section 313 Cr.P.C., the appellant failed to render any explanation
CRL.A. 134/2016 & conn. matters Page 100 of 177
except stating that the same was false. Facts
especially within his
knowledge as to how the money from the account of Om Prakash (A-
11) duly proved vide Ex.PW-54/Z-42 was credited into the account
of the appellant was required to be explained by him, which onus
under Section 106 of the Evidence Act he failed to discharge.
12.4. Prosecution examined Chander Shekhar S/o J.P. Sharma (appellant
herein) as PW-47 who deposed that the appellant employed in CWC
was his father and he had given him 7-8 cheques to be deposited in
his bank account. On the directions of his father he opened an
account in the Canara Bank, Shastri Nagar being account No.12676.
He admitted his signatures and photograph on the account opening
form as Ex.PW-41/E and PW-41/F respectively. He also identified
his signatures on the statement of account exhibited as PW-41/B.
Ex.PW-41/B which is stated to be the statement of account No. 2890
in the name of Anaro Devi and the appellant is actually statement of
account of Chander Shekhar but is also not a certified copy as per
Section 2A of the Act hence not admissible in evidence. Be that as it
may, Chander Shekhar further identified the handwriting on the four
pay-in-slips for depositing the said cheques which were filled-in by
his father vide Ex.PW-47/1 to 4, though he did not identify hand-
writing on the remaining four pay-in-slips i.e. Ex.PW-47/5 to 8.
Thus the deposition of Chander Shekhar coupled with the pay-in-
slips showing deposit of sum of ₹53,169/-, ₹28,530/-, ₹99,096/- and
₹1,22,043/- in his account duly written by his father, the appellant
herein, proves the complicity of the appellant. Further as per the
opinion of hand-writing expert (PW-51), five cheques vide Ex.PW-
51/39 to 44 issued in the name of Chander Shekhar were signed by
S.K. Aggarwal (A-17). Chander Shekhar, (PW-47) further testified
that after the clearance of said cheques in his account, the amount of
the said cheques was withdrawn by him and handed-over to the Y.P.
Sharma (A-1) whom he identified in Court. Chander Shekhar has not
been cross-examined by the appellant or S.K. Aggarwal or Y.P.
Sharma, thus his testimony has gone unchallenged.
12.5. The prosecution also examined Brij Bhushan Sharma, (PW-14) who
deposed that in the year 2000 he was working as Manager Canteen in
the office of CWC. During that period appellant was the Secretary of
the canteen. On the day when he was going to retire in December
2000, he was served with a letter from the Vigilance Department
asking for a cheque amounting to ₹93,000/- credited into his account,
to which he informed that the appellant who was his immediate
senior had demanded ₹25,000/- to ₹30,000/- from him as he needed
money on the condition that he would return the same in 2-3 days.
So he gave him ₹28,000/- in cash. He had withdrawn the said
amount by withdrawal slip from Syndicate Bank, R.K. Puram and
handed-over the amount to the appellant. Thereafter, the appellant
asked Brij Bhushan his account number and informed him of the
deposit of a cheque in his account through a pay-in-slip duly signed
by the appellant. However, when he went to his bank he found
₹93,000/- were deposited in his account and on asking the appellant
he replied that he had done so to save income-tax. When he objected
to this high deposit into his account, appellant asked him to return the
money after retaining ₹28,000/- and thus he handed-over the access
amount to the appellant. PW-14 exhibited the two withdrawal slips
as Ex.PW-14/A and 14/B respectively. He also identified signatures
of the appellant on the cheque deposit slip dated 22nd December,
1999 which was exhibited as Ex.PW-14/C. Though this witness has
been confronted with certain improvements such as clarification
about the account number being taken by the accused or the pay-in-
slip, however the same are only clarificatory in nature elaborating the
sequence of events and do not amount to material improvements
which would entail discrediting the testimony of Brij Bhushan
Sharma. Further the contention of learned counsel for the appellant
that since the pay-in-slip i.e. Ex.PW-14/C was not put to him in his
statement recorded under Section 313 Cr.P.C. is also required to be
rejected for the reason it is well settled that in the statement under
Section 313 Cr.P.C., incriminating circumstance has to be put to the
accused and not every separate piece of evidence constituting the
circumstance. [See AIR 1967 SC 752 Bakshish Singh Dhaliwal Vs.
State of Punjab] In question number 7 put to the appellant in his
statement under Section 313 Cr.P.C. the learned Trial Court put the
circumstance of the appellant depositing a sum of ₹93,532/- in the
account of Brij Bhushan Sharma to which the appellant replied that
he had not received any cheque from office and the cheque given by
B.B. Sharma had been deposited in his account. Further contention
of learned counsel for the appellant that the learned Trial Court failed
to notice cross-examination of B.B. Sharma wherein he admits that
the appellant had not filled the deposit slip in his presence, thus no
reliance can be placed on the examination-in-chief deserves to be
rejected for the reason though Bharat Bhushan Sharma did not see
the appellant filling up and depositing the amount he identified
appellant's signature on the slip as he had seen him writing in the
ordinary course of work, the appellant being his immediate superior.
Further the prosecution also examined R.P. Lekhi (PW-10) the then
Manager Syndicate Bank, R.K. Puram who identified the seizure
memo Ex.PW-1/A by virtue of which attested copies of the account
opening form, specimen signatures, statement of account of Brij
Bhushan Sharma were duly seized. Though from the testimony of
R.P. Lekhi (PW-10), appellant seeks to show that original pay-in-slip
was not recovered however when Ex.PW-14/C was exhibited by
Bharat Bhushan Sharma no such objection was taken. The fact
remains that the version of Brij Bhushan Sharma is duly corroborated
by the documentary evidence proved by him thereby proving the
allegation against the appellant.
12.6. Prosecution has also examined Sandeep Kumar Maheshwari (PW-49)
who used to give tuitions to children of the appellant at his residence
at Shastri Nagar, Delhi. This witness deposed that he had opened a
savings bank account No. 1440 with the Delhi State Cooperative
Bank at Bharat Nagar and further proved the account opening form,
his signatures and statement of account already exhibited by Brij
Kishore Sharma, (PW-5) Clerk of the Delhi State Cooperative Bank
vide Ex.PW-5/2 and PW-5/4 respectively. Sandeep Kumar
Maheshwari deposed that on 30th July, 1999 a cheque for an amount
of ₹53,851 had been deposited in his account and he did not know
who deposited the said amount vide the pay-in-slip already exhibited
as Ex.PW-5/5. He further deposed that son of the appellant came to
his residence in the morning same day in the year 1999 and told him
that his father had told him that a cheque had been inadvertently
deposited in the account of Sandeep Kumar Maheshwari and asked
him to issue a cheque for a sum of ₹53,200/-. Thus, he issued the
self-cheque (B-682) of the aforesaid amount and handed-over to the
son of the appellant. He identified the self-cheque issued by him and
signatures of the appellant appearing at point A at the back side of
the cheque and his own signature at point B on the front side.
Nothing material has been elicited in his cross-examination except
that Sandeep Kumar refunded a sum of ₹53,851/- to the CWC during
the investigation of the case. Be that as it may, refunding the amount
of ₹53,851/- by Sandeep Kumar Maheshwari does not absolve the
appellant of his complicity in the offences alleged by the prosecution
and from the evidence of Sandeep Kumar Maheshwari (PW-49) and
Brij Kishore Sharma (PW-5) the prosecution has proved beyond
reasonable doubt the facts noted hereinabove against the appellant.
12.7. Prosecution has also examined Kamal Kumar Sharma nephew of J.P.
Sharma as PW-40. He deposed that the appellant was his maternal
uncle and had borrowed a loan in the name of Kamal Kumar Sharma
for purchasing a car for himself. He stated that the appellant gave
him two demand drafts of ₹87,379/- and ₹67,445/- in the month of
July and October. Both the drafts were deposited in his account
bearing No. 16103 Syndicate Bank, Raj Nagar, Ghaziabad. He
identified his signatures on the account opening form and the
specimen signature card exhibited as Ex.PW-40/A1 and A2
respectively. He also identified his statement of account vide
Ex.PW-40/A3 which is duly certified in terms of Section 2A of the
Act and depicts the two entries and that he withdrew the amounts of
two demand drafts and paid over the said amount to the appellant. In
his cross-examination he further stated that he handed-over the
amount to the appellant who was accompanied with accused Y.P.
Sharma whom he identified in the Court. Further A.S. Gautam, (PW-
25) Senior Accounts Officer, Pay and Accounts proved that a draft of
₹87,339/- was issued in favour of Kamal Sharma as reflected at serial
number 341 of the demand draft register Ex.PW-15/A.
12.8. Prosecution has pressed a further allegation against the appellant that
cheque No. 275051 dated 6th October, 1999 for a sum of ₹95,154/-
was issued in favour of Bhagwan Singh, however the only fact
proved in this regard is that the pay-in-slip dated 5th October, 1999
for ₹95,154/- which bears the name of Bhagwan Singh was in the
signature of the appellant as proved by the hand-writing expert.
However, the prosecution has not examined Bhagwan Singh but
having proved the pay-in-slip for a sum of ₹95,154/- in the name of
Bhagwan Singh duly signed by the appellant, onus shifts on him to
explain why an amount of ₹95,154/- was deposited in the account of
Bhagwan Singh.
12.9. In view of the discussion aforesaid, the prosecution has proved
beyond reasonable doubt that the appellant fraudulently deposited
four cheques in the account of Chander Shekhar his son, one cheque
in the account of Brij Bhushan Sharma, one cheque in the name of
Sandeep Kumar Maheshwari, two drafts in the name of Kamal
Kumar Sharma his nephew, thereafter took the money from all these
persons and mis-utilized the same. Further, the appellant failed to
explain filling up of the pay-in-slip in respect of a cheque of
₹95,154/- in favour of Bhagwan Singh. Hence the prosecution has
proved beyond reasonable doubt that the appellant committed
offences punishable under Sections 403, 120B IPC read with 403/409
IPC.
13. Crl.A. 342/2016 - Shiv Sagar Naik v. CBI (A-7) :
13.1. Learned counsel for the appellant contends that the prosecution has
not proved the case beyond reasonable doubt against the appellant.
Though it is alleged that 17 cheques were fraudulently deposited in
the account of the appellant, however chart produced by the CBI
relates to 15 cheques only. The amount of three cheques has already
been refunded which fact has been deposed to by M.E. Haque (PW-
24). Though it is alleged that the appellant acted in conspiracy with
Y.P. Sharma, however there is no such finding while deciding the
conviction of Y.P.Sharma. The appellant has no connection
whatsoever with the four sanction orders of LTC. Bank account
statement of the appellant has not been proved. Even as per the
statement of investigating officer PW-54 the appellant played no role
in preparation of the challans. The appellant neither granted any
sanction nor prepared any bills and thus he cannot be held liable with
the aid of Section 120B IPC. In any case on similar allegations the
appellant has already been convicted, thus, conviction in the present
case would amount to double jeopardy.
13.2. Learned counsel for the CBI on the other hand contends that the
appellant was Section Officer in Establishment and Accounts Section
of CWC and used to draw a salary of ₹9974/- including various
allowances such as DA, HRA, CCA and conveyance allowances as
per Pay Bill register Ex.PW-54/Z/11. It is the case of the prosecution
that 13 cheques were deposited in the account of the appellant for a
sum of ₹59,883/-, ₹99,000/-, ₹1,58,736/-, ₹53,211/-, ₹59,883/-,
₹1,67,194/-, ₹67,445/-, ₹72,000/-, ₹54,000/-, ₹94,606/-, ₹62,450/-,
₹41,027/- and ₹25,800/-. The prosecution has proved the certified
copies of the bank account opening form, signatures and
computerized statement of the account No. 3233 of the appellant.
Further Shri I.P.S. Bhatia, (PW-46) Deputy Manager, State Bank of
India, R.K. Puram proved the cheques deposited in the account of the
appellant. Further the said amount was withdrawn by 13 self-
cheques from September, 1998 to February, 2000 which was not
commensurate to the income/ salary of the appellant. Besides three
more cheques were deposited in account No. 9975 maintained by the
appellant at Syndicate Bank, R.K.Puram which fact stands proved by
the testimony of M. Jinarajadasa (PW-11). LTC advance bills were
prepared to the destinations Kerala and Kanya Kumari. Though the
rule permits LTC once in a block of 2 to 4 years depending on the
post, however within the same year two bills were approved. Four
cheques were issued on account of LTC bills in the name of non-
existing entities namely Shiv Sagar CE, Shiv Sagar Director and Shiv
Sagar Assistant Director and credited into the accounts of the
appellant clandestinely. No acquittance roll were prepared in respect
of all these cheques. Further three bills relating to LTC advance
were prepared and the supporting documents were sent along with
fake sanction orders. The bills in respect of the cheques were not
available. The cheques were fraudulently issued by Y.P. Sharma and
the funds credited to the accounts of appellant, withdrawn and shared
with Y.P. Sharma. In one of the such withdrawals of ₹1,06,000/-,
Y.P. Sharma has signed the document.
13.3. To establish its first charge of deposition of 13 cheques in account
No. 32333 of the appellant in State Bank of India, R.K. Puram,
prosecution examined Kanahya Lal, (PW-1) Assistant Manager, State
Bank of India, R.K. Puram who deposed that he went to the CBI
office and handed-over to the investigating officer who seized
attested photocopies of the account opening form, original credit
voucher and computerized statement of account No.32333 in the
name of the appellant. Though this witness exhibited the production-
cum-seizure memo Ex.PW-1/1, he did not exhibit the statement of
account of the appellant which was exhibited by I.P.S. Bhatia, (PW-
46) Deputy Manager, State Bank of India, R.K. Puram while dealing
with the transaction of the cheque bearing No. 277701 which was
credited into the account vide Ex.PW-46/B. The said statement of
account is certified as per Section 2A of the Act and thus admissible
in evidence. I.P.S. Bhatia deposed that cheque of ₹1,39,097/-
bearing No. 277701 was credited in three accounts firstly in the name
of Shiv Sagar Naik having account No.01190/032333 wherein a sum
of ₹41,027/- was credited vide entry 'A' and the statement of account
was exhibited as PW-46/F. The pay-in-slip of the said cheque was
exhibited as Ex.PW-46/G. A perusal of Ex.PW-46/F which has been
duly exhibited by I.P.S. Bhatia along with certificate under Section
2A of the Act also shows credit entry for a sum of ₹59883/- on 17th
March, 1999 by Government Transfer (GT). From the perusal of
Ex.PW-46/F it is evident that by 13 cheques amount of ₹59,883/- on
4th December, 1998, ₹99,000/- on 2nd January, 1999, ₹1,58,736/- on
4th February, 1999, ₹53,211/- on 1st March, 1999, ₹59,883/- on 17th
March, 1999, ₹1,67,194/- on 31st March, 1999, ₹25,800/- on 23rd
April, 1999, ₹67,445/- on 29th April, 1999, ₹72,000/- on 11th June,
1999, ₹54,000/- on 20th September, 1999, ₹94,606/- on 13th October,
1999, ₹62,450/- on 7th January, 2000 and ₹41,027/- on 29th January,
2000 respectively had been credited to the account of the appellant.
