IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal Nos.477 & 533 of 2002 Judgment reserved on: 30.9.2008. Decided on: 7.11.2008 Cr.A.No.477 of 2002: M.G.Kapoor …Appellant. VERSUS State of H.P. ….Respondent. Cr.A.No.533 of 2002: K.K.Sood …Appellant. VERSUS State of H.P. ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants: Mr.Vinay Thakur, Advocate in Cr.A. No.477 of 2002 & Mr.M.S.Chandel, Sr.Advocate with Mr.Dinesh Thakur, Advocate in Cr.A. No.533 of 2002. For the respondent: Mr Anshul Bansal, Addl.A.G. Kuldip Singh, Judge: This judgment shall dispose of Criminal Appeal No.477 of 2002 and Criminal Appeal No.533 of 2002 both having arisen out of judgment dated 20-7-2002 passed by learned Special Judge, Kinnaur Sessions Division at Rampur Whether the reporters of the local papers maybe allowed to see the judgment? Yes Bushahr in Sessions Trial No.35 of 1996/95 whereby learned Special Judge has convicted both the accused under Sections 467, 468, 120-B, 420 IPC and Section 5(2) of Prevention of Corruption Act, 1947 / 13(2) of Prevention of Corruption Act, 1988 and both the accused were sentenced to undergo rigorous imprisonment for one year and fine of Rs.500 each under Sections 467,468,420,120-B IPC and Section 13(2) of the Prevention of Corruption Act, 1988, in default of payment of fine both the accused were directed to undergo simple imprisonment for three months under each count, substantive sentences of imprisonment were ordered to run concurrently. Criminal Appeal 477 of 2002 has been filed by M.G.Kapoor and Criminal Appeal No.533 of 2002 has been filed by K.K.Sood. In this judgment hereinafter K.K.Sood has also been referred as accused No.1 and M.G.Kapoor accused No.2. 2. The prosecution case, in brief, is that K.K.Sood accused No.1 had been working as Assistant Engineer, Irrigation & Public Health (IPH), Sub Division, Pooh since 1985, accused No.2 M.G.Kapoor had been working as Junior Engineer, IPH Section, Namgia under accused No.1 since 1985. The survey work of construction of Rishi Dogri Kuhal had been carried out in the year 1983 under Desert Development Project, Pooh. PW-11 R.L.Negi had worked Executive Engineer, IPH Division, Pooh from 1978 to 1985. PW-11 had prepared plan and estimate of construction of Rishi Dogri Kuhal, the Project Director, Desert Development Project, Pooh vide order dated 17.12.1983, copy Ext.PW- 11/A had accorded administrative approval and expenditure sanction in the sum of Rs.37,24, 600 for construction of Rishi Dogri Kuhal. The IPH Division, Pooh had undertaken the work of construction of the said Kuhal. 3. The aforesaid Kuhal was to be constructed departmentally as well as through contractors. A portion of the construction of the Kuhal had been put to tender and was allotted to two contractors DW-4 Chhering Nato and Jonju Lama. A portion of the said Kuhal was to be constructed departmentally. PW-3 H.S.Bisht, Executive Engineer, IPH, Pooh on the requisition and demand of accused No.1 had issued 11 muster rolls for construction of Rishi Dogri Kuhal for the period 1.8.1985 to 31.10.1985 in favour of accused No.1. The accused No.1 was to deploy departmental labour for construction of Rishsi Dogri Kuhal from 1.8.1985 to 31.10.1985. PW-5 Avnish Kumar had worked as Junior Engineer, IPH, Pooh from 1983 to 1987. PW-6 Gopal Singh had worked as Junior Engineer, IPH, Pooh up to 2.8.1985. Irrigation works were bifurcated from Public Works Department. PW-6 was transferred and allocated to HP PWD (B & R). PW-5 Avnish Kumar had taken charge from PW-6. 4. The work site of construction of Rishi Dogri Kuhal was within the jurisdiction of Pooh Section of IPH. The accused No.1 had not handed over 11 muster rolls for the period 1.8.1985 to 31.10.1985 to PW-5 Avnish Kumar, Junior Engineer. The prosecution case is that both the accused in conspiracy with each other had carried out false entries in 11 muster rolls without executing the works as per 11 muster rolls for the period 1.8.1985 to 31.10.1985. 