Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 109 of 2006 (Old no. 2358 of 1989) Manohari Ram Tamta S/o Sri Bahadur Ram Tamta, Resident of village Kusrani, Post Karanprayag, District Chamoli. ------- Accused/appellant. Versus The State. ------- Respondent Sri Rajendra Kotiyal, learned counsel for the appellant, Sri Tanuj Semwal, learned A.G.A. for the State. Dated: June 6, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 27th October 1989 passed by learned Special Judge, Chamoli in Sessions Trial no. 3 of 1987 State vs. Manohari Ram Tamta, whereby the learned Special Judge has convicted the accused/appellant Manohari Ram Tamta for the offence punishable u/s 409 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo rigorous imprisonment for a period of one year with fine amounting to Rs. 2,000/- and in default of payment of fine further 6 months’ rigorous imprisonment was awarded. 2. Heard Sri Rajendra Kotiyal, learned counsel for the appellant and Sri Tanuj Semwal, learned A.G.A. for the State. 3. The prosecution case, in brief, is that the accused/ appellant was posted as Clerk in the Govt. Girls B.T.C. College, Gopeshwar from 1981 to 1984 and while disposing of his assignment he had to maintain entire files, registers, Student 2 Collection Fund, C.T.D. account etc. and had to maintain account work. Besides it he had to make correspondence, to obtain signatures from the Principal, to receive the money incurred from various counts and to disburse it. On 14-15 November 1984 PW-1 Sri Sultan Singh- Account Officer made audit of the account, registers and other relevant documents of the said College and found involvement of the accused/ appellant in misappropriation of the money received by him for various counts in his own favour. The Auditor (PW-1) prepared an audit report Ext. Ka-1 in this regard. In spite of sending various written information, the accused/appellant did not hand over the charge in respect of library fund, students collection fund, caution money and consumable register. On the basis of the audit report Ext. Ka-1, PW-2 Smt. Tara Kandpal- Principal of the College lodged a written report Ext. Ka-4 on 01.10.1985 at Police Station-Gopeshwar against the accused/appellant and on the basis of the First Information Report Ex. Ka-4 the Chik report Ext. Ka-29 was prepared by Head Moharir Kulo Singh and a case crime no. 115 of 1985 u/s 409 I.P.C. and one punishable u/s 5 of the Prevention of Corruption Act in Police Station Gopeshwar was registered against the accused/appellant on 02.10.1985 at 6:30 p.m. an entry in regard to the crime was made in the G.D. a copy of which is Ext. Ka-30. The Regional Inspector of Girls School (hereinafter referred as R.I.G.S.), Garhwal Region, Pauri vide order dated 27.01.1987 gave sanction to prosecute the accused/ appellant for committing embezzlement and corruption, which is Ext. Ka-25. 4. Investigation of the case was entrusted to PW-6 Circle Inspector Lalit Singh Tolia, who during the course of investigation has taken in his possession the relevant records. The Investigation Officer made arrest of the accused/appellant and recorded statements of the witnesses. After completion of the investigation he submitted charge sheet Ext. Ka-31 against 3 the accused/ appellant u/s 409 I.P.C. and one punishable u/s 5- (2) of the Prevention of Corruption Act on 24.07.1986. 5. Under Section 219 Cr.P.C. three offences of same kind within year may be charged together provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. At the stage of framing of charge against the accused/appellant, the learned Sessions Judge while exercising the powers conferred u/s 219 Cr.P.C. vide his order dated 16.01.1988 found that various amounts related to the year 1980 to 1984, therefore the trial was split into sixteen separate cases i.e. Sessions Trial no. 3/1987 u/s 409 I.P.C. in relation to the present appeal and Session Trial no. 3A/1987 u/s 409 I.P.C., Session Trial no. 3B/1987 u/s 409 I.P.C., Session Trial no. 3C/1987 u/s 409 I.P.C., Session Trial no. 3D/1987 u/s 409 I.P.C., Session Trial no. 3E/1987 u/s 409 I.P.C., Session Trial no. 3F/1987 u/s 409 I.P.C., Session Trial no. 3G/1987 u/s 409 I.P.C., Session Trial no. 3H/1987 u/s 409 I.P.C., Session Trial no. 3I/1987 u/s 409 I.P.C., Session Trial no. 3J/1987 u/s 409 I.P.C., Session Trial no. 3K/1987 u/s 409 I.P.C., Session Trial no. 3L/1987 u/s 409 I.P.C., Session Trial no. 3M/1987 u/s 409 I.P.C., Session Trial no. 3N/1987 u/s 409 I.P.C. and Session Trial no. 3O/1987 u/s 409 I.P.C. and one punishable u/s 5(2) Prevention of Corruption Act, 1947. 