Prosecution has also proved the 11 pay-in-slips vide Ex.PW-51/142,
143, 144, 145, 146, 147, 148, 149, 150, 151. Further the statement of
account Ex.PW-46/F reveals withdrawal through self-cheques for
sums of ₹25,000/- on 17th August, 1998, ₹30,000/- on 21st
September, 1998, ₹45,000/- on 7th December, 1998, ₹15,000/- on 16th
December, 1998, ₹1,00,000/- on 4th January, 1999, ₹42,000/- on 27th
January, 1999, ₹35,000/- on 4th March, 1999, ₹42,000/- on 19th
March, 1999, ₹1,20,000/- on 31st March, 1999, ₹10,000/- on 26th
April, 1999, ₹14,000/- on 28th April, 1999, ₹10,000/- on 1st May,
1999, ₹46,000/- on 3rd May, 1999, ₹48,000/- on 12th June, 1999,
₹3,000/- on 1st July, 1999, ₹85,000/- on 15th October, 1999, ₹43,000/-
on 10th January, 2000, ₹30,000/- on 1st February, 2000. This is
further corroborated by the opinion of PW-51 who proved hand-
writing of the appellant on the cheques Ex.PW-51/158 to 176 except
Ex.PW-51/163 for withdrawal of ₹1,06,000/- on 5th February, 1999
which was in the handwriting of Y.P. Sharma. Thus, the first set of
allegations stands proved beyond reasonable doubt against the
appellant.
13.4. The second set of allegation against the appellant is of deposit of
three cheques in his account being account No. 9975, Syndicate
Bank, R.K. Puram. This allegation is proved by the prosecution by
examining M. Jinarajadasa, (PW-11) Manager, Syndicate Bank who
was posted as such in the year 2001 who exhibited his signatures on
the production-cum-seizure memo dated 11th May, 2001 as Ex.PW-
11/A. He further proved the certified copies of the account opening
form of account No. 9975 and specimen signature card of appellant
vide Ex.PW-11/B and PW-11/C respectively. He also produced the
certified copy of the statement of account duly signed by S.C.
Chhabra, the then Branch Manager and initialed by him vide Ex.PW-
11/D. He also proved the three original credit slips which he had
handed-over to the CBI vide Ex.PW-11/E to G. He further deposed
that this account was opened on 6th April, 1999 and was introduced
by Y.P. Sharma who held account No. 9580. The statement of
account Ex.PW-11/D is duly certified in terms of Section 2A of the
Act and thus can be read in evidence. As per the statement of
account of the appellant with the Syndicate Bank, R.K. Puram
Branch, sums of ₹45,000/- on 26th May, 1999, ₹1,79,256/- on 2nd
July, 1999 and ₹49,458/- on 30th October, 1999 were credited to his
account. As noted above, the three original pay-in-slips in regard to
these credit entries were exhibited vide Ex.PW-11/E to 11/G and the
opinion on this count was also rendered by the handwriting expert
PW-51. Thus from the evidence of M. Jinarajadasa and the
handwriting expert prosecution has proved beyond reasonable doubt
the second set of allegation against the appellant.
13.5. In respect of the third set of allegation that four cheques were issued
on account of the LTC bills in the name of non-existing entities
namely Shiv Sagar CE, Shiv Sagar Director and Shiv Sagar Assistant
Director, prosecution has examined A.S. Gautam (PW-25). He
deposed that he was posted and functioning as Senior Accounts
Officer in the P&AO of CWC with effect from April, 2001 to August
2002 and as a Senior Accounts Officer, his duties in general were to
process the bills submitted by the DDO by checking the same with
the various accounts manuals and passing the same if found in order.
He explained the procedure in respect of passing of the bills. After
seeing the documents he stated that document (D-487) was a LTC
advance bill along with the sanction order of LTC amount of
₹72,000/- in favour of the appellant and his family members. He
further identified (D-488) as another LTC bill dated 16th September,
1999 for a sum of ₹54,000/- in favour of the appellant along with
which a sanction order dated 15th September, 1999 was enclosed in
favour of the appellant and his family members. He also identified
document (D-489) another LTC bill dated 5th January, 2000 for a
sum of ₹62,450/- in favour of the appellant along with a sanction
order dated 4th January, 2000 in favour of the appellant and his
family members. He also identified document (D-486) another LTC
bill dated 21st May, 1999 for a sum of ₹45,000/- in favour of the
appellant along with a sanction order dated 20th May, 1999 in favour
of the appellant and his family members. As noted above, from the
statement of account of the appellant, amounts of ₹72,000/-,
₹54,000/-, ₹62,450/- and ₹45,000/- stood credited to the account
when as per the rules he was entitled to only one LTC in a block
period of 2 -4 years. The only challenge of learned counsel for the
appellant to the testimony of A.S. Gautam is that in the voucher
number 2200 signature of Assistant Account Officer does not figure
and voucher number 2443 is supported by carbon copy of sanction
order, however the witness has not been cross-examined on these
aspects when he appeared in the witness box as PW-25. Thus, the
allegation of the prosecution that the appellant was a part of the
larger conspiracy wherein on the basis of fake bills and sanction
orders, cheques were got prepared which were credited to his account
as well has also been proved beyond reasonable doubt by the
prosecution.
13.6. The fourth allegation against the appellant is also in continuation with
the third allegation that after the bills relating to LTC advances were
prepared and supporting documents were sent along with fake
sanction orders, the same were credited to the account of the
appellant who withdrew the same and shared it with Y.P. Sharma.
As noted above, cheque No. 619620 dated 5th February, 1999 for a
sum of ₹1,06,000/- was withdrawn from the account of the appellant
by Y.P. Sharma. Thus the allegations of the prosecution stands
proved beyond reasonable doubt against the appellant.
13.7. For the discussion aforesaid this Court finds no infirmity in the
conviction of the appellant for offences punishable under Sections
403 IPC and 120B read with Section 403/409 IPC.
14. Crl.A. 280/2016 - Jeet Ram Sharma v. CBI (A-9) :
14.1. Learned counsel for the appellant contends that there is no evidence
to show that the four accounts payee cheques were actually collected
by the appellant. Out of the four pay-in-slips of the cheques only two
were collected which were also not sent to the FSL for the opinion of
the hand-writing expert. Moreover, the statement of account No.
9446, Syndicate Bank, R.K. Puram does not show any deposit of ₹
80,325/-. There is no evidence on record to show that the medical
bill of the mother of the appellant had been submitted by the
appellant to the P&AO for realization of the said medical bill.
Further no evidence has been led to show that the appellant encashed
four accounts payee cheques fraudulently issued by P&AO, CWC for
a sum of ₹2,98,844/- in his account maintained by State Bank of
India, R.K. Puram.
14.2. Learned counsel for the CBI submits that the appellant was working
as Junior Computer Operator in the Account Section - III of CWC
during the relevant period. A bill dated 13 th January, 1999 for a sum
of ₹80,325/- was submitted by the appellant along with the
photocopy of bill of Escorts Heart and Research Institute, Okhla in
the name of Bhagwati Sharma, mother of appellant. The bill was not
supported by any sanction order, however, N.R. Suman (A-16)
approved the said bill which fact stands proved by the opinion of the
hand-writing expert. Further, Chetan Mukund Pandit (PW-35)
proved that the supporting documents with the bill were forged and
fabricated. R.C. Tully (PW-26) proved that though it did not contain
any sanction but the bill format indicated that the same was signed by
co-accused C. Manjhi. Further four cheques for a sum of ₹80,325/-
₹1,04,029/-, ₹64,939/- and ₹49,5498/- were deposited in the account
of the appellant.
14.3. In respect of the first allegation regarding submission and claim of a
forged medical bill in the name of the mother of the appellant,
prosecution examined Chetan Mukund Pandit (PW-35) who deposed
that he hailed from Central Water Engineering Service and was
working in CWC as member till his retirement in the year 2012.
Since he had some medical problem during his tenure, he got his
treatment from Escorts Hospital in the year 1998. He submitted a
medical claim on 25th April, 1998 for reimbursement of medical
expenses vide document (D-561) for a sum of ₹1,25,785/- exhibited
as Ex.PW-35/A which was accompanied by photocopies of discharge
summary, application, I-card and registration card of Escorts Heart
Institute exhibited as Ex.PW-35/B1 to B4. He was reimbursed a sum
of ₹1,25,785/- along with further claim of ₹13,800/- totaling to
₹1,38,935/-. He also identified his signatures across the revenue
stamp in the acquittance register (D-611). He further deposed that
the claim bill of ₹1,25,785/- vide (D-562) in the name of Smt.
Bhagwati Sharma W/o late R.R. Sharma was in the name of a female
but as against the column of age "male" was written and the claim
was supported by the same documents that were submitted by him in
respect of his claim for reimbursement with fabrication by putting a
different name of the claimant as Smt. Bhagwati Sharma. He
identified the fabrications in the said document vide Ex.PW-35/C-1
and C-2. The only cross-examination on behalf of the appellant was
whether Chetan Mukund Pandit knew appellant to which he denied.
It is thus evident that the testimony of Chetan Mukund Pandit has
gone unchallenged.
14.4. Prosecution also examined R.C. Tully (PW-26) who deposed that the
medical bill No. M-1393/I in the name of J.R. Sharma running into
four pages back to back vide (D-562) neither indicates the
designation of the person nor contains any sanction. However the
bill format indicates that as against a claim of ₹1,25,785/- bill for
₹80,325/- was prepared and he identified the signature of C. Manjhi
at point 'A' on the bill format Ex.PW-26/I. Further PW-51 identified
the handwriting of the appellant on Ex.PW-26/I, the medical claim
for a sum of ₹1,25,785/- in the name of Smt.Bhagwati, mother of the
claimant. Thus the first allegation against the appellant that a false
medical claim was raised on the strength of forged documents stands
proved beyond reasonable doubt by the prosecution.
14.5. The second set of allegation against the appellant as noted above is
deposit of amount of ₹80,325/- as against the false medical bills
besides ₹1,04,029/-, ₹64,339/- and ₹49,548/- in his account. In this
regard certified copy of the account opening form of account No.
9446 of Syndicate Bank, R.K. Puram, pay-in-slips dated 14th August,
1999 and 8th April, 1999 indicating deposit of a sum of ₹49,548/- and
₹1,04,029/- vide Ex.PW-54/D2 and Ex.PW-54/D respectively were
proved by PW-54. Though M. Jinarajadasa (PW-11) appeared in the
witness box but he did not depose about the transactions. Thus it will
have to be seen whether from the testimony of PW-54 and PW-51 the
allegations of the prosecution stand proved. PW-54 also proved vide
Ex.PW-54/ZX a letter from the bank dated 30th August, 2005 which
stated that though the statement of account was provided, however
the bank could not retrieve the statement of account from 1st January,
1999 to 31st January, 1999 nor the pay-in-slip for ₹80,325/- dated
23rd January, 1998. Thus even though the prosecution proved that a
cheque for a sum of ₹80,325/- (D-72) was prepared in favour of the
appellant, it could not prove that the sum of ₹80,325/- was deposited
in his account. The prosecution however proved deposit of two
amounts of ₹49,548/- and ₹1,04,029/- in the account of the appellant
in view of the endorsements on the two pay-in-slips Ex.PW-54/D2
and Ex.PW-54/D for which the appellant rendered no explanation.
14.6. Prosecution having proved beyond reasonable doubt the first
allegation and partially the second, conviction of the appellant for
offences punishable under Sections 471/403 and 120B read with
403/409 IPC is upheld.
15. Crl.A. 241/2016 - B.M. Ghosh v. CBI (A-10) :
15.1. Learned counsel for the appellant states that the allegation that five
cheques fraudulently issued by P&AO amounting to ₹3,53,953/- and
deposited in the bank accounts of the appellant has not been proved
by legally admissible evidence. Though it is the case of the
prosecution that the bills on the basis of which two cheques for
₹1,20,000/- were prepared had been collected, however as per the
acquittance register not even a single cheque had been received by
the appellant. The appellant has neither received any cheque from
the department nor deposited the same in his account. Claim that
false and fabricated sanction order was prepared is not connected to
the appellant. Medical bill allegedly submitted does not also show
that the appellant took part in preparing the false medical bill or
sanctioning the amount thereof or that he was beneficiary of the said
transaction.
15.2. Learned counsel for the CBI submits that the appellant filed a fake
medical claim in the name of his wife Subhra Ghosh along with an
application for reimbursement of the medical claim showing it to be a
total joint replacement though the permission was for neurological
problem. As per the opinion of the hand-writing expert the bill was
duly signed by C.Manjhi (A-2) and passed by N.R. Suman (A-16).
Handwriting and signatures of the appellant on the application form
claiming refund attached with the above-mentioned bill have been
duly proved by the report of the hand-writing expert PW-51. R.C.
Tully (PW-26) proved the procedure to claim reimbursement of
medical bills, sanction orders and the claim sent to the account
department for preparation of the bill. He also proved copy of the
medical bill in the name of the appellant and that a claim for
₹1,20,000/- was raised which bill was duly signed by DDO. Further
Ex.PW-51/17 was the original AIIMS bill for total ankle joint
replacement along with other bills in the name of Amandeep/ Aman
and vide Ex.PW-54/Z/17 AIIMS responded that Subhra Ghosh was
neither admitted in the hospital nor was a payment of ₹1,20,000/-
made. Vijay Kumar Sethi (PW-34) bank official from UCO Bank
proved the bank account opening form, specimen signature card,
attested computerized copy of the statement of account and the pay-
in-slip vide Ex.PW-34/B-1 to B-3 respectively besides the
production-cum-seizure memo vide Ex.PW-34/A by which these
documents were seized. Further Kanhaiya Lal, Assistant Manager
(PW-1) State Bank of India, R.K. Puram Branch proved the
production-cum-seizure memo in respect of the bank account of the
appellant. However, the UCO Bank was not able to retrieve the
statement of account for the relevant period.
15.3. In respect of the allegation of preparing a fake medical claim in the
name of the wife of the appellant Smt. Subhra Ghosh, prosecution
examined R.C. Tully (PW-26) who was then working in the CWC as
Section Officer. He explained the procedure regarding
reimbursement of medical claim stating that the employees after
availing treatment either at Government hospital or private hospital
recognized under CGHS preferred the claims to the respective
administrative sections. These claims were then processed as per the
relevant package deal rates and a sanction order was issued for
reimbursement. Copies of the sanction orders were sent to the
respective Account Section along with the claim in duplicate. The
Account Section then prepared a bill which was signed by the DDO
and sent to the P&AO. The P&AO would pass the bill and issue the
cheque for the amount either in the name of the DDO or in the name
of the individual as per the request sent along with the bill. The
amount was then disbursed to the individual either by way of cash or
cheque, obtaining his signatures on the cheque acquittance register.
