IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No.378, 379 & 380 of 2004 Date of decision : February 23, 2011 Cr.A No.378/2004 Ramesh Dutt ….Appellant. Versus State of H.P. …Respondent. Cr.A No.379/2004 Punnu Ram …Appellant. Versus State of H.P. …Respondent. Cr.A No.380/2004 Faquir Chand ….Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : M/s Anand Sharma and Bhupinder Ahuja, Advocates. For the Respondent : Mr. Vikas Rathore, Deputy Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) The above titled three appeals are being disposed of by a common judgment, because all of them assail the same judgment, i.e. judgment dated 2nd September, 2004, of learned Sessions Judge, Chamba, by which the appellants have been convicted of offences, under Sections 409, 420, 467, 468, 120-B of the Indian Whether reporters of the local papers may be allowed to see the judgment? …2… Penal Code, and Section 13(2) of the Prevention of Corruption Act, 1988, and each one of them has been sentenced as follows: (a) Rigorous imprisonment for three years and a fine of `5,000/-, in default of payment of fine simple imprisonment for six months, in respect of offence, under Section 409 of the Indian Penal Code. (b) Rigorous imprisonment for three years and a fine of `5,000/-, in default of payment of fine simple imprisonment for six months, in respect of offence, under Section 420 of the Indian Penal Code. (c) Rigorous imprisonment for three years and a fine of `5,000/-, in default of payment of fine simple imprisonment for six months, in respect of offence, under Section 467 of the Indian Penal Code. (d) Rigorous imprisonment for two years and a fine of `4,000/-, in default of payment of fine simple imprisonment for six months, in respect of offence, under Section 468 of the Indian Penal Code. (e) Rigorous imprisonment for two years and a fine of `4,000/-, in default of payment of fine simple imprisonment for six months, in respect of offence, under Section 471 of the Indian Penal Code. (f) Rigorous imprisonment for three years and a fine of `5,000/-, in default of payment of fine simple imprisonment for six months, in respect of offence, under Section 120-B of the Indian Penal Code. (g) Rigorous imprisonment for three years and a fine of `5,000/-, in default of payment of fine simple imprisonment for six months, in respect of offence, under Section 13(2) of the Prevention of Corruption Act. 3. Case of the prosecution may be summed up thus. Appellant Faquir Chand was employed as Cashier in the Office of SDM, Chamba, during the years 1988-89. One …3… Jai Ram (now dead) was employed as Patwari in one of the Patwar Circles of Tehsil Chamba, during those days. Appellant Ramesh Dutt was employed as Licencing Clerk in the Office of SDM. Appellant Punnu Ram was Pradhan of Panchayat Gagla. In September 1988, due to heavy rains, houses of some of the persons, residing within the Patwar Circle of Patwari Jai Ram (now dead), were damaged. Government decided to provide relief to the persons, whose houses had been damaged. Patwari Jai Ram (now dead), being the Incharge of the area as Revenue Official at the lowest level, was required to assess the damage and to submit reports. He submitted report of assessment of damage, in respect of nine persons and on his recommendation those persons were granted relief. Names of those persons and the amount of relief recommended in their favour are as follows: Sr. No. Name of the person Amount sanctioned 1. PW-1 Dalo `4,000.00 2. PW-2 Lakhu `4,000.00 3. PW-3 Hira `4,000.00 4. PW-4 Bhagat Ram `4,000.00 5. PW-17 Hardyal `2,000.00 6. PW-18 Chand `2,000.00 7. Rasila `2,000.00 8. Waziru `4,500.00 9. Chanchlo `3,500.00 Aforesaid amounts of relief were sanctioned by the SDO (C)/SDM and shown to have been disbursed to the said …4… persons in Register Ex. P-1, by appellant Faquir Chand, who was the Cashier. Some of those persons, to whom money, representing the relief, was disbursed, were identified by the Patwari of the area, namely Jai Ram (now dead), some by appellant Punnu Ram and some by appellant Ramesh Dutt and it was on such identification that appellant Faquir Chand disbursed the money to the identified persons, in the presence of the then SDM Shri R.N. Batta (PW-6). 4. A complaint (Ex. PW-1/A) was made by PW-1 Dalo to Superintendent of Police, Anti-Corruption, alleging that he had not been paid any amount of relief, on account of damage to his house and that the money had been disbursed to some other person. Matter was inquired into. Inquiry revealed that there had been bungling in the matter of disbursement of the relief. Case was formally registered. 5. During the course of investigation, it was found that the above-named nine persons were though shown to have been sanctioned and disbursed the amounts of relief, mentioned against their names, in fact nothing had been paid to them and the money had been paid to some other persons, on false identification by appellant Punnu Ram, Patwari Jai Ram (now dead) and appellant Ramesh Dutt, Licencing Clerk. Specimen signatures of those of the above- named nine persons, whose purported signatures appeared on the Acquaintance Rolls and in the Cash Book, were taken before Judicial Magistrates. Specimen thumb impressions of those, whose purported thumb impressions appeared on …5… such Rolls and Cash Book, were also taken. Handwriting and Fingerprints Experts were approached to express their opinion. They opined that the purported signatures and the thumb impressions of the claimants were different from their specimen and standard signatures/thumb impressions. 6. All the three appellants were challaned. They were charged with the aforesaid offences and, on their pleading not guilty, were tried. 7. Prosecution examined a number of witnesses, including six of the persons, in whose favour relief had been sanctioned. Two of them could not be produced, because of their having died before start of the trial. The then SDM Shri R.N. Batta was examined as PW-6 and Handwriting Expert was examined as PW-33. Various Police Officers, who partly investigated the case and seized the record, were also examined. 