Punjab-Haryana High Court
State Of Haryana vs Shamshad Khan & Anr on 8 March, 2022
Criminal Appeal No. D-160-DB of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.D-160-DB of 2014
Date of Decision: 08.03.2022
State of Haryana ... Appellant
versus
Shamshad Khan and another ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present: Mr. Ankur Mittal, Addl.A.G, Haryana with
Mr. Saurabh Mago, AAG, Haryana
for the appellant.
Mr. Lekh Raj Sharma, Advocate
for the respondents.
***
RITU BAHRI, J.
The State has come up in appeal against the judgment and
order dated 30.11.2012 passed by the learned Special Judge, Ambala
(herein after to be referred as 'the trial Court'), whereby respondents were
acquitted of the charges framed against them by giving them benefit of
doubt.
The case set up by the prosecution is that two complaints were
made, one by constable Tejbir Singh against HC Shamshad Khan regarding
embezzlement of government funds by forging the bills and another
complaint regarding corruption in the Govt. Railway Police, Ambala City
and the allegations were leveled therein, which reads as under:-
Charge no. 1:- Constable Tejbir Singh, posted as driver on the vehicle of
CIA Staff Ambala had met with an accident and his leg was broken. During
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his hospitalization, he spent Rs. 25,000-30,000/- on the repairs of said
vehicle and did not obtain any amount from the department but Shamshad,
MTO got prepared forged bills of Rs.35,000/- for repair of the vehicle from
the mechanic and himself misappropriated the said amount whereas
constable Tejbir Singh did not obtain any amount for repair of the vehicle
Charge No. 2:- MTO, Ram Sarup handed over box of condemned
articles, tochan and oil extracting machine etc. in the charge of MTO
Harnek who further handed over the charge of those articles to Shamshad
Khan, but he (Shamshad) prepared forged bills regarding purchase of said
old articles and repair of oil extracting machine and misappropriated the
amount.
Charge no.3:- He prepared forged bills regarding purchase of tarpaulin
for government truck No. HR-01-6456 and repair of other articles and
misappropriated/embezzled the government funds.
Charge No. 4:- He prepared forged bills of 17/18 CBZ motor cycles and
embezzled the government funds.
Charge No. 5:- He prepared forged bills regarding purchases of diesel
for electricity generators and their repair, installed in the office and
residence office of S.P. GRP and misappropriated the amount.
Charge No. 6:- He prepared forged bills regarding repair of new Swaraj
Mazda vehicles etc though it were within guarantee period, from the
concerned firm and misappropriated the amount. He prepared forged bills of
Rs. 10,04,750/- but did not purchase any article and got signed those bills in
routine from the higher officers and sometimes forged their signatures.
Charge No. 7:- He prepared forged bill No. 8312 dated 22.3.2004 for
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Rs. 49,500/- regarding installation of tiles on the roof of the office of SP,
GRP, and embezzled the said amount and this work was done by Jaidev
Bakshi Clerk, though not even a single tile was installed. Six months prior
to that also, Rs. 50,000/- were recovered through forged bills for installation
of tiles on the roof, though 8/9 years ago, the office of SP, GRP, was
constructed by the Railways department and the tiles were installed /affixed
at that time and that record is available with railways department.
Charge no. 8:- He got prepared forged bills from M/s Nain Enterprises,
Ambala City and M/s Kaushal Traders for Rs.49,940/ each (total about
Rs. One lac) regarding installation of tiles on the roofs of both barracks of
Police Lines, GRP, but actually no tiles were affixed there and thus,
misappropriated the said amount.
Charge no. 9- The amount of Rs. 49,520/- was embezzled through
forged/bogus bill No. 302 in June 2004, regarding construction of boundary
wall in GRP lines
Charge no. 10- The amount worth lacs of rupees was embezzled through
forged bills regarding installation of solar light in GRP Lines Ambala and
office of SP, Ambala Cantt, through no solar light was installed.
Charge no. 11- Amount of thousands of rupees was embezzled in
February 2004 regarding installation of polythene tarpaulin in canteen and
cobbler shop of GRP lines, but purchase of tarpaulin was made and if
purchased, then it could upto 20 kg. only.
