Criminal Appeal (SJ) No.145 OF 1999 With Criminal Appeal (SJ) No. 162 OF 1999 -------- Against the judgment and order dated 18.6.1999 in Special Case no. 13 of 1989 by Sri Shree Prakash Rai, Special judge (Vigilance), North Bihar, Patna. --------- Cr. Appeal No. 145 of 1999 Indra Daman Singh alias Indra Daman Sinha, son of late Sharwan Dhari Singh, resident of Ramni Bigha, P.S. – Dhanarua, District – Patna …………… Appellant Cr. Appeal No. 162 of 1999 Chanda Rani, wife of Ran Vijay Singh (original appellant), resident of Mohalla – Amarpur (Hajipur), P.S. – Hajipur, District – Vaishali ……………..Appellant Versus The State of Bihar ……….Respondent (in both the appeals) ------ For the Appellants : Sarvashree Sumant Singh, Aruni Singh, Sandip Kumar Gautam, (Amicus Curiae) Advocates For the Vigilance : Shree Arvind Kumar, Law Officer, ------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha, J. The two appeals have been preferred by the two appellants to question the propriety and correctness of finding of their guilt and sentences passed upon them, who were put on trial by the 2 learned Special Judge, Vigilance (Vigilance Cases), North Bihar, Patna in Special Case no. 13 of 1989 by framing charges under sections 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and sections 420, 468, 471, 409 and 120B IPC. The charges under the Prevention of Corruption Act were corresponding to sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. 2. Originally, there were two appellants, namely, Indra Daman Singh alias Indra Daman Sinha and Ran Vijay Singh but, during the pendency of these appeals, appellant of Cr. Appeal No. 162 of 1999, that’s, Ran Vijay Singh died and his wife, Chanda Rani was permitted by order dated 4.1.2001 to prosecute the appeal as in spite of the sentences of imprisonment having abated on account of death of the said appellant Ran Vijay Singh, the sentence of fine was very much operative. 3. Both the appellants, including the deceased appellant Ran Vijay Singh, were found guilty of committing offence under sections 409, 420, 468, 471 and 120B IPC as also under sections 13(2) read with sections 13(1)(d) of the Prevention of Corruption Act, 1988 and each of them was directed to suffer rigorous imprisonment for two years on each of the counts. A fine of rupees seven thousand was imposed on the two convicted persons as regards their conviction for the offences under the Prevention of Corruption Act and in case of default in paying up the amount of fine, each of them was directed to suffer further imprisonment for six months. 3 4. The case related to repair works of flanks of the road running between Chapra and Dighwara and it was found that an amount of Rs.2,275 only had been misappropriated on the said repair works by falsification of accounts by committing forgeries in the muster rolls in respect of the above noted scheme. Forgery was alleged in respect of the thumb impressions in respect of certain labourers whose name appeared in the muster roll and who had been shown to have been paid on account of having invested their labour in the scheme. Specific allegation in the above behalf was that in muster roll no. 72 dated 14.11.1976 at page 1 and sl. No. 2 one Harendra was appearing as a labourer and on the same muster roll at page 4 at sl. No. 31 and 34, two other names of labourers, i.e., Bishwanath and Rajendra were recorded, but in all the above three cases, the LTIs were found of one person. Likewise, at page 2 sl. Nos. 14 and 15 the names of the labourers were Budhdeo and Tahalu, but the thumb impressions obtained on the muster roll were of the same person in both the cases. Similar was the case with serial numbers 16 and 17 at page 2 in respect of labourers Lohari, and Sagar and Nand Kishore and Suresh at page 4 serials number 34 and 33. It was alleged by P.W. 3 Sheetal Prasad Verma in his report that the amount shown to be paid to them had been defalcated after committing forgery with regard to the documents (muster roll) which was in token of making payment of the wage amount. 4 5. On the basis of the typed report of P.W. 3 (Ext.2), Ext. 2/1 FIR was drawn up by Vigilance Police station and the investigation was proceeded with. During that course, the photographs of the disputed LTIs were obtained, the negatives of which have been marked material ext. 1 to 9 as may appear from the evidence of P.W. 10 Sri Daya Lal, who was the photographer in the Crime Investigation Department and who produced the material exhibits. Those were sent for comparison and accordingly, the Director, Finger Print Bureau, Bihar submitted his report (Ext.7) which indicted that the LTIs on page 2 which were claimed as per muster roll being those of Budhdeo and Tahalu appear of the same and one person as may appear from the marked photographs A and B. Likewise, those marked C and D on the same page, which could be in respect of serial numbers. 16 and 17 of the muster roll were also appearing similar and on that account was of one person. As regards two LTIs at page 4 which were said to be of Nand Kishore and Suresh, those were also found tallying on account of being LTI of one person. It is true that the Director, Finger Print Bureau had not been examined but the report is admissible and has to be read in evidence on account of the provision of section 293 of the Code of Criminal Procedure, which directs that such report on any officer or expert, like, the Director of Finger Print Bureau of the State Government may be used as evidence in any enquiry or trial or other proceedings. 