[Cites 34, Cited by 0]
Delhi High Court
Kali Charan & Anr vs Uoi & Anr on 10 March, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 24.02.2026
Judgment pronounced on: 10.03.2026
+ CRL.A. 529/2003
KALI CHARAN & ANR. .....Appellants
Through: Mr. H.K. Chaturvedi, Adv. for A-l.
Mr. Himanshu Sethi and Ms.
Aishwarya Chhabra, Advocate for A-
2.
versus
UOI & ANR. .....Respondents
Through: Mr. Rajesh Kumar, SPP for CBI with
Mr. Changez Khan and Mr. Siddharth
Shekhar, Advocates for CBI.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Section 374, 386(b)(i) read with Section
482 of the Code of Criminal Procedure, 1973 (the Cr.P.C.) has
been filed by accused nos. 1 and 3 (A1 and A3) in C.C.No.11/1986
(New No. 331/1994) on the file of the Court of Special Judge,
Delhi, challenging the conviction entered and sentence passed
against them for the offences punishable under Section120-B read
with Section 409 of the Indian Penal Code, 1860 (the IPC) and
Sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act,
1947 (the PC Act) read with 120-B IPC. A1 has also been
convicted under Sections 409 and 201 IPC.
2. The prosecution case is that during the period from August
1981 to March 1982, the accused persons, namely, A1 (Inspector),
A2 (Assistant Engineer), A3 (Assistant Engineer), A5 (Mazdoor),
being public servants and employees of the Delhi Electric Supply
Undertaking (DESU), along with A6 and A4 (since deceased),
PW2 (approver) and A8, entered into a criminal conspiracy to
dishonestly and fraudulently misappropriate electrical materials
belonging to DESU, by withdrawing the same from stores on the
basis of forged and false store-issue dockets. It is alleged that 18
forged store issue dockets were prepared and used for this purpose
and these dockets were falsely shown as issued from authorised
stores, whereas in fact the materials were either drawn from
unauthorised stores, or were misappropriated and sold, thereby
causing wrongful loss to DESU and wrongful gain to the accused
persons. The total value of the misappropriated material is
₹5,83,019.02/-. It is further alleged that A1, knowing or having
reason to believe that the said dockets were forged, used them as
genuine, committed criminal breach of trust, and screened himself
and other accused from legal punishment by causing the
disappearance of material evidence and falsification of records,
including manipulation of store and register entries. Hence as per
the final report/charge sheet, the accused persons were alleged to
have been committed the offences punishable under Sections 120-
B, 409, 467, 471 IPC and Sections 5(1)(c) & 5(1)(d) read with
Section 5(2) of the PC Act.
3. On 25.03.1985, the law was set in motion on receipt of
secret information, based on which crime, RC23/1985-DLI was
registered with the Anti-Corruption Branch, CBI, New Delhi,
Police Station and investigation into the crime started. On
completion of the same, PW16 submitted the charge-sheet/ final
report alleging commission of the offences punishable under the
aforementioned offences.
4. Ext. PW5/A to PW5/C sanction orders for prosecuting A1,
A2 and A3 andA5were accorded by PW5, the then Additional
General Manager, DESU.
5. On receipt of summons when the accused persons
appeared before the trial court, the court after complying with the
formality contemplated under Section 207 Cr.P.C, on 12.11.1990,
framed a Charge for the offences punishable under Sections 120-B
read with 409 IPC against A1 to A5 and A7; Sections 5(1)(c), (d)
and 5(2) of the PC Act against A1 to A3 and Sections 467, 471 and
201 IPC against A1, which was read over and explained to the
accused persons to which they pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW17 were
examined and Ext. PW1/A - B, Ext. PW2/A-B, Ext. PW3/A-H,
Ext. PW3/J-M, Ext. PW4/A to K, Ext. PW5/A-C, Ext. PW6/A,
Ext. PW6/A1-A5, Ext. PW7/A-B, Ext. PW7/A-1 to PW7/A-3, Ext.
PW7/B, Ext. PW7/B-1 - B-2, Ext. PW8/A-B, Ext. PW9/A-B, Ext.
PW9/B-1 to B-85, Ext. PW9/C, Ext. PW11/A-C, Ext. PW12/DA,
Ext. PW13/A, Ext. PW14/A, Ext. PW16/A-B, Ext. PW16/C1-C6,
Ext. PW16/D1-D6, Ext. PW16/E1-E6, Ext. PW16/F1-F12, Ext.
PW16/G1-G6, Ext. PW16/H1-H6 and Ext. PW16/J1-J5 were
marked in support of the prosecution case.
7. After the close of the prosecution evidence, the accused
persons were questioned under Section 313(1)(b) Cr.PC. regarding
the incriminating circumstances appearing against them in the
evidence of the prosecution. The accused denied all those
circumstances and maintained their innocence.
8. A1 submitted that the materials taken by the Inspector,
including himself, had been entered in the Material at Site(MAS)
register showing the consumption of the materials and that the
same had been duly entered by him. The MAS register was seized
by D.N. Soni, Vigilance Inspector. However, the said register has
not been produced before the court. Whenever goods are taken,
their consumption is shown in the MAS register and the same will
be duly verified by the Assistant Engineer and record of the same
was being sent to the Executive Engineer. Whenever material is
drawn from the store, a statement is sent to the Executive Engineer
concerned and the same procedure was followed in the present
case also. The lock of his office-cum-store was broken on 01-12-
1982 at about 9.30 A.M. and all the documents including the MAS
register were taken away by G.P. Goel, Executive Engineer, which
fact has been admitted by Govind Prasad (PW6) in his cross-
examination. D.N. Soni when examined in RC No. 53/83 in the
Court of the Metropolitan Magistrate(MM), Patiala House has also
admitted the same. The certified copy of the testimony of D.N.
Soni in the said case is Ext. DA. The records were audited on 22-
09-1982 by the audit party of DESU and nothing adverse was
found in the audit report, nor was any explanation sought from him
regarding non-consumption of the materials drawn. He had sent
the material drawn statement to the office of the Executive
Engineer after 15 days showing consumption and balance, which is
Ext. DC. The record regarding issuance of material, its
consumption and balance was duly verified by the Assistant
Engineer and the Executive Engineer and no deficiency was ever
communicated to him at any time.
8.1. A3 submitted that the Inspector prepared the docket on
the basis of the sanctions available in his file, which are also seen
by him. However, in the case on hand, the sanction file had not
been shown to him either by the Vigilance or by the CBI, nor has
the same been produced before the Court. The third copy of the
docket, i.e., yellow copy, which is kept in the Zone for record and
which is duly checked and verified by the Executive Engineer as
well as by the Audit Department was also not shown to him by the
Vigilance, the CBI, or the Investigating Officer, nor has the same
been produced before the Court. The materials drawn and
consumed by Inspector Kali Charan (A1) were entered in the MAS
register. The MAS register was seized by the CBI, but it was never
been shown to him at any stage. The fourth copy of the docket, i.e.,
the green copy, on the basis of which the material is taken out from
the store and which remains in the custody of security guard, has
also not been shown to him. The gate pass/the fourth copy that has
been shown to him does not bear the signature of the Inspector or
the details of the material, or the vehicle number, and therefore the
same cannot be looked into. The records of the Zone are
periodically checked and verified by higher authorities, including
the Assistant Engineer, the Executive Engineer, and other senior
officers. He also used to check and verify the records of all staff
working under him, and if any deficiency was noticed, the same
was recorded in the register for further improvement. An audit of
the records was conducted on 22.09.1982 by a team of auditors in
respect of all the staff members, including himself and Inspector
Kali Charan (A1), but no deficiency was found therein.
9. On behalf of the accused persons, DWs. 1 and 2 were
examined.