8. Appellant Faquir Chand took the plea that he had disbursed the money, in the presence of the SDM, on the identification of the alleged sufferers and he had no criminal intention nor did he misappropriate any part of the money. Appellant Ramesh Dutt took the plea that he only identified four of the persons, namely PW-1 Dalo, PW-2 Lakhu, deceased Chanchlo and deceased Waziru, but no payment was disbursed to them in his presence. Appellant Punnu Ram denied having identified any person. 9. Trial Court concluded that all the three appellants and deceased Jai Ram had conspired to deprive …6… the above-named nine persons of the money sanctioned as relief in their favour and to misappropriate that money and pursuant to that conspiracy they prepared bogus record of disbursement of money. Consequently, all the three appellants were convicted and sentenced, as aforesaid. Patwari Jai Ram was dead, by the time the trial commenced. 10. I have heard learned counsel for the appellants as also learned Deputy Advocate General and perused the record. 11. Plea taken by Faquir Chand that he had disbursed the money, on identification of the sufferers by appellant Punnu Ram, appellant Ramesh Dutt and Patwari Jai Ram (now dead), is supported by prosecution’s own evidence, i.e. testimony of PW-6 Shri R.N. Batta. The witness very categorically stated that the money had been disbursed by appellant Faquir Chand in his presence to the persons, who had been identified by appellant Punnu Ram, appellant Ramesh Dutt and the Patwari. Now, when prosecution’s own witness is saying that the money had been disbursed to the persons, who were identified as sufferers by the other two appellants and deceased Patwari Jai Ram, it cannot be said that he had any role to play in the alleged mischief. Therefore, his conviction and sentence are not sustainable. 12. As regards appellant Ramesh Dutt, he admits in his statement, under Section 313 of the Code of Criminal Procedure, that he had identified four of the claimants, …7… namely PW-1 Dalo, PW-2 Lakhu, Waziru and Chanchlo, but his plea is that the money had not been disbursed in his presence and so he cannot be made liable. He has not explained as to what was the occasion for his identifying the above-named four persons to appellant Faquir Chand. Therefore, the presumption is that he identified them only for the purpose of disbursement of relief money to them. It is true that PW-1 Dalo and PW-2 Lakhu have stated that appellant Faquir Chand had required them to arrange for some identifier and so they approached Ramesh Dutt, who was from their village and he identified them to appellant Faquir Chand and that no money was paid to them in the presence of Ramesh Dutt, but they have apparently stated so, on account of Ramesh Dutt being their co-villager, whom they wanted to help. They have not explained as to what was the occasion for their identification, when the money was not to be disbursed. This apart, PW-6 Shri R.N. Batta, the then SDM, has very categorically testified that money was disbursed to the persons by appellant Faquir Chand, in his presence, after their identification by appellant Ramesh Dutt. So, the plea cannot be accepted. 13. So far as appellant Punnu Ram is concerned, his plea is of denial simplisiter. That cannot be accepted, in view of the testimony of PW-6 Shri R.N. Batta, the then SDM, who stated that some of the claimants were identified by Punnu Ram. Acquaintance Roll Ex. PW-3/B and also Ex. PW- …8… 4/A bears signatures Q-41 and Q-42 of this appellant as identifier of two of the claimants, namely Hiru (PW-3) and Bhagat Ram (PW-4). Opinion of Expert Shri M.L. Sharma (PW-33), which is Ex. PW-29/B, is to the effect that the aforesaid questioned signatures Q-41 and Q-42 tally with the specimen signatures of appellant Punnu Ram mark S-48 to S-50 on paper sheets Ex. PW-19/11, Ex. PW-19/12 and Ex. PW-19/13. These specimen signatures were taken in the presence of PW-19 Shri A.C. Thalwal, who was then posted as Chief Judicial Magistrate, Chamba. The witness stated that specimen signatures were taken in his presence, on identification of this appellant by Shridhar, Inspector Vigilance. The witness was not cross-examined. That means the appellant does not deny that specimen signatures, on paper sheets Ex. PW-19/11, Ex. PW-19/12 and Ex. PW-19/13, are his own. The aforesaid evidence of PW-6 Shri R.N. Batta and opinion evidence of PW-33 Shri M.L. Sharma and his written opinion Ex. PW-29/B give a complete lie to the defence plea of appellant Punnu Ram. 14. As a result of the above discussion, appeal filed by appellant Faquir Chand is accepted, his conviction and sentence are set aside and incidentally he is acquitted. 15. So far as appeals filed by the other two appellants, are concerned, the aforesaid criminal acts of appellants Ramesh Dutt and Punnu Ram do not fall within the mischief of most of the offences of which they have been convicted. Their acts do not fall within the definition …9… of offence of “criminal breach of trust” nor are they covered by the category of offence of forgery. There is no evidence, indicating that they were acting, pursuant to a conspiracy hatched by them. Also, their acts are not covered by the offence of criminal misconduct by a public servant, defined in Section 13(1) of the Prevention of Corruption Act, 1988. However, their acts fall within the definition of “Cheating and dishonestly inducing delivery of property”, under Section 420 of the Indian Penal Code, as they falsely identified the persons entitled to relief and thereby induced appellant Faquir Chand and the SDM to disburse money to those falsely identified persons. So, their conviction and sentence for all the offences, except offence, under Section 420 of the Indian Penal Code, is set aside. Their conviction and sentence for offence, under Section 420 of the Indian Penal Code, is maintained. Appeals stand disposed of accordingly. February 23, 2011(sd) ( Surjit Singh ), J