1 CRIMINAL APPEAL(S.J.) No. 218 of 1995 --- (Against the judgment and order dated 26th September, 1995 passed by Special Judge (C.B.I.), North Bihar, Patna in connection with Special Case no. 32 of 1987) --- Ram Krit Singh ------------Appellant Versus State through C.B.I ---------Respondent --- P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL --- Kishore K. Mandal, J. Though the appeal is of the year, 1995 but when it was taken up for final hearing nobody appeared on behalf of the appellant in spite of repeated calls. Seeing the age of the appeal this court was left with no option but to take up its hearing by appointing one Mr. Arun Kumar Tripathi, Advocate, as amicus curiae, who, after being appointed as amicus curiae, assisted the court on behalf of the appellant. Mr. Bipin Kumar Sinha assisted the court on behalf of the Central Bureau of Investigation (C.B.I). 2) For an accusation that the appellant being a public servant committed criminal misconduct and criminal breach of trust in respect of 144 packets of imported sugar which was entrusted to him in the capacity of a public servant and that he misappropriated and converted to his own use, the said quantity of sugar or sale proceeds 2 thereof worth Rs.37440/-; obtained pecuniary advantage by illegal and corrupt means and by abusing his position as public servant by falsifying the records or documents of the FCI, an F.I.R. was lodged on 30.6.1987 vide R.C. 22/87 (Ext. 11) and the appellant was put on trial vide Special Case no. 32/87 and under the impugned judgment and order dated 26.9.1995 passed by the Special Judge (C.B.I.), North Bihar, Patna, he has been convicted under sections 409, 477A, 5(2) r/w 5(1)(c) and 5(2) r/w 5(1)(d) of the P.C. Act, 1947 corresponding to section 13(2) r/w section 13(1)(c)(d)of the Prevention of Corruption Act 1988 and sentenced to undergo rigorous imprisonment for two years with fine of Rs. 5,000/- (containing default clause) under section 409 of Indian Penal Code, two years rigorous imprisonment under section 477A of I.P.C and again rigorous imprisonment for 2 years under each provisions of Prevention of Corruption Act for which he was found guilty. 3) The prosecution case in brief is that the accused (sole appellant) ,was posted as AG-III (D).F.S.D., F.C.I., .A.R.D.C., Phase-I, Bhagalpur and he was deputed to function at Railway Siding Bhagalpur to assist the Siding Incharge namely Ram Jee Paswan, A.G.-II and in his absence to 3 function as Siding Incharge. Co-accused Deep Narain Sah (since acquitted) was the ad-hoc H/T Contractor, A.R.D.C.-I, Bhagalpur during the year, 1985. As per the prosecution case, the appellant functioned as Siding Incharge in absence of Ram Jee Paswan w.e.f. 23.10.1985 to 28.10.1985 as Sri Ram Jee Paswan was on leave. It is the prosecution case that the function of Siding Incharge was to take delivery of consignment from the Railways and to ensure loading and unloading, maintain stock position in the register concerned and thereafter to prepare and issue gate pass, D forms and other relevant records for the purpose of onward transportation. It is the prosecution case that during the period between 23.10.1985 to 28.10.1985, as many as 13 wagons containing imported sugar meant for the Food Corporation of India were placed at Railway siding at Bhagalpur for unloading/loading. The appellant being the Siding Incharge during the relevant time, received 29501 packets of imported sugar and in token of receipt of the same, he put his signature on Railway delivery book. The appellant made appropriate entries regarding receipt of the aforesaid number of packets of imported sugar in the documents in his possession including the loading and unloading register 4 (Ext.-4). As per the F.I.R., it was the primary duty of the appellant to ensure that the entire quantity of sugar referred to above was transported to A.R.D.C. Godown, Phase-I, Bhagalpur and A.R.D.C. Banka through H/T Contractor(s). The D forms revealed that out of 29501 packets of sugar, 19427 packets were issued for transportation to A.R.D.C. Phase-I, Bhagalpur during the period 25.10.1985 to 28.10.1985 and received by the co-accused Deep Narain Sah (since acquitted) which were duly transported to A.R.D.C. phase-1 at Bhagalpur. This fact was evident from document/register of A.R.D.C. phase- 1 Bhagalpur and D-forms Exhibit 5/4,5/6,5/8,5/10 and 9 series as well as monthly statement of sugar (Ext.2). It was further found from D-forms maintained on Railway siding by the appellant that 9930 packets of imported sugar were issued for transportation to A.R.D.C. Banka during the same period (23.10.1985 to 28.10.1985) which were duly received by Deep Narain Sah and transported to Banka Depot. As per the D forms, the relevant records at Banka depot indicated that the said quantity was transported to and delivered at the said depot. The rest of the consignment (bags of imported sugar) remained with the appellant. On these facts, it was averred that out of 29501 5 bags of imported sugar, 29357 packets of sugar were made over to the transporter and, in fact transported to different F.C.I. depots as per the documents and the remaining 144 packets imported sugar were neither issued by the appellant nor were transported to the above two destinations/depots and thus misappropriated by the appellant. 