10. On consideration of the oral and documentary evidence
on record and after hearing both sides, the trial court vide the
impugned judgment dated 02.08.2003 held A1 and A3 guilty of the
offences punishable under Section 120-B read with 409 IPC,
Sections 5(1)(c) and 5(1)(d) of the PC Act read with Section 120-B
IPC. A1 has also been found guilty of the offences punishable
under Sections 409 and 201 IPC. A5 and A8 have been acquitted
of the offences charged against them. A2, A4, A6 and A7 died
during the pendency of the proceedings. Vide order on sentence
dated 05.08.2003, A1 and A3 have been sentenced to undergo
rigorous imprisonment for a period of three and half years for the
offence punishable under Section 120B read with Section 409 IPC
and rigorous imprisonment for a period of three and half years for
offences punishable under Section 5(1)(c) and 5(1)(d) read with
Section 120B IPC on each count and fine of ₹5,000 on each count
and in default of payment, rigorous imprisonment for six months.
A1 has also been sentenced to rigorous imprisonment for three and
half years and fine of ₹5,000 and in default of payment, rigorous
imprisonment for six months for offence punishable under Section
409 IPC and rigorous imprisonment for one year and fine of
₹1,000 and in default of payment, rigorous imprisonment for four
months for the offence punishable under Section 201 IPC. The
sentences have been directed to run concurrently. Aggrieved, A1
and A3 have come up in appeal.
11. It was submitted by the learned counsel for appellant no.
1/A1 that the prosecution proceeded on an erroneous assumption
that the MAS Register was withheld or was caused to disappear by
A1. However, D.N. Soni, Vigilance Inspector when examined as
PW16, in another case, namely, RC No. 52/83, admitted that the
MAS Register had in fact been seized by him from the Zone 421
store room of A1 and later handed over to the CBI in the said case.
PW10 in this case was summoned to bring the original records in
RC 52/83and the MAS Register. But PW10 deposed that the entire
records had been destroyed. D.N. Soni was never examined in this
case. In such circumstances, A1 could not have been found guilty
of the offence punishable under Section 201 IPC.
11.1. It was further submitted that the deposition of D.N.
Soni, Vigilance Inspector, namely, Ext. DA, constitutes a
contemporaneous judicial record and is admissible under Sections
74, 76, and 77 of the Indian Evidence Act, 1872 (IEA), as it is a
certified copy of a public document. Ext. DAis not relied upon as a
substantive piece of evidence to prove the truth of its contents, but
is relied upon by A1 to probabilise his defence version that the
MAS Register had been seized by the vigilance authorities
themselves. This defence version stands corroborated by the
testimony of PW6 and DW2, who have admitted that the lock of
the store-cum-office of A1 was broken at the instance of the
Executive Engineer and that registers and papers had been taken
away.
11.2. The learned counsel for A1 further submitted that the
ingredients of Section 201 IPC are not satisfied, as the prosecution
has failed to prove that A1 caused the disappearance of any
evidence with the intention of screening himself or any other co-
accused from legal punishment. In absence of proof of such an
intention and overt act, the conviction under Section 201 IPC
cannot be sustained.
11.3. Lastly, it was submitted that the charge of dishonest
misappropriation under Section 409 IPC has also not been proved.
No recovery was effected from A1, and the departmental audit
dated 22.09.1982 found nothing adverse against him. Moreover,
PW2, the approver, failed to identify A1 in court, thereby further
weakening the prosecution case and entitling A1 to the benefit of
doubt. Reliance has been placed on the dictum in Raja Naykar v.
State of Chhattisgarh (Crl.A. 902/2003), wherein it was held that
suspicion, however strong, cannot take the place of proof beyond
reasonable doubt
12. It was submitted by the learned counsel for appellant no.
2/A3 that a complaint dated 01.12.1982 was filed by the latter
against A1 alleging the commission of embezzlement. The fact
that a complaint had been filed by A3 is admitted by PW12. This
shows the bona fides of A3, who is in fact, a whistleblower who
informed the DESU and the police about the illegalities committed
by A1. According to the learned counsel, "the intention to sign
dockets was bona fide act i.e., to merely identify the Insp. as per
chain of responsibilities". A3 neither had the authority to finalise
material requirements nor any role in determining quantities. The
prosecution failed to establish that A3 signed the dockets with any
dishonest intention. It was also submitted that A3 only signed 11
dockets, i.e., Exts. PW9/B-1 and PW9/B-19 to B-24 and that the
earlier 07 dockets were signed by the A2, the then Assistant
Engineer.
12.1. The learned counsel for A3 pointed out that an
application dated 14.12.2001 was filed by A3 seeking recall of
PW12 for cross-examination. But the same was rejected. This
caused serious prejudice to A3, particularly in the light of the
contradictions in PW12's testimony. He further submitted that no
vicarious liability is attributable to A3. A3 never visited the store
or physically received any goods. No security guard, storekeeper,
or official has ever stated that any material had been handed over
to him. The prosecution failed to establish any entrustment of
goods to A3. The materials on record clearly show that the stores
remained under the domain of the Stores Department and once the
material was issued, the same went under the control of the
Inspector, who alone was responsible for their accounting. There is
no evidence that A3 ever had custody, control, or dominion over
the material in any capacity. None of the alleged purchasers
including PW2 or the beneficiaries of the sold material has
identified A3 and hence the charge of misappropriation was never
proved.
12.2. It was further argued that the departmental proceedings
initiated against A3 culminated in his exoneration with no role
attributed to him in any procedural lapse or illegal act. Even
otherwise, all procedural lapses cannot be construed as illegal acts
without any corroborative evidence. The case is entirely based on
circumstantial evidence, only because A3 signed in the dockets, it
is alleged that he has also been part of the conspiracy.
12.3. The prosecution has failed to prove the case beyond
reasonable doubt and therefore, the appellant is clearly entitled to
the benefit of doubt. Reliance has been placed on the dictums in
S.V.L. Murthy v. State, (2009) 6 SCC 77, N Raghavander v.
State of Haryana (2021) 18 SCC 70, PS Rajya v. State of Bihar
(1996) 9 SCC 1 and Kali Ram v. State of HP (1973) 2 SCC 808.
13. The learned Additional Special Public Prosecutor
submitted that the evidence on record conclusively establishes that
A1 prepared 18 dockets and, with the signatures of the Assistant
Engineers, succeeded in obtaining materials from Jangpura Store
in complete violation of the prescribed procedure. Materials could
be drawn only from the store of the Zone concerned after
verification of the specimen signature of the Assistant Engineer,
which were admittedly not available at the Jangpura Store. The
very act of drawing material from an unauthorised store, in huge
and unjustified quantities, clearly establishes dishonest intention
and conspiracy among the accused persons.
13.1. It was further submitted that the prosecution proved
misappropriation through direct or circumstantial evidence. The
testimony of PW1, PW7 and PW8 prove that materials were in fact
drawn from the Jangpura Store. The transportation of goods is
proved through PW3. A1 himself admitted withdrawal of materials
in his statement under Section 313 Cr.P.C. Once the material was
withdrawn based on the dockets signed by the Assistant Engineer,
dominion and control over the goods vested in the appellants,
making them accountable for its utilisation. The failure to return
scrap material, non-entry of materials in the relevant registers, and
absence of any explanation regarding utilisation, fully establish
criminal breach of trust and misappropriation.
13.2. The charge of conspiracy under Section 120-B IPC
stands proved through a chain of circumstances, as direct evidence
of conspiracy is rarely available. Reliance was placed on State of
M.P. vs. S.B. Johari and Ors. (2000)2 SCC 57 and Kehar Singh
v. State (Delhi Administration) (1988) 3 SCC 609. For the
argument that minor inconsistencies do not affect the core of the
prosecution case and criminal cases are to be judged on the totality
of evidence and not on isolated or trivial contradictions, reliance
has been placed on Bharuda Brogin Haarjibhai vs. State of
Gujrat AIR 1983 SC 753, State of U.P vs. Anthony AIR 1985
SC 48, and Inder Singh vs. State (Delhi Administration) AIR
1978 SC 1091.
13.3. In conclusion, it was submitted that the prosecution has
proved all ingredients of the charged offences beyond reasonable
doubt and hence no ground for an interference by this Court is
made out.
