Rajasthan High Court

Shyam Lal Tailor And Ors vs State Of Rajasthan Through C B I on 30 November, 2021

Bench: Manoj Kumar Vyas

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

S.B. Criminal Revision Petition No. 764/2018

1.    Shyam Lal Tailor S/o Shri Nand Lal Tailor, aged 65 years,
      R/o Mohalla Shivpuri, Khetari Mode, Neem Ka Thana,
      District Sikar. (Then Post Master, Post Office Neem Ka
      Thana).
2.    Girdhari Lal Sharma S/o Shri Radhey Shyam Sharma,
      aged 69 years, R/o Laxmi Takiz Road, Ward No.7, Neem
      Ka Thana, District Sikar. (Then Postal Assistant/assistant
      Post Master, Post Office Neem Ka Thana).
3.    Sultana Ram S/o Shri Musa Ram, aged 66 years, R/o
      Village Manaksas, Tehsil Udaipurwati, District Jhunjhunu.
      (Then Assistant Post Master, Post Office Neem Ka Thana).
4.    Durg Singh Shekhawat S/o Shri Hari Singh, aged 66
      years, R/o Village Papada, Tehsil Udaipurwati, District
      Jhunjhunu, Present R/o Near Sam School, Nayabas Road,
      Neema Ka Thana. (Then Postal Assistant, Post Office
      Neem Ka Thana).
5.    Muralidhar S/o Shri Sultan Ram, aged 56 years, R/o
      Dhandhala, Tehsil Neem Ka Thana, District Sikar. (Then
      Postal Assistant, Post Office Neem Ka Thana).
6.    Suwa Lal Kalodiya @ S.L. Kalodiya S/o Shri Prabhati Lal,
      aged 70 years, R/o Village Patna, Tehsil Neem Ka Thana,
      District Sikar. (Then Assistant Post Master, Post Office
      Neem Ka Thana).
7.    Subhash Chand Tailor @ S.C. Tailor S/o Shri Deen Dayal
      Tailor, aged 57 years, R/o Chhawani Road, Behind Kamla
      Nagar, Ward No.24, Neem Ka Thana, District Sikar. (Then
      Postal Assistant, Post Office Neem Ka Thana).
8.    Amar Singh Dangi @ A.S. Dangi S/o Shri Nopa Ram, 56
      years, R/o Dangi Colony, Neem Ka Thana, District Sikar.
      (Then Postal Assistant, Post Office Neem Ka Thana).
9.    Manohar Lal S/o Bodu Ram, aged 62 years, R/o Ward
      No.4, Bhudoli Road, Neem Ka Thana, District Sikar. (Then
      Postal Assistant, Post Office Neem Ka Thana).
                                                     ----Accused/Petitioners
                                 Versus
State Of Rajasthan Through PP C.B.I.


                  (Downloaded on 07/12/2021 at 09:09:20 PM)
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                                                               ----Respondent

Connected With S.B. Criminal Revision Petition No. 729/2018 Prabhu Dayal S/o Sh. Bhagwan Sahai Tailor, Aged about 76 years, R/o Ward No.7, Neem Ka Thana, District Sikar (Raj.).

----Accused/Petitioner Versus State (C.B.I.) Through PP.

----Respondent

S.B. Criminal Revision Petition No. 751/2018

1. Shyam Lal Tailor S/o Shri Nand Lal Tailor, aged 65 years, R/o Mohalla Shivpuri, Khetari Mode, Neem Ka Thana, District Sikar.

(Then Post Master, Post Office Neem Ka Thana).

2. Girdhari Lal Sharma S/o Shri Radhey Shyam Sharma, aged 69 years, R/o Laxmi Takiz Road, Ward No.7, Neem Ka Thana, District Sikar. (Then Postal Assistant/assistant Post Master, Post Office Neem Ka Thana).

3. Sultana Ram S/o Shri Musa Ram, aged 66 years, R/o Village Manaksas, Tehsil Udaipurwati, District Jhunjhunu. (Then Assistant Post Master, Post Office Neem Ka Thana).

4. Durg Singh Shekhawat S/o Shri Hari Singh, aged 66 years, R/o Village Papada, Tehsil Udaipurwati, District Jhunjhunu, Present R/o Near Sam School, Nayabas Road, Neema Ka Thana. (Then Postal Assistant, Post Office Neem Ka Thana).

5. Muralidhar S/o Shri Sultan Ram, aged 56 years, R/o Dhandhala, Tehsil Neem Ka Thana, District Sikar. (Then Postal Assistant, Post Office Neem Ka Thana).