In case the payment was made by cash an acquittance roll was
prepared by the respective Accounts Section, signed by the DDO and
then sent to the cashier to disburse the amount after obtaining the
signatures on the acquittance of the individual on a revenue stamp if
required. R.C. Tully vide Ex.PW-26/Z identified (D-560) the
medical bill No. M-1141/III dated 15th January, 2004 in the name of
the appellant running into four pages back to back. The bill did not
indicate the designation of the person but a claim was raised for
₹1,20,000/-. It did not contain any sanction but the bill format
indicated that the bill for ₹1,20,000/- was prepared. As noted in the
procedure, only after sanction order was prepared a bill could be
prepared. R.C. Tully also identified the signatures of C. Manjhi (A-
2) at point 'A' on the bill format Ex.PW-26/Z. He also exhibited the
letter dated 7th September, 1998 vide Ex.PW-26/A duly signed by
Shri D. Vidyarthi, the then Under Secretary, Government of India
permitting B.M. Ghosh to carry on the treatment of his wife from
AIIMS. The handwriting expert (PW-51) proved the signature of
N.R. Suman on the bill and the handwriting and signature of
appellant on the application form. Further vide Ex.PW-51/15 and
51/16 the handwriting expert identified the handwriting of the
appellant on the reimbursement certificate for indoor patient and
certificate 'B' respectively as attached with the bill. Ex.PW-51/17
the original bill from AIIMS for total ankle joint replacement was in
the name of Amandeep/ Aman and not Subhra Ghosh. Thus from the
evidence of these witnesses and the documents exhibited prosecution
has been able to prove beyond reasonable doubt that a fake medical
claim was got sanctioned by the appellant.
15.4. With respect to the deposit of five cheques issued by P&AO of CWC
amounting to ₹3,53,953/- in the accounts maintained at State Bank of
India and UCO Bank, R.K. Puram during the period 1st March, 1999
to 30th December, 1999 which included the two cheques for
₹1,20,000/- and ₹74,874/- the prosecution examined Kanhaiya Lal
(PW-1) bank official of State Bank of India, R.K. Puram who only
proved the production-cum-seizure memo Ex.P-1/1 vide which the
attested copy of the account opening form of account No. 29933
State Bank of India. R.K. Puram, certified copy of the statement of
account, original credit voucher dated 8th December, 1999 for
₹60,000/- were seized. However, PW-1 did not exhibit the certified
copy of the statement of account which would have shown the credit
entries, as he exhibited only the seizure memo and not the statement
of account. Moreover, though claimed in the seizure memo that
certified copy of the statement of account has been obtained,
however the statement of account on record as shown by learned
counsel for the CBI is not certified in terms of Section 2A of the Act
and hence not admissible in evidence. Thus, the prosecution has
failed to prove credit entry of ₹60,000/- in the account of the
appellant in State Bank of India, R.K. Puram.
15.5. Vijay Kumar Sethi, (PW-34) Assistant Manager UCO Bank exhibited
the account opening form in respect of account No. 6704 in the name
of the appellant at UCO Bank, R.K. Puram Branch, besides his
specimen signature card and the attested computerized copy of the
statement of account for the period 12th June, 1999 to 3rd December,
2000 vide Ex.PW-34/B1 to B3. Attested copy of the statement of
bank account does not relate to the relevant period i.e. January 1999
to April, 1999 as the same could not be retrieved due to technical
problem. However, Vijay Kumar Sethi exhibited the pay-in-slips
dated 12th February, 1999 and 27th February, 1999 for a sum of
₹1,20,000/- and ₹74,874/- respectively and a debit cheque No.
324721 dated 16th February, 1999 as PW-34/B4 to B6 collectively.
Vijay Kumar Sethi also proved the debit cheques Nos. 324723,
324729 and 324735 dated 3rd March, 1999 for ₹45,000/-, ₹7000/-
and ₹20,000/- respectively which were also exhibited as Ex.PW-
34/B6 collectively. Further PW-51 the handwriting expert vide his
opinion identified the handwriting of the appellant on the debit
cheques. B.V. Jagdish Kumar (PW-50) who was then posted as LDC
in the Account Section -III of CWC exhibited the pay bill register for
the period 1999 to 2000 vide Ex.PW-50/F wherein the entries on the
left page were made by him, however he denied that the entries on
the right side of the pages were in his hand-writing and stated that the
same were insertions. Though not on the basis of bank account
statement, the prosecution has been able to prove beyond reasonable
doubt that two cheques for ₹1,20,000/- and ₹74,874/- fraudulently
issued from the P&AO of the CWC were deposited by the appellant,
through the pay-in-slips dated 12th February, 1999 and 27th February,
1999 respectively in his UCO Bank, R.K. Puram Branch account No.
6704 on the basis of the evidence of Vijay Kumar Sethi and that an
amount of ₹1,20,000/- was reimbursed to the appellant on the basis
of a fake medical bill.
15.6. Thus the prosecution have proved beyond reasonable doubt that the
appellant committed offences punishable under Section 471, 403 IPC
and 120B read with 403/409 IPC.
16. Crl.A. 134/2016 - Om Prakash v. CBI (A-11) :
16.1. Learned counsel for the appellant submits that in short the allegations
of the prosecution against the appellant are that while working as a
draftsman, GR-I in CWC New Delhi during the relevant period and
maintaining his bank account at Punjab National Bank, R.K. Puram,
three cheques fraudulently issued by the Pay & Accounts Office,
CWC were deposited in the appellant's account by J.P. Sharma and
the appellant retaining a substantial/ part amount of the same
permitting J.P. Sharma to withdraw the amount either through
accounts payee cheque or through self-cheque. Contention of
learned counsel for the appellant is that the bank statement of the
appellant Ex.PW-54/Z-42 Document D-291 clearly shows that no
amount whatsoever has been retained by him and the entire amount
was deposited by J.P. Sharma in the account of the appellant and also
withdrawn by J.P. Sharma. It is contended that the bank account
statement clearly shows that there were normal bank transactions in
his account and the appellant cannot be convicted when it is the case
of the prosecution itself that all cheques in the appellant's name were
deposited and money withdrawn by J.P. Sharma only. It is stated that
since J.P. Sharma was the senior officer of the appellant who was
writing his ACR, the appellant had to succumb to his dictates and
give blank signed cheques to him. Further the appellant was not the
only person victimised by J.P. Sharma. From the evidence on record
it is evident that J.P. Sharma deposited similar cheques in the account
of various persons including his own son Chanda Shekhar (PW-47),
Canteen Manager Brij Bhooshan (PW-14), his nephew Kamal Kumar
Sharma (PW-40) and tutor of his children namely Sandeep (PW-49).
The appellant cannot be held responsible for the misappropriation as
he was not even aware of the source of cheques being deposited by
J.P. Sharma in his accounts who was the Deputy Director in CWC
whereas the appellant was only a draftsman. The admitted case of
the prosecution itself is that even the cheque depositing slips were
prepared and filled by J.P. Sharma in his own handwriting. When
every action was done by J.P. Sharma without the knowledge of the
appellant, he cannot be held guilty with the aid of Section 120B IPC
as there was no meeting of minds. No benefit has been derived by
the appellant directly or indirectly. Qua the allegation No.7 relating
to Y.P. Sharma a finding has been returned by the Trial Court that the
appellant Om Prakash is not connected with the 7th transaction, hence
the same cannot be pressed by the CBI. Reliance is placed on the
decision reported as 2007 (3) JCC 2318 Shreya Jha Vs. CBI wherein
the accused was discharged in a transaction where his account was
utilized without his knowledge and the accused was not a
beneficiary.
16.2. As regards the sentence it is submitted that the appellant has been
awarded 5 years rigorous imprisonment for offences punishable
under Section 120B read with Section 403/409 IPC and 1 year
rigorous imprisonment for offence punishable under Section 403 IPC
when no substantive offence under Section 403 IPC has been
committed by the appellant. Learned Trial Court maintained no
parity while awarding the sentence as similarly situated convicts like
Jeet Ram, B.M. Ghosh, Yesudanam have been awarded sentence of
rigorous imprisonment for 1 year for offences punishable under
Section 120B read with Section 403/409 IPC. Even Natha Ram
Suman who is stated to be one of the main accused by the CBI has
been awarded rigorous imprisonment for a period of 1 year only for
offences punishable under Section 120B read with 403/409 IPC and
also under Section 13(1)(d) punishable under Section 13(1)(2) of the
PC Act. It is further submitted that the offence punishable under
Section 409 IPC is the aggravated form of Section 403 IPC and the
appellant cannot be convicted and sentenced for both the offences i.e.
Section 403 and 409 simultaneously.
16.3. Learned counsel for the CBI submits that the bill dated 19th February,
1999 exhibited as Ex.PW-51/11-14 submitted under the signature of
Y.P. Sharma (A-1) was cleared and cheques issued which were duly
signed by S.K. Aggarwal (A-17). The handwriting of both Y.P.
Sharma on the bill and S.K. Aggarwal on the cheques has been
proved beyond reasonable doubt by the opinion of the hand-writing
expert PW-51. The original cheques and register of demand drafts
were seized from P.K. Rooprai (PW-36) and duly exhibited. The
register of demand draft of CWC i.e. acquittance register contains the
relevant entries, the amounts so credited into the account of the
appellant where after the cheques were withdrawn by J.P. Sharma
(A-6). In response to questions put to him under Section 313 Cr.P.C.
the appellant admitted that cheques in question were deposited by
J.P. Sharma in his accounts and that he paid some specified amounts
to J.P. Sharma post-deposit. The defence of the appellant is that he
acted under the pressure of his senior which cannot be accepted as no
public servant can commit an offence even though pressurized by his
superior. Prosecution having proved that the amount was deposited
in the bank account of the appellant, onus shifted on him to prove the
facts especially within his knowledge under Section 106 Evidence
Act. Further in view of the explanation rendered under Section 313
Cr.P.C. which can be taken as an additional link in the chain of
circumstances prosecution has been able to prove its case beyond
reasonable doubt. Two of its star witnesses to prove the case of the
prosecution i.e. Ramesh Chander, Manager Punjab National Bank,
R.K. Puram and S.K. Jindia AAO, P&AO, CWC could not be
examined as the first one passed away before he could be examined
and the second one shifted to London and thus could not be served.
In the absence of above primary evidence, the prosecution was within
its right to lead secondary evidence which was not objected to at the
time of recording of the evidence.
16.4. Case of the prosecution against the appellant is that four cheques
bearing No. 228394, 230010, 232492 and 237231 for a sum of
₹28,819/-, ₹23,819/-, ₹1,10,568/- and ₹54,202/- respectively were
credited into the account of the appellant. The original account
opening form, three original pay-in-slips and attested copy of the
statement of account No.5715 were seized from Ramesh Chander,
Deputy Manager Punjab National Bank, R.K. Puram vide Ex.PW-
54/T, however before Ramesh Chander could be examined, he passed
away. Since Shri Ramesh Chander had passed away, the
investigating officer PW-54 exhibited not only the seizure memo
vide Ex.PW-54/T but the account opening form in the name of the
appellant bearing account No. 5715 but also certified copy of the
statement of account, pay-in-slips and cheques from the Punjab
National Bank, Sewa Bhawan, R.K. Puram, New Delhi which were
proved as D-291 to D-295 and D-285 to D-286 respectively and
collectively exhibited as Ex.PW-54/Z/42. Copy of the statement of
bank account No.5715 is a certified copy in terms of Section 2A of
the Act depicting credit entries for a sum of ₹ 28,819/-, ₹23,819/-,
₹1,10,456/- and ₹54,202/- into the account of the appellant.
16.5. Having led the evidence as noted above prosecution also relies upon
the non-explanation of the appellant to the incriminating
circumstance put to him under Section 313 Cr.P.C. Question
No.1,3,4,5,9 & 11 asked from the appellant and his answers thereto
are as under:
"Q.1. It is in evidence against you that during the relevant time
you were posted as Draftsman, Grade-I in CWC. What have
you to say?
Ans. It is correct.
Q.2. It is in evidence against you that you were having bank
account No. 5715 with PNB, R.K. Puram, New Delhi during the
relevant time. What do you have to say?
Ans. It is correct.
Q.3. It is in evidence against you that in pursuance of criminal
conspiracy co-accused J.P. Sharma deposited 03 cheques in
your account procured on false document bearing cheque
No.228394 dt. 01.03.1998 for ₹28,819/-; cheque No.230010 dt.
29.05.1998 for ₹2,38,190/-; cheque No. 232492 dt. 07.08.1998
for ₹1,10,568/- which amount was misappropriated by you.
What do you have to say?
Ans. It is correct that accused J.P. Sharma had deposited
three cheques in my account but the same were procured by
him, they were deposited by him under his handwriting.
However, I never entered into any kind of conspiracy with any
person in my office.
Q.4. It is in evidence against you that you had made payment
of ₹2,880/-; ₹20,000/-; ₹36,700/- and ₹5,000/- to co-accused
J.P. Sharma to split the ill gotten amount. What do you have to
say?
Ans. It is correct that these payments were made to accused
J.P. Sharma through cheque as well as cash by me. I was not
beneficiary of these proceeds.
Q.5. It is in evidence against you that payment of ₹36,700/-
and ₹500/- had been done through account No.36903 of co-
accused J.P. Sharma. What have you to say?
Ans. It is correct that I had issued a cheque pertaining to the
above amount in the name of accused J.P. Sharma who in fact
had deposited the said amount in my account and later on
directed me to return the same which I did through the above
mode.
Q.8. It is in evidence against you that during the investigation
register of demand draft had been seized by the IO for the
period 30.3.1999 to 27.2.2001 vide memo Ex.PW-54/G-3
showing disbursement of cheque No.228394 dt. 01.03.1998 for
₹28,819/-; cheque No. 230010 dt. 29.05.1998 for ₹2,38,190/-;
cheque No.231363 dated 22.07.1998 for ₹5000/-, cheque No.
232492 dt. 07.08.1998 for ₹1,10,568/-, cheque No.233892 dated
20.10.1998 for ₹52,000/- and cheque No.235939 dt. 01.01.1999
for ₹53,000/- to you. What have you to say?
Ans. I do not know.
Q.11. Why the case is made against you?
Ans. This is a false case. The fact of the matter is that I was
working just as a Draftsmen in CWC where accused J.P.
Sharma was my boss who during that time had threatened me to
spoil my confidential report and to effect me in my service
career and under that threat I was being blackmailed to return
the money which was deposited by him under his handwriting in
my account despite my several requests and insistence. He
continued to deposit the false and fabricated cheques in my
account the amount of which later on under his direction was
withdrawn by me and handed over to him. I am not beneficiary
out of the proceeds of the cheques whatsoever had been
deposited in my account. It was only the accused J.P. Sharma
who is responsible for it. I am innocent.