5. The further prosecution case is that accused No.2 in conspiracy with accused No.1 had prepared abstract of cost of these muster rolls and had updated a portion of the relevant measurement books of these muster rolls even though the accused No.2 stood posted at Namgia. The work site of construction of Rishi Dogri Kuhal was at a distance of 32 kilometres from the headquarters at Namgia of accused No.2. 6. The accused No.1 had himself entered some of the works in the relevant measurement books. PW-12 Yog Raj was alleged to be a member of work force of IPH Sub Division Pooh in 1985. PW-12 was stated to have worked on muster rolls in construction of Pooh Kuhal in September and October 1985. The accused No.1 and 2 had shown the employment of PW-12 as a mason in construction of Rishi Dogri Kuhal. PW-12 could not have worked as mason or otherwise in construction of Rishi Dogri Kuhal simultaneously when he had been working at a different and far of site at Pooh in construction of Pooh Kuhal. 7. On 14.10.1985 at 7.30 a.m. the accused No.1 stated to have left Pooh for Rishi Dogri Kuhal for inspection of the work and payment of labour. The accused No.1 stated to have withdrawn a sum of Rs.50,000 from Sub Treasury Pooh on 14.10.1985. Out of the amount of Rs.50,000, the accused No.1 had drawn imprest of Rs.29,100 on 15.10.1985. The accused No.1 as per T.A. Bill submitted by him had been at Rishi Dogri on 15.10.1985 and 16.10.1985, he returned to Pooh on 17.10.1985 at 8.30 p.m. The accused No.1 had withdrawn a sum of Rs.50,000 from Pooh Sub Treasury on 14.10.1985 and had indicated imprest of Rs.29,100 in his favour on 15.10.1985, withdrawal of T.A. in the sum of Rs.245 for the period 14.10.1985 to 17.10.1985 was false. 8. The accused No.1 and 2 were stated to have prepared false 11 muster rolls with a view to mis- appropriate and convert to their own use the amount of Rs.67,295.50. It has been alleged that both the accused have cheated the State of the amount of Rs.67,295.50. The accused had not got the work departmentally executed as per abstract of cost of 11 muster rolls and relevant measurement books. 9. PW-1 (PW-10) Balbir Singh had worked as Executive Engineer, IPH, Pooh from January 1986 to July, 1990. The accused and DW-4 had entered into conspiracy so as to cheat the State and mis-appropriate to their own use the amount of Rs.67,295.50. A source report, copy Ext.PA/1, was received against accused by Chief Engineer, IPH, Shimla who directed PW-1 Balbir Singh, the then Executive Engineer, IPH, Pooh to look into the matter. PW-1 Balbir Singh had looked into the matter and found merit in the source report against the accused and submitted report dated 9.7.1986 Ext.PB. PW-1 was directed by the authorities to prepare draft chargesheet against accused No.1 to proceed against him departmentally. PW-1 Balbir Singh found commission of various offences at the time of execution of works of construction of Rishi Dogri Kuhal. As such Dy.S.P. Anti Corruption Zone, Shimla on 19.3.1987 had registered F.I.R. No.3 of 1987 under Sections 467, 468, 409, 420, 120-B IPC and Section 5(2) Prevention of Corruption Act, 1947 / Section 13 of the Prevention of Corruption Act, 1988 against both the accused. The case was investigated. On completion of investigation, challan was presented and both the accused were charged on 7.1.1997. The charge against both the accused was altered on 15.7.1999 for offences punishable under Sections 467, 468, 409, 420, 120-B IPC and Section 5(2) Prevention of Corruption Act, 1947 / Section 13 of the Prevention of Corruption Act, 1988. The prosecution has examined 19 witnesses. The statements of accused were recorded under Section 313 Cr.P.C. They have denied the prosecution case. It has been stated that Yog Raj who had been shown to have worked as mason in construction of Rishi Dogri Kuhal was a different person bearing the same name Yog Raj. The accused No.1 submitted that he had rightly claimed T.A. of Rs.245. The accused No.2 has stated that he had carried out entries in Part-3 of the muster rolls at the instance of accused No.1. In all four DWs were examined in defence. The learned Special Judge on conclusion of the trial convicted and sentenced both the accused, as noticed above. Hence, two separate appeals by both the accused. 