14. Heard both sides and perused the materials on record.
15. The only point that arises for consideration in the present
appeal is whether there is any infirmity in the impugned judgment
calling for an interference by this Court.
16. At the risk of repetition, I refer to the prosecution case.
A1 Kalicharan, A2 Ratan Lal Garg, A3 Darshan Singh and A5
Sukhbir Singh were employed in the erstwhile DESU and were
posted in Zone No.421 (Shakti Nagar Zone) at Baghkare Khan
office during the period from 04.08.1981 to 31.03.1982. A1,
during the said period, was working as Inspector and looking after
the work of street lighting in Shakti Nagar Zone of DESU. A2 and
A3 were working as Assistant Engineers in the aforesaid zone. A5
was working as Mazdoor in the said zone. While so, A1, A2, A3
and A5 are alleged to have entered into a criminal conspiracy with
A4 Vijay Kumar, the store keeper of the store of DESU in
Jangpura (Nizamuddin Zone) to misappropriate large quantity of
electrical materials belonging to DESU and in pursuance of the
conspiracy, defrauded DESU of lakhs of rupees by fraudulently
and dishonestly drawing electrical materials such as fluorescent
tubes, MPMV lamps, trapodore cables, bulbs etc. from Jangpura
store on the basis of forged and manipulated indent dockets. A1
during the aforesaid period prepared 18 dockets on different dates
for drawing electrical items mentioned therein. Seven of the said
dockets were signed by A2, who, for some time during the
aforesaid period was posted as Assistant Engineer, Shakti Nagar
Zone (Zone No.421). A2, in his capacity as Assistant Engineer,
was to sign the docket as authorising officer before any materials
could be issued to the Inspector on the basis of the dockets. Out of
the 18 dockets prepared by A1, seven were signed by A2 and the
remaining 11 dockets were signed by A3, who was also posted as
Assistant Engineer in Zone No.421. On the basis of the aforesaid
18 dockets, A1 got huge quantities of electrical goods valued at
₹5,83,019.02/- issued from the Jangpura store of DESU, which
was within the area of Nizamuddin Zone, where A4 was posted as
Storekeeper, instead of getting them from the store at Bhargarh,
which was the store of Zone no.421. Thereafter, with the help of
A5 Sukhbir Singh who was posted as mazdoor in zone No.421
during the aforesaid period, sold the materials to private persons,
namely, A6 Gopal Verma, A7 Gulab Chand, A8 Arvind Kumar
Gupta and one Naresh Kumar (the approver, who was examined
before the trial Court as PW2).Thus, the accused persons are
alleged to have defrauded DESU to the tune of ₹5,83,019.02/-.
17. Naresh Kumar, initially one of the accused persons
involved in the conspiracy and one among the persons who were
alleged to have purchased the electrical items from A1, was
granted pardon by the Metropolitan Magistrate (MM). Neither side
has a case that the mandatory formalities contemplated under the
relevant provisions of law had not been complied with by the
magistrate before tendering pardon to him. Therefore, I am not
going into the said details. The materials on record show that
Naresh Kumar, an accomplice, was tendered pardon who accepted
the same on condition that he would reveal all what he knew about
the crime. Naresh Kumar when produced before the magistrate
concerned, gave a confession statement, which has been marked as
Exhibit PW2/A.
18. Exhibit PW2/A, the confession, of the said Naresh
Kumar reads thus:-In 1977-78, he was doing business of sale and
purchase of electrical goods with Gulab Singh (A7). In 1981, they
used to meet at Gopal Verma's (A6) shop. Sukhbir Singh (A5)
along with Inspector Kali Charan (A1) of DESU approached them
and stated that they would procure electrical goods from Jangpura
Store, and that there was no risk involved as the Assistant Engineer
and Storekeeper were also in league with them. From August 1981
to March 1982, they stole electrical goods from the Jangpura Store
approximately 17 to 18 times. The items included stoves, fans,
mixers, and trapodore cables etc. The material was transported
using a tempo bearing registration number DHL- 8468. The goods
were unloaded at the godown of Arvind Kumar Gupta (A8) at
Shakarpur. The sale proceeds were given to Kalicharan (A1) and
Sukhbir Verma (A5).
18.1. The said Naresh Kumar was examined by the
prosecution as PW2. PW2 when examined deposed thus:- During
the year 1981-1982, he was doing business in electrical goods
along with Gulab Chand (A7) and Gopal (A6) under the name and
style of Syndicate Electrics, situated at 1764, Kucha Lattu Shah,
Dariba Kalan. He had been carrying on the said business with
Gulab Chand (A7) since 1977. Inspectors of DESU used to sell
goods to Gulab Chand (A7). It was mainly Kalicharan (A1) who
used to come to sell the goods. He knew Sukhbir Singh (A5), who
used to accompany Kalicharan (A1). They used to take bulbs,
tubes, chokes and cables from Kalicharan (A1)and others.
According to PW2, at times Gulab Chand (A7) and at times he
himself used to go to Jangpura Store, where they would meet
Kalicharan (A1) and Sukhbir Singh (A5) and the latter would take
out goods from the store and hand over the same to them. They
would thereafter bring the goods to their shop.
18.2. During the examination-in-chief of PW2, the
prosecutor is seen to have submitted that the witness, being an
approver, was suppressing the true facts. It was pointed out that the
witness intentionally failed to identify A1, A5 and A6 though they
were present in Court. PW2 had also not disclosed the name of A8,
who was also present in Court. Hence, the Prosecutor sought
permission to take appropriate action against PW2 in accordance
with law. On such submission being made, the trial court
adjourned the further examination of PW2.
18.3. PW2 is seen recalled and examined further on
23.01.1998. On further examination by the prosecutor, PW2
deposed that the goods purchased by him from the Inspectors of
DESU were handed over to one Guptaji (A8), who was not present
in Court. It was Gulab Chand (A7) who used to deal with the
Inspector, DESU, whose name is Kalicharan (A1).PW2 further
deposed that Gulab Chand (A7) used to call him to Shakarpur and
at times to Laxmi Nagar to take delivery of the goods and
sometimes goods were also delivered at Ajmeri Gate. The goods
were procured from Jangpura or Srinivas Puri. He used to wait on
the main road where Gulab Chand (A7) would bring the goods in a
tempo. He used to take the goods from Gulab Chand (A7) and
deliver it to Guptaji (A8). PW2 deposed that Gulab Chand(A7) had
informed him that the goods were being obtained from the DESU
store. Gulab Chand (A7) used to give money to Kalicharan (A1)
and Sukhbir (A5). PW2 admitted that Ext. PW2/A, his confession,
had been recorded by the MM and that he had signed the same.
PW2 admitted that pardon was granted on condition that he made a
true disclosure of the facts within his knowledge. He also admitted
that his statement recorded by the MM had been read over to him
and the same is correct.
18.4. The Prosecutor is seen to have sought the permission of
the trial court to "cross examine" PW2 as he failed to identify the
accused persons. Permission was granted by the trial court. On
further examination by the prosecutor, PW2 deposed that he was
not able to recollect the full name of Guptaji to whom the goods
were delivered and stated that his name was either Arvind Gupta
or Anil Gupta. PW2 denied that A1, A5, A6, A8 who were present
in Court, were the same persons whom he had earlier named and
that he was intentionally not identifying them in Court. However,
PW2 admitted that they used to sell the goods to Arvind Kumar
Gupta (A8). He further admitted that Kalicharan (A1) and Sukhbir
(A5) had approached them and represented that the latter would
arrange electrical goods from Jangpura DESU store and that there
was nothing to fear as the Assistant Engineer, Stores, was in
league with them. PW2 also admitted that during the years 1981
and 1982, they had purchased electrical goods from Jangpura
DESU Stores, including tubes, mercury bulbs, chokes and cables.
