1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Ram Narain Vs. State of Rajasthan (1) S.B.CRIMINAL APPEAL NO.1151/2004 Tarkesh Telang Vs. State of Rajasthan (2) S.B.CRIMINAL APPEAL NO.1192/2004 against the judgment dt.23.11.04 passed by the Special Judge, P.C.Act Cases, Udaipur, in Special Case No.107/97. Date of Judgment: Aug.20, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Mahesh Boda ) Mr.Anil Kumar Singh) for appellants. Mr.O.P.Rathi, Public Prosecutor. BY THE COURT : 2 1. These are the two appeals arising out of the common judgment passed by the learned Special Judge, Prevention of Corruption Act Cases, Udaipur dated 23.11.2004, whereby he convicted & sentenced both the accused appellants Ram Narain and Tarkesh Telang under various offences as under: U/Sec.120B IPC : One year's imprisonment & a fine of Rs.25,000/- and in default, to further undergo three months' S.I. U/Sec.468 IPC : One year's imprisonment & a fine of Rs.25,000/- and in default, to further undergo three months' S.I. U/Sec.201 IPC : One year's imprisonment & a fine of Rs.25,000/- and in default, to further undergo three months' S.I. U/Sec.13(1)(d) One year's imprisonment & a fine of r/w Sec.13(2) of : Rs.25,000/- and in default, to further P.C.Act undergo three months' S.I. All the substantive sentences were ordered to run concurrently. 2. Facts leading to this appeal are that Bahadur Singh, Addl.S.P., ACB, Kota received information that Mahesh Chand Saraswat, A.En., Tarkesh Telang, Jr.Accountant and Ram Narain, LDC, with a criminal conspiracy, made forged entries in the muster roll with regard to distribution of the wheat price for famine relief work at Irrigation Sub Division of Rawatbhata in the 3 year 1987. The case was registered at Police Station, ACB, Jaipur and after investigation, the challan was filed against the above two accused appellants as also Mahesh Chand Saraswat, A.En., who is absconding in this case and standing warrant has been issued against him, under ss.120B, 468 & 201 IPC and Sec.13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988, hereinafter referred-to as “the Act”. After hearing the arguments on charges, all the three were charged accordingly, to which they pleaded guilty and claimed trial. During trial, accused Mahesh Chand Saraswat absconded and the standing warrant was issued against him on 22.9.2000. As against the remaining two accused, the prosecution examined 35 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence and after hearing the arguments, the learned trial Judge convicted and sentenced both the accused appellants as above. 3. At the outset, both the learned counsel Mr.Mahesh Boda and A.K.Singh appearing for the accused appellants have submitted that there is no iota of evidence against both of them but the trial Court without assigning any reasons, convicted and sentenced accused appellants, which is per se against law and facts. According to them, the story is based on fabrication of the muster rolls on the basis of which the payments were made but 4 the muster rolls were prepared by Mahesh Chand Saraswat, A.En., about whom all the witnesses have said but he is absconding and both the accused appellants have been falsely implicated without there being any iota of evidence against them. It has been further submitted that while reproducing the evidence, the learned trial Judge in the concluding para came to the conclusion that both the accused appellants hatched conspiracy with Mahesh Chand Saraswat, A.En., and they are guilty. This finding of the trial Court is perverse and without application of mind. 4. On the contrary, learned Public Prosecutor has supported the judgment of the trial Court. 5. Upon re-appraisal of the evidence, the contention of the learned counsel for the appellants finds favour from the available record of the case. Having discussed the evidence of PW 1 to PW 35 from para No.7 to para No.46 of the judgment, the trial Court came to the conclusion in para 48 that the accused appellants Ram Narain and Tarkesh conspired with the accused Mahesh Chand in making forged entries in the muster rolls and obtained illegal gratification by putting loss to the State exchequer and thereafter sentenced them. Per se, the judgment of the trial Court is not reasoned. If the evidence is looked into, the main 5 investigating Officer is Shiv Ratan Bohra (PW 4), who was Dy.S.P. and investigated the case and seized certain documents. So far as the charge against the accused about the conspiracy with Mahesh Chand and making forged entries in the muster rolls by showing Beldars as vehicle drivers and destroying that record thereby putting loss to the State exchequer amounting to Rs.1,61,350/- is concerned, the most important evidence in the case is of Padam Singh (PW 3), who was Executive Engineer of the Irrigation Department at Ranapratap Sagar Rawatbhata from July, 1986 to May, 1988. He has stated in his evidence that at the lowest level, the