Charge No. 12- In February 2004, the amount was embezelled vide
two forged bills of Omega Sales, Ambala Cantt regarding installation of
tiles in the orderly room of GRP lines though only 350 tiles were already
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installed there some time ago.
Charge No. 13:- In March 2004, the bills worth Rs. 30,000/ were drawn
through forged bills regarding construction of pucca path from GRP lines to
GRP quarters, though that path was already got construction two year ago.
Charge no. 14:- In March 2004, thousands of rupees were embezzled by
showing the expenditure to be incurred on installation of iron grill in SP
office, GRP though that grill was got installed by the railways department.
Charge no. 15:- The amount was embezzled preparing forged bills five
times regarding purchase of iron box for keeping the articles in MT branch,
GRP lines, though the box already lying there was given to the In-charge at
the time of handing over of the charge every time.
Charge no. 16- The amount was misappropriated by sale of iron grills
weighing about 8/9 quintals to private person installed by the railways
department at the time of construction of office of SP, GRP.
Thus, the accused caused a total loss of Rs 30 lacs to the State
exchequer by forging the bills. These firms are fictitious and there is no
account of the received amount vide these bills in the record of sale tax and
income tax. There is no entry in the registers regarding purchase of new
items/articles. The NOC is required to be obtained from the PWD, B&R
prior to construction of the building, but AC-4 and THC have got prepared
fake/forged seal of SDO, PWD and they have also forged the signatures of
some senior officers regarding completion of formalities for recovery of
bills. DSP Arun Kumar was transferred on 10.01.2004 but his signatures are
forged by the THC on 17.1.2004 on the bills of survey committee and other
documents. Similarly, signatures of other officers who were transferred and
the DSP Hissar are forged on several bills of survey committees.
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During inquiry by CM Flying Squad, Haryana, the allegations
leveled in all the charges except charge no. 4, 10 and 16 were found to be
true the correct. Besides these allegations, some other irregularities were
also found and thus, HC Shamshad Khan during his posting as MTO/THC
in Govt. Railway Police, Ambala committed embezzlement of total sum of
Rs. 7,81,258/- after forging the bills regarding repair of vehicles and other
different construction works. Similarly, THV Shailender Pal also committed
embezzlement of the sum of 76,000/- after preparing forged bills regarding
different construction works, they both have committed total embezzlement
of Rs. 8,57,258/- in criminal conspiracy with Ravi Azad, the then SP, GRP,
Ambala Cantt.
On the basis of the inquiry report, the instant case was
registered and investigation was set into motion. During investigation,
accused HC Shailender Pal Singh and HC Shamshad Khan, were arrested in
criminal conspiracy with Ravi Azad, the then SP, GRP, Ambala Cantt. have
committed embezzlement/misappropriation government to the tune of Rs
9,51,392/- after preparing fake and forged bills. Ravi Azad the then SP,
Railways died on 01.01.2008. HC Shamshad was dismissed from
department. After completion of investigation, challan against accused
Shamshad Khan and Shailender Pal was prepared and put in the Court for
their trial under Section 409, 467, 468, 471, 120-B of the indian Penal Code
and Section 7/8/13 of the Prevention of Corruption Act, 1988.
Copies of the challan were supplied to the accused free of costs,
as envisaged under Section 208 CrPC.
On finding a prima facie case against the accused, they were
charge-sheeted under Sections 409, 467, 471 of the Indian Penal Code and
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also under sections 13(1)(c), 13(1)(d) and 13(1)(e) of the Prevention of
Corruption Act, 1988, to which they pleaded not guilty and claimed trial.
To prove charge against the accused, the prosecution examined
as many as 44 witnesses.
This is the entire evidence adduced by the prosecution.