The goods were transported in tempo bearing registration No.
DLH 8468 and were delivered at the godown of A8 at Shakarpur
and Ajmeri Gate. The money received from Arvind Kumar Gupta
(A8) was paid to Kalicharan (A1) and Sukhbir (A5). PW2 denied
that he was deliberately not identifying the accused persons in
order to help them.
18.5. PW2, in his cross-examination, deposed that he does
not recollect the exact date when Sukhbir (A5) had approached
them. PW2 further deposed that Gupta used to make payments of
different amounts, sometimes ₹10,000/-, sometimes ₹5,000/- and
at other times about ₹ 20,000/-. PW2 denied the suggestion that he
had never made any payment to Sukhbir (A5).
19. It is clear from the testimony of PW2 that he has violated
the terms on which pardon had been granted to him. Section 308
Cr.P.C. deals with the procedure to be followed when a person to
whom pardon is tendered fails to comply with the conditions of the
pardon. Sub-section (1) to Section 308 Cr.P.C. says that if the
public prosecutor certifies that in his opinion, the approver has
either by wilfully concealing anything essential or by giving false
evidence has not complied with the condition on which the tender
was made, such person can be tried for the offence in respect of
which the pardon was so tendered or for any other offence of
which he appears to have been guilty in connection with the same
matter, and also for the offence of giving false evidence. The first
proviso says that such a person shall not be tried jointly with any
of the other accused. But he shall be tried separately. The CBI for
reasons best known to them has not taken any action against PW2
despite the fact that he did not fully stand by his confession while
he was examined before the court. When an accomplice is
tendered pardon, his status from that of an accused changes to that
of a prosecution witness. But the moment he fails to stand by the
terms of grant of pardon, he ceases to be a witness and his status
reverts back to that of an accused. Despite the fact that PW2 was
also part of the conspiracy and played an important role in the
crime and despite PW2 breaking the terms and conditions as per
which he was tendered pardon, is roaming around free without the
CBI taking any action whatsoever against him for reasons best
known to them.
20. The principle of tendering pardon to an accomplice is to
unravel the truth in a grave offence so that the guilt of the other
accused persons concerned in the commission of the crime could
be brought home. The object of Section 306 Cr.PC. is to allow
pardon in cases where heinous offence is alleged to have been
committed by several persons, so that, with the aid of the evidence
of the person granted pardon, the offence may be brought home to
the rest. Under Sections 306 and 307 Cr.PC., the court concerned
is empowered to tender pardon to an accomplice on the condition
of his making full and true disclosure of the entire circumstances
within his knowledge related to the crime. An accomplice who has
been granted pardon under section 306 or 307 Cr.PC. gets
protection from prosecution. When he is called as a witness for the
prosecution, he must comply with the condition of making a full
and true disclosure of the whole of the circumstances within his
knowledge concerning the offence and to every other person
concerned, whether as principal or abductor, in the commission
thereof and if he suppresses anything material and essential within
his knowledge concerning the commission of crime or fails or
refuses to comply with the condition on which the tender was
made and the public prosecutor gives a certificate under Section
308 Cr.P.C. to that effect, the protection given to him can be
lifted.
21. I have already referred to the confession of PW2 as well
as his testimony before the court. PW2 was not cross examined by
A1 and A3. But PW2 failed to identify A1 and A3 before the
court. However, he admitted that his confession recorded by the
MM is true and correct. PW2 has no case that his confession was
involuntary or made under threat, coercion or under any other
vitiating circumstances. He also does not have a case that the same
was made without understanding the consequences of the same.
On the other hand, PWI categorically admitted the statements
recorded by the MM are true and correct. A confession, when
proved is, certainly a substantive piece of evidence on which
conviction can be based. The question is what is the evidentiary
value of the confession of PW2 in the light of his failure to identify
A1 and A3 in the court. In this context I refer to the dictum of the
Apex Court in Mrinal Das v. State of Tripura 2011 KHC 4813:
AIR 2011 SC 3753, wherein it has been held that though a
conviction is not illegal merely because it proceeds on the
uncorroborated testimony of an approver, yet the universal practise
is not to convict upon the testimony of an accomplice unless it is
corroborated in material particulars. The evidence of an approver
does not differ from the evidence of any other witness say in one
particular aspect, namely, that the evidence of an accomplice is
regarded ab initio as open to grave suspicion. If the suspicion
which attaches to the evidence of an accomplice is not removed,
that evidence should not be acted upon unless corroborated in
some material particulars; but if the suspicion attaching to the
accomplice's evidence be removed, then that evidence will be
acted upon even though uncorroborated, and the guilt of the
accused may be established upon the evidence alone.
21.1. In this context, I also refer to Section 133 of the IEA
along with Illustration (b) to Section 114. As per Section 133, an
accomplice shall be a competent witness against an accused
person; and a conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice. Illustration
(b) to Section 114 IEA says that the court may presume that an
accomplice is unworthy of credit, unless he is corroborated in
material particulars. Dealing with the scope and ambit of the above
said two provisions, the Apex Court in Bhiva Doulu Patil v. State
of Maharashtra, AIR 1963 SC 599, held that both the Sections
are part of one subject and have to be considered together. The
combined effect of Section 133 and Illustration (b) to Section 144
has been stated thus:
"According to the former, which is a rule of law, an accomplice
is competent to give evidence and according to the latter, which
is a rule of practice it is almost always unsafe to convict upon
his testimony alone. Therefore, though the conviction of an
accused on the testimony of an accomplice cannot be said to be
illegal, yet the courts will, as a matter of practice, not accept the
evidence of such a witness without corroboration in material
particulars".
(Emphasis Supplied)
22. It is thus clear that once the evidence of the approver is
held to be trustworthy, it must be shown that the story given by
him, so far as an accused is concerned, must implicate him in such
a manner as to give rise to a conclusion of guilt beyond reasonable
doubt. Insistence upon corroboration is based on the rule of
caution and is not merely a rule of law. Corroboration need not be
in the form of ocular testimony of witnesses and may even be in
the form of circumstantial evidence.
23. The aforesaid being the position of law, I shall now
consider the other pieces of evidence relied on by the prosecution
to prove the case. I will first deal with the conviction of A1 under
section 201 IPC. The trial court found that the MAS register which
contains the details of the materials drawn from the store was
removed/destroyed by A1 for the purpose of screening himself and
the co-accused from the crime. A1 relies on the testimony of one
D.N. Soni, Inspector, Vigilance who was examined as PW16 in
another case, namely, RC No. 52/83 on the file Court of
Metropolitan Magistrate, Patiala House Courts, New Delhi. D.N.
Soni in the said case deposed that the MAS register among other
documents were seized by him and handed over to the CBI in R.C.
NO. 52/83. The certified copy of the testimony of D.N. Soni was
produced and marked as Ext DA., which document according to
the learned counsel for A1, being a public document, is admissible
under Sections 74, 76 and 77 of the IEA. According to the learned
counsel for A3, the said testimony is admissible under Section 80
of the IEA. I disagree with the arguments advanced by A1 and A3.
24. In this context, I refer to the dictum of the Apex Court in
Bishwanath Prasad v. Dwarka Prasad 1974 KHC 374: (1974) 1
SCC 78. In the said case, the question was whether the plaint
schedule property was the self-acquired properties of the first
defendant or whether they were joint family properties. There was
also a question as to whether the shop situated in a particular plot
belonged to the first defendant or whether it formed part of the
joint family properties. The first defendant relied on the
depositions of the plaintiff and defendant no. 8 as well as the
written statement filed by the plaintiff in an earlier suit between
the parties, as admission of the nature of the property. The courts
below relied on the written statement and deposition in the earlier
suit as admission on part of the plaintiff in the subsequent suit and
held that the properties were not joint family properties. A
contention was taken up before the Apex Court that the deposition
of the plaintiff and the written statement had not been confronted
to the plaintiff when he was in the witness box in the subsequent
suit and that no opportunity had been granted to explain the
admissions. In the said context, the Apex Court held thus:
"There is a cardinal distinction between a party who is the
author of a prior statement and a witness who is examined and is
sought to be discredited by use of his prior statement. In the
former case, an admission by a party is substantive evidence if it
fulfils the requirements of Section 21 of the Evidence Act. In the
latter case, a prior statement is used to discredit the credibility of
the witness and does not becomes substantive evidence. In the
former, there is no necessary requirement of the statement
containing the admission having to be put to the party because it is
evidence proprio vigore in the latter case, the court cannot be
invited to disbelieve the witness on the strength of a prior
contradictory statement unless it has been put to him, as required
by Section 145 of the Evidence Act."