4) On these accusations, the appellant was made accused along with some other named accused in which, after investigation, charge sheet was filed only against the appellant and the another co-accused namely D.N. Sah (since acquitted). The learned court below took cognizance under section 120B, 409, 420 and 477A of the I.P.C and subsequently, charges were famed in the case. 5) So far appellant is concerned, charge(s) under section 409 and 477A of I.P.C. were framed apart from the separate charges u/s 5(1)(c) and 5(2) of the Prevention of Corruption Act , 1947(hereinafter referred to as the old Act) corresponding to section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter called the new Act) as also under section 5(2) of the old Act corresponding to section 13(1)(d) of the new Act. On conclusion of trial, the appellant was convicted in the manner noticed above. 6 6) The learned Trial Court as also this Court takes notice of fact that this is a case in which prosecution has heavily relied upon the documentary evidence in order to demonstrate that the appellant was entrusted with 29501 packets of imported sugar in his capacity as Siding Incharge during the relevant time and that out of the said consignment so received by the appellant, 29357 packets of imported sugar were handed over to the H/T Contractor namely co- accused D.N.Sah (since acquitted) and the remaining 144 packets of imported sugar remained within the dominion of the appellant and he subsequently misappropriated the same and converted to his own use the said quantity of sugar or sale proceeds thereof. 7) In order to prove the allegation/charge(s), as many as 12 witnesses were examined apart from bringing on record, a series of documents in order to show that the appellant was entrusted with the sugar bags and 144 of the sugar packets remaind in his possession which was never accounted for and as such he had misappropriated the same. 8) From the records, it appear that the appellant did not enter into defence. However, from the trend of the arguments advanced in the 7 court below as well as suggestions given to the witnesses, it appears that the stand of the appellant has been that he handed over the entire 29051 bags of imported sugar for transportation to accused D.N.Sah (since acquitted), for which the appellant has placed heavy reliance on Ext. 6. 9) The relevant documents which have been brought on record for consideration are Railway Delivery Book, revealing receipt of 29501 packets of imported sugar at Railway siding, Bhagalpur by the appellant being the Railway siding Incharge of F.C.I. during the relevant period, the loading/unloading register (Ext.4), D Forms (Exts. 5/4 to 5/10), which reveal transportation of imported sugar from railway siding, Bhagalpur to ARDC (Phase I) Bhagalpur and ARDC Banka. Exts. 5/4, 5/6, 5/8 & 5/10 would demonstrate that accused D.N.Sah (since acquitted) transported 19427 bags of sugar to ARDC (Phase I) Bhagalpur, w.e.f., 25.10.1985 to 28.10.1985 and he carried 9930 bags of sugar to ARDC Banka between the period 25.10.1985 to 27.10.1985 (Exts. 5/5, 5/7 & 5/9). The D Forms ( Exts. 5/11 to 5/17) are the Arrival Tally Book, which indicate that 9930 bags of sugar were received at ARDC Banka and the G Forms (Exts. 14 8 to 14/7)in the form of Daily statement of receipt of articles are the documents in the shape of daily statement of receipts indicative of the position of daily receipt of sugar packets at Banka. The main gate register is Ext.7/2, which indicates that 29357 bags of sugar (19427 bags to ARDC Bhagapur + 9930 bags to ARDC, Banka) out of total bags of 29501 were transported from Bhagalpur Railway goods shed to ARDC (Phase I) Bhagalpur and ARDC Banka.. 10) It is an admitted position that separate gate pass(es) was/were prepared and issued for each truck load of bags passing out of the railway goods shed vide Gate Pass book bearing nos. 816 & 817 (Exts.6/1 and 6/2). 11) From the evidence/documents available on records, it has been found that the sugar packets were loaded into the trucks under the supervision of the appellant who was the officer on duty at the railway siding and was under obligation to prepare and issue separate gate pass for each truck. The loaded truck was checked jointly by the FCI staff and the railways staff at the main exit gate of the railway goods shed and officers of both the departments used to maintain separate main gate register, in which entry of each truck passing 9 through used to be made after proper checking of its contents. The main gate register maintained by the FCI has been brought on record as Ext.7/2. The main gate register maintained by the railways has, however, not been brought on record. 