6. In the aforesaid split trials the Trial Court on 16.01.1988 after hearing learned counsel for the parties farmed charge against the accused/appellant Manohari Ram Tamta for the offence punishable u/s 409 I.P.C. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. The learned Sessions Judge on 05.09.1989 has further 4 charged the accused/appellant for the offence punishable u/s 5(2) of Prevention of Corruption Act, 1947 in Sessions Trial no. 3O/1987. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined PW-1 Sultan Singh Rawat-Account Officer, PW-2 Tara Kandpal- Principal, PW-3 Shakuntala Sah- Lecturer, PW-4 Pushkar Singh Negi-Senior Clerk, PW-5 S.P. Bahuguna- Police Inspector and PW-6 Circle Inspector Lalit Singh Tolia-Investigating Officer. In the documentary evidence, the prosecution has produced Ext. Ka-2 letter dated 12.08.1985, Ext. Ka-3 letter dated 05.06.1985, Ext. Ka-4 FIR dated 01.10.1985, Ext. Ka-25 letter of sanction dated 27.01.1987, Ext. Ka-6 Bill of UNICEF dated 29th October 1985, Ext. Ka-7 letter dated 15.03.1984, Ext. Ka-8 letter dated 2.09.1985, Ext. Ka-9 to Ext. Ka-11 letters of complaints, Ext. Ka- 12 written memo of the accused, Ext. Ka-13 to Ext. Ka-22 correspondents made in different dates, Ext. Ka-23 details of cash book, Ext. Ka-24 list of registers taken into custody, Ext. Ka-26 letter of Dy.S.P., Chamoli dated 15.01.1986, Ext. Ka 27 letter of Circle Inspector sent to District Inspector of Schools, Chamoli and Ext. Ka-28 copy of G.D. entry in Rapat no. 34 at 6:05 p.m. on 28.04.1986 of the arrest of the accused and his confinement in the police lockup Gopeshwar. 8. The oral and documentary evidence was put to the accused in the form of question and answer u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. 9. In the aforesaid split up cases i.e. Sessions Trial no. 3A/1987 to Sessions Trial no. 3N/1987 in each and every Trial, after appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Special Judge has convicted the accused/appellant Manohari Ram 5 Tamta for the offence punishable u/s 409 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of one year with fine. In Sessions Trial no. 3O/1987 the learned Special Judge has convicted the accused/appellant Manohari Ram Tamta for the offence punishable u/s 409 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of one year with fine. The accused/appellant was further convicted for the offence punishable u/s 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo rigorous imprisonment for a period of one year. No appeals have been preferred aggrieved with the judgment and order passed in the split up Sessions Trial nos. 3A/1987 to 3O/1987. 10. In Session Trial no. 3/1987, after appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Special Judge has convicted the accused/appellant Manohari Ram Tamta for the offence punishable u/s 409 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of one year with fine of Rs. 2,000/- and in default of payment of fine further 6 months’ rigorous imprisonment was awarded. Aggrieved with the conviction and sentence awarded to him, the accused/ appellant has preferred this appeal. 11. The prosecution to prove its case, first of all, has examined PW-1 Sultan Singh Rawat-Account Officer, who has stated that audit of the Govt. Girls B.T.C. College, Gopeshwar was done by him on 14/15 November 1984 under the orders of Dy. Inspector of Schools and in this regard he prepared an audit report. The accused Manohari Ram remained posted as Clerk lonely in the College from 01.07.1981 to 26.07.1984. No other Clerk was posted there. On seeing clause 14(20) of the audit report he stated that on 20 page of cash book no.-2 there is endorsement that the accused was given a sum of Rs. 1,000/- as G.P.F. Advance, which was not returned by him on each month. 6 On seeing clause 14(8) of the audit report, he stated that a sum of Rs. 1,000/- was sanctioned to the watchman Shivcharan as G.P.F. Advance but the same was not given to the concerned person. On seeing entry in Pay-Bill Register no.-4, he stated that recovery of first installment of the said G.P.F. Advance was deducted from the salary in the month of May, 1984. The said watchman Shivcharan has given complaint in writing that the accused Manohari Ram did not pay Rs. 1,000/- but recovery of this amount is being deducted from his salary. On seeking entry at page no. 28 of cash book no.-2, he stated that the accused had endorsed on 15.03.1984 of a sum of Rs. 1,000/- of making payment of G.P.F. to Shivcharan, but the accused did not make signatures on the entry in page no. 4 of the G.P.F. Register no.