(Emphasis supplied)
25. D.N. Soni, has admittedly not been examined in the case
on hand. Had he been examined in this case, then his testimony in
the other case could have been brought in evidence by resorting to
Section 145 of the IEA. But the testimony of D.N. Soni cannot be
used to discredit the testimony of the other prosecution witnesses
examined in this case.
26. Reference was also made to the testimony of PW6 and
DW2. PW6 does not say that it was D.N. Soni who took away the
MAS register from the office of A1, but it was PW12. DW2
deposed that during 1981-82, he was working as Regular Mazdoor
in Zone No. 421. He worked under Kali Charan Inspector (A1). On
01.12.1982, the Executive Engineer, Goyal (PW12) broke the lock
of the office of Kali Charan, Inspector (A1), through one Itwari
Lal, a blacksmith, at about 10:00 - 10:30 AM. The Executive
Engineer, G.P. Goyal (PW12), took away three files and two
registers with him from the office of Kali Charan (A1). PW12
when cross examined by A1 denied having broken the lock of the
office cum store of the latter on 01/12/82 at about 09:30 AM or
that, at his instance, the same had been broken open. A1 does not
have a consistent case as to who exactly had taken away the MAS
register.
27. Be that as it may, PW6, a loyal prosecution witness, has a
case that the relevant MAS register was taken away by PW12. The
prosecution has no case that PW6 is deposing falsely. DW2 also
supports this version of PW6. DW2 was virtually not cross
examined on this aspect. Therefore, the testimony of DW2, along
with the testimony of PW6, raise doubts regarding the MAS
register alleged to have been kept away or destroyed by A1. That
being the position, it can only be concluded that the evidence
against A1 for commission of the offence under Section 201 IPC is
unsatisfactory. In such circumstances, the trial court could not
have arrived at a finding of guilt of A1 for commission of the
offence under Section 201 IPC.
28. Now coming to the evidence relied on to prove the
remaining offences for which the trial court has found A1 and A3
guilty. The procedure for issue of materials from the store is
spoken to by PW 12 as well as DW1. According to PW12, the
docket is filled up by the Inspector as per the requirement
conveyed by his field staff. The Inspector signs the docket both at
the time of indenting and at the time of receipt of material. After
filling up the docket, the Inspector presents it before the Assistant
Engineer for authorisation. The Assistant Engineer signs it as the
Authorising Officer. Without such authorisation, materials cannot
be taken out from the store. The Store Keeper issues the material
from the store and signs at the time of issuance. If some material is
not available in the store or if a substitute material is required, the
same has to be authorised again by the Assistant Engineer. The
Inspector can draw materials on the authorisation of the Assistant
Engineer of his Zone. The signature of the Assistant Engineer is
kept by the Store Keeper in the main store.
28.1. PW12 deposed that he knows A1, who was working as
Inspector in Zone 421 under A3, Zonal Assistant Engineer. PW12
when shown docket Nos. 1161, 1026, 1234, 1369, 1897, 1948,
1302, 2100, 2222, 2217, 2252, 2431, 2470, 2331, 2177, 2288,
2291 and 2263, deposed that the items mentioned in the dockets
were not required in such huge quantities within such a short
period. In docket Nos. 1026 and 2217, the store mentioned is "BG
II/Jungpura", which is not correct as per procedure. PW12
explained that materials for the Zones in Shakti Nagar are to be
drawn from BG store, situated in District Shakti Nagar, whereas
Jungpura is situated in Nizamuddin District in South Delhi.
Therefore, it was not proper to mention the names of both stores in
the same docket. PW12 further deposed that docket No. 2222 has
not been prepared correctly as the name of the store has not been
mentioned. It is essential to specify the name of the store in the
docket. In docket No. 1234, the name of BG II Store has been
struck off and Jungpura had been added. Such alteration is not
proper unless authenticated by the Authorising Officer of the
docket.
28.2. PW12 further deposed that LTPVC cables of smaller
size are ordinarily used for street lighting. However, in docket
Nos. 2470, 2291 and 2263, cables of 150 sq. mm and 300 sq. mm
size are mentioned, which are not generally used for street lighting.
Such cables would not ordinarily be desirable for street lighting
unless they were required for some other work and duly authorised
by the Assistant Engineer. Zone IV had been divided into three
parts, namely, Zone No. 421, Zone No. 422 and Zone No. 423.
PW12 was shown docket Nos. 2263 dated 30.03.1982, 2291 dated
05.03.1982, 2431 dated 26.03.1982, 2177 dated 15.02.1982, 2100
dated 03.02.1982, 2288 dated 05.03.1982, 2252 dated 27.02.1982,
2470 dated 31.03.1982, 1026 dated 04.08.1981, 2217 dated
19.02.1982, 2222 dated 19.02.1982, 2631 dated 15.03.1982 and
1234 dated 10.09.1981, all of which bore the stamp of Zone No. 4
(D IV). Since District IV and Zone No. 4 had ceased to exist in the
year 1980 after bifurcation of District 4 and the corresponding
Zones, the stamps appearing on the said dockets are invalid. It was
the responsibility of the Store Keeper to verify all entries in the
docket before issuing material. PW12 further deposed that the
Authorising Officer, i.e., the Assistant Engineer, should have
ensured that the correct stamp was used after his signature.
28.3. PW12 deposed that docket Nos. 2263, 2291, 2431,
2177, 2100, 2288, 2252, 2470, 2217, 2222 and 2631 were signed
by A3 and docket Nos. 1302, 1026, 1161 and 1234 were signed by
A2. In the said dockets, the stamp is of Zone IV. PW12 further
deposed that the primary responsibility of the Store Keeper of the
store from where the material was issued, was to verify all
columns of the docket, check all relevant aspects before issuing
material, as well as to ensure the genuineness of the docket, verify
the signatures of the Authorising Officer and consider the quantity
of material before issuance.
28.4. PW12, in his cross-examination, admitted that the
Inspector fills up the docket after verifying the requirement of the
area. He further admitted that the Assistant Engineer signs the
docket as Authorising Officer after examining the requirement of
the area, the quantity mentioned and other relevant columns of the
docket. PW12 deposed that the Store Keeper of the main store,
keeps the specimen signatures of the Authorising Officer.
However, in the case of a District Sub Store, signatures of
Assistant Engineers of other districts are not maintained. He
deposed that sub stores function under the administrative control
of a particular Executive Engineer of the district and cater only to
the requirements of that district. The main store issues material to
sub stores of the district as well as to indenting Inspectors. PW12
further deposed that in case of emergency, material can be
obtained from another store if duly authorised. Specimen
signatures of the Authorising Officer are attested and signed by the
Executive Engineer. Normally, the specimen signature proforma is
sent to the Executive Engineer, Store Maintenance, Rajghat. He
further deposed that an Inspector cannot obtain material from
another store in addition to what is mentioned in the docket, as
material of a sub district store is issued by the Assistant Engineer
Incharge of that sub store for use in his district only. PW12
deposed that, to his knowledge, he is unaware as to whether the
dockets were sent to Jungpura Store as he had not seen the yellow
colour copies of the dockets, as those copies are retained by the
Inspector.