16.6. Though from the evidence as led by the prosecution and discussed in
Para 16.4 and 16.5 above, the prosecution has been able to prove
beyond reasonable doubt that the appellant was a part of the
conspiracy, his non-explanation and admissions in the statement
under Section 313 Cr.P.C. can be used as an additional circumstance
against him to convict him for the offences charged with. The
prosecution having proved that on different dates spanning for a long
period of time (from 2nd April, 1998 to 27th February, 1999) appellant
received a total sum of more than ₹2 lakhs of which only a part was
paid to J.P. Sharma the plea of the appellant that the entire action was
that of J.P. Sharma and he was not a part of conspiracy and also that
he was not a beneficiary to the transaction deserves to be rejected.
Thus the conviction of the appellant for offences punishable under
Sections 403 IPC and 120 r/w 403/409 IPC is upheld.
17. Crl. A. No. 151/2016 Om Prakash s/o Amir Singh v. CBI (A-12) :
17.1. Learned Counsel for the appellant contends that the prosecution case
against the appellant is based upon the testimony of 3 witnesses
namely, Suraj Lal (PW-13), T.K. Sarkar (PW-23) and R.S. Bedi
(PW-54). Suraj Lal who is the Assistant Cashier cum Clerk in State
Bank of India, R.K. Puram Branch deposed that all the money
deposited in the account of the appellant was transferred to his
account from Government account. He does not depose about the
five cheques which were alleged to have been deposited in the
account. Furthermore, as per the prosecution case, the period of
conspiracy was 1998 to 2000, however no entry of deposit between
August, 1998 and March, 2000 has been proved. Suraj Lal in his
cross examination deposed, "it is correct that no entry is there as per
statement of account Ex. PW-13/B after 06.03.1998". Thus the
appellant cannot be convicted for the alleged conspiracy.
17.2. T.K. Sarkar who was Deputy Manager in State Bank of India, Main
Branch, Rohtak also does not depose about any entry in the Rohtak
Branch of the Bank. R.S. Bedi, Investigating Officer, admitted in his
examination-in-chief as well as cross examination that neither the
specimen of the handwriting of the appellant was taken nor the
opinion of expert was sought. Furthermore, the case of the
prosecution was that the alleged five cheques were deposited in the
account of the appellant by J.P. Sharma but the question put to the
appellant under Section 313 Cr. P.C. was that five cheques were
deposited by the appellant in his bank account and misappropriated.
Hence the circumstance cannot be used against the appellant.
17.3. Learned Counsel on behalf of the CBI submits that from the evidence
of investigating officer who seized the cheque paid register from
M.E. Haque (PW-24) and the Acquittance Roll for the period, the
deposition of cheques in the account of appellant has been proved
beyond reasonable doubt. Further, Kanahiya Lal Kashyap (PW-1)
proved the original account opening form, three original pay-in-slips
and attested copy of the statement of account No.30221. Suraj Lal
also proved certified copy of the statement of account No.30221 vide
Ex.PW-13/1 and has deposed about the disputed entries. Learned
Trial Court rightly drew the presumption under Section 106 of the
Evidence Act once entries in the bank account of the account holder
were proved. Though a deposit of a sum of ₹3,31,938/- by five
cheques was made, the withdrawals were only for a sum of ₹72,000/-
. Thus the appellant was a beneficiary of the larger conspiracy
involving fraudulent transactions.
17.4. Contention of learned counsel for the CBI is that the investigating
officer PW-54 exhibited the cheque payment delivery register/
cheque acquittance register vide Ex.PW-54/Z-67 collectively duly
seized from M. Haque (PW-24) i.e. D-536, D-610, D-612 and D-613.
Though M. Haque does not depose about this seizure however no
objection as to the mode of proof was raised when these documents
were being exhibited by the investigating officer. PW-26 R.C. Tully
though proves the procedure however did not depose about the
Acquittance Register which fact is proved by the testimony of the
investigating officer who deposes about the seizure of the
Acquittance Roll vide Ex.PW-54/DX. Further PW-26 stated that the
Register and Acquittance Roll should have the entries. The
investigating officer PW-54 deposed that he seized original cheques
from P.K. Rooprai PW-36 vide seizure memo Ex.PW-54/G2. Suraj
Lal (PW-13) the star witness of the prosecution who was working as
a Assistant Cashier-cum-Clerk in State Bank of India, R.K. Puram
Branch exhibited the certified copy of the statement of bank account
No.30221 in the name of the appellant vide Ex.PW-13/A. All the
entries of the account deposed to by him in connection with account
No.30221 related to the period 27th September, 1996 to 23rd
September, 2008. Suraj Lal (PW-13) also exhibited the certified
copy of the account opening form of the account of the appellant vide
Ex.PW-13/B. PW-29 B.S. Yadav also explained the procedure in the
Pay and Accounts office of the CWC. Further the prosecution has
exhibited the deposit slips in relation to the five cheques D-683 to D-
687 for a sum of ₹45,574/-, ₹1,04,258/-, ₹64,560/-, ₹45,574/- and
₹71,972/- vide Ex.PW-51/131 to Ex.PW-51/135 respectively.
Prosecution has also exhibited the two cheques bearing No.231611
dated 31st July, 1998 and 239724 dated 24th May, 1999 vide Ex.PW-
51/31 and Ex.PW-51/33 respectively. No objection to the mode of
proof of the documents was being taken when PW-51 exhibited the
documents. The fact that 5 Government cheques for a sum of
₹45,574/-, ₹1,04,258/-, ₹64,560/-, ₹45,574/-, ₹71,972/- also stand
proved by the statement of account of the appellant proved vide
Ex.PW-13/A which is certified copy in terms of Section 2A of the
Act in respect of account No.30221, State Bank of India, R.K.
Puram. Prosecution has also exhibited the cheque Ex.PW-51/136
whereby a sum of ₹72,000/- stands withdrawn as per the statement of
account Ex.PW-13/A on 17th January, 2000. Though the prosecution
has also proved the account opening form and statement of account
in respect of the account No.138705 of the appellant vide Ex.PW-
23/B and PW-23/C, however the five cheques have not been
deposited in the said account.
17.5. The two questions put to the appellant i.e. question No.8 & 9 relating
to the two cheques and their answers in the 313 Cr.P.C. statement are
as under:
"Q8. It is in evidence against you that you had procured 05
cheques fraudulently procured by co-accused J.P. Sharma
from P&AO, CWC during the period 03.08.1998 to 17.01.2000
and got the same deposited in your bank account. What do
you have to say?
Ans. It is incorrect. I had not procured any cheques and
deposited the same in my bank account.
Q.9. It is in evidence against you that cheque No.231611 dt.
03.08.1998 for ₹45,574/-; cheque No. 237602 dt. 15.03.1999
for ₹1,04,258/-; cheque No.239724 dt. 28.05.1999 for
₹64,560/-; cheque No.276268 dt. 09.12.1999 for ₹45,574/- and
cheque No.277256 dt. 17.01.2000 for ₹71,972/- had been
deposited by you in your bank account and misappropriated.
What do you have to say?
Ans. It is incorrect. I had not deposited the aforesaid cheques
in my account"
17.6. Contention of learned counsel for the appellant is that though the five
cheques were deposited in his account by J.P. Sharma, however the
question put to the appellant under Section 313 Cr.P.C. was that five
cheques were deposited by the appellant in his bank account and
misappropriated. As noted above this circumstance has been put to
the appellant in two questions. In question No.8 the learned Judge
put to the appellant that he had procured five cheques fraudulently by
co-accused J.P. Sharma from P&AO, CWC during the period 3rd
August, 1998 to 17th January, 2000 and got the same deposited in the
bank account of the appellant. It is thus clear that deposit into the
account of the appellant is attributed to J.P. Sharma. Though in
question No.9 it is wrongly put to the appellant that he had deposited
the said five cheques in bank account, however question No.9 gets
clarified from question No.8 where it has been specifically
mentioned that J.P. Sharma get the same deposited in the account of
the appellant. Appellant has duly answered the two questions and no
prejudice has been demonstrated on this count.
17.7. In view of the discussion aforesaid the prosecution has proved beyond
reasonable doubt that a sum of ₹3,31,938/- by five cheques was
deposited in account No. 30221, State Bank of India, R.K. Puram of
the appellant which was beyond the entitlement of the appellant and
the appellant has failed to render any explanation thereof. Therefore,
the prosecution has proved beyond reasonable doubt that the
appellant committed offences punishable under Section 403 and 120
IPC read with Section 403/409 IPC.
18. Crl.A. 240/2016 - Yesudanam v. CBI (A-14) :
18.1. Learned counsel for the appellant submits that the only allegation of
the prosecution against him is that without any related bill being
available with CWC and there being no signature on the acquittance
roll, a cheque for an amount of `1,22,000/- was deposited in the
account of the appellant maintained with State Bank of India, R.K.
Puram by J.P. Sharma. On the very next day a sum of `91,000/- was
withdrawn by a self-cheque. It is contended by learned counsel for
the appellant that neither the appellant deposited the cheque nor there
is any evidence that the appellant had any knowledge of deposit of
cheque issued in his name by S.K. Aggarwal. The explanation render
by the appellant in his statement under Section 313 Cr.P.C. was
probable and since J.P. Sharma was his immediate boss he was
supposed to act on his instruction.
18.2. Learned counsel for the CBI submits that the pay bill register of the
Assistant Director was produced by R.C. Tully (PW-26), DDO CWC
which was seized vide production-cum-seizure memo Ex.PW-54/D1.
A cheque issued by S.K. Aggarwal (A-17) in favour of appellant
was also exhibited vide Ex.PW-51/55. The said cheque was
produced by P.K. Roop Rai, (PW-36) Senior Accounts Officer, CWC
through production-cum-seizure memo Ex.PW-54/F1. Statement of
account was seized from PW-1 and proved by PW-54 vide Ex.PW-
54/Z-46 showing a credit entry in the account of the appellant.
Appellant in his statement under Section 313 Cr.P.C. admitted that
the cheque in question was deposited in his account and he had paid a
specified amount to J.P. Sharma after the deposit. His defence is that
he acted under the pressure of his senior J.P. Sharma thereby
admitting his guilt.
18.3. Certified copy of the statement of account of the appellant for savings
account No. 46147 has been proved by the investigating officer PW-
54 vide Ex.PW-54/Z-46. The said statement of account is admissible
in terms of Section 2A of the Act. As the document is admissible in
evidence, the mode of exhibition of the same being done by the
investigating officer (PW-54) ought to have been objected at the time
of proving the document. The said objection having not been taken
during trial, the appellant cannot now object to the mode of proof of
the document. Perusal of Ex.PW-54/F1 shows a credit entry for a
sum of ₹1,22,000/- by CWC cheque No.237424. Further by the
opinion of the handwriting expert it has been proved that the cheque
in question was in the handwriting of S.K. Aggarwal (A-17). Even
though the pay bill register has not been proved by R.C. Tully (PW-
26) and what is proved is the seizure memo of the pay bill register,
from the certified copy of statement of account of the appellant an
entry by way of a Government cheque for a sum of ₹1,22,000/- in his
account having been proved, onus shifted on the appellant under
Section 106 of the Evidence Act to state the facts specially within his
knowledge. The prosecution having discharged its initial burden, the
explanation of the appellant in his statement under Section 313
Cr.P.C. can be taken into consideration.
18.4. The answers of the appellant to questions No.3, 4 & 5 in his statement
under Section 313 Cr.P.C. statement are as under:
"Q.3 It is in evidence against you Pay & Accounts Office,
CWC cheque No.237424 for a sum of ₹1,22,000/- had been
deposited in your account by co-accused Y.P. Sharma in
pursuance of criminal conspiracy to procure bogus cheques
without any bills or claims and get the amount misappropriated.
What do you have to say?
Ans. It is correct. Accused J.P. Sharma, my immediate boss
and not accused Y.P. Sharma, my confidential report writing
officer called me to his chamber at about 6.00 PM on
08.03.1999 and gave me a counterfoil of pay-in-slip saying that
a cheque had been deposited in my account and called upon me
to return the amount.
Q.4 It is in evidence against you that soon after the deposit of
said cheque on 09.03.1999 you withdrew an amount of
`91,000/- from the said account and embezzled the same in
criminal conspiracy with co-accused persons. What do you
have to say?
Ans. It is incorrect. After handing over counterfoil of the pay-
in-slip to me, accused J.P. Sharma insisted me to return the
money by self-cheque. Thereafter, accused J.P. Sharma
accompanied me in his red Maruti car to my quarter to take the
cheque from me where I gave him a self cheque of ₹91,000/-
which was filled by me on his directions where I put one
signatures on the front side of the cheque and he asked me to
sign thrice on the reverse on the backside of the cheque which I
did on his directions and handed over the cheque to him. The
remaining amount was also returned subsequently to him on his
directions.
Q.5. It is in evidence against you that no entry had been made
in regard to above said cheque of ₹1,22,000/- in the bill register
and/ or cheque acquittance register maintained in the ordinary
course of business. What do you have to say?
Ans. Since the cheque was not prepared under my knowledge
therefore, I did not know anything about the entry in the said
register or any other document concerning the cheque.
Therefore, there was no signatures done by me in the register
against the entry of the cheque."
18.5. Prosecution has proved that a Government cheque Ex.PW-51/55
issued by S.K. Aggarwal (A-17) in favour of the appellant for a sum
of `1,22,000/- was deposited on 8th March, 1999 in his bank account
as is evident from the statement of bank account proved vide Ex.PW-
54/Z-46. On the very next date, appellant withdrew an amount of
`91,000/- by a self-cheque. As per the statement of account of the
appellant, the two entries of credit and debit are the only entries for
major amounts, rest all entries are of smaller amounts in
commensurate to appellant's pay and allowances. There is no
explanation whatsoever of the remaining amount i.e. `31,000/-. The
explanation of the appellant that it was at the insistence of J.P.
Sharma who was his senior, cannot absolve him of the offence
committed. Thus, prosecution has proved beyond reasonable doubt
the charge against the appellant and his conviction for offences
punishable under Sections 403 and 120B read with 403/409 IPC.
19. Crl.A. 347/2016 - Hayat Singh v. CBI (A-15) :
19.1. Learned counsel for the appellant contends that as regards the
submission, preparation or sanctioning of the LTC bill or the TTA
bill for a sum of ₹15,000/- and ₹65,000/- the appellant is not at all
involved as in none of the documents, his handwriting has been
proved. The appellant cannot be convicted for the illegal activities
and preparation of fraudulent cheques by his seniors. Further even as
per the evidence collected by the prosecution, appellant had no
knowledge of the deposit of the cheques and he acted on the dictates
of his seniors who asked him to withdraw and return the money. The
appellant cannot be held to be a part of the larger conspiracy. In fact
the appellant is a victim of the circumstance being subordinate in
rank, working as a Peon in the CWC.
19.2. Learned counsel for the CBI submits that LTC bill for a sum of
₹15,000/- was prepared in the name of Hayat Singh under the
signatures of C.Manjhi. One more TTA Bill for a sum of ₹65,000/-
was prepared in the name of H. Singh, Deputy Director, CWC again
by C. Manjhi which was in the handwriting of J.K. Singhal. Further
noting on the said bill was of N.R. Suman whose handwriting stands
proved by the opinion of the handwriting expert. Statement of
account of the appellant has been proved by cogent evidence which
shows credit entries for a sum of ₹15,000/- on 20th May, 1999,
₹65,000/- on 2nd December, 1999 and ₹74,500/- on 23rd October,
1999 where after withdrawals by cheque and in cash are duly
reflected in the statement of account of the appellant. Thus, merely
because it has not been proved that the appellant signed the bill or
processed the same it cannot be said that he was not a part of the
conspiracy and thus liable to be acquitted or that he acted on the
dictates of his superiors.