6. Suwa Lal Kalodiya @ S.L. Kalodiya S/o Shri Prabhati Lal, aged 70 years, R/o Village Patna, Tehsil Neem Ka Thana, District Sikar. (Then Assistant Post Master, Post Office Neem Ka Thana).

7. Subhash Chand Tailor @ S.C. Tailor S/o Shri Deen Dayal Tailor, aged 57 years, R/o Chhawani Road, Behind Kamla Nagar, Ward No.24, Neem Ka Thana, District Sikar. (Then Postal Assistant, Post Office, Neem Ka Thana).

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8. Amar Singh Dangi @ A.S. Dangi S/o Shri Nopa Ram, 56 years, R/o Dangi Colony, Neem Ka Thana, District Sikar. (Then Postal Assistant, Post Office Neem Ka Thana).

9. Manohar Lal S/o Bodu Ram, aged 62 years, R/o Ward No.4, Bhudoli Road, Neem Ka Thana, District Sikar. (Then Postal Assistant, Post Office Neem Ka Thana).

----Accused/Petitioners Versus State Of Rajasthan Through C.B.I.

----Respondent S.B. Criminal Revision Petition No. 752/2018

1. Shyam Lal Tailor S/o Shri Nand Lal Tailor, aged 65 years, R/o Mohalla Shivpuri, Khetari Mode, Neem Ka Thana, District Sikar.

(Then Post Master, Post Office Neem Ka Thana).

3. Sultana Ram S/o Shri Musa Ram, aged 66 years, R/o Village Manaksas, Tehsil Udaipurwati, District Jhunjhunu. (Then Assistant Post Master, Post Office Neem Ka Thana).

5. Muralidhar S/o Shri Sultan Ram, aged 56 years, R/o Dhandhala, Tehsil Neem Ka Thana, District Sikar. (Then Postal Assistant, Post Office Neem Ka Thana).

6. Suwa Lal Kalodiya @ S.L. Kalodiya S/o Shri Prabhati Lal, aged 70 years, R/o Village Patna, Tehsil Neem Ka Thana, District Sikar. (Then Assistant Post Master, Post Office Neem Ka Thana).

7. Amar Singh Dangi @ A.S. Dangi S/o Shri Nopa Ram, 56 years, R/o Dangi Colony, Neem Ka Thana, District Sikar. (Then Postal Assistant, Post Office Neem Ka Thana).

8. Manohar Lal S/o Bodu Ram, aged 62 years, R/o Ward

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No.4, Bhudoli Road, Neem Ka Thana, District Sikar. (Then Postal Assistant, Post Office Neem Ka Thana).

----Accused/Petitioners Versus State Of Rajasthan Through PP C.B.I.

                                                                    ----Respondent


For Petitioner(s)          :     Mr. J.P. Gupta with
                                 Mr. Nishant Sharma
                                 Mr. Vivek Goyal
For Respondent(s)          :     Mr. Ashvini Kumar Sharma, Special PP



           HON'BLE MR. JUSTICE MANOJ KUMAR VYAS

                           Judgment / Order

30/11/2021

These revision petitions involve common facts and

questions of law, therefore, they are being decided by a common

order.

The revision petitions have been preferred against the

order dated 07.02.2018 passed by the court of Special Judge, CBI

Cases No.3, Jaipur in Special Criminal Case Nos.32, 33 and 34 of

2017, whereby the trial court has framed charge against the

accused-petitioners as under :-

   S.No.      Name of accused-         Charges framed                Trial court
                 petitioner           by trial court u/s          discharged u/s
    01.       Shyam Lal Tailor         120B, 420/120B,              409/120B,
                                      IPC and 13(2) r/w             467/120B,
                                      13(1)(c) & (d) P.C.           468/120B,
                                             Act                    471/120B,
                                                                  477A/120B IPC
    02.      Girdhari Lal Sharma               -do-                   -do-
    03.         Sultana Ram                    -do-                   -do-
    04.    Durg Singh Shekhawat                -do-                   -do-
    05.          Muralidhar                    -do-                   -do-
    06.     Suwa Lal Kalodiya @                -do-                   -do-
               S.L. Kalodiya
    07.     Subhash Chand Tailor               -do-                   -do-
               @ S.C. Tailor
    08.     Amar Singh Dangi @                 -do-                   -do-


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                A.S. Dangi
       09.     Manohar Lal                    -do-                 -do-

Petitioner Prabhu Dayal has been charged by the

learned trial court for offences punishable under Sections 120B,

420/120B, 409/120B, 467/120B, 468/120B, 471/120B,

477A/120B IPC and 13(2) r/w 13(1)(c) & (d) P.C. Act r/w 120B

IPC.