28.5. PW12 admitted that he had not seen the file containing
the requirements given by the field staff regarding the actual
withdrawal of articles from the store. According to him, he was not
required to see the same. PW12 denied that, being the Executive
Engineer, he was duty-bound to examine the file of requirements
of articles submitted by the Field Officer. The Inspectors prepare
and maintain their records from the yellow copy of the docket. He
admitted that he had not seen the copy of the docket pertaining to
the present case and that he had never demanded a copy of the
docket from the Vigilance Department or from the Administration
of DESU. He further deposed that the entries are made in the MAS
register maintained by the Inspectors concerned. He admitted that
he had never seen or checked the MAS register of A1 and had
never called for or examined the same. According to PW12, the
MAS register is checked by the Audit Department. He admitted
that during Asiad 1982, there were general instructions regarding
proper maintenance and supply of street lighting. PW12 deposed
that no statement regarding verification of materials drawn was
received from the Accounts Section, Rajghat, during the period
from 1981 to 1982. PW12 denied that the lock of the office cum
store of A1 was broken at his instance or in his presence on
01.12.1982 at about 9.35 A.M. According to him, A3, Assistant
Engineer, had lodged a complaint against A1 at Lawrence Road
Police Station against A1. The MAS register is checked by the
Assistant Engineer Incharge of the Zone and by the Audit
Department. He was unable to recollect having received any
complaint against A1 regarding maintenance of the MES register
and admitted that he never checked the MAS register of A1.
PW12, when asked whether he had made any statement in RC No.
52/83 in the Court of the MM to the effect that he is unaware of
the process regarding using dockets, answered that he was unable
to recall the same. PW12 was unable to recall having received any
complaint from A1 regarding breaking or removal of tube lights by
antisocial elements. According to him, in such an event the
Assistant Engineer of the Zone was authorised to lodge a
complaint with the police.
29. DW1 also deposed regarding the manner in which
materials are issued from the store. According to him, the material
from the Store is drawn by the Inspector through a docket book
filled as per requirement and authorised by the Assistant Engineer
concerned. After verification of the Assistant Engineer's signature
by the Store In-charge, the material is handed over to the
Inspector. Specimen signatures of the Assistant Engineers are
circulated to all the Stores by the Executive Engineer from time to
time. The docket book consists of five copies: two retained by the
Store Keeper, one by the Store Security, and two by the Inspector,
of which the yellow copy is kept on record for audit purposes.
Material is issued only against valid sanction, which can be
granted only by an officer not below the rank of the Executive
Engineer. In the case of street-lighting material, details of the
quantity drawn are intimated fortnightly to the Executive Engineer
concerned with copies to the Commercial Branch. Normally, the
material is drawn from the Sub-Store under the charge of the
Executive Engineer concerned. However, in emergencies, material
may be drawn from another Sub-Store with the consent of both
Executive Engineers. Internal and external audits are conducted
annually. Inspectors can be deputed to carry out the work of street-
lighting as well as for their maintenance. A maintenance register is
maintained for recording material usage and is checked randomly
by the Assistant Engineer, Executive Engineer, and even by the
Superintending Engineer. Maintenance and street-lighting accounts
are maintained separately. Account No. 421-M pertains to
Maintenance Account.
30. The fact that A1 was Inspector and A3, the Assistant
Engineer of zone number 421 is not disputed. The prosecution
relies on the testimony of PW6 to PW9 and PW 11 to prove the
case that A1 had in fact, drawn substantial quantity of electrical
items from the Jungpura store with the knowledge and connivance
of A3.PW1 in Ext PW4/J 164 statement stated thus: He has been
employed with DESU since 1971 as a Security Guard. In 1982, he
was posted at the Jungpura Store, which belonged to DESU. The
key of the store remained in the custody of the storekeeper, Vijay
Kumar (A4). Vijay Kumar (A4) used to prepare dockets and issue
materials to the Inspector. At the gate, the docket was shown to
him, and he permitted the material to pass in accordance with the
docket. On 26.03.1982, Inspector Kalicharan (A1) handed over
one docket to him at the gate. After counting the materials, he
allowed it to pass. A1 was accompanied by another person.
31. PW1 when examined deposed that he was posted as
Security Guard at Rajghat Power House since 1971.During the
period1981 -1982, he was on duty at Jungpura Store. There were
only electrical goods stored at Jungpura Store and whenever any
article was required to be taken out, it was the duty of the security
guard to check the same before permitting the same to be taken
out. The identity card of the person taking out the articles would
also be checked. As per Ext. PW1/A docket dated 26.03.1982, the
original of which is Ext. PW4/B, it was A1 who had taken the
articles based on the docket. It was Vijay Kumar (A4) who was the
Store Keeper at the relevant time.PW1 identified the signature of
A4. PW1 was unable to identify the signature of A1 in Ext.
PW1/B. PW1 further deposed that five copies of the docket were
prepared, out of which one copy was received by him, two copies
were affixed in the docket book, one copy was retained by the
Store Keeper, and one copy was retained by the Store Costing.
PW1 also deposed that no entry pertaining to the articles was made
in the roznamcha.
32. PW6 deposed that during 1981 -1982, he was working as
Senior Clerk in Zone No. 421, DESU, Shakti Nagar, New Delhi.
A3 was the Assistant Engineer under whom he was working. PW3
deposed that he could identify the initials of A1 and A3 as he had
seen them writing and signing in the course of the discharge of
their official duties. A1 was working as Inspector in the same zone
and was looking after street lighting. PW6 deposed that it was his
duty to forward all papers received from the office of the
Executive Engineer to the Inspectors. He used to issue stationery
and also issue dockets. He used to maintain a register in which the
dockets issued by him were duly entered. In 1981 - 1982, the
stationery register of DESU was in his custody in which he used to
make entries regarding the issuance of docket books and other
stationery. He used to obtain the signature of the person concerned
to whom the docket book was issued. The dockets were issued to
the Inspectors. PW6 when shown the photocopy of the entry of the
Stationery Register, Document No. 16, made in Page 3, wherein
entry regarding issuance of docket book No. 1186 was made,
deposed that there appeared to be some other figure after the figure
474, which was not clearly visible to him due to his failing eye
sight, as he had undergone an eye operation in February 1999. The
zerox copy of the stationery register is Ext. PW6/A (The original
was stated to have been weeded out as per the testimony of
PW10).PW6 admitted that the entry at Page 3, namely, Ext.
PW6/A, is in his handwriting. However, PW6 deposed that the
signature of the recipient against the said entry was not clearly
visible to him. PW6 admitted that on 11.12.1981, he had issued
docket book No. 1184 containing docket No. 473, which was
received by A1. He identified the signature of A1 in Ext. PW6/A
2. PW6 also admitted that he had made the entry regarding
issuance of docket book No. 221 containing docket No. 8761 along
with other items, which were received by A1 as per Ext. PW6/A.
He also deposed that docket book No. 1251 was a returned docket
earlier issued to A1 and that docket book No. 3948 containing
docket No. 157881 was issued to A1, and that both the entries
were made by him. PW6 further deposed that the entries regarding
docket book No. 1251 (returned docket earlier issued to A1) and
docket book No. 3948 containing docket No. 157881 issued to A1
are collectively Ex. PW6/A-4 (Colly). PW6 deposed that the entry
regarding issuance of docket book No. 55 containing docket No.
2161, which was received by A1, was made by him and is Ex.
PW6/A-5 on page 5 of Ex. PW6/A.
32.1. PW6 further deposed that during the period 1981-82,
Zone 421 was under District Shakti Nagar. The office of Zone 421
was situated at Bagh Kare Khan, Chander Shekhar Azad Colony.
A1 was working as Inspector (Street Light). A2 (since deceased)
and A3 were the Assistant Engineers in the zone. Darshan Singh
(A3) was the -in -charge of the Zone. He was shown docket No.