10. I have heard Mr.Vinay Thakur, learned counsel for the appellant in Criminal Appeal No.477 of 2002 and Mr.M.S.Chandel, Senior Advocate assisted by Mr.Dinesh Thakur, Advocate for appellant in Criminal Appeal No.533 of 2002 and Mr.Anshul Bansal, learned Additional Advocate General, for the respondent in both the appeals and gone through the record. On behalf of the appellants, it has been submitted that the learned Special Judge has not properly appreciated oral and documentary evidence on record. The learned Special Judge has erred in not appreciating that prosecution has withheld important evidence and has not explained evidence contradicting prosecution case. It has been submitted that no case is made out against the appellants on the basis of material on record. The learned Special Judge has already acquitted both the accused under Section 409 IPC. On behalf of the appellants submission has been made for acceptance of the appeals, setting aside of the impugned judgment of conviction and sentence and acquittal of the appellants. The learned Additional Advocate General has supported the impugned judgment and has submitted that the learned Special Judge has taken great pains in assessing and evaluating the evidence which has come on record. The prosecution has proved the case beyond reasonable doubt against both the accused. The learned Additional Advocate General has submitted that accused in conspiracy with each other had caused loss to the public exchequer and made unlawful gains by defrauding the State exchequer. The learned Additional Advocate General has submitted for dismissal of the appeals. 11. In order to appreciate the contentions on either side, it is necessary to refer to evidence which has come on record. PW-1 Balbir Singh Kanwar has stated that he remained posted as Executive Engineer from January 1986 to July 1990 and accused worked under him. The Superintending Engineer, Reckong Peo vide communication dated 20.2.1986, a copy Ex.PA accompanied by a source report Ex.PA/1, directed him to enquire into the complaint against the accused. He submitted the enquiry report dated 9.7.1986, Ex.PB. The Superintending Engineer vide letter dated 13.6.1986 Ex.PC directed him to prepare draft charge- sheet and accordingly he prepared draft charge-sheet Ex.PC/1 which was submitted to Superintending Engineer through letter dated 9.7.1986 Ex.PC/2. Muster rolls regarding construction of Rishi Dogri Kuhal were issued prior to his tenure at Pooh, muster roll No.95 Ex.PD, muster roll No.96 Ex.PD/1 and muster roll No.97 Ex.PD/2 are for the period 1.8.1985 to 31.8.1985 and bear the signatures of accused. Muster roll No.104 Ex.PE, muster roll No.105 Ex.PE/1, muster roll No.106 Ex.PE/2 are for the period 1.9.1985 to 30.9.1985 and were issued in connection with the construction of Rishi Dogri Kuhal. These muster rolls bear the signatures of the accused. Muster roll No.121 Ex.PF, muster roll No.122 Ex.PF/1, muster roll No.123 Ex.PF/3 and muster roll No.125 Ex.PF/4 were for the period 1.10.1985 to 31.10.1985 and were issued in connection with the construction of said kuhal. These muster rolls bear the signatures of the accused. 