5 6. Thus, what appeared from the evidence (Ext. 7), which was the report submitted by the Director, Finger Prints Bureaue, Government of Bihar was that the allegations that the thumb impressions on the muster roll showing work taken from and payments made to the labourers was true and that part of document which is the indication regarding making payment of wages and receipt of the same by each of the labourers and forged document, giving rise to an inference, further, that the labourers were also fake names and no payment had, in fact been made to any of them and the amount shown paid to them was defalcated was forged and fabricated. 7. As regards the evidence, the total number of ten witnesses were examined but the evidence of all witnesses are not material as regards the proof of charges. 8. P.W. 1 Rajendra Rai was an ASI of vigilance, who produced the measurement book which was seized during investigation and that measurement book has been marked as Ext. 6. P.W. 2 Ram Nath Prasad was a typist in Law Department, Government of Bihar and he proved the sanction order for prosecution of appellant Indra Daman Singh. P.W. 3 was examined to prove Ext. 2, the FIR whereas P.W. 4 was the Executive Engineer, who had sanctioned work and had allotted fund for completion of the work and he has given evidence on those parts of the scheme. P.W. 5 Uday Krishna Agrawal was the Chief Engineer in the PWD and he had issued Ext. 4, yet another order sanctioning prosecution of deceased 6 appellant Ran Vijay Singh as he was the appointing authority of the Junior Engineer. P.W. 6 Binod Bihari Sinha was the Executive Engineer, P.W.D, Chapra Road Division and his evidence is material as regards the proof of the muster roll and measurement book. He has stated that five muster rolls exts. 5 to 5/4 were in the writing of the deceased appellant Ran Vijay Singh and the amount which have been shown paid to the labourers had been passed by the other appellant Indra Daman Singh. Likewise, the measurement book was also in writing of deceased appellant. Likewise, the measurement book was also in writing of the deceased appellant Ran Vijay Singh, the entries of which had been passed by the appellant Indra Daman Singh. This witness P.W. 6 has given evidence further on the fact that the muster roll was prepared by J.E., i.e., the deceased appellant Ran Vijay Singh and that could be sent, for passing purposes, to the S.D.O., i.e., the Assistant Engineer, like, the present appellant Indra Daman Singh and further that the work was under the Junior Engineer and the same was under direct supervision of the Junior Engineer. On the basis of the attendance sheet, the muster roll is prepared and that is in respect of work of ten days and after the same being passed, the payments are made. P.W. 7 has produced the report of the Director, Finger Prints Bureau which has been marked as Ext. 7 and P.W. 8 Ram Chandra Lal was an Inspector in the Vigilance Cell at the relevant time and had not done investigation and simply handed over charge of investigation to J.N. Kunwar. P.W. 9 Basudeo Singh was a Work Sarkar in respect 7 of the relevant scheme and he has stated that the work of repair of flanks of the road between Chapra – Sonepur in between mile no. 5-6 and 7 and 16 was carried out and that the scheme ran for ten days and the labour charges were paid by appellant Indra Daman Singh. Measurement book was also prepared along with muster roll. The witness has identified the muster roll which was marked as Ext. 6. P.W. 10 Sri Daya Lal has produced the negatives of the photographs of the questioned LTI which were compared by the Director, Finger Prints Bureau. 9. On consideration of the evidence of P.Ws 4 Shambhu Nath Prasad, Executive Engineer, P.W. 6 Binod Bihari Sinha and P.W. 9 Basudeo Singh, the court below held the charges proved and accordingly, held the two accused guilty of offences and inflicted the sentences as indicated in the early part of the judgment. 10. Learned counsel for the appellant Indra Daman Singh, by citing a judgment rendered by the Supreme Court reported in 1995 Suppl. (3) SCC 289 submitted that if the evidence on payment was not there, then there could not be any case of defalcation and misappropriation and as such, the very conviction of the appellant Indra Daman Singh or the deceased appellant Ran Vijay Singh could not be sustained. It was submitted that there is no evidence that no payment was made or over payment was made. It was further contended that the appellant Indra Daman Singh was simply doing his supervisory duties, namely, the duties of checking bills and passing it 8 on account of the same being forwarded to him and as such his complicity could not be said to be covered either from the angle of conspiracy or on account of direct participation. Similar was the submission of learned amicus curiae appearing on behalf of Smt. Chanda Rani, the wife of deceased appellant Ran Vijay Singh. 