1026 marked Q-32B, which was duly signed by A2. PW6 deposed
that docket Nos. 1161, 1284, 1302, 1369, 1897 and 1948 were all
signed by A2.According to him, docket Nos. 2100, 2217, 2222,
2231, 2252, 2431 (Ext. PW1/B), and 2470 were signed by A3. A3
had also signed docket Nos. 2263, 2291, 2288, 2177 and 2100.
33. PW7 deposed that during the year 1981-82, he was
working as a security guard in DESU at Nizamuddin District
Office, where the Jungpura Store was situated. His duty was to
check the material issued by the Inspector, DESU, to the party
concerned. He knew A1 who used to come to the Jungpura Store
for taking electric goods.
34. PW8 deposed that in the year 1981, he was working as a
Security Guard at the Jangpura Store. His duty was to check the
materials going out of the store after it had been issued by the
proper authority and to ensure that the materials being taken out
was the same as mentioned in the docket issued to the party
concerned. He knew A1, who used to take electric goods from the
store in a tempo or three-wheeler. PW8, in his cross-examination,
admitted that there was no written proof in the attendance register
maintained by him showing that A1 had received electric goods
from the office on any particular date. He also admitted that in
order to take goods out of the store, a gate pass was required.
35. PW9 deposed that in February- March 1982 he was
transferred to Jangpura. A ledger register used to be maintained by
the Store Keeper for the purpose of recording receipt and issuance
of electrical items. The entries in the register regarding issuance
and receipt were made on the basis of dockets available with the
Inspector concerned. The entries were made either by the store
keeper himself or by the Store Clerk concerned working under the
former. The clerk used to make entries in the register under the
instructions of the store keeper. PW9 identified Ext. PW9/A store
ledger. PW9 also identified ledger register of Jangpura DESU
Store for the period from 1981 to 1982, that is, Ext. PW9/B. The
entries relating to the aforesaid dockets in Ext. PW9/B ledger
pertain to Zone 421. The Executive Engineer or the Assistant
Engineer concerned issues the docket to the Inspector concerned,
specifying the material to be obtained or received from the store.
By issuance of such document, the Executive Engineer or
Assistant Engineer authorises the Inspector to receive the material
from the store. The docket operates as an authorisation issued by
the Executive Engineer or Assistant Engineer concerned to the
Inspector to obtain the materials from the store of DESU as
mentioned therein. The ledger remains in the charge and custody
of the store keeper. After handing over the materials to the
Inspector, the Store Keeper makes an entry regarding the supply of
the material in the ledger. A4 was the Store Keeper of Jangpura
Store, DESU, during the period from 1981 to 1982.The entries in
the ledger Ex. PW9/B were made by A4.
35.1. PW9, in his cross-examination, admitted that entries
relating to all zones of a district are recorded in the ledger. The
entries made in the ledger are checked in due course. However, the
same are not signed by the Inspecting Officer. PW9 admitted that
he has no personal knowledge of the entries made in the ledger.
The Executive Engineer issued the docket to the Inspector
concerned. The Inspector concerned fills up the docket. The
requirement of material to be mentioned in the docket is
ascertained by the Assistant Engineer and or the Executive
Engineer. The material is received from the store by the Inspector
concerned. The person who indents the material and the person
who receives the same is one and the same. PW9 further deposed
that once a docket is authorised by the Chief Engineer or Assistant
Engineer, it is not changed and there are no chances of alteration.
He denied that the contents of the indent can be changed. With
regard to Indent Nos. 1302, 2100, 2470, 1026, 2222, 1161, 2231
and 1234, wherein certain 'cuttings' appeared on the items
mentioned therein, he deposed that such 'cuttings' indicate that the
items were not issued from the store. PW9 deposed that, to his
knowledge, the name of the store will be mentioned in the indent
and if the store is not named therein, the Store Keeper would not
issue material on the basis of such indent. PW9 deposed that an
indent can be issued for more than one store. However, the name
of the store in an indent cannot be changed. If the name of the
store is scored out on the docket, the material cannot be issued. In
docket No. 1234, the name of Store Bahadurgarh, near Azad
Market is seen scored off, and the name of the store at Jungpura
has been incorporated. PW9 further deposed that the date of issue
of the docket is required to be mentioned at the time of its
issuance. The quantity of material is always mentioned in the
docket itself and is not filled by the store clerk. If the required
quantity mentioned in the docket is not available in the store, the
available quantity will be supplied and the quantity actually
supplied will be mentioned. Any 'cutting' in the docket should be
signed by the Executive Engineer. The Assistant Engineer or
Executive Engineer are not required to sign the docket in the
presence of the store keeper. The signature of the Assistant
Engineer and Executive Engineer can be compared and ascertained
by the store keeper with the specimen signature available with the
latter. PW9 was unable to recollect whether the specimen signature
of A3 was available with the Store Keeper. He further deposed that
he did not have any occasion to see the specimen signature of A3.
36. The report of PW11, the handwriting expert marked as
Ext. PW11/B shows that the entries in the relevant documents
concerned were in fact made by A1, A2, A3, A4 and A5.
37. An argument was advanced that though an application for
recalling PW12 for the purpose of cross examination by A3 was
filed, the same was dismissed by the trial court causing
considerable prejudice to the latter as he lost his valuable right of
cross examination. No explanation is forthcoming as to why PW12
was never cross examined by A3 when the other co-accused
exercised their right of cross examination of the witness. So it
appears to be not a case of denial of opportunity, but a case of not
availing the said right.
38. The fact that A1 was the Inspector and A3, the Assistant
Engineer of Zone No. 421; the procedure that is spoken to by
PW12 and DW1 regarding issuance of materials from the store and
the fact that 18 dockets were prepared by A1 are not disputed. The
fact that A1 was the Inspector looking after the work of street
lighting in Shakti Nagar zone of DESU during the period from
04.08.1981 to 31.03.1982 and that he had prepared 18 dockets on
different dates for drawing electrical items mentioned therein, is
not disputed. Likewise, A3 was the Assistant Engineer during the
aforesaid period and was posted in Shakti Nagar Zone (Zone
no.421). It was his duty to sign the dockets as the authorising
officer before any material could be issued to the Inspector. The
fact that 11 dockets were signed by A3 in his capacity as
authorising officer is admitted. The testimony of PW12 that the
materials could have been drawn only from the store at Bhargarh,
the store in Zone No. 421, is not disputed. The fact that the
electrical goods were in fact drawn from the Jungpura Store, which
comes within the Nizamudin Zone, is also not disputed. PW12 and
DW1 have deposed that, if necessary, materials can be drawn from
a store situated in other zones, provided the authorising officer,
who is the Executive Engineer, approves the same. Neither A1 nor
A3 has a case that such a procedure had been followed. It is also
true that PW12 and DW1 has deposed that in case of emergencies
also, such drawing of materials from stores in different zones is
permissible. But here again, the authorisation of the authority
concerned is required. Neither A1 nor A3 has a case that the
authority concerned in both zones had authorised A1 to draw
materials from the store situated at Jungpura. It has also come out
from the materials on record that after the dockets are prepared by
the Inspector, the same will have to be authorised by the Assistant
Engineer. The storekeeper is supposed to verify the signature of
the Assistant Engineer, the authorised officer, with the specimen
signature available at the store. A3 was an Assistant Engineer of
Shakti Nagar zone, that is, Zone no. 421. Therefore, his specimen
signature would have been available at the store of that Zone.
Nobody has a case that the specimen signature of A3 was available
at Jungpura Store, which is situated in the Nizamudin zone. A4,
who died during the pendency of the proceedings, was the
storekeeper of Jungpura Store. There is no case for A1 or A3 that
the specimen signature of A3 was also available at Jungpura Store
with A4, and that it was after verification that the items had been
issued by A4.