12) P.W.8 (Joseph Topno) had deposed to the effect that he used to weighing after checking the packets with reference to the gate pass. The weighment register and entries made therein are on record as Exts.13 & 13/1. The Arrival Tally Book, the D Forms (Ext.5/11 to 5/17), the daily statement of receipts, the G Forms (Ext. 14 to 14/7) and the main gate register of railway goods shed (Ext.7/2) eloquently demonstrate receipt of consignment of sugar truck. 13) Thus, there are convincing documents on records which have been considered in detail and relied upon by the learned trial court to show that out of 29501 packets of imported sugar only 19427 packets were handed over to the transporter for being transported from the railway goods shed to the Food Storage Depot Bhagalpur and 9930 packets to Banka Depot between the period 25.10.1985 to 28.10.1985. The prosecution has brought on record documents vide Gate Pass Book (Exts. 6/1 & 6/2), D Forms 10 (Ext.5/4 to 5/10), G Forms (Ext.14 to 14/7) and the original of D Forms (Exts.9 to 9/3) as well as unloading/loading stock position register(s) (Exts. 4 & 4/1) in order to demonstrate the arrival of 29501 bags of sugar and the transportation. The total receipt of consignment of 29501 packets of imported sugar and dispatch of altogether 29357 packets of imported sugar to the different depots clearly demonstrate that the prosecution has been able to prove that 144 packets of imported sugar remained under possession of the appellant, who at the relevant time was the siding In-charge. 14) It appears that on consideration and evaluation of different exhibits, the learned trial court came to the conclusion that the documents brought on record do suggest conclusively that the appellant continued to remain in possession of remaining 144 packets of imported sugar and the same was never handed over to the transporter for onwards transportation. 15) Learned counsel appearing as amicus curiae has submitted before this court that Gate Pass Ext. 6 is the document which indicates that the balance of the 144 imported sugar packets were also handed over to the contractor for onwards transportation. He refers to the evidence of 11 P.W.3 (G.S.Trivedi), where he has stated that Ext.6 was genuine and authentic document and there was no interpolation in the figure of the date appearing thereon. It has been submitted before this court that if the said document is accepted to be genuine and valid then this would demonstrate that all 29501 packets of sugar were handed over to the accused D.N. Sah (since acquitted) for their onwards transportation to Bhagalpur and Banka depots and in view of deposition of P.Ws 8 to 11 the appellant was not liable to be punished. It has been further submitted that the Investigating Officer (P.W.12) has also not doubted the veracity of this document. The learned trial court on perusal of the document has found that the said Ext.6 bore overwriting and interpolation in the gate pass. In the date 25.10.1985 the figure “5” of the date “25” was rubbed out so much so that created a hole on the paper of Ext.6, which was visible with the naked eyes. It further appears that P.W.2 B.D.Thakur, P.W.9 S. Behra had also suggested overwriting and interpolation in Ext.6. P.W.2 in his deposition admitted that the date on Ext.6 was erased and a hole had been made on figure “5” of date “25” and the style of writing and shape of “5” of date “25” 12 was different from the earlier style of writing and shape and to the same effect P.W.9 had also deposed. In this case handwriting expert has been examined as D.W.1 who confirmed the evidence of P.Ws. 2 & 9 vide his opinion (Ext.D). It would be necessary to take note of the evidence of D.W.1 who had gone on record saying that, on examination, he found that the date appearing on Ext.6 was interpolated by erasing the original. The genuineness of gate pass (Ext – 6) could also be doubted in view of the fact that the accused appellant had entered 29501 bags of sugar and 16704 bags of wheat therein but so many bags of wheat were not mentioned in stock. It was also noticed that the entries made in Ext.6 were not as per the columns as prescribed therein. The said stand of the appellant appears to be an after thought since the appellant carried forward the said quantity of imported sugar from 28.10.1985 to 23.11.1985 in the loading/unloading register (Ext.4) maintained by him. Thus this Court, on consideration of the evidence on record, holds that the said document (Ext.6) was interpolated with and that the appellant remained in possession of 144 packet of sugar and misappropriated the same and converted to his own 13 use the same or sale proceeds thereof and thereby obtained pecuniary gain by illegal/corrupt means. 