- 11 that a sum of Rs. 1,000/- was given to Shivcharan. 12. PW-2 is Tara Kandpal- the then Principal of the College, who has stated that she remained Principal of Govt. Girls B.T.C. College, Gopeshwar since 06.04.1985. Smt. Shakuntala Sah was her predecessor. She came to know from the records of the College that the accused/appellant Manohari Ram remained posted as Clerk in the College since the period of Smt. Usha Kumar. The audit report had been received in the College before she had taken charge there. She had also seen it. Copy of the audit report was certified by her which is Ext. Ka-1 on the record. At that time Smt. Vimla Kumar was the Divisional Inspector. She received the letter dated 12.08.1985 Ext. Ka-2 with the direction to initiate legal proceedings against the accused/appellant Manohari Ram. She received another letter dated 05.06.1985 Ext. Ka-3 sent by Smt. Vimla Kumar with the direction to take legal action in regard to the misappropriated sum. She lodged report against the accused/appellant Manohari Ram in the Police Station on 01.10.1985. She identified her signatures on the written report Ext. Ka-4. She had sent copy of the audit report to the Police Station with her written report. On 27.01.1987 Km. Pangati was the in-charge R.I.G.S., who 7 remained as the Principal of her College as well as Principal of Govt. Inter College. She identified signatures of Km. Pangati on the sanction letter Ext. Ka-25. She sent a letter to the UNICEF to know the cost of the tape recorder. The tape recorder was not in the college. In the letter of UNICEF she endorsed to the Office Clerk to take action. This letter is Ext.Ka-6. On 15.03.1984 Smt. Usha Kumar sent a bank draft amounting to Rs.1,800/- through Hari Sharan Dimri to bring the sum. Copy of the letter in this regard is Ext.Ka-7 which is identified by her. 13. P.W.3 is Shakuntala Sah-Lecturer, who has stated that she remained Principal of Government Girls B.T.C. College since 28.08.1984 to 06.04.1985. The accused- appellant Manohari Ram was the Clerk of said College, when she taken over charge there. Smt. Usha Kumar was her predecessor. She saw Smt. Usha Kumar whose eye-sight was very weak. Accused/appellant Manohari Ram was posted as lone Clerk in the College, who had to maintain whole accounts of the College. The students were provided stipend from Army and Scheduled Tribe Quota. The accused was authorized to disbursed stipend to the students. On 02.09.1985, she wrote letter Ext. Ka-8 under her signatures that the sum in respect to the C.T.D. was not deposited by the accused/appellant Manohari Ram. She remained as teacher in the very college since 1982-84. Her C.T.D. contribution was being deducted from her salary in every month by the accused/appellant Manohari Ram, but the sum so deducted was not deposited in her pass book. At the time she was the Principal of the College, the students made complaints against the accused/appellant Manohari Ram. Km. Savitri Arya-B.T.C. 2nd year, Hemwati Chauhan-B.T.C. 2nd year, Rajeshwari Chandrawal met with her and made complaints on 20.09.1984 in writing for non-receipt of stipend. She made endorsement in the written complaints Ext. Ka-9 to Ext. Ka-11 directing her office to give report. The accused/appellant Manohari Ram while leaving charge, wrote a letter Ext. Ka-12 and gave the 8 same to her stating therein that he may be given 15 days’ further time to hand over charge of four counts in which she made endorsement that charge in respect of these HEADS will not be acceptable. She sent the new Clerk to the office of District Education Officer as well as to the office of Basic Education Officer, to know either the desired period is to be extended. The accused/appellant Manohari Ram has handed over his charge to the new Clerk Sri Pushkar Singh Negi. After she received the complaint, she informed to the District Harijan Welfare Officer vide her letter dated 25.02.1985 Ext.Ka-13 to know as to whether the accused/appellant drawn the sum from the fund allocated to stipend of the students after submitting the bills to the office of District Harijan Welfare Officer? The accused/appellant Manohari Ram got transferred to Gairsain from her College. She sent letter dated 07.02.1985 Ext. Ka-14 to the accused/appellant Manohari Ram at Gairsain as to why he did not hand over entire charge of his assignment and why he had not deposited the sum. For this purpose the accused/appellant was given 15 days’ time. Copies of this