39. The circumstances under which A1 had prepared a
docket for electrical goods and drawn the same from Jungpura
Store has not been clarified or specified. A1 has a case that as the
Asiad games was going on, there was instructions from the higher
authorities concerned to do the works without any delay and as
quickly as possible. PW12 was admittedly the then Executive
Engineer. When PW12 was examined, such a stand is never seen
taken up by A1. A3 also has no explanation as to why he
authorised the drawing of electrical materials from a store outside
his zone. He does not have a case that he was empowered to
authorise such drawing of materials from the Jungpura Store. A3
cannot shrug away his responsibility by saying that he had merely
signed the dockets and that it was the responsibility of A1, the
Inspector, as well as the Store Keeper, to see that the materials
were issued as per the necessity or need. The materials could be
drawn, or the Store Keeper was entitled or empowered to release
the goods from the store, only when the docket was approved or
authorised by the Assistant Engineer. A3 was admittedly the
Assistant Engineer at the relevant period of time. That being the
position, he was certainly responsible for checking the indent
docket prepared by A1 before authorising or signing it.
40. It has also come out in the testimony of PW12 that a huge
quantity of electrical items had been drawn from Jungpura Store
by A1 which could have been only with the active connivance of
A3 and A4. PW12 deposed that such a huge quantity was not
required during such a short period of time. This aspect of the
testimony of PW12 has also not been discredited. The justification
given by A1 while questioned under Section 313(1)(b) Cr.P.C. for
drawing such huge quantity, is that the same was required as the
Asiad Games was going on. But, PW12, the then Executive
Engineer, has no such case. Such a case was not put to PW12 also.
It is true that there are no materials on record to show the actual
value of the materials that was drawn from the Jangpura store.
However, neither A1 nor A3 has a case that the electrical materials
were not of the value of ₹5,83,019.02/- or that it was a much lesser
figure. The materials on record show that the electrical goods
worth nearly ₹6 lakhs had been taken from Jungpura Store by A1
based on the dockets that were authorised by A3. The value of the
articles stated to be ₹5,83,019.02 is not a small figure by any
standards during the period 1981-1982. The goods are alleged to
have been sold by A1 and A5 to A6 to A8. As noticed earlier, A5
and A8 have been acquitted by the trial court. No appeal has been
filed against the same. A2, A4, A6 and A7 died during the
pendency of the proceedings.
41. The evidence regarding the sale of these goods to A6 to
A8 is the confession of PW2, which confession is admitted to be
true by the latter. The confession of PW2 coupled with the
remaining evidence on record, to which I have already referred to
in detail, does substantiate the prosecution case. I do not find any
reasons to discard the testimony of the prosecution witnesses. A1
and A3 do have a case that the MAS register, if produced before
the court, would have shown the details of consumption of the
materials. Even in the absence of the MAS register, it is difficult to
believe that such a huge quantity was required for the period. The
trial court, in paragraph 54 of the impugned judgment, refers to the
quantity that was drawn from the Jungpura Store. On the basis of
the 18 dockets prepared by A1, 3335 metres of PVC LT trapodore
cables, 10160 fluorescent tubes, 1331 MPMB lamps, 1100 tube
starters and 450 chokes were issued from the Jungpura Store. The
quantity drawn is also not disputed by A1 and A3.
42. It was also argued by the learned counsel for A3 that in
the disciplinary proceeding initiated, A3 has been exonerated and
therefore A3 is liable to be acquitted in the present case also. In
support of the argument reference was made to dictum in P.S.
Rajaya v. State of Bihar, (1996) 9 SCC 1. In the said case, the
short question that arose for consideration was whether the State
was justified in pursuing the prosecution against the appellant
therein under Section 5(2) read with Section 5(1)(e) of the
Prevention of Corruption Act, 1947 notwithstanding the fact that
on an identical charge the appellant was exonerated in the
departmental proceedings in the light of a report submitted by the
Central Vigilance Commission and concurred by the Union Public
Service Commission. The appellant was an Inspector in the
Income Tax Service. His wife was a teacher in the Central School
at Bokaro steel city. She was allotted on long lease a plot at
Bokaro in the year 1980 for a sum of ₹20,000/- by the Steel
Authority of India Limited (SAIL). As per the terms and
conditions imposed by SAIL, shops in the ground floor and
residence at first floor were constructed by the appellant with his
earnings as well as the earnings of his wife. The construction was
strictly under the supervision and on the drawings supplied freely
by SAIL township authority. Subsequently the building was valued
by SAIL township engineer at ₹4.75 lakhs. The appellant in the
meanwhile got promotion and was functioning as Income Tax
Officer, A Ward, Dhanbad from 1981 to 1985. In the course of the
discharge of his duties, he impounded the books of accounts of
certain business people who complained to the local M.P., who in
turn complained about the appellant to the Minister of Finance
with a request to transfer the appellant and to order for a CBI
enquiry. Accordingly, an FIR was lodged on 9-4-1986 and the
appellant's residence and office were raided on 11-4-1986.
However, nothing worth mentioning was found. Ultimately a
charge sheet was filed on 31-7-1989 showing the assets of the
appellant consisting of cash, immovable property (house) and
jewellery. The estimated savings for the check period (1973 to
March 1986) was arrived at in the sum of ₹6,30,000/- and on that
basis it was alleged that the assets were disproportionate to the
extent of ₹3,57,439.00/-.
42.1. The appellant aggrieved by the charge being taken
cognizance of by the Special Judge challenged the same by
moving the Patna High Court under Section 482 Cr.P.C. The High
Court by order dated 03.08.1990 allowed the petition and remitted
the matter back to the Special Judge directing him to get a
preliminary enquiry conducted by higher authority of the appellant
or do it himself before taking cognizance of the matter. The
Special Judge took cognizance of the matter and wanted to proceed
further. Aggrieved, the appellant again moved the High Court
under Section 482 Cr.P.C. for quashing the cognizance of charge.
This time the High Court dismissed the petition holding that the
issues raised before it had to be gone into in the final proceedings
and those could not be raised at the preliminary stage. The
appellant aggrieved by the order of the High Court filed the appeal
by special leave. The Apex Court took note of the harassment that
the appellant was subjected to for years together and after referring
to in detail the various orders passed against the appellant therein
and the number of times he had to approach the Court at various
levels, found the charge in the departmental proceedings and in the
criminal proceedings to be one and the same. The findings
rendered in the departmental proceedings and the ultimate result of
it was not disputed. It was held that if the charge which was
identical could not be established in a departmental proceedings
and in view of the admitted discrepancies in the reports submitted
by the valuers, there was nothing further to proceed against the
appellant in criminal proceedings. The Apex Court after
considering almost all the earlier decisions dealing with the
guidelines relating to the exercise of the extraordinary power under
Article 226 of the Constitution or the inherent powers under
Section 482 of the Cr.P.C. for quashing an FIR or a complaint,
held that the case could easily be brought under more than one
head given without any difficulty. On the peculiar facts of the
case, it was held that the criminal proceedings initiated against
the appellant should not be pursued. The appeal was allowed
quashing the criminal proceedings.
43. The aforesaid dictum cannot be applied to the facts of the
present case. In the said case, there were absolutely no materials
on record to make out even a prime face case against the appellant
therein. Hence, in such circumstances, it was held that the criminal
proceeding was liable to be quashed. That apparently is not the
situation in the case on hand. I have already referred to in detail the
materials available on record. The testimony of the prosecution
witnesses has not been discredited in any way. Therefore, I find no
reason(s) to disbelieve them.
44. The trial court has referred to various decisions of the
Apex Court to conclude that the offence of breach of trust and
conspiracy have been made out from the materials on record. No
arguments were addressed on the said aspect. No arguments were
advanced on the quantum of sentence also.
45. In the light of the aforesaid discussion, the appeal is
partly allowed. A1 is acquitted under Section 235 (1) Cr.P.C. for
the offence punishable under Section 201 IPC. The conviction and
sentence of the appellants, namely, A1 and A3 for the remaining
offences by the trial court is confirmed.
46. The appeal is disposed of as aforesaid.
47. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MARCH 10, 2026/mj