12. According to his enquiry no masonry work was done on the spot as shown in muster rolls 95, 96 and 97, payments to masons at the rate of Rs.20/- per day and an amount of Rs.5400/- has been shown to have been paid to masons. The enquiry further reveals that there was difference in the quantum of work executed at the spot and the quantum of amount paid to the labourers and such difference was to the tune of Rs.41.889.35/-. The register Ex.PG maintained by accused M.G. Kapoor regarding material shows that no material was issued from his charge for construction of kuhal between 1.8.1985 to 31.10.1985. In muster roll No.106, it has been indicated that 35 man days 7x5 were spent for carrying the material vide entry Ex.PE/3. The muster roll No.121 Ex.PF and muster roll No. Ex.PF/1 indicate that paid holiday was given on 6th working day though under the rules 7th working day is to be treated as paid holiday. In cross-examination he has stated that accused were not required to associate in the enquiry which was done by him as the matter was treated as confidential. PW-1 was again examined as PW-10 and as PW-10 he has further stated that vide muster roll No.113 Ex.PW-3/A, the work of construction of additional accommodation of Govt. Middle School, Namgia was to be carried out and this muster roll was issued to M.G. Kapoor accused No.2. The payment of the work of this muster roll had been made by accused K.K. Sood and his certificate of payment is Ex.PW-10/A. Muster roll 136 Ex.PW-3/B was issued by accused K.K. Sood to Avnish Kumar, Junior Engineer, Pooh section and related to work of augmentation of kuhal. Ex.PW-9/C T.A. bill is signed by K.K. Sood and he ( PW-10) had passed the bill for payment as per endorsement Ex.PW-10/B. Ex. PW-9/C is the tour diary of K.K. Sood annexed with Ex.PW-9/B TA bill. K.K. Sood as per his (PW-10) enquiry had withdrawn funds from Treasury at Pooh on 14.10.1985 whereas he was stated to have left on tour on 14.10.1985 at 7.30 a.m. As per TA bill and tour diary K.K. Sood on 14.10.1985 had withdrawn funds from treasury and issued such funds to himself as imprest on 15.10.1985 whereas according to TA bill he was on the spot at Rishi Dogri Kuhal on 15.10.1985 to 17.10.1985. The Cash Book Ex.PW-10/C and entry of withdrawal of funds by K.K. Sood from Pooh sub-treasury is Ex.PW-10/D. On 15.10.1985 as per entry Ex.PW-10/E K.K. Sood had withdrawn a sum of Rs.29,100/- while indicating his presence at Pooh in Cash Book Ex.PW-10/C. In this way, K.K. Sood had withdrawn false TA from 14.10.1985 and 15.10.1985. In cross- examination he has stated that all the muster rolls on record were issued prior to his posting at Pooh. The work was done in some of the cases when he had taken over at Pooh. He has admitted that funds from treasury can be withdrawn on the basis of authority letter as well. He did not check the books of account of sub- treasury, Pooh of 14.10.1985 and 15.10.1985. He has admitted that from sub- treasury it could be established whether or not the payment was withdrawn through authorization. He has admitted that due to snow fall some of the work already done was washed away and damaged. According to his report the accused M.G. Kapoor had nothing to do with the work of construction of Rishi Dogri Kuhal nevertheless he had carried out some of the entries in the muster rolls referred above. The Assistant Engineer had issued muster rolls to M.G. Kapoor which were passed for payment by K.K. Sood. He has admitted that as per account Code applicable to PWD test check of 10% is carried out by Executive Engineer. 13. PW-2 S.K. Chandel has stated that he was posted as Executive Engineer(design) in the office of Superintending Engineer, IPH Circle, Reckong Peo from September 1987 to August 1989. He had visited the spot along with Inspector Hira Mani and Junior Engineer Kushal Jeet and some other police officials on 13.10.1988. He has submitted test check report Ex.PW-2/A to the Superintending Engineer. In cross- examination he has stated that accused were not associated by him during test check. He has also admitted that three winter seasons had passed since execution of the work of the kuhal on