11. There could not be any doubt in it after considering the report of the Director, Finger Print Bureau, Ext. 7 that the nine LTIs which were appearing at different serial numbers of the muster roll no. 45 dated 14.11.1976, were not the LTIs of the labourers against whose name those were appearing. As regards labourers Bishwanath and Rajendra or Harendra, the three LTIs appearing against their names were found belonging to a single person. Likewise, the Director found the LTI’s appearing against the names of Budhdeo and Tahalu at page 2 serial numbers. 14 and 15 of the same character, i.e., as of one person. As regards the finger prints at page 17 serial numbers 16, 17, 34 and 33 respectively, the evidence of Director, Finger Print Bureau does not leave any room to doubt that the document, i.e., muster rolls (Exts 5 to 5/4) were forged and fabricated records. As regards the part of the document in respect of the above noted nine labourers and the evidence through that record of making payment and the labourers receiving the same, it might be that the other LTIs were not verified or were not found of that class as were found in the nine indicated cases but, that could give rise to the basic presumption that the bill was not genuine rather the same was forged and fabricated for defalcating the 9 government money, which was shown paid to nine labourers which was totaling Rs.2105/-. The person or persons who framed that record or participated in any way or manner in creation of that record were definitely in league with each other so as to committing the falsification of account. 12. The contention of Shree Aruni Singh was that the appellant Indra Daman Singh was merely discharging an official obligation of passing the bill on account of the same being forwarded to or presented to him. But, when one looks at the document quite attentively, what one finds is that he was making an endorsement on it as if he had checked the entries and then after being satisfied about its genuineness and correctness, was proceeding to pass the bill. This very endorsement on the document which appears at page 57 of the list of exhibited documents, indicates that the appellant Indra Daman Singh made a record by writing cheque on 24.10.1976 and thereafter he was passing the bill on 6.11.1976. Checking the bill could very much indicate that the appellant was attempting to satisfy himself about the correctness and genuineness of all the entries including the genuineness of the persons who had been shown hired for completion of the project and who were shown getting their wages at least in nine identified cases. When the prosecution had a case of conspiracy with the accused persons, then the above evidence which is the recorded fact of appellant Indra Daman Singh, could never be ignored as it could be a very important piece of evidence as regards sharing of 10 mind and acting in tandem with other accused so as to justify the entries of the records including the wrong entries which were forged and fabricated LTIs of fictitious labourers. Thus, I find the case of forgery, creation of forged record in conspiracy with the two accused properly established by evidence. That part of evidence, which includes the evidence of P.W. 4 who had given evidence as to how muster roll is created, how it is presented and how it is passed further supports the finding as regards the omission or commission of the accused persons in doing illegal acts in legal manner. 13. Public servants, as the accused persons were, were doing acts in the garb of discharge of their official duties and the evidence of P.W. 4 indicates that the payments were made from the money advanced to them for the purpose. As regards the offence under section 13(2) or 13(1)(d) of the Prevention of Corruption Act, it is established from records that in the garb of discharging their public duties, they were misappropriating the government money by fraudulently and fictitiously indulging in falsification of account. In that view, the offence under section 13(2) read with sections 13(1)(d) of the Act also appears duly established by facts. 14. It was contended, lastly, by the learned counsel for both the appellants that the conviction was recorded in 1999 and it is now 12 years that the appeal has remained pending and further that one appellant Ran Vijay Singh died and Indra Daman Singh is a retired, old person. In my considered view, when it comes to defalcating and 11 misappropriating government money, then the seriousness is not that the amount could be few thousand of rupees or the accused could be an older person. The very central theme of such offence is that some development project has suffered and thereby the general public for whose benefits schemes are created, suffered. In a democracy where offices are created for running the state machinery for the benefit of the public, if the public servants who are handed out a job to execute in public trust, appear indulging in such acts, then any punishment or at least punishment of two years would be too minimum to be revised. 15. The two appeals bear no merit. They are dismissed. (Dharnidhar Jha, J.) Patna High Court, The 11th April, 2011, NAFR/ Anil/