It has been submitted by learned counsel for the

petitioners, Mr. J.P. Gupta that the impugned order dated

07.02.2018 passed by learned trial court framing charges against

the petitioners is not legally sustainable being contrary to the

provisions of law, facts and material on record. A bare perusal of

the entire evidence collected by the Investigating Officer during

the course of investigation shows that there is nothing on record

which remotely suggests that there was ever meeting of mind

between the postal agent and the petitioners or the petitioners

agreed ever to do illegal act or to do any act by illegal means. The

evidence collected during the investigation does not suggest that

the petitioners had abused their position or had obtained any

pecuniary advantage from the postal agent. Thus, the petitioners

(officials of the Post Office at the relevant time) cannot be charged

for offence of criminal conspiracy and for other offences for which

they have been charged. It is well settled law that criminal

conspiracy can be proved by direct or circumstantial evidence but

the evidence available on record in this case is not sufficient for,

prima facie, satisfaction of the trial court for framing the charges.

No offence of cheating is made out against the employees of the

Post Office. No offence is made out under the Prevention of

Corruption Act. It is for the prosecution to prove affirmatively that

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the accused by corrupt or illegal means or by abusing their

position of authority obtained any pecuniary advantage for

themselves or for some other person. The report of the CFSL

shows that the entries in the pass-books are in the handwriting of

agent. Thus, the petitioners (employees of the Post Office) are not

responsible for the fake entries made by the postal agent in the

pass-books of respective RD account holders. No criminal

prosecution can be launched for the alleged acts of the employees

of the Post Office. By any stretch of evidence, they cannot be held

liable for criminal conspiracy with the postal agent. The

department, at the most, could have proceeded against them for

negligence in discharge of their duties. In support of his

arguments, learned counsel has placed reliance on following

judgments :-

1. S.P. Bhatnagar Vs. State of Maharashtra and A.S. Krishnaswamy Vs. State of Maharashtra (1979) 1 SCC 535.

2. Sujit Biswas Vs. State of Assam (2013) 12 SCC 406.

3. Subramanian Swamy Vs. A. Raja (2012) 9 SCC 257.

4. Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra (2008) 2 Crimes 263 (SC)

5. Radha Pisharassiar Amma Vs. State of Kerela (2007) 4 Crimes 258 (SC)

6. Dilawar Balu Kurane Vs. State of Maharashtra (2002) 2 SCC 135.

7. State of Madhya Pradesh Vs. Sheetla Sahai & Ors.

(2009) Cr.L.R. (SC) 752.

On behalf of petitioner Prabhu Dayal, it has been

submitted by Mr. Vivek Goyal, learned counsel for the petitioner

that there is no evidence on record to connect the petitioner with

the alleged offence. Petitioner was father-in-law of accused-Daya

Verma. The evidence available on record at the maximum

suggests that on few occasions, he collected the installments from

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the account holders for postal agent-Daya Verma but there is no

evidence on record to show that he ever visited the Post Office or

deposited the collected amount in the Post Office or made any

false entry in the pass-books of the account holders. Thus, the

learned trial court has erred in directing the framing of charges

against him. In support of his arguments, reliance has been

placed on following judgments :-

1. K.R. Purushothaman Vs. State of Kerala (2005) 12 SCC 631.

2. Ram Narain Poply Vs. Central Bureau of Investigation and 4 connected matters (2003) 3 SCC 641.

On the contrary, learned counsel appearing for the

respondent-CBI submitted that after investigation on the basis of

evidence, it was found that accused-Daya Verma was the postal

agent who along with co-accused Omprakash Kashyap and Prabhu

Dayal collected installments from the RD account holders while

they were not holding any authority letter in this behalf. It is

further mentioned in the charge-sheet that co-accused Daya

Verma and other co-accused Omprakash Kashyap and Prabhu

Dayal collected installments from the account holders but that

amount was not deposited in the Post Office. They made false

entries in the pass-books of respective account holders. As per the

chart available in the charge-sheet, the petitioners embezzled the

amount to the tune of Rs.5,81,410/-. The fake entries in the pass-

books of the account holders were verified by the petitioners

(employees who were working at the relevant time in the Post

Office). This evidence shows that the petitioners conspired with

the postal agent and co-accused Omprakash Kashyap and Prabhu

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Dayal, and thus facilitated the embezzlement of amount of more

than Rs.5 lakh.