All the incriminating evidence which appeared against the
accused was put to them while recording their statement under section 313
CrPC to which they claimed themselves innocent and pleaded false
implication. However, they did not lead any evidence in their defence
The trial Court after going through the entire evidence led by
the parties acquitted the accused, as firstly the departmental inquiry was
held but as against charges No. 4, 10 and 16, no irregularity was found. The
prosecution in all examined 44 witnesses in this case. Further there was no
documentary evidence worth the name on the file to prove the entrustment
of money as detailed in the charge against the accused on the record. None
of the prosecution witnesses have deposed anything regarding entrustment
of money with the accused and its misappropriation with the criminal
intention. The accused were acquitted in the departmental proceedings.
P.W.2 ASI Sujan Singh in his cross examination has stated that
it is correct that there is always a committee in the office of S.P may be the
SP or the GRP or the SP of the district. The committee which consists of SP,
DSP, Inspector and Sub Inspector allows the purchase of any item and only
then a single penny can be spent and not otherwise. The amount being spent
on repair of the vehicle and repair of the building has been sanctioned by
the committee after thoroughly examining the same and after the approval
of the said committee.
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P.W.39 Arun Kumar, DSP admitted that all the bills were duly
signed by the members of the committee including him and approval was
then given by the then SP Ravi Azad. No forgery of any kind was brought to
their notice regarding forging of his signatures on any bill. The bills issued
by Nayan Enterprises of Rs.41,500/- have been signed by him. SP is the
only final authority for the purchase of material and disbursement of the
amount.
PW26 is the material witness. He stated that he supplied the
material to the office of SP Railways after getting the payment of the same.
He also stated in connection with the bills Ex P381 to Ex P389 that as and
when his quotations were accepted by the SP Railways for supply of
building material and for supply of furniture, he supplied the same and
furnished bills and received the payment from the office of SP Railways. He
handed over the buildings material or the furniture to the committee which
approved the same and the payment was made through the in-charge of the
committee. The bills are genuine and there has been no manipulation of the
single penny in the said bills.
With regard to bills Ex P390 to P419, PW27 Ram Kumar, has
stated that he supplied the building material to the office of SP Railways
and the quotations were accepted for supply of building material and the
bills were furnished and he received the payment. He handed over the
building material to the committee. The bills are genuine and there has been
no manipulation of the single penny in the said bills.
As regards the bill no. 144 Ex.P110, PW29 has stated that the
material was supplied and he received the payment. No cheating was
committed with him by any person. The bill Ex.P110 as genuine and there
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was no manipulation of a single penny.
PW31 also admitted that he received the orders by SP, GRP
Ambala to hand over the amount to Shailender Pal to give it to Jaidev
Bakshi, who was doing the work of construction of canteen and Bagicha.
He never appeared before the SP in the departmental inquiry.
PW32 has recorded the statement of Arun Kumar, DSP, who
admitted that the bills have been singed by him after due verification. He
also admitted that a constable or HC or ASI have no business to spend any
money on anything except when so directed by the committee.
PW33 Surender Singh, JE, PWD, B&R, Ambala Cantt. proved
the report Ex.P370 which was prepared by SDO Ram Karan. He stated that
the new building was already constructed when they visited the spot. They
have given their report of the spot which was not shown by the dealing
hand. They have not asked from any member of the committee in this
respect. He could not say whether the disputed spot was shown or not. He
also could not say that whether the report in question is in respect of the
disputable spot or not. No site plan of the spot has been prepared.
PW34 admitted that he supplied material in the year 2003. His
quotations were accepted and approved by committee. The receipts, bills
and quotations are genuine and there is no manipulation of even a single
penny.
After going through the detailed judgment passed by the trial
Court, we are of the view that the present appeal deserves to be dismissed as
learned counsel for the appellant could not refer to any evidence which was
led before the trial Court which could show that the accused committed the
fraud. After following the due procedure of law, the accused were acquitted
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by giving them benefit of doubt. The prosecution failed to prove that the
accused were in any manner connected/dealing with the proceedings, when
entrustment is not proved. It has come in evidence as well that the material
was supplied and all the bills were original and the payment was made to
the company/firm after getting approval from the Committee.
Finding no merits, the appeal is dismissed.
(RITU BAHRI)
JUDGE
08.03.2022 (ASHOK KUMAR VERMA)
G Arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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