16) P.Ws. 2,3,8,9, 10 & 11 are the witnesses, who have deposed on the procedure with regard to loading and unloading of the imported sugar bags and keeping the same in the railway goods shed after being unloaded as well as the duty assigned to the appellant to maintain records of receipt and delivery to transporter for their onward transportation. 17) It is to be noted that initially P.W.3 was named as an accused in this case and subsequently he was named as prosecution witness. His examination as a prosecution was subjected to severe criticism by the accused, particularly, accused D.N.Sah (since acquitted). The evidence of P.W.3 that Ext.6 was genuine and free from interpolation does not inspire confidence. The learned trial court has rightly not placed reliance on the testimony of this witness. 18) Thus, on the basis of the evidence on record, particularly, the oral evidence and the documents referred to above, this court is also of the view that the genuineness of Ext.6 is very much under cloud and no reliance can be placed thereon. The appellant made attempts to 14 interpolate with the said document in order to shift his liability. 19) Having regard to the evidence appearing on record including the documents which are legally obliged to be maintained by the officers of the FCI, this court holds that the receipt of 29501 bags of imported sugar received by the appellant stands proved. The prosecution has also been able to prove that out of 29501 bags of imported sugar the appellant, who was incharge of the railway shed during the relevant time, had handed over only 29357 of bags of sugar to the transporter and the remaining 144 bags of imported sugar remained with him, for which there is absolutely no explanation. Ext.6 which, as indicated above, has been rightly found to be the forged and fabricated document and it was so done in order to put up the defence that the entire consignment of sugar was/were handed over to the transporter. In this view of the matter, this court does not find any infirmity in the judgment and order convicting the appellant under various sections of the Indian Penal Code as well as the Prevention of Corruption Act. 1988. 20) Learned amicus curiae then submits that, admittedly, the occurrence in this case had taken 15 place some time in the year, 1985-86. The case was registered in 1987 and since then the appellant has been made to pursue the criminal proceeding(s). The same has now terminated finally in the year 2008. On these facts, it has been submitted that the petitioner has sufficiently been punished during all these period of 22 years. He has been continuously suffering under the threat of these proceedings including the present appeal. On these facts it has been submitted that the prosecution, in the present case, has become persecution as the proceeding lingered on for over 02 decades. In the backdrop of these facts, it has been submitted that a lenient view should be taken in the matter in so far as awarding the sentence is concerned. 21) Learned counsel appearing on behalf of the Central Bureau of Investigation (C.B.I) on the other hand submitted that in a case where the conviction has been recorded under the Prevention of Corruption Act, the court should not show unnecessary sympathy or leniency to the accused. He further submits that there is no special reason for reducing the sentence below the minimum sentence as provided under the Prevention of Corruption Act. Reliance in this regard has 16 been placed in the case of Madhukar Bhaskarrao Joshi v. State of Maharashtra, AIR 2001 S.C. 147. 22) Having regard to the submissions made by the learned Counsels this court is of the view that the interest of justice shall be served if the sentence of 02 years R.I. is reduced to one year R.I. under each of Sections of the Indian Penal Code and the Prevention of Corruption Act,1988 for which he has been found guilty. Accordingly the sentence of 02 years is reduced to one year R.I. under each count(s). The sentence, as directed by the trial court, shall run concurrently. However, the fine imposed under Section 409 of the Indian Penal Code shall remain intact. The bail bonds of the appellant are cancelled . The appellant is directed to surrender to serve the sentence failing which the learned trial Court concerned shall take all legal steps for ensuring his appearance. 23) With the aforesaid modification in quantum of sentence, the appeal stands dismissed. (Kishore K. Mandal, J.) Patna High Court, Dated, the 17th April, 2008. Neyaz/(NAFR) 17 18