19.3. Allegation against the appellant who was working as a peon in CWC,
New Delhi is that three cheques issued by the Pay & Accounts Office
amounting to a sum of `1,54,500/- were deposited in his account
during May 1999 to December 1999. Though the prosecution proved
only one cheque deposited vide Ex.PW-51/47 for a sum of `15,000/-
by S.K. Aggarwal (A-17) in the name of Hayat Singh in his bank
account maintained at State Bank of India, R.K. Puram, a perusal of
the copy of the statement of bank account of the appellant Ex.PW-
46/D duly certified as per Section 2A of the Act reveals three
deposits which were for major amount and withdrawals. Besides the
three major deposits i.e. of `15,000/-, `74,500/- and `65,000/- on
20th May, 1999, 23rd October, 1999 and 2nd December, 1999
respectively amounts credited into the account of the appellant are of
minimal except one entry for a sum of `9,000/-. Prosecution has thus
proved deposit of `1,54,500/- and a withdrawal of `1,10,000/-
beyond the income of the appellant which the appellant was required
to explain being facts specially within his knowledge. The
prosecution has also proved that one cheque Ex.PW-51/47 amounting
to `15,000/- was issued by S.K. Aggarwal (A-17) Pay & Accounts
Officer whose signatures have been proved by the opinion of PW-51
in the name of the appellant.
19.4. Explanation of the appellant in his statement under Section 313
Cr.P.C. is that J.K. Singhal used to bring cheques to him and never
gave satisfactory reply as to how the cheques were prepared in the
name of the appellant whereas he never demanded cheques from the
office or they were due against any official dues. Every cheque that
had been deposited in his account was without his knowledge and the
proceeds of the cheque were given back to accused J.K. Singhal. He
never used any money out of the cheques so deposited. He was just a
peon and was acting on the directions of accused J.K. Singhal and
other co-accused who were his senior officers. At times he refused to
withdraw the money and file a complaint to higher officers to which
he was always threatened that he would loose his job in case anybody
was informed about their misdeeds and he continued to obey their
directions with respect to the cheques in question.
19.5. Explanation of the appellant that he never demanded cheques from
the office or that they were deposited without his knowledge and the
proceeds of the cheque were given back to J.K. Singhal deserves to
be rejected. Out of the three cheques of the misappropriated amount
i.e. ₹15,000/- on 20th May, 1999, ₹74,500/- on 23rd October, 1999
and ₹65,000/- on 2nd December, 1999 major withdrawal for a sum of
₹60,000/- is on 25th October, 1999 i.e. immediately after the deposit
of a sum of ₹74,500/-. Thus even if the said amount of ₹60,000/- has
been returned to J.K. Singhal, besides this self-cheque there is
withdrawal by 7 other self-cheques. Considering that the prosecution
has been able to prove deposit of a sum of ₹1,54,500/- in the account
of the appellant which was withdrawn by 8 self-cheques proved to be
in the handwriting of appellant by the opinion of the handwriting
expert coupled with the explanation of appellant, conviction of the
appellant for offences punishable under Sections 403 IPC and 120B
read with 403/409 IPC is upheld.
20. Crl.A. 847/2016 - Natha Ram Suman v. CBI (A-16) :
20.1. Learned counsel for the appellant contends that it is the case of the
prosecution itself as per the evidence of M.E. Haque (PW-24) that
there was no specific allegation against the appellant in the complaint
lodged. Further even the investigating officer in his cross-
examination admitted that appellant had not got deposited any
misappropriated amount in his bank account. Despite there being no
evidence on record, the appellant has been convicted for offences
punishable under Section 13(1)(d) read with 13(2) of the Prevention
of Corruption Act, also under Section 120B IPC read with Section
403/409 IPC and awarded rigorous imprisonment for a period of 1
year on both the counts.
20.2. Learned counsel for the CBI contends that the case of the prosecution
against the appellant is not that he is a beneficiary but that in
conspiracy with other accused he fraudulently passed number of
bills. The act of the appellant cannot be held to be mere negligence.
Though the prosecution alleged that the appellant surreptitiously
passed number of bills, however learned counsel for the CBI
restricted the role of the appellant in passing 6 bills. The defence of
the appellant that once bills which were duly sanctioned were
presented to him, he was not required to see anything more but clear
the same cannot be accepted. Learned counsel for the CBI submits
that after sanction two kinds of bills i.e. LTC/ TCA and the medical
bills used to come to the appellant. Even accepting that he had no
mechanism to find out that the sanction was forged and fabricated,
however in some cases appellant cleared the bills without their being
any sanction, or sanction being for a different ailment which shows
that he was a part of the conspiracy.
20.3. To prove the case against the appellant, prosecution examined R.C.
Tully (PW-26) who deposed about the procedure regarding
reimbursement of the medical claims or other bills as also noted in
Crl.A.241/2016. The first bill allegedly passed by the appellant is
one LTC bill (D-490) Ex.P-5 for a sum of ₹15,000/- in the name of
Hayat Singh (D/M Grade II) written in the handwriting of J.K.
Singhal (A-4), cleared by the appellant who was the then Senior
Accounts Officer, CWC and passed by S.K. Aggarwal without any
sanction order. The handwriting of the appellant on the bill has been
duly proved by the testimony of the handwriting expert (PW-51) and
the bill has been exhibited by A.S. Gautam, (PW-25) Senior
Accounts Officer in P&AO, CWC as Ex.P-5. A.S. Gautam deposed
that D-490 and D-491, one being LTC bill dated 17th May, 1999 for a
sum of ₹15,000/- in favour of Hayat Singh and another being TTA
bill dated 1st December, 1999 for ₹65,000/- in favour of H. Singh
along with sanction order (D-491) (Ex.P-7) dated 29th November,
1999 in favour of H. Singh and his family members were cleared. It
is thus apparent that the LTC bill for a sum of ₹15,000/- was cleared
by the appellant without sanction order and the TTA bill for
₹65,000/- with sanction order in favour of one H.S. Singh, Deputy
Director, when no such person existed or was posted as such.
Further the TCA bills No.288 and 964 dated 7th June, 1999 and 16th
September, 1999 for a sum of ₹72,000/- (D-487) (Ex.P-1) and
₹54,000/- (D-488) (Ex.P-B1) in the name of Shiv Sagar CE, Shiv
Sagar Director and Shiv Sagar Assistant Director; were cleared
without sanction order. A.S. Gautam (PW-25) also deposed that
LTC bill dated 21st May, 1999 for a sum of ₹45,000/- i.e. (D-486)
(Ex.P-10) was accompanied by a sanction order (Ex.P-11) (Pg 8127)
dated 20th May, 1999. He exhibited the document as Ex.P-10 (D-
486) and P-11 (Sanction order). Further TCA No. 288 (D-487) and
964 (D-488) bills for a sum of ₹72,000/- and ₹54,000/- are
accompanied by sanction orders Ex.P-2 and Ex.P-4 respectively. It is
thus evident that in the same names different LTC and TCA bills
were cleared despite an employee being entitled to one LTC in a
period of two years or four years as per entitlement.
20.4. Sanction in respect of three TCA bills 288, 964 & 629 has been
proved as Ex.P-2, P-4 and P-11 respectively. In respect of the
medical claim of B.M. Ghosh for a sum of ₹1,20,000/- qua treatment
of his wife Smt. Subra Ghosh, sanction order Ex.PW-26/K shows
that the treatment was for neurological problems from AIIMS,
however the Doctor's certificate issued was in respect of total ankle
joint replacement. Thus, even if the sanction order was there, failure
of the appellant to examine the necessary documents before passing
the bill cannot be termed as mere negligence. No doubt, he had no
mechanism to find out whether the document was forged but where a
discrepancy is so writ large that the approval is for neurological
problem whereas the treatment paper shows total ankle joint
replacement, it is apparent that the sanction order was false and
forged on the face of it and the appellant passing such a bill cannot
be held to be merely negligent. In respect of the 6th bill relating to
Jeet Ram Sharma, Junior Computer Operator, CWC original bill was
produced as (D-561) vide Ex.PW-35/A. Evidence of Chetan
Mukund Pandit (PW-35) an employee of CWC is relevant who stated
that the photocopy of the document annexed with the claim of Smt.
Bhagwati Sharma were the same on the basis of which he had
claimed his medical reimbursement. R.C. Tully (PW-26) proved the
medical bill No.M-1393/I in the name of J.R. Sharma running into
four pages back to back vide D-562 neither indicating the designation
of the person nor the sanction order. Handwriting of the appellant as
the person who passed the bill has been proved by the opinion of the
handwriting expert (PW-51). Thus the contention of the appellant
that he had no mechanism to find out whether the sanction was
forged and fabricated is not substantiated as the bill was not
supported by any sanction order. Further as noted in the appeal of
Jeet Ram Sharma forgery and fabrication of the medical claim has
been proved beyond reasonable doubt by the prosecution.
20.5. No doubt in a case where there is no mechanisim with the appellant to
find out forgery, the appellant clearing the bills unknowingly cannot
be held guilty of the offence with the aid of conspiracy but in a case
where the documents on the face of it show that the claims have been
changed and documents of one person utilized for another it cannot
be said to be case of mere negligence but shows that the appellant
was a part of the conspiracy. In view of the discussion aforesaid the
appellant has been rightly convicted for offences punishable under
Section 13(1)(d) read with 13(2) and 120B read with Section 403/409
IPC.
21. Crl.A. 150/2016 - S.K. Agarwal v. CBI (A-17) :
21.1. Learned counsel for the appellant contends that as per the procedure
of preparation of cheques which is admitted case of the prosecution
the appellant who was working as Pay and Accounts Officer (P&AO)
of the CWC, was not concerned with the verification, checking and
scrutiny of documents which was all done by the DDO/CWC who
passed the bills and forwarded the same under his signatures to the
P&AO i.e. the appellant. Thereafter the appellant used to issue a
token number against each bill to DDO. The P&AO section used to
thereafter send the bill to pre-check section for passing the bill. The
accountant after verifying the arithmetical calculation on the bill as
correct used to submit the bill to the pre-check P&AO in Expenditure
Control Register along with pay order and thereafter sent the bill to
the pre-check section. After the pre-check section, the bill was sent
to the concerned cheque section of P&AO office for preparation of
cheque. The cheque writer used to prepare the cheque and send it to
the appellant for his signatures. After the appellant used to sign the
cheques and tick the cheque number to see that the amount on cheque
appears to be same and consistent with the amount passed for
payment and defacing the pay order given earlier, the cheque and bill
used to return to the cheque section for giving the concerned cheques
to the DDO. The cheque section thereafter issued a voucher number
on each bill wherafter the bill was sent to the accounts section for
preparation of monthly account and at the end of month the total of
the bills i.e. the vouchers and the amount of cheques was tallied.
Thus, the allegations of the prosecution that the cheques were issued
without the bills are totally wrong and without any basis. Without a
bill, a cheque could never be issued even as per statement of N.R.
Meena, (PW-30) the Assistant Accounts Officer. N.R. Meena
admitted that the procedure as noted above was the correct procedure
and followed. Thus, the only role assigned to the appellant as P&AO
was to verify the amount on the bills and the cheques and thereafter
sign the cheques. No investigation whatsoever has been carried out
from the officials of the pre-check section and hence the prosecution
is without any basis. There is no evidence led by the prosecution
that the appellant was beneficiary of any of the transactions or that
even one claim was cleared in the name of the appellant. The
Investigating Officer R.S. Bedi (PW-54) in his cross-examination
admitted that he did not produce the three important documents i.e.
pseudonymous register, audit report of CAG and the report of the
vigilance department of the CWC. The cheque writer N.R. Meena
who is the main accused has not been arrayed as an accused and the
appellant has been falsely implicated. It is not the case of the
prosecution that in any of the 27 challans, handwriting was of the
appellant. The Investigating Officer admitted that neither the
appellant nor N.R. Suman deposited any misappropriated amount in
their accounts. Though two cheque writers i.e. N.R. Meena PW-30
and Rattan Lal PW-16 were examined as witnesses however third
cheque writer was not examined as witness.
21.2. The two sets of oral allegations against the appellant beyond the
documents are that on the instructions of the appellant, 5-6 cheques
were prepared and after cheques were signed by the appellant, they
were left with him for delivery. It is contended that these oral
allegations are contrary to the record.
21.3. The allegations based on the documents against the appellant are that
the cheques were received by the appellant for cancellation but were
not reissued in those very names but in the name of DDO and that
some drafts which were sent to the DDO were disbursed to non-
employees and that the appellant signed cheques even in favour of
non-employees. Learned counsel for the appellant states that it was
on the request of the DDO that he used to prepare cheques in his
name and not in the name of persons whose cheques were cancelled
and since no requisition slips have been proved on record which
would have shown the bona fide working of the appellant, the
appellant cannot be convicted on this count.
21.4. As regard the second allegation based on documents, learned counsel
contends that since there were 5000 employees working in the
organization, it was difficult to know the name of each employee and
since the cheques were being received through authorized channel
after due verification, the appellant used to sign the same. Further
the documents which would have proved the innocence of the
appellant i.e. requisition slips and sanction letters etc. have also not
been proved by the prosecution and it is contended that in the
absence of any documentary or oral evidence, the conviction of the
appellant be set aside. As regards the allegation in respect of
issuance of cheque for a sum of `15000/- which was encashed from
the account of Hayat Singh, it is contended that the DDO is the
person responsible for the dispersal of the amount and beneficiary
has to approach the DDO first and not the appellant. There is no
evidence on record to show that there was a meeting of mind
between the appellant and co-convicts and hence the appellant is
liable to be acquitted.
21.5. Learned counsel for the CBI contends that appellant worked as Senior
Accounts Officer in the capacity of P&AO of CWC from June 1995
to February 2000. While working as P&AO in CWC his duties
included re-checking of the pre-checked bills of CWC and other
DDOs and issuing of cheques towards payment of such bills, after
observing necessary formalities. N.R. Suman (A-16) Senior
Accounts Officer was responsible for passing bills presented by DDO
of CWC. Investigation reveals that majority of paid cheques and
paid vouchers were missing. Y.P. Sharma posted in the accounts
department used to collect cheques issued in the name of existing,
non-existing staff and private persons. Cheque No. 277701 for a sum
of ₹1,39,097/-was split and credited into account of J.P. Sharma, S.S.