famine relief work was to be looked into by Mate, who used to mark attendance of the labourers, thereafter in sequence by Mistri and Junior Engineer, who used to make entry in the muster roll by verifying the attendance. After his verification, the Asstt.Engineer used to send the requisition and on that basis, they used to sanction the payment i.e. half by cash and half with the supply of foodgrains. From the evidence of this material witness, it reveals that muster rolls were being prepared from Mate to the Assistant Engineer and the last authority of issuing the requisition on verification was A.En. Mahesh Chand Saraswat, who is absconding in this case. There was neither any role of the store keeper Ram Narain nor of Accountant Tarkesh in making forged entries. This witness has further said that the muster roll Ex.P.4 to 30 were ofcourse 6 issued by Ram Narain and on some of the muster rolls, there is signature of recipient Asstt. Engineer Mahesh Chand. In the last, he has stated that on the basis of the muster roll, A.En. used to prepare the bill in the form of impressed cash amount, which was being checked by the Jr.Accountant and his Assistant and thereafter he used to issue the order of payment. According to him, the bills Ex.P.31 to 34 and 40 to 44 are signed by him and Mahesh Chand Asstt.Engineer and the requisition for issue of check on the basis of muster roll Ex.P.35 to 39 are signed by Mahesh Chand Saraswat, A.En. And Tarkesh Telang. When this witness was cross examined, he has specifically stated that there was no cutting in the impressed cash amount and there was no endorsement of the Accounts Section of the Divisional Office. From his evidence, it is clear that there was no role of the present accused appellants in preparing the muster rolls and there was no cutting in it. 6. Heeralal Dhakad (PW 5), who was Manager of the Eklingpura Gram Sewa Sahakari Samiti, has stated that whatever foodgrains was supplied in pursuance to the muster roll, was not to the truck drivers. Askaran Singh (PW 7), who was typist of the Irrigation Department has only identified the signature of Mahesh Chand Saraswat on Ex.P.6. According to him, the payment was to be made through Assistant Engineer 7 Mahesh Chand, who used to mark attendance. According to him, Tarkesh was not posted in his office but he was in the Divisional Office. PW 21 Modulal, who was Technician at the relevant time, has stated that Mahesh Chand used to check the work at the site for the payment but he does not know under what procedure, he used to do the work. Mohan Lal (PW 23) is the Manager of the Gram Sewa Sahakari Samiti Jawahar Nagar, Chittorgarh, who has said about the supply of the wheat to the labourers in pursuance to the muster rolls being prepared by the Overseer. He does not know Tarkesh Telang and Ram Narain Meena. Prakash Chand (PW 26) has also said that the payment was used to be made on the basis of the muster roll and he does not know any one of the accused. Manoj Kumar Rajvanshi (PW 33) who was Store Assistant at the relevant time, has said that the payment to the labourers was made on the basis of the muster rolls being prepared by the J.En. and later, on verification before the A.En. According to him, the duty of the Asstt.Engineer Mahesh Chand was to prepare the bill and send the same for payment to the Divisional Office. This witness has not said anything about the role of accused appellants except about Mahesh Chand Saraswat. According to him, the role of Ram Narain Meena Store Keeper was to issue muster roll and the role of Jr.Accountant was to check the entries of the bills. Ghasilal (PW 34), who was also employee, has said nothing about 8 present two accused appellants. Rest of the witnesses are formal witnesses, who are labourers and vehicle drivers and they have not blamed these two accused appellants. 7. From the above evidence, it appears that not a single witness has said that any forged entry was made by the present accused appellants in the muster roll in conspiracy with the accused Mahesh Chand, who is absconding and they received any benefit from him. The conclusion of guilt arrived at by the trial Court is totally unfounded from the evidence on record, which cannot be sustained. Whatever witnesses have been examined by the prosecution, they implicate the role of Mahesh Chand Saraswat, who is absconding, in preparing the muster rolls and bills in accordance with the muster rolls. In view of the zero evidence against the accused appellants, they cannot be convicted for the offences charged. 8. Consequently, this appeal is allowed and the judgment dt.23.11.2004 passed by the Special Judge, Prevention of Corruption Act Cases, Udaipur convicting accused appellants Ram Narain and Tarkesh Telang for the offences u/ss.120B, 468 and 201 IPC and Section 13(1)(d) read with Sec.13(2) of the Act is set aside. They are on bail, their bail bonds stand cancelled. 9 (DEO NARAYAN THANVI), J. RANKAWAT JK, PS