letter Ext.Ka-14 were also sent to the Senior Officers. On 01.02.1985 she sent letter Ext. Ka-15 to the District Basic Education Officer to the effect that the accused had not given charge for the counts of examination fee and caution money. Besides it, she mentioned in her letter Ext.Ka-15 that the bills for making payment to Super Trishul Store are being received repeatedly. On 12.12.1984 she sent a letter Ext.Ka-16 to the District Basic Education Officer, Chamoli informing that accused/appellant Manohari Ram had not returned tape recorder of the College. She sent a letter Ext.Ka-17 on 11.12.1984 to Shri Jayanand Kharkwal- Principal of Gairsain, Inter College informing that owner of the College building Shri Chet Singh made complaint to her that he has not received rent amounting to Rs.1,200/-in respect of the College building but in the record of the College his fake signatures have been done. On 20.11.1984 she received a letter sent by R.I.G.S., directing her to prepare a list in regard 9 to the irregularities committed by the accused/appellant and sent the same to her. On which she made endorsement directing his office to prepare list of financial irregularities committed by Sri Tamta. The said letter is Ext.Ka-18. On 29.10.1984 she sent a letter Ext.Ka-19 to R.I.G.S. that she may be permitted to initiate proceedings against the accused/ appellant Manohari Ram, who had assured that he will deposit the sum but he did not do so, a copy of which was also sent to the Basic Education Officer, which is Ext.Ka-20. On 29.10.1984 she sent a letter Ext.Ka-21 to the Principal, Government Inter College, Gairsain that accused/appellant Manohari Ram did not deposit the money of the College on account of which smooth work of the College is being affected. She identified signatures of Smt. Usha Kumar in letter dated 01.08.1984, Ext.Ka-22. On 14/15.11.1984 during her tenure all the accounts of the College were audited. Smt. Usha Kumar had died, therefore, her tenure was concluded after her death. 14. PW-4 is Pushkar Singh Negi-Senior Clerk, who has stated that he had worked in Government Girls, B.T.C. College, Gopeshwar from 26.07.1984 to 27.03.1985. Prior to him the accused/ appellant Manohari Ram was posted. The accused/ appellant Manohari Ram did not hand over charge in regard to the cash of the College and he executed two papers in regard to the sum involved, Ext. Ka-1 and Ka-2 in the Special Trial no. 3K/1987 and the papers were executed on 20.09.1984 by the accused and given to him in the Office. Audit of the registers and accounts of his College was done by the Audit Party in the month of November 1984. In clause no. 13 at page no.-6 of the audit report it is mentioned that the accused had made entry in the cash book for a sum of Rs.14.04 dated 16.04.1984 and a sum of Rs. 2.28 dated 16.07.1984, but the accused neither deposited these amounts in the HEAD of the College nor he obtained signatures of the Principal. A previous balance amounting to Rs. 15.71 to the identical HEAD was upon the accused/ appellant 10 Manohari Ram and in all Rs. 32.03/- was pending for realization upon the accused in regard to which he has given in writing in Ext. Ka-1 which is annexed with Special Trial no. 3K/1988, that he will deposit the same within 10 days’. A sum of Rs. 1,279.40/- in respect of the arrears of the teachers was drawn by the accused Manohari Ram from the fund of the College, but the same was not disbursed, for which the accused Manohari Ram had admittedly given in writing Ext. Ka-1, which is annexed with Special Trial no. 3K/1988, that he will refund this sum within 10 days’ to the College. He proved Ext. Ka-1 saying that it is in the handwriting and under the signatures of the accused/ appellant Manohari Ram, a copy of which is Ext. Ka-23 and is on the record. Entries in regard to the arrears of the teachers are made at page no. 67 in the Arrear Salary Register no.21, the same was submitted in the Trial Court. 15. PW-5 is S.P. Bahuguna, Police Inspector who has stated that he remained posted as Circle Inspector Chamoli since January-February 1987 to 31.07.1987. Prior to him, Sri Lalit Singh-Circle Inspector remained as Investigating Officer of this case, who submitted charge sheet against the accused. On 04.02.1987 in the presence of Smt. Tara Kandpal-Principal and Sri Sultan Singh-Account Officer, he took in his possession the relevant records of the case from the office of Govt. Girls B.T.C. College and prepared a list and after sealing the same he submitted the bundle in the Police Station Gopeshwar. He identified the signatures of Tara Kandpal and Sri Sultan Singh on Ext. Ka-24. He went for obtaining sanction to prosecute the accused to the R.I.G.S., Pauri on her call with the relevant papers and after preparing report, as she was the Appointing Authority of the accused Manohari Ram. The sanction is Ext. Ka-25 on the record. 