Naik and Bhagwan Singh. Original cheque and bill/ vouchers were
not available. Further between 21st May, 1999 to 1st March, 2000
nine fresh cheques for a total sum of ₹3,44,947/- were issued in
favour of DDO-I, CWC in lieu of 21 account payee cheques issued in
the name of various officers of CWC and after encashing the cheques
J.K. Singhal disbursed the amount to those officers whose name did
not figure in the aforesaid 21 account payee cheques. Fresh cheques
were issued on the basis of ordinary slip prepared and initialled by
Y.P. Sharma, counter-signed by C. Manjhi and these slips do not bear
any dispatch or diary number. The allegations against the appellant
are that he prepared several cheques without proper authorization/
sanction or assisted in preparation of cheques in the name of fake
individuals without proper bill, entries or prepared fresh cheques
against old/ outdated cheques without following proper procedure
deliberately.
21.6. Learned counsel for the CBI further contends that the defence of the
appellant that he was merely a signatory of the cheques and papers
were cleared by the "pre-check clearance" department which was
manned by different persons is belied by the evidence led by the
prosecution and the procedure prescribed in the Civil Accounts
Manual (CAN) which traces its origin to Article 151 of the
Constitution of India and is issued by the Controller General of
Accounts.
21.7. Before dealing with the testimony of B.S. Yadav (PW-29) and N.R.
Meena (PW-30) which proves the conspiracy/ involvement of the
appellant in the conspiracy it would be relevant to discuss the
testimony of A.S. Gautam (PW-25) who have deposed about the
Civil Accounts Manual and the procedure prescribed to be followed.
A.S. Gautam (PW-25) deposed that he was working as a Senior
Accounts Officer in P&AO of CWC with effect from April 2001 to
August 2001. He described the procedure for issuance of cheque in
respect of the bill stating that the bills are submitted at the counter of
P&AO by the DDO against which a token was issued to the DOO.
The bill is then diaried at the counter of the P&AO and thereafter it is
sent to the Payment Section. The bill is then scrutinized by the
concerned accountant so as to see if it is in order i.e. whether it is
made according to the Civil Accounts Manual. If the bill is found in
order, it is submitted to the Assistant Accounts Officer who is the
Section Incharge for payment. If it is not in order then it is returned
back to the DDO. Thereafter, the Assistant Accounts Officer is
supposed to examine the bill in terms of Civil Accounts Manual,
Receipt and Payments and GFR and on finding it in order, he signs
on the pay order and the same is sent to the Senior Accounts Officer
for approval/ signature. The bill with the pay order is sent back to
the Assistant Accounts Officer and then it is routed to the Accounts
Officer for preparation of cheque which is sent to the cheque Section.
The cheque is prepared by the Cheque Clerk which is then put up
before the Sr. Accounts Officer (not the one who earlier signed the
pay order but the second one) for signatures. The cheque is then sent
to the counter by the Cheque Clerk which is issued to the DDO
concerned after retrieving the token issued.
21.8. Further Surender Kumar (PW-15) who had joined as an Accountant
in the year 1995 in the CWC deposed that his duties were to prepare
demand draft and to look after stationery. He identified the appellant
as his Pay & Accounts Officer. He stated that the entry of the
demand draft used to be made in the demand and drafts register
which he exhibited as Ex.PW-15/A. He deposed that the entry at
serial number 341 was in his handwriting and the DD was in the
name of Kamal Sharma, in respect of cheque No. 241009 dated 14th
July, 1999 and that the cheque was received by the appellant vide
entry encircled in red at point 'A'. He deposed that against this
cheque demand draft was prepared. He also identified the entry at
serial No.562 in the name of Kamal Sharma for cheque No. 274744
dated 29th September, 1999 against which demand draft was prepared
for ₹67,445/- vide demand draft No. 848413 dated 1st October, 1999.
He identified the entry of the demand draft to be in the handwriting
of S.K. Aggarwal and that the demand draft was collected by Y.P.
Sharma. This witness has not been cross-examined on behalf of S.K.
Aggarwal and thus his testimony has gone unchallenged.
21.9. The evidence of PW-29 and PW-30 besides explaining the procedure
also shows the complicity of the appellant in the larger conspiracy
and his role. It would be thus relevant to note the depositions of PW-
29 and PW-30 as well. B.S. Yadav (PW-29) deposed as under:
"I remained posted and functioning as Pay & Accounts
Officer in Central Water Commission (CWC) in October, 2002
to November, 2005. I am well conversant with the procedure of
issuance of cheque in P&AO as well as issuance of fresh
cheque after cancellation of the cheque already issued. There
are three categories of cheques i.e. (a) issue in favour of private
party/ individual; (b) cheque is issued in favour of DDO for
disbursement of pay and allowances of the staff and (c) cheque
is issued in favour of department/ govt. transactions. The entire
transaction of accounts has to be guided by Civil Account
Manuals issued by controller General Accounts. Revalidation
of time barred cheque according to manual was permissible at
the relevant time. After issuance of the cheque, the bank has to
return paid cheque along with payment scroll to the P&AO of
CWC for reconciliation purposes.
There are two types of DDOs i.e. first, local DDOs are
required to submit the bill to P&AO. Bills received from local
DDOs in P&AO are allotted token numbers in the cheque
section and after that they are sent to the concerned payment
section for pass and payment. The number of bills received in
the payment section are again diarised in that section by the
dealing clerk and handed over to the concerned Accountants.
Outstation DDOs are empowered to issue cheques and cheques
are issued to them by P&AO.
In LOP (List of payment) a detailed entry regarding the
amount already paid has to be mentioned along with voucher
number as well as cheque number. After that the said LOP has
to be sent to compilation section of the P&AO for compilation
of monthly accounts for its submission to Principal Accounts
Office of concerned Ministry i.e. CWC.
I have seen document No.D-532 already marked Ex.PW-
23/A (a file bearing No. WR/P&AO/CWC/Administration
bearing caption cancellation of cheques 1999/2000. This file
used to maintain for cancellation of cheques.
I have seen cheque Nos. 238515 dated 31.03.1999 for
₹1189/-, 238682 dated 19.04.1999 for ₹3291, 239111 dated
22.04.1999 for ₹15660/-, 239996 dated 26.05.1991 for ₹15660/-
, 240565 dated 23.06.1999 for ₹8821, 24050 dated 23.06.1999
for ₹20,772/-, 240626 dated 24.06.1999 for ₹12630/-, 240628
dated 24.06.1999 for ₹8456/-, 240775 dated 30.06.1999 for
₹450/-, 240772 dated 30.06.1999 for ₹450/-. These cheques are
Ex.P1 to P10. The cancellation of signatures on the cheques
denotes that the cheques were sent to P&AO, CWC for
cancellation. The concerned cheques were received vide
Ex.23/C-1 for its cancellation in total amount of ₹87,379/- and
in lieu of those very cheques, a fresh one cheque of the said
amount was required to be issued.
For issuance of demand draft, a requisition is received
from the concerned DDO. After passing the bill, the cheque is
drawn in favour of the bank i.e. State Bank of India, R.K. Puram
Branch. A requisition is sent to the bank for issuance of
demand draft after making necessary entries in the Demand
Draft Register.
Vide noting N/7 dated 14.09.1999, cheques bearing Nos.
241546 dated 28.07.1999 for ₹15533, 231949 dated 12.08.1998
for ₹157/-, 238023 dated 26.03.1999 for ₹14563/-, 235679
dated 21.12.1998 for ₹8077, 238526 dated 31.03.1999 for
₹2600/-, 237347 dated 26.02.1999 for ₹600/- and 236999 dated
19.02.1999 for ₹672/- were ordered to be cancelled and in lieu
of that necessary entries have been made in the record and a
fresh cheque was ordered to be issued in lieu of the aforesaid
cancelled cheques. The said note sheet is marked X-1 for
identification.
The cheque books used to be received by P&AO, CWC
from Principal Accounts Office, Ministry of Water Resources,
Shastri Bhawan, New Delhi and all the cheques bear the
caption of Govt. of India. The P&AO has to use the said cheque
leaf for payment and the details of amount mentioned I the
cheque leaf has to be reflected in the counterfoil of the said
booklet of cheque. The concerned cheque writer has to make
necessary entry regarding the issuance of cheque in favour of
the person concerned.
I have seen the counterfoil of cheque book bearing serial
No.241001 to 241100 (D-360) and the same is marked Ex.PW-
29/A. As per Ex.PW-29/A, entry mark encircled 'A', a fresh
cheque bearing No.241009 for ₹87,379/- was issued in lieu of
10 cancelled cheques in favour of State Bank of India, R.K.
Puram Branch and the same is marked as Ex.P-11. I have seen
Demand Draft Register already marked Ex.PW-15/A, wherein
an entry at serial No.341, page No.35 already marked as point-
A the said cheque No.241009 for ₹87379/- was issued in the
name of Kamal Sharma was made and as per record Shri S.K.
Aggarwal has received a demand draft on 16.07.1999 by
putting the signatures.
I have also seen 7 cheques bearing Nos. 241546 dated
28.07.1999 for ₹15533, 231949 dated 12.08.1998 for ₹157/-,
238023 dated 26.03.1999 for ₹14563, 235679 dated 21.12.1998
for ₹8077, 238526 dated 31.03.1999 for ₹2600/-, 237347 dated
26.02.1999 for ₹600/- and 236999 dated 19.02.1999 for ₹672/-.
The same are Ex.P-12 to Ex.P-18. In lieu of the aforesaid 7
cheques, a fresh cheque already marked as Ex.PW-26/O was
issued in favour of DDO-I, CWC on 14.09.1999 for ₹42,202/-
(D-382).
Ex.PW-26/L (D-381) does not bear any dispatch number/
diary number from the concerned DDO.
Vide Note No.21/N dated 01.03.2000, cheque bearing
No.278285 dated 25.02.2000 for ₹15,609/- which was issued
earlier in the name of SC Gupta was received for cancellation
with request to issue fresh cheque in favour of DDO-I.
I have seen the xerox copy of cheque bearing No.278285
dated 25.02.2000 for ₹15,609/- at page No.205 of file Ex.PW-
23/A. This cheque was earlier issued on 25.02.2000 in favour
of Shri S.C. Gupta and later on it was endorsed in the name of
DDO-I, CWC after making cutting on the said cheque. The
cheque is marked as X-2 for identification. I have seen N/21.
According to this note, on 01.03.2000, cheque bearing
No.278285 dated 25.02.2000 was received for cancellation and
also for issuance of a fresh cheque for ₹15,609/- in favour of
DDO-I, CWC, New Delhi. The said note is marked X-3 for
identification.
Vide noting 11/N, the five cheques bearing Nos. 274492
dated 23.09.1999 for ₹11,695/-, 274327 dated 20.09.1999 for
₹1470/-, 241289 dated 23.07.1999 for ₹10324/-, 242251 dated
25.08.1999 for ₹10960/- and 240380 dated 22.06.1999 for
₹323/- had been received for cancellation and a fresh cheque
was issued in favour of DDO-I in lieu thereof. The said noting
is marked as X-4 for identification. As per page No.155 in file
Ex.PW-23/A, only the details of four cheques excluding 240380
dated 22.06.1999 for ₹323/- has been mentioned and in lieu of
that four cheque, a fresh cheque bearing no.018424 dated
25.10.1999 for ₹34,449/- was issued in favour of DDO-I, CWC
and the same is marked X-5 for identification.
Vide noting 14/1, six cheques bearing Nos. 242881 dated
11.09.1999, 274738 dated 28.08.1999, 275562 dated
04.11.1999, 242709 dated 12.09.1999, 241201 dated
23.07.1999 and 242713 dated 17.09.1999 had been received for
cancellation and a fresh cheque was issued in favour of DDO-I
in lieu thereof. The said noting is marked as X-6 for
identification. As per page No.174 in file Ex.PW-23/A, the
details of six cheques has been mentioned and in lieu of that six
cheque, a fresh cheque bearing No. 018530 dated 25.11.1999
for ₹50,570/- was issued in favour of DDO-I, CWC and the
same is marked as X-7 (D-508) for identification. The said
cheque was given to Shri S.K. Aggarwal vide noting mark X-8.
On the back side of noting 7/N, there is a noting Mark X-
9, vide which a demand draft No. 846597 dated 18.09.1999 for
₹62,000/- was issued in favour of AV Reddy, received from
CWC for cancellation and a fresh cheque was issued in favour
of Shri R.L. Kawale in lieu thereof. As per page No.67 of file
Ex.PW-23/A, a request was received by the DDO from the
P&AO for issuance of fresh cheque in the name of Shri R.L.
Kawale for ₹62,000/-. The said cheque was given to Shri S.K.
Aggarwal, Senior Accounts Officer vide noting Mark X-10.
As per Ex.PW-15/A as sl. No.536 i.e. register of DD vide
cheque No.242670 dated 17.09.1999 bank draft bearing
No.846597 dated 18.09.1999 in favour of A.V. Reddy payable at
Nagpur was got issued form the bank and according to this
register the said draft was received by Sh. Y.P. Sharma. The
same is marked X-11 for identification. I have seen Xerox copy
of the said bank draft in file Ex.PW-23/A as page No.66. The
same is marked as X-12 for identification.
I have seen counterfoil of D-364, according to that
cheque No.274501 for ₹62,000/- was issued in the name of R.L.
Kawale in lieu of DD marked X-12. The said cheque book
counterfoil is marked Ex.PW-29/B and the said entry in the
counterfoil is marked at point A. The said cheque issued to Sh.
Kawale as House Building Advance.
As per page No.54 sl. No.562, on 29.09.1999 vide cheque
No.274744 DD bearing No.848413 dated 01.10.1999 for
₹67,445/- was issued in favour of Kamal Sharma payable at
Ghaziabad and as per receipt column, the same was
acknowledged by one Shri Y.P. Sharma and as per column
No.8, it also bears the initials of Gazetted Officer i.e. GO on
29.09.1999. The entire entry is marked at point C in Ex.PW-
15/A. The signatures of GO is mandatory to authenticate the
entry as reflected in Ex.PW-15/A."
21.10. No separate cross-examination of PW-29 was conducted on behalf of
the appellant and he adopted the cross-examination by other counsels
and in cross-examination this witness reiterated that after a cheque is
cancelled it can only be re-validated in the name of the earlier
beneficiary and not in the name of a different person and not at all in
the name of an outsider or a stranger.
21.11. N.R. Meena, (PW-30) Assistant Accounts Officer deposed as under:
""From 1993 to 2007, I was posted and functioning as
Senior Accountant, Pay & Accounts Office, CWC. From 2001
to 2004 I was posted in CSMRS, Hauz Khas, New Delhi. My
duties were to put up a note for cancellation of cheques,
whenever any request from the DDO concerned. The request
for cancellation used to come in writing by way of a letter
accompanied with the cheque, which was to be cancelled. On
receiving such written request, I used to draw a note and put it
up before the Pay & Accounts Officer for his approval and for
drawing up a new/ fresh cheque for the same amount.
During the relevant time, accused S.K. Aggarwal, present
in Court today was Pay & Accounts Officer, under whom I was
working.