the spot when he carried out the test check. PW-3 Harash Singh Bisht has stated that he retired as Executive Engineer from IPH department on 31.3.1989. He was posted as Executive Engineer IPH Division, Pooh from 14.6.1985 to 31.12.1985. When he took over as Executive Engineer, Pooh the construction of Rishi Dogri Kuhal was already going on. The labour engaged in construction of work was provided by Contractor. The works executed by the Junior Engineer under a muster roll are checked and verified by the Assistant Engineer and Executive Engineer. During his posting at Pooh he had not checked the construction work of Rishi Dogri Kuhal at the site. The works executed at the site are first entered in the measurement book (MB) by the concerned JE and thereafter in part-2 of the muster roll by the said JE. In cross- examination he has stated that MG Kapoor was holding dual charge of Namgia section and the section in which Rishi Dogri Kuhal falls. PW-4 Raj Bahadur, Audit officer (Retd.) has stated that in the year 1986 accounts of IPH Division, Pooh were audited by a team of Accountant General, headed by K.L. Anand, Audit Officer. He (PW-4) was also a member of the said team in the capacity of Assistant Audit Officer. The accounts in respect of Rishi Dogri Kuhal were also subject matter of the above audit. The objections raised during audit in respect of the work of said Rishi Dogri Kuhal were duly incorporated in para-5 read with para-2 of the audit report Ex.PW-4/A. In cross-examination he has admitted that Ex.PW-4/A is not a complete audit report, instead it is an extract there of. There is no para-2 in audit report Ex.PW-4/A. He has also admitted that Ex.PW-4/A is not an authenticated extract of the audit report. 14. PW-5 Avnish Kumar Sharma, Junior Engineer has stated that he was posted as Junior Engineer, IPH Sub Division, Pooh from May, 1983 to June 1987. Muster rolls Ex.PE, Ex.PE/1 and Ex.PE/2 were not received by him. M.G. Kapoor was posted as Junior Engineer, Namgia saction. Ex.PW-3/A muster roll was issued to him. The work under this muster roll was got executed by him. The work force was employed under muster roll Ex.PW-3/B at the rate of Rs.14/- per day. Muster roll Ex.PW-3/B is in respect of construction of Pooh Kuhal for the month of October, 1985. The labourers are paid daily wages for 6 days and the 7th day is treated as paid holiday. One supervisor was employed under muster roll Ex.PW-3/B, he was to be paid for 30 days at the rate of Rs.14/- per day. The wages were to be calculated for 30 days instead of 31 days as till Sunday falling on 6.10.1985 the supervisor had not put in the requisite 6 working days so as to entitle him for a paid holiday. It was for this reason that on muster roll Ex.PW- 3/B he was marked absent. On expiry of requisite period muster roll Ex.PW-3/B was deposited by him in the office of Assistant Engineer along with measurement book Ex.PW-5/A with relevant entries Ex.PW-5/B. In muster roll Ex.PW-3/B daily wages of said supervisor were entered by him as Rs.14/-, similar entry was made in MB Ex.PW-5/A. These entries were later on scored off and the daily wage was shown at Rs.18/- after he submitted muster roll Ex.PW-3/B. When muster roll Ex.PW-3/B was issued to him daily wage of the said supervisor was indicated therein at Rs.14/- . It was changed to Rs.18/- later on by substituting figure 4 with figure 8 with ink. The muster rolls were passed for payment by Assistant Engineer, who was responsible for scrutinizing the muster rolls so as to ensure that the payments were made properly and correctly. In muster roll Ex.PW-3/B father’s name of supervisor Yog Raj is shown as Uma Dass and his address as village Taloti, Post Office Khatnol, District Shimla. In muster roll Ex.PF/4 one Yog Raj is shown employed as mason. The name of his father is shown as Umar Dass, village Taloti, Post Office Khetra, Tehsil Suni, District