1 RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1267 of 2001 Bhag Chand S/o Late Shri Bali Ram R/o House No. 61/1-2 Hathiborkala Gaon Dehradun …………..…Appellant Versus State of Uttaranchal (now state of Uttarakhand) and Central Bureau of Investigation (C.B.I.) ……………Respondents Mr. Vinod Sharma, Advocate, present for the appellant. Mr. S.S. Adhikari, A.G.A., present for the State. Mr. Arvind Vashistha, Advocate, present for the C.B.I. Hon’ble Prafulla C. Pant, J. This appeal, is directed against the judgment and order dated 12.07.2001/ 13.07.2001, passed by Special Judge, Anti Corruption, Dehradun, in C.B.I., case no. 3 of 2000, whereby said court has convicted accused/appellant Bhag Chand under section 409, 477A of Indian Penal Code, 1860 (for short I.P.C.), and under section 13 (2) read with 2 section 13 (1)(c) of Prevention of Corruption Act, 1988 (for short P.C.A ). The convict (appellant) has been sentenced to rigorous imprisonment for a period of sixteen months and directed to pay fine of ` 4,000/- under section 409 IPC, and rigorous imprisonment for a period of one year under section 477A IPC. He has been further sentenced to rigorous imprisonment for a period of one year, and directed to pay fine of ` 4,000/- under section 13(2) read with section 13(1)(c) of P.C.A. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that appellant Bhag Chand was Cashier with Survey of India (SOI), a undertaking of Government of India at Dehradun. A information was received that during the year 1997-98, he has dishonestly misappropriated an amount of ` 81,000 (eighty one thousand) received by him from Sales Clerk , collected on account of sale of maps prepared by the S.O.I. The following false entries in the cash book were alleged to have been made by him in excess of amount actually deposited in the Bank through challans:- 3 S.No . Amount deposited through challan in bank The amount entered in cash book Excess amount entered in cash book 1. Rs. 6,258/- Rs. 16,258/- Rs. 10,000/- 2. Rs. 350/- Rs. 10,350/- Rs. 10,000/- 3. Rs. 600/- Rs. 5,600/- Rs. 5,000/- 4. Rs. 1,385/- Rs. 19,385/- Rs. 18,000 5. Rs. 325/- Rs. 15,325 Rs. 15,000 6. Rs.880/- Rs. 23,880/- Rs. 23,000 Total Rs.81,000/- 4. On the basis of above report (FIR Ex. A40) crime no. RC-4(A)/99-DAD was registered on 21.04.1999. P.W.6 Inspector Raj Singh of Central Bureau of Investigation (for short C.B.I.) investigated the crime. He interrogated the witnesses, and collected the documentary material, and also got examined signatures by hand writing expert whereafter charge sheet (Ex. A47) was filed against accused Bhag Chand and co-accused R.K. Kamboj in respect of offences punishable under section 120B, 409, 477A IPC, and one punishable under section 13 (2) read with section 13(1)(c) of P.A.C., for criminal misappropriation of public money amounting ` 71,000/-. It is also alleged in the charge sheet that accused/appellant conspired with co-accused R.K. Kamboj, and also committed forgery. 4 5. On receipt of the charge sheet, the Special Judge, Anti Corruption, Dehradun, gave necessary copies to the accused as required under section 207 Cr.P.C.. After hearing the parties, charge of offences punishable under section 120B, 409, 477A IPC, and one punishable under section 13(1) read with section 13(2)(c) of P.C.A., 1988, was framed against accused/appellant Bhag Chand to which he pleaded not guilty and claimed to be tried. Separate charge was framed against co-accused Raj Kumar Kamboj who also pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Brig. Dr. B.C. Roy (Director of Map Publication of Survey of India who granted sanction for prosecution of the present accused/appellant Bhag Chand) , P.W. 2 Dhanveer Singh Verma (a Clerk of S.O.I.), P.W. 3 A.K.Ahuja, (Surveyor General of India), P.W. 4 V.G.S. Bhatnagar (Hand Writing Expert), P.W. 5 Karta Ram (Superintendent of S.O.I) and P.W. 6 Inspector Raj Singh (who investigated the crime). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which accused admitted that he was a Cashier with S.O.I., during relevant period. However, rest of the evidence was denied by him as false. He further pleaded that the Drawing and Disbursing Officer 5 (co-accused R.K. Kamboj) also used to keep one key of the cash box. No evidence in defence was adduced but Ex. B1 and Ex. B2 were got proved from the prosecution witnesses by the defence counsel. After hearing the parties, the trial court found that the charge of offences punishable under section 409, 477A IPC, and one punishable under section 13(1) read with section 13(2)(c) of P.C.A., 1988, are proved against accused Bhag Chand. However, the trial court found that