I have seen the original documents, which are kept in D-
381 in the present case, which contains a requisition slip from
Shri C.Manjhi, DDO bearing his signature at point-A and I
identify his signatures. The requisition slip is already Ex.PW-
26/L. I had put a noting, which is encircled in red Mark-B,
whereby 7 cheques were cancelled and a fresh cheque bearing
No. 018289 dated 14.09.1999 for ₹42,202/- was prepared by me
and the said cheque is already marked as Ex.PW-26/O. Further
on the requisition slip, there is also an endorsement made by me
that cheque given to S.K. Aggarwal, Senior Accounts Officer,
which is encircled in red Mark - C. The cheque Ex.PW-26/O
has been signed by Shri S.K. Aggarwal at point -A in favour of
DDO-I, CWC, New Delhi. The 7 cheques, which were received
for cancellation are also on the judicial file and the same are
marked as Ex.PW-29/P-12 to P-18. All the said 7 cheques were
also issued under the signatures of Shri S.K. Aggarwal and the
details are mentioned in the requisition slip Ex.PW-26/L.
I have seen the original documents, which are kept in D-
381 page No.3 in the present case, which contains a requisition
slip from Shri C.Manjhi, DDO bearing his signatures at point-A
and I identify his signatures. The requisition slip is already
Ex.PW-26/M. I had put a noting, which is encircled in red
Mark - B, whereby a one cheque Ex.PW-30/A-1 was cancelled
and a fresh cheque bearing No.039426 dated 01.03.2000 for
₹15,609/- was prepared by me in favour of DDO-I, CWC, New
Delhi and the said cheque is already marked as Ex.PW-30/A-2.
I cannot make out, who had signed the cheques Ex.PW-30/A-1
and Ex.PW-30/A-2. I cannot identify who had put the remarks
in encircled red portion Mark-X. Again said, this remarks had
been written by the concerned P&AO and my remarks in
encircled red is mark B.
I have seen the original documents, which are kept in D-
381 in the present case, which contains a requisition slip No.4
from Shri C.Manjhi, DDO bearing his signatures at point-A and
I identify his signatures. The requisition slip is already Ex.PW-
26/N regarding the cancellation of four cheques for ₹34,449/-
and the same was put up before concerned P&AO, CWC and on
his direction a fresh cheque bearing No.018424 dated
25.10.1999 for ₹34,449/- was issued, in favour of DDO-I, CWC,
New Delhi, which is marked as Ex.PW-30/A-3, bearing the
signatures of Shri S.K. Aggarwal at point-A. The said cheque
was given to Shri S.K. Aggarwal, Senior Accounts Officer vide
noting is encircled in red Mark - B. The 4 cheques, which were
received for cancellation are also on the judicial file and the
same are marked as Ex.PW-30/A-4 to A-7. All the said 4
cheques were also issued under the signatures of Shri S.K.
Aggarwal and the details are mentioned in the requisition slip
Ex.PW-26/N.
I have seen the original documents, which are kept in D-
381 in the present case, which contains a requisition slip No.5
from Shri C.Manjhi, DDO bearing his signatures at Point-A
and I identify his signatures. The requisition slip is Ex.PW-
30/A-8 regarding the cancellation of one cheque for ₹50,110/-
and the same was put up before concerned P&AO, CWC and on
his direction a fresh cheque bearing No.018298 dated
16.09.1999 for ₹50,110/- was issued, in favour of DDO-I, CWC,
New Delhi which is marked as Ex.PW-30/A-9, bearing the
signatures of Shri S.K. Aggarwal at point-A. The said cheque
was given to Shri S.K. Aggarwal, Senior Accounts Officer vide
my noting is encircled in red Mark - B. The one cheque which
were received for cancellation are also on the judicial file and
the same are marked as Ex.PW-30/A-10. The fresh cheque also
issued under the signatures of Shri S.K. Aggarwal and the
details are mentioned in the requisitioned slip Ex.PW-30/A-8.
I have seen the original documents, which are kept in D-
381 in the present case, which contains a requisition slip No.6
from Shri C.Mankhi, DDO bearing his signatures at point-A
and I identify his signatures. The requisition slip is Ex.PW-
30/A-11 regarding one cancellation of one cheque for ₹50,570/-
and the same was put up before concerned P&AO, CWC and on
his direction a fresh cheque bearing No.018530 dated
25.11.1999 for ₹50,570/- was issued, in favour of DDO-I, CWC,
New Delhi which is marked as Ex.PW-30/A-12, bearing the
signatures of Shri S.K. Aggarwal at point-A. The said cheque
was given to Shri S.K. Aggarwal, Senior Accounts Officer vide
my noting is encircled in red Mark-B. The one cheque which
were received for cancellation are also on the judicial file and
the same are marked as Ex.PW-30/A-13. The fresh cheque also
issued under the signatures of Shri S.K. Aggarwal and the
details are mentioned in the requisition slip Ex.PW-30/A-11.
I have seen the original documents, which are kept in D-
381 in the present case, which contains a requisition slip No.7
from Shri C.Manjhi, DDO bearing his signature at point-A and
I identify his signatures. The requisition slip is already Ex.PW-
30/A-14 regarding the cancellation of one cheque for ₹31,131/-
and the same was put up before concerned P&AO, CWC and on
his direction a fresh cheque bearing No.018394 dated
14.10.1999 for ₹31,131/- was issued, in favour of DDO-I, CWC,
New Delhi which is marked as Ex.PW-30/A-15, bearing the
signatures of Shri S.K. Aggarwal at point-A. The said cheque
was given to Shri S.K. Aggarwal, Senior Accounts Officer vide
my noting is encircled in red Mark - B. The one cheque which
were received for cancellation are also on the judicial file and
the same are marked as Ex.PW-30/A-16. The fresh cheque are
issued under the signatures of Shri S.K. Aggarwal and the
details are mentioned in the requisition slip Ex.PW-30/A-14.
I have seen the Xerox copy of the requisition slip received
from Shri C.Manjhi, DDO, CWC bearing his signatures at point
- A, which I identify, regarding the cancellation of bank draft
No.846597 dated 18.09.1999, issued in favour AV Reddy for
₹62,000/- with request to issue a cheque in favour of Shri R.L.
Kawale by account payee cheque. The requisition slip is
already Ex.PW-30/A-17. In compliance of direction, a cheque
was given to Shri S.K. Aggarwal vide my noting encircled red
Mark - B. On 14.05.2003 there is an acknowledgement
mentioning words "received original" but I cannot identify the
writing and signatures on the acknowledgement. The Xerox
copy of the draft received for cancellation is marked as Ex.PW-
30/A-18.
I have seen D-637 to D-640, which are cheques in the
name of KMP Rao for ₹15,372/- in the name of A.Parmeshan
for ₹41,549/-, in the name of R.Sunder Murty for ₹14,534/- all
dated 14.01.2000. The total amount of the aforesaid cheques
was ₹71,455/-. All these cheques were prepared by me and
signed by Shri S.K. Aggarwal, the then P&AO at point-A. All
the aforesaid cheques are marked as Ex.PW-30/A-19 to A-21.
On 17.01.2000 D-640, which is a cheque bearing
No.277276 for ₹71,455/- payable to State Bank of India, R.K.
Puram, New Delhi, signed by Shri S.K. Aggarwal was prepared
by me. The said cheques is marked at Ex.PW-30/A-22 and was
later on made payable to R.L. Kawale by making a cutting
across the words State Bank of India, R.K. Puram, New Delhi.
I have seen Ex.PW-30/A-19 to Ex.PW-30/A-22, on the
back of the said cheques the endorsement are in my own
handwriting at point B encircled. The cheque Ex.PW-30/A-22
for a sum of ₹71,455/- there is endorsement that "the said
cheque was kept by Sr. AO Aggarwal". The said endorsement
is marked at point C encircled.
I have seen D-651 which is a cheque bearing No.241009
dt. 14.07.1999 for ₹87,379/- issued under the signatures of Shri
S.K.Aggarwal. The said cheque is marked Ex.PW-30/A-23 and
the signatures of Shri Aggarwal at point A. The said cheque
was also prepared by me. On the back of the said cheque, Shri
S.K. Aggarwal, Pay & Accounts Officer received the payment
through DD in his own signatures along with seal that
endorsement is encircled at point B.
I have seen D-642 to D-651 which are the cheques in the
name of Y.N.Rao dt. 31.03.1999 for ₹1189/-, B.R.K. Pillai dt.
10.4.1999 for ₹3291/-; B.R.K. Pillai dt. 22.4.1999 for ₹15,660/-
; B.R.K. Pillai dt. 26.05.1999 for ₹15,660/-; 23.06.1999 for
₹8821/- in the name of M.K. Sharma; cheque 24.06.1999 for
₹12,630/- in the name of C.D. Khoche; cheque dt. 24.06.1999
for ₹8456/- in the name of V.V. Badri Narayan; cheque dt.
30.06.1999 for ₹450/- in the name of A.K. Bhati and C.M.
Pandey respectively were issued by Shri S.K. Aggarwal, the
then Pay & Accounts Officer.
Cheque dt.22.04.1999 for ₹15,460/- in the name of B.R.K.
Pillai was prepared by me. Remaining cheques were not
prepared by me but all cheques had been signed by Mr.
Aggarwal.
I have seen D-700 which is a cheque dt. 23.06.1999 for
₹20,772/- in the name of A.K. Bajaj was signed by Shri S.K.
Aggarwal.
The aforementioned cheques are marked Ex.PW-30/A-24
to Ex.PW-30/A-33 respectively and the signatures of Mr.
Aggarwal is marked at point A on all the cheques. The total
amounts comes of all the cheques to the extent of ₹87,379/-.
Ex.PW-30/A-32, on the back of the said cheque there is
an endorsement by me that "cheque for ₹87,379/- issued in
favour of State Bank of India, R.K. Puram, New Delhi was kept
by Shri Aggarwal" and the same is encircled at point B and the
said cheque is Ex.PW-30/A-23 for ₹87,379/-.
I have seen D-653 and D-654 which are two cheques
issued in favour of Mr. B.R.K. Pillai for ₹12,563/- each dt.
28.01.1999 and 22.02.1999. Both cheques have been cancelled
and fresh cheques in the name of DDO-I was prepared. The
said two cheques were issued under the signatures of Shri S.K.
Aggarwal at point A and the same are marked Ex.PW-30/A-34
and Ex.PW-30/A-35. On the back of both the cheques there is
an endorsement as "fresh DDO-I" means these two cheques
were cancelled by Shri S.K. Aggarwal and in lieu of a fresh of
consolidated amount of ₹25,126/- was issued in the name of
DDO-I, CWC, New Delhi and the same was prepared by me on
16.07.1999 and signed by Mr. S.K. Aggarwal. The said cheque
is marked Ex.PW-30/A-36 and the signatures of Mr. Aggarwal
at point A. The said cheque was encashed from State Bank of
India, R.K. Puram, New Delhi on the endorsement of Shri
C.Manjhi then DDO-I, CWC, New Delhi. The endorsement of
Shri Manjhi is encircled at point B.
On Ex.PW-30/A-24 to A-33, the signatures of Mr. S.K.
Aggarwal has been cancelled and the necessary entries have
been made in the cheque drawn register.
I have seen D-641 dt. 10.08.1999 for ₹49,548/- in the
name of AONWDA New Delhi. The same was issued by Shri
S.K. Aggarwal which was later on cancelled and it was
prepared in my handwriting. The said cheque is marked
Ex.PW-30/A-37. The signatures of Mr. Aggarwal at point A.
On the back of the said cheque, J.R. Sharma is written. That
portion is encircled at point B.
One Mr. Rattan Lal who was Sr. Accountant during the
relevant time used to prepare the cheques. Further, we both
were bound to prepare cheques on the directions of Pay &
Accounts Officer. During our tenure Mr. S.K. Aggarwal was
the Pay & Accounts Officer.
The Court observation is made that learned Special PP
states that examination in chief of this witness has already been
recorded and he does not wish to put any further question to
this witness."
21.12. The only thing elicited from the cross-examination of N.R. Meena is
that he used to write down the amount in numerical and words
besides writing down the names of payee, date etc. and the appellant
used to sign. However he clarified that the same was done with the
prior approval of the appellant.
21.13. Subhash Chander (PW-44) who was a fitter in the DTC and had
nothing to do with the CWC deposed that a cheque No. 241538 dated
20th July, 1999 for a sum of ₹57,000/- was prepared in his name and
deposited in his account from which he withdrew an amount of
₹55,100/- and gave to O.P. Narang.
21.14. From the evidence of the witnesses noted above and that of Subhash
Chander (PW-44) it is evident that cheques were prepared not in the
name of the same person but in different names. N.R. Meena (PW-
30) exhibited cheque Ex.PW-30/A-37 issued in favour of
Government organization namely National Water Development
Authority (NWDA) on 10th August, 1999 for a sum of ₹49,548/-
which was cancelled and prepared in favour of Jeet Ram Sharma (A-
9) and deposited in his account. Further bypassing the procedure
prescribed in CAN appellant re-issued 8 cancelled cheques such as
cheque exhibited PW-30/A-1 was initially issued in the name of S.C.
Gupta was sent for re-issuance in favour of DDO as D-390 Ex.PW-
30/A-2 and withdrawn in cash. Further a fresh cheque No. 034426
dated 1st March, 2000 Ex.PW-30/A-2 was issued in lieu of one
cancelled cheque 272858 dated 25th February, 2000 Ex.PW-30/A-1
contrary to the procedure. PW-30 also exhibited D-508 vide Ex.PW-
26/N whereby a fresh cheque No. 018424 dated 25 th October, 1999
Ex.PW-30/A-3 for a sum of ₹34,449/- was issued in lieu of four
cancelled cheques being Ex.PW-30/A-4 to A-7 contrary to the
procedure for a sum of ₹34,449/-. One of the cheque was in the
name of specified individual A.S.P. Sinha and re-issued in the name
of DDO-I. Further vide Ex.PW-51/7 fresh cheque No. 018298 dated
16th September, 1999 for a sum of ₹55,110/- was issued in lieu of
cancelled cheque bearing No. 242509 dated 8th September, 1999 for a
sum of ₹55,100/- Ex.PW-30/A-10. PW-30 also deposed about
various other cheques which appellant re-issued consolidating earlier
old cheques in different names and in some of the documents viz.
Document-381 there was no dispatch number or diary number also
given. Thus bypassing all the procedures cheques were re-validated
in different names.
21.15. The evidence on record and the procedure as noted above clearly
proves that the appellant got cancelled the cheques and then issued
cheques in the name of unauthorized persons and strangers. Hence
the contention of learned counsel for the appellant that he had no role
and he was only signing the cheques is required to be rejected. In
view of the discussion aforesaid conviction of the appellant for
offences punishable under Section 13(1)(d) read with 13(2) of P.C.
Act and also under Sections 409 IPC and 120B read with Section
403/409 IPC is upheld.