It has been further submitted that as per judgment of

Hon'ble Supreme Court in Om Prakash Gupta v. State of U.P. AIR

1957 SC 458, the two sections namely Section 405 of IPC and

Section 5(1)(c) of the Prevention of Corruption Act are not

identical in essence, import and content and this conclusion

gathers much force from the suggestion that by enacting the

Amending Act of 1952 and creating sub-section (4) to Section 5

the Legislature specifically stated that the offence under Section

5(1)(c) is different from any previous existing offence under any

panel statute and there can, therefore, be no scope for speculation

about repeal. Reliance has been placed on the judgment of

Hon'ble Supreme Court in the case of Om Prakash Gupta Vs. State

of U.P. (supra). It is further submitted that during trial as many

as 64 witnesses have been examined in case No.32/2017, 31

witnesses in case No.33/2017, 34 witnesses in case No.34/2017

and the trials are at the fag end.

Heard and perused the impugned order dated

07.02.2018 and the record available on the file.

A perusal of the impugned order reveals that the

learned trial court has carefully gone through the record of the

case and relevant para of the impugned order is as below :-

Þi=koyh ij miyC/k vfHkys[kh; ,oa vU; lqlaxr lk{; ls vfHk;kstu bl Lrj ij ;g izFke n`"V~;k LFkkfir djus esa lQy jgk fd vfHk;qDrk Jherh n;k oekZ [kkrsnkjksa ls fd'r dh jkf'k;ka bdV~Bk dj eq[; Mkd?kj] uhedkFkkuk esa tek djokus tkrh Fkh rFkk vkorhZ tek [kkrksa dh iklcqdsa o vfHkdrkZ xzqi lwph lkFk esa ys tkrh FkhA blh nkSjku vkorhZ tek [kkrksa dh iklcqdksa esa [kkrksa dh fd'r dh jkf'k tek u gksus ij Hkh iklcqdksa esa eq[; Mkd?kj uhedkFkkuk dh rkjh[k eksgj yxokbZ xbZA tkWap ds nkSjku ik;k x;k fd n;k oekZ }kjk dqy 116 [kkrsnkjksa ls dqy jkf'k #i;s 5]81]410 #i;s ,df=r dh xbZ] ysfdu ml jkf'k dks ikLV vkWfQl] eq[; Mkd?kj uhedkFkkuk esa tek ugha djok;k x;kA dsUnzh; fof/k foKku iz;ksx'kkyk dk izfrosnu Hkh U;k;ky; dks izkIr gks pqdk gS] ftlls Hkh vfHk;kstu ds

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izdj.k dks cy izkIr gqvk gSA vfHk;kstu }kjk vkjksi&i= ds lkFk ijhf{kr lk{khx.k ds dFku ,oa vko';d nLrkostksa dks lwphc) dj U;k;ky; ds le{k izLrqr fd;k x;k gSA vkjksi fojpuk ds Lrj ij U;k;ky; ds er esa vfHk;kstu }kjk izLrqr lkf{;d lkexzh dk foLr`r foospu fof/kr% visf{kr ugha gSA bl Lrj ij ek= U;k;ky; dks vkjksi fojpu gsrq vko';d lkexzh ds miyC/k gksus ds vk/kkj ij fofu'p; vo/kkfjr fd;k tkuk gSA gLrxr izdj.k esa vfHk;qDrk n;k oekZ }kjk nqfoZfu;ksfxr jkf'k ds dqN leka'k dk Hkh Mkd?kj esa iquHkZj.k fd;k x;k gSAß (emphasis supplied)

Learned counsel for the petitioners have argued that

there is no material on record to infer or to, prima facie, believe

that there was meeting of mind between the petitioners and the

postal agent.

A perusal of record reveals that, prima facie, there is

material on record that false entries were made in the respective

pass-books of the account holders and these pass-books were

verified by the employees/officials of the Post Office who were

working there at the relevant time. Hon'ble Supreme Court in

Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (supra)

has held that :-

"It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible."

(emphasis supplied)

Thus, as per the legal principal enunciated by Hon'ble

Apex Court at the stage of framing of charges, the trial court has

not to see as to whether the trial will end in conviction or not the

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broad test to be applied is whether the materials on record if

unrebutted makes a conviction reasonably possible. The learned

trial court has considered the entire material available on record

and it has held that, prima facie, there are grounds for framing

the charges against the petitioners on the basis of material

available on record. There is no illegality, arbitrariness or

perversity in the impugned order. The direction of framing the

charges against the petitioners is based on, prima facie,

satisfaction of the trial court which has been arrived at on the

basis of evidence available on record. No ground is made out for

interference by this court.