there was no conspiracy, nor the charge can be said to have been proved as against co-accused R.K. Kamboj. Accordingly, co-accused R.K. Kamboj was acquitted, and accused/appellant Bhag Chand was convicted under section 409/477A IPC, and one punishable under section 13(1) read with section 13(2)(c) of P.C.A., 1988, and sentenced him to rigorous imprisonment for a period of sixteen months under section 409 IPC, and directed to pay fine of ` 4,000/-, and rigorous imprisonment for a period of one year under section 477A IPC. He was further sentenced to rigorous imprisonment for a period of one year, and directed to pay fine of ` 4,000/- under section 13(2) read with section 13(1)(c) of P.C.A., 1988. Aggrieved by said judgment and order dated 12.07.2001/13.07.2001, passed by Special 6 Judge, Anti Corruption, Dehradun, in C.B.I., case no. 3 of 2000, this appeal preferred before this Court. 6. Admittedly, accused/appellant Bhag Chand was Cashier in the year 1997-98 with S.O.I., at Dehradun. It is also established on the record from the statements of P.W. 2 Dhanveer Singh Verma and P.W. 5 Karta Ram (Superintendent of S.O.I) that on account of sale of maps prepared by S.O.I., the proceeds used to be given by the Sales Clerk to the accused/appellant Bhag Chand who was Cashier. And it was his responsibility to deposit the same in the account of S.O.I., with Union Bank of India. The two witnesses have given all the details of as to how the amount of `71,000/- was found misappropriated by the accused/appellant Bhag Chand by not depositing actually received from the sales of the maps, and by further showing forgery in the registers that full amount received was deposited from time to time. P.W.2 Dhanveer Singh has proved what actual amounts were deposited, and P.W. 5 Karta Ram has proved what amounts are shown in the register, as deposited. P.W. 4 V.B.S. Bhatnagar who is hand writing expert has proved the deposited signatures of Bhag Chand on the 7 record. 7. Learned counsel for the accused/appellant argued before this Court that on the same set of evidence co-accused R.K. Kamboj has been acquitted, and as such the trial court has erred in law in appreciating the evidence. In this connection, it is further submitted that it has come on the record in the statement of P.W. 5 Karta Ram that one key of the cash chest used to be with cashier and another with the Drawing and Disbursing Officer (R.K. Kamboj). It has also come on the record that cashier was under supervision and control of Drawing and Disbursing Officer. However, on going through and reappreciating the evidence on record, which is read over before this Court by the learned counsel for the accused, this Court finds that there appears no criminal intention on the part of Drawing and Disbursing Officer (R.K. Kamboj) who was a Supervising Authority for the cashier (accused/appellant). But as against accused/ appellant Bhag Chand there appears no escape as he was the person directly responsible for making deposits of the sale proceeds received by him in the account of S.O.I., which he did not make in full, rather at later stage made false entries showing that 8 he had deposited the amount. As such, this Court finds no error of law committed by the trial court in distinguishing the case of present appellant from co- accused R.K. Kamboj. 8. Attention of this Court is drawn to the documents Ex. B1 and Ex. B2 which are slips relating to temporary loan of small amount of ` 2960 and ` 600/-. In the opinion of this court, firstly these two slips cannot justify the embezzlement of huge amount of ` 71,000/- by the accused/appellant. Secondly, nobody has entered into witness box on behalf of the defence to state that actually accused/appellant Bhag Chand gave these amounts to R.K. Kamboj. As such, this Court is of the view that aforesaid documents do not absolve the accused/appellant from the offences committed by him. 9. Having considered submissions of learned counsel for the parties, and after reappreciating the entire evidence on record, this Court finds no illegality in the conviction recorded by the trial court against accused/appellant Bhag Chand in respect of offences punishable under section 409, 477A IPC, and one punishable under section 13 (2) 9 read with section 13 (1)(c) of Prevention of Corruption Act, 1988. The conviction recorded by the trial court is affirmed. The sentence awarded by the trial court is reduced to one year under section 409 IPC, which is already undergone. Sentence on the other counts, is not interfered with. 10. Accordingly, the appeal is disposed of. Lower court record be sent back. (Prafulla C. Pant, J.) Parul 19.12.2011