22. SENTENCE
22.1. Having upheld the conviction of the appellants for offences convicted
by the learned Special Judge, this Court is now required to deal with
the contentions of learned counsel for the appellants in respect of the
disproportionate sentence awarded to them claiming that there is no
parity in sentencing. For the sake of brevity sentences awarded by the
learned Trial Court to the appellants on various counts are categorized
as under:
" CATEGORY 1-
OFFICIALS OF CWC POSTED IN ACCOUNTS BRANCH
Appe Name of the Designatio Categor Conviction Sentence Conviction Sentenc
al No. appellant & n ies of under PC under PC under IPC e under
Accused No. allegati Act Act (RI) IPC
ons (RI)
Program i
323/2 Y.P. Sharma 403 1 year
Assistant iii 13(1)(d)/13(2) 1 year
016 A-1 120B r/w 7 years
[RA (S)]
Section i
259/2 Chandreshwar 120B r/w
Officer ii 13(1)(d)/13(2) 1 year 5 years
016 Manjhi A-2 403/409
(Rtd.) iii
269/2 Om Prakash iii 403 1 year
UDC 13(1)(d)/13(2) 1 year
016 Narang A-3 120B r/w 7 years
396/2 Jai Kumar i 403 1 year
Assistant 13(1)(d)/13(2) 1 year
016 Singhal A-4 iii 120B r/w 7 years
CATEGORY 2-
OFFICALS OF PAY AND ACCOUNTS OFFICE(P&AO)
Appe Name of Designatio Categories Conviction Sentence Conviction Sentence
al No. the n of under PC Act under PC under IPC under IPC
appellant allegations Act (RI) (RI)
& Accused
No.
Natha Ram Senior ii
847/2 120B r/w
Suman A- Accounts iii 13(1)(d)/13(2) 1 year 1 year
016 403/409
16 Officer
Pay & i
S.K.
150/2 Accounts ii 409 7 years
Aggarwal 13(1)(d)/13(2) 1 year
016 Officer iii 120B r/w 7 years
A-17
(Rtd.) 403/409
SENTENCE CATEGORY 3- OFFICIALS OF CWC
Appe Name of the Designati Categories Convicti Sentence Conviction Sentence
al No. appellant & on of on under under under IPC under
Accused No. allegations PC Act PC Act IPC
(RI) (RI)
J.P.Sharma Dy.
297/2 iii 403 1 year
A-6 Director NIL NIL
016 120B r/w 7 years
(Rtd.)
342/2 Shiv Sagar Section ii 403 1 year
NIL NIL
016 Naik A-7 Officer iii 120B r/w 5 years
Jr. ii 471 3 years
280/2 Jeet Ram
Computer iii NIL NIL 403 1 year
016 Sharma A-9
Operator 120B r/w 1 year
Extra ii 471 3 years
241/2 B. M. Ghosh
Asstt. iii NIL NIL 403 1 year
016 A-10
Director 120B r/w 1 year
Om Prakash
134/2 iii 403 1 year
S/o Sohan Lal Draftsman NIL NIL
016 120B r/w 5 years
A-11
Om Prakash Dy.
151/2 iii 403 1 year
S/o Amir Director NIL NIL
016 120B r/w 5 years
Singh A-12 (Rtd.)
240/2 I. Yeshudanam Assistant iii 403 1 year
NIL NIL
016 A-14 Director 120B r/w 1 year
347/2 Hayat Singh ii 403 1 year
Peon NIL NIL
016 A-15 iii 120B r/w 5 years
22.2. Contention of learned counsels for the appellant Y.P. Sharma is that
the sentence is severe and harsh whereas learned counsel for J.K.
Singhal contends that he is the first time offender, senior citizen and
there is no previous conviction. Learned counsel for J.P. Sharma
contends that he is 75 years old and in his 39 years of service, he was
never involved in any criminal case, hence leniency be shown.
Learned counsel for Shiv Sagar Naik and B.M. Ghosh contends that
they were 65 and 67 years old respectively suffering from multiple
ailments and having clean antecedants in service for the last nearly 40
years. Contention on behalf of Om Prakash (A-11) is that he was a
victim of circumstances forced by the senior officers, thus he should
be granted the benefit of Probation of Offenders Act. Learned counsel
for Om Prakash (A-12) contends that Om Prakash retired in the year
1996 and is 78 years old suffering from heart ailment, incurable
deceases and one of his daughters was physically challenged,
abandoned by her husband, thus leniency be shown. Similar prayers
of old age, multiple ailments and clean antecedants has been raised on
behalf of C.Manjhi, Om Prakash Narang, Jeet Ram Sharma,
Yesudanam, Hayat Singh, N.R. Suman and S.K. Aggarwal.
22.3. Appellants Y.P. Sharma (A-1), Chandreshwar Manjhi (A-2), Om
Prakash Narang (A-3) and Jai Kumar Singhal (A-4) fall in category-1
being the officials of CWC posted in Accounts Branch and appellants
Natha Ram Suman (A-16) and S.K. Aggarwal (A-17) fall in category-
2 being the officials of Pay and Accounts Office (P&AO). All six of
them have been convicted for offence punishable under Section
13(1)(d) read with Section 13(2) of the Prevention of Corruption Act
and awarded sentence of rigorous imprisonment for a period of 1 year
and a fine of ₹1,000/- and in default whereof to undergo simple
imprisonment for a period of 7 days which is not required to be
modified and is maintained. Appellant Y.P. Sharma (A-1), Om
Prakash Narang (A-3), Jai Kumar Singhal (A-4) have been convicted
for offences punishable under Section 403 IPC and awarded sentence
of rigorous imprisonment for a period of 1 year and to pay a fine of
₹1,00,000/- in default whereof to undergo simple imprisonment for a
period of 6 months. The said sentence is also not required to be
modified. A perusal of the evidence as noted above would reveal that
appellants Y.P. Sharma (A-1), Om Prakash Narang (A-3) and Jai
Kumar Singhal (A-4) besides being posted in the Accounts
Department were beneficiaries also and their conviction for offences
punishable under Section 120B read with Section 403/409 IPC has
been upheld. Even considering mitigating circumstances as noted
above, this Court finds no reason to modify the sentence of rigorous
imprisonment for a period of 7 years and to pay a fine of ₹1,00,000/-
in default whereof to undergo simple imprisonment for a period of 6
months awarded to them for offences punishable under Section 120B
read with Section 403/409 IPC. Hence sentences of Y.P. Sharma (A-
1), Om Prakash Narang (A-3) and Jai Kumar Singhal (A-4) as
awarded by the Trial Court are maintained. Appellant Natha Ram
Suman has been awarded sentence of rigorous imprisonment for a
period of 1 year and to pay a fine of ₹1,000/- in default whereof to
undergo simple imprisonment for a period of 7 days for offences
punishable under Section 120B read with Sections 403/409 IPC. No
appeal for enhancement of the sentence has been filed by the CBI and
his sentence as noted above is maintained. Conviction of S.K.
Aggarwal (A-17) has been upheld for offences punishable under
Sections 409 and 120B read with Section 403/409 IPC and he has
been awarded rigorous imprisonment for 7 years on both the counts
and to pay a fine of ₹1,00,000/- and in default whereof to undergo
simple imprisonment for 6 months. Considering the fact that there is
no evidence led by the prosecution that S.K. Aggarwal was a
beneficiary, his sentence for offences punishable under Section 409
and 120B read with Section 403/409 is reduced to 5 years rigorous
imprisonment on both the counts and to pay a fine of ₹1,00,000/- and
in default whereof to undergo simple imprisonment of 6 months on
each count. Sentence of appellant Chandreshwar Manjhi for offence
punishable under Section 120B read with 403/409 IPC is maintained.
22.4. Officials of the CWC falling in the category-3, J.P. Sharma (A-6),
Shiv Sagar Naik (A-7), Jeet Ram Sharma (A-9), B.M. Ghosh (A-10),
Om Prakash (A-11), Om Prakash (A-12), Yeshudanan (A-14) and
Hayat Singh (A-15) have all been convicted for offence punishable
under Section 403 IPC and awarded sentence of rigorous
imprisonment for a period of 1 year. Further on this count J.P. Sharma
(A-6) has been directed to pay a fine of ₹1,00,000/- in default whereof
to undergo simple imprisonment for a period of 6 months; Shiv Sagar
Naik (A-7), Jeet Ram Sharma (A-9), B.M. Ghosh (A-10), Yeshudanan
(A-14) and Hayat Singh (A-15) have been directed to pay a fine of
₹10,000/- in default whereof to undergo simple imprisonment for a
period of 1 month; Om Prakash (A-11) and Om Prakash (A-12) are
directed to pay a fine of ₹50,000/- in default whereof to undergo
simple imprisonment for a period of 3 months; which fine amount or
sentence in default thereof is not required to be modified. Appellants
Jeet Ram Sharma (A-9) and B.M. Ghosh (A-10) have been convicted
for offence punishable under Section 471 IPC and awarded sentence
of rigorous imprisonment for a period of 3 years and to pay a fine of
₹10,000/- in default whereof to undergo simple imprisonment for a
period of 1 month which sentence is also not required to be disturbed.
Appellants Shiv Sagar Naik (A-7), Jeet Ram Sharma (A-9), B.M.
Ghosh (A-10), Om Prakash (A-12) have been convicted of offences
punishable under Section 120B read with 403/409 IPC and all of them
are beneficiaries. Though convicted for offences punishable under
Section 471 IPC, sentence awarded to Shiv Sagar Naik and Om
Prakash S/o Amir Singh (A-12) is 5 years whereas others i.e. Jeet Ram
Sharma and B.M. Ghosh is 1 year. To maintain parity in sentence and
also the fact that they are beneficiary, sentence of Shiv Sagar Naik (A-
7) and Om Prakash (A-12) for offence punishable under Section 120B
read with Section 403/409 IPC is modified to rigorous imprisonment
for a period of 3 years and to pay a fine of ₹10,000/- in default
whereof to undergo simple imprisonment for a period of 1 month.
Sentence of Jeet Ram Sharma (A-9) and B.M. Ghosh (A-10) for
offences under Section 120B read with Section 403/409 IPC is not
required to be modified. Sentence of appellant Om Prakash (A-11) is
modified to rigorous imprisonment for a period of 3 years and to pay a
fine of ₹10,000/- in default whereof to undergo simple imprisonment
for a period of 1 month for the offence punishable under Section 120B
read with Section 403/409 IPC. J.P. Sharma (A-6) being a beneficiary
to a great extent his sentence for offence punishable under Section
120B read with Section 403/409 IPC is rigorous imprisonment for a
period of 7 years and to pay a fine of ₹1 lakh and in default whereof to
undergo simple imprisonment for 6 months is maintained. The
sentence of appellant Yesudanam for offence punishable under
Section 120B read with Section 403/409 IPC being 1 year rigorous
imprisonment and to pay a fine of ₹10,000/- in default whereof to
undergo simple imprisonment for a period of 1 month is also
maintained. As regards Hayat Singh (A-15) his sentence for offence
punishable under Section 403 IPC of rigorous imprisonment for 1 year
and a fine of ₹10,000/- in default whereof to undergo simple
imprisonment for 1 month is maintained. However, maintaining parity
with the other appellants his sentences for offences punishable under
Section 120B read with Section 403/409 IPC is reduced to rigorous
imprisonment for a period of 3 years and to pay a fine of ₹10,000/- in
default whereof to undergo simple imprisonment for a period of 1
month.
22.5. Thus, in view of the aforesaid discussion the modified sentence of the
appellants are:
"1. Y.P. Sharma (A-1)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of 01 year 1,000/- 07 days
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year One Lakh 06 months
5 u/S. 120B r/w Sec. 403 & 409 07 years One Lakh 06 months
IPC
2. C. Manjhi (A-2)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of 01 year 1,000/- 07 days
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC -- -- --
5 u/S. 120B r/w Sec. 403 & 409 05 years One Lakh 06 months
IPC
3. Om Prakash Narang (A-3)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of 01 year 1,000/- 07 days
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year One Lakh 06 months
5 u/S. 120B r/w Sec. 403 & 409 07 years One Lakh 06 months
IPC
4. Jai Kumar Singhal (A-4)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of 01 year 1,000/- 07 days
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year One Lakh 06 months
5 u/S. 120B r/w Sec. 403 & 409 07 years One Lakh 06 months
IPC
5. J.P. Sharma (A-6)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year One Lakh 06 months
5 u/S. 120B r/w Sec. 403 & 409 07 years One Lakh 06 months
IPC
6. Shiv Sagar Nayak (A-7)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year 10,000/- 01 month
5 u/S. 120B r/w Sec. 403 & 409 03 years 10,000/- 01 month
IPC
7. Jeet Ram Sharma (A-9)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC 03 years 10,000/- 01 month
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year 10,000/- 01 month
5 u/S. 120B r/w Sec. 403 & 409 01 year 10,000/- 01 month
IPC
8. B.M. Ghosh (A-10)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC 03 years 10,000/- 01 month
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year 10,000/- 01 month
5 u/S. 120B r/w Sec. 403 & 409 01 year 10,000/- 01 month
IPC
9. Om Prakash S/o Sohan Lal (A-11)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year 50,000/- 03 months
5 u/S. 120B r/w Sec. 403 & 409 03 years 10,000/- 01 month
IPC
10. Om Prakash S/o Amir Singh (A-12)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year 50,000/- 03 months
5 u/S. 120B r/w Sec. 403 & 409 03 years 10,000/- 01 month
IPC
11. I. Yeshudanam (A-14)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year 10,000/- 01 month
5 u/S. 120B r/w Sec. 403 & 409 01 year 10,000/- 01 month
IPC
12. Hayat Singh (A-15)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of -- -- --
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC 01 year 10,000/- 01 month
5 u/S. 120B r/w Sec. 403 & 409 01 year 10,000/- 01 month
IPC
13. Natha Ram Suman (A-16)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of 01 year 1,000/- 07 days
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC -- -- --
4 u/S. 403 IPC -- -- --
5 u/S. 120B r/w Sec. 403 & 409 01 year 1,000/- 07 days
IPC
14. S.K. Aggarwal (A-17)
S.No. Offence punishable u/S. Sentence of Fine (₹) Sentence in
Rigorous default of
Imprisonment fine
1 13(1)(d) punishable u/S. 13(2) of 01 year 1,000/- 07 days
PC Act
2 u/S. 471 IPC -- -- --
3 u/S. 409 IPC 05 years One Lakh 06 months
4 u/S. 403 IPC -- -- --
5 u/S. 120B r/w Sec. 403 & 409 05 years One Lakh 06 months
IPC
"
23. Crl.Appeal Nos. 259/2016, 280/2016, 240/2016, 241/2016, 269/2016,
297/2016, 323/2016, 396/2016 and 847/2016 are dismissed. Crl.Appeal
Nos. 134/2016, 150/2016, 151/2016, 342/2016 and 347/2016 are disposed of
in view of the modification in sentence. Appellants Jeet Ram Sharma (A-9),
B.M. Ghosh (A-10), Yeshudanam (A-14) and Natha Ram Suman (A-16)
who are on bail shall surrender within four weeks to undergo the remaining
sentence.
24. Copy of the judgment be sent to the Superintendent Tihar Jail for
updation of the records.
25. Trial Court Record be sent back.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 05, 2017
'ga'