16. PW-6 is Circle Inspector Lalit Singh Tolia- Investigating Officer, who has stated that on 27.01.1986 he was posted as 11 such in the Police Department, Gopeshwar. He initiated investigation of the case on 29.01.1986 by the orders of the Chief Judicial Magistrate, Chamoli. On the letter of Sri Radhey Shyam, Superintendent of Police, the C.J.M. Chamoli had given the said orders. He proved the signatures of Sri Radhey Shyam, S.P. He also proved the signatures of the then C.J.M. Chamoli on Ext. Ka-26. On 17.03.1986 he inquired from the Principal in regard to the accused and taken into his possession some records from the office of the Principal Govt. Girls B.T.C. College, Gopeshwar. He identified the record, which bear 79 papers in all, which he read entirely. He handed over letter dated 15.04.1986 Ext. Ka-27 to the District Inspector of Schools, Chamoli. On 28.04.1986, he arrested the accused and made inquiries. The accused was put into confinement in police lockup, Gopeshwar and an entry was made in G.D. at Rapat no. 34 at 6:05 p.m. dated 28.04.1986, a copy of the G.D. entry is Ext. Ka-28. On 30.04.1986 he obtained copy of the audit report after reaching at Govt. Girls B.T.C. College, which is Ext. Ka-1 on the record. On 01.05.1986 he recorded statement of Sultan Singh Rawat, Departmental Senior Auditor. After receiving report a FIR was lodged on 02.10.1985 against the accused Manohari Ram, by Sri Kulo Singh-Head Moharir. He identified signatures of Kulo Singh-H.M. on Ext. Ka-29 (Chik First Information Report). On the basis of the Chik FIR an entry was made on 02.10.1985 in the G.D. at Rapat no. 27 at 6:30 p.m. a copy of the G.D. entry is Ext. Ka-30. On 24.07.1986 he recorded the statements of the other witnesses i.e. Shivcharan-Peon, Padma Bai, Mradula Mishra and Shakuntala Sah and after completing the investigation he submitted charge sheet Ext. Ka- 31 against the accused/ appellant Manohari Ram on 24.07.1986 u/s 409 I.P.C. and u/s 5- (2) Prevention of Corruption Act. 17. The oral and documentary evidence was put to the accused in the form of question and answer u/s 313 Cr.P.C. 12 who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. 18. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Special Judge has convicted the accused/appellant Manohari Ram Tamta for the offence punishable u/s 409 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of one year with fine of Rs. 2,000/- and in default of payment of fine further 6 months’ rigorous imprisonment was awarded. 19. Learned counsel for the accused/appellant first of all has contended that no offence punishable u/s 409 I.P.C. is proved against the accused/appellant from the evidence produced by the prosecution. But the prosecution has produced oral and documentary evidence in order to prove the guilt of the accused/ appellant. The accused/appellant stood charge for the offence punishable u/s 409 I.P.C. that he being Clerk in B.T.C., Gopeshwar and in the capacity of a public servant he was having the dominion over Rs. 14.04 & Rs. 2.88 as school fee and Rs. 1,279.40 as house rent of school staff respectively on 16.04.1984, on 16.07.1984 and on 21.06.1984 and he dishonestly misappropriated the same and thereby committed the criminal breach of trust. In this regard PW-4 Pushkar Singh Negi-Senior Clerk has categorically stated that audit of the registers and accounts of his College was done by the Audit Party in the month of November 1984. He has stated that the accused had made entry in the cash book for a sum of Rs.14.04 dated 16.04.1984 and a sum of Rs. 2.88 dated 16.07.1984, but the accused neither deposited these amounts in the HEAD of the College nor he obtained signatures of the Principal. A previous balance amounting to Rs. 15.71 to the identical HEAD was upon the accused/ appellant Manohari Ram and in all Rs. 32.03/- was pending for realization upon the accused. Similarly, a sum of Rs. 1,279.40/- in respect of the arrears of the teachers 13 was drawn by the accused Manohari Ram from the fund of the College, but the same was not disbursed for which the accused had admittedly given in Ext. Ka-1, which is annexed with Special Trial no. 3K/1988, that he will refund this sum within 10 days’ to the College.