Shimla. Muster roll Ex.PW-3/B pertains to construction of Pooh Kuhal for the month of October 1985. Muster roll Ex.PF/4 pertains to construction of Rishi Dogri Kuhal and is also for the month of October 1985. Yog Raj Supervisor worked under him in October 1985 vide muster roll Ex.PW-3/B, he could not have worked as mason in the construction of Rishi Dogri Kuhal vide muster roll Ex.PF/4. In muster roll Ex.PF/4 neither thumb mark nor signatures of Yog Raj Mason are there in token of having received the amount of wages paid to him. In muster roll Ex.PW-3/B Supervisor Yog Raj has appended his signatures in token of receipt. He has further stated that he had been working as JE, Divisional Store at Pooh in addition to JE, Pooh Section from July 1985 to June 1987. In 1985, Gopal Singh, JE was incharge of Pooh Section and at that time Rishi Dogri Kuhal was also in Pooh Section. On bifurcation of PWD in the year 1984-85 Gopal Singh on allocation to the newly created department of PWD ( B&R) had relinquished charge as JE, Pooh Section and handed over the same to him (PW-5) on 24.8.1985. On bifurcation, another department of I & PH was created. The charge in respect of Rishi Doogri Kuhal was taken by PW-5 from Gopal Singh in the Section at Pooh and not on the site. Ex.PW-5/C indent was issued by M.G. Kapoor and it was received in the store duly approved by K.K. Sood and accordingly material was supplied by PW-5 to M.G. Kapoor. Ex.PW-5/D is the charge list prepared at the time of taking charge by PW-5 from Gopal Singh. Ex.PW-5/ E is the copy of charge-lists prepared at the time of handing over charge by M.G. Kapoor to PW-5. In cross-examination he has stated that he (PW-5) can not say whether Supervisor Yog Raj in muster roll Ex.PW-3/B and Mason Yog Raj in Ex.PF/4 are different persons having same name. He has admitted that in muster roll Ex.PW-3/B, 2.10.1985 was a paid holiday. He has also admitted that in case Supervisor Yog Raj had worked on 30.9.1985 to 5.10.1985 in that case that period could be taken as the requisite period for grant of a paid holiday. He has also stated that he does not remember whether daily wage of a Supervisor at that time was Rs.18/-. He has also admitted that letter Ex.DA was written by him to Executive Engineer, I & PH Division, Pooh on 18.7.1986 in response to letter dated 19.6.1986. The charge of Rishi Dogri Kuhal was with him from 24.8.1985 to 21.11.1985, but no muster roll was issued to him nor any labour was employed. Therefore, no work of the said Kuhal was executed by him during that period. 15. PW-6 Gopal Singh Negi has stated that in 1985 he was posted as Junior Engineer, HP.PWD, Sub division, Pooh. He was incharge of Pooh Section which included Rishi Dogri Kuhal. On bifurcation of HP. PWD into two independent departments, namely HP PWD (B & R ) and Irrigation and Public Health, he was allocated to the former department. On repatriation he had handed over charge to PW-5 Avnish Kumar Sharma, JE on 24.8.1985. Initially he was ordered to hand over the entire charge of his office to Avnish Kumar Sharma, but later on the order was modified and he was required to hand over charge of Rishi Dogri Kuhal to M.G. Kapoor who was posted as JE, Namgia Section at that time. On refusal of M.G. Kapoor to take over charge, he handed over charge to Avnish Kumar, JE vide charge report Ex.PW5/D. Muster rolls Ex.PD, Ex.PD/1 and Ex.PD/2 which were initially issued in his name were not taken by him. In cross-examination he has stated that after he was relieved on 2.8.1985 he had no connection with Rishi Dogri Kuhal. PW-7 Sher Singh Negi, PW-8 Uma Nand , Junior Engineer, PW-9 Mani Singh, Senior Assistant and PW-11 Roshan Lal Negi are formal witnesses mainly pertaining to record. 16. PW-12 Yog Raj son of Uma Dass has stated that he had worked in IPH Sub Division, Pooh from June 1984 to February, 1986 as Beldar Supervisor. Some times he used work in