IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 443 of 2002 Date of judgment: June 17, 2009 Abdul Hameed and others .. Appellants Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. M.S. Guleria, Advocate. For the Respondent: Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J. (Oral) Appellants have challenged their conviction and sentence for offences, under Sections 420 and 120-B IPC and Section 13(2) of the Prevention of Corruption Act, awarded vide judgment dated 7.6.2002, by learned Special Judge, Mandi. Trial Court has convicted and sentenced the appellants as follows: Name of the appellant Offences of which convicted and sentence awarded therefor Abdul Hameed (i) under Section 13(2) of the Prevention of Corruption Act: Rigorous imprisonment for one year and fine of Rs.10,000/-. (ii) under Section 420 IPC: Rigorous imprisonment for one year and fine of Rs.5,000/-. (iii) under Section 120-B IPC: Rigorous imprisonment for six months and fine of Rs.1,000/-. Whether reporters of the local papers may be allowed to see the judgment? - 2 - Sher Singh (i) under Section 13(2) of the Prevention of Corruption Act: Rigorous imprisonment for one year and fine of Rs.10,000/-. (ii) under Section 420 IPC: Rigorous imprisonment for one year and fine of Rs.5,000/-. (iii) under Section 120-B IPC: Rigorous imprisonment for six months and fine of Rs.1,000/-. Mohan Lal (i) under Section 420 IPC: Rigorous imprisonment for one year and fine of Rs.5,000/-. (ii) under Section 120-B IPC: Rigorous imprisonment for six months and fine of Rs.1,000/-. 2. Facts, which led to the conviction and sentencing of the appellants for the aforesaid offences, may be noticed. Appellant Sher Singh was Up-Pardahn of Gram Panchayat, Kutachi, District Mandi, in the year 1988. Appellant Abdul Hameed was working as Bank Manager in Himachal Gramin Bank, Pangna, in the said year. There was a scheme for grant of loan to poor people for setting up shops and other small establishments. Loan was to be provided at very low rates of interest. Appellant Sher Singh entered into conspiracy with the other two appellants to get bogus loan sanctioned in favour of two illiterate and rustic residents of his village, for setting up - 3 - shops. Those persons were PW-5 Bahadru and deceased Pyare Lal. The two persons were taken to Pangna by appellant Sher Singh, on the pretext that government was giving small amounts of money for purchase of fertilizer and that those amounts were not to be paid back. He took them to Himachal Gramin Bank, where their thumb impressions were obtained on certain documents. Then they were taken to the shop of appellant Mohan Lal at Pangna. There they were paid Rs.150/- each. This happened on 27.9.1988. 3. In December, 1988, a clerk from Himachal Gramin Bank, Pangana Branch, visited the village of Bahadru and Pyare Lal and demanded money from them, on account of repayment of the loans raised by them from the bank, in September, 1988. PW-6 Pardhan Daulat Ram was contacted. He told the clerk that deceased Pyare Lal and PW-5 Bahadru were innocent and rustic persons and that they could not have procured any loan. The two then made inquiries and came to know that they had been duped by the three appellants and that bogus papers regarding sanction and payment of loans, amounting to Rs.8250/- in favour of PW-5 Bahadru and Pyare Lal each, had been prepared and bogus vouchers had been issued by appellant Mohan Lal, a shopkeeper, about sale of grocery items in their favour, indicating that those grocery items had been purchased by them for setting up their grocery shops. They then lodged complaint Ext. PW5/A with the Deputy Commissioner, who got the matter enquired into through PW-9 P.C. Dhiman, then working as SDO (Civil). Inquiry indicated that the three appellants had - 4 - conspired among themselves to deceive PW-5 Bahadru and deceased Pyare Lal as also the Himachal Gramin Bank. On the basis of that report, case was got registered against the appellants. On completion of investigation, police filed Challan against all the appellants, under Section 120-B and 420 IPC and Section 13(2) of the Prevention of Corruption Act. 4. Prosecution examined 11 witnesses and proved the documents regarding sanction and disbursement of loans, to bring the charge home to the appellants. Learned trial Court has relied upon the testimony of PW-5 Bahadru, PW-6 Daulat Ram, Pardhan of the Panchayat and PW-9 P.C. Dhiman, then SDO (Civil), to reach the conclusion that there was a conspiracy among the three appellants and in pursuance of that conspiracy, offences of cheating and criminal misconduct by public servants had been committed. 5. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General and gone through the record. 6. PW-5 Bahadru testified that he and Pyare Lal had been taken to Pangna by appellant Sher Singh, on the pretext that government was providing fertilizer, free of cost and that first he took them to a shop at Pangna and then to Himachal Gramin Bank, where appellant Abdul Hameed was the Manager and that they were required to thumb impress certain documents, which were filled in by appellant Sher Singh. He also stated that after a few months he was called by PW-6 Daulat Ram, Padhan of the Panchayat and asked if he had taken - 5 - any loan from Himachal Gramin Bank and that he told him that he had not taken any loan. Further he stated that sometime thereafter Bank filed recovery suits against him and Pyare Lal and then they lodged a complaint with the Deputy Commissioner. 7. In the cross-examination, PW-5 Bahadru admitted that the civil suit filed against him and Pyare Lal had been decreed and recovery of the decretal amount effected from them by the Bank. He denied that he had made application Ext.PW2/1 to BDO, Gohar for sanction of loan and that the said application was forwarded to Himachal Gramin Bank and it was on the basis of that application, forwarded by the BDO, that loan, in question, amounting to Rs.8250/- was sanctioned in his favour. 8. PW-6 Daulat Ram stated that in the year 1988, a clerk from Himachal Gramin Bank, Pangna, visited him alongwith some loan papers of Bahadru and Pyare Lal and that he then enquired from PW-5 Bahadru and Pyare Lal if they had taken any loan and they denied having taken any loan. He stated that both of them were poor persons and they had not set up any shops in the village. 9. PW-9 P.C. Dhiman, then SDO (Civil) stated that he enquired into the matter and recorded statements of various persons, which are Exts. 9/1 to 9/8 and on the basis of those statements submitted his inquiry report Ext.PW9/A. 10. Learned trial Court has fallen in error by placing reliance upon inquiry report Ext.PW9/A, submitted by PW-9 P.C. - 6 - Dhiman. Findings recorded by the witness, in his inquiry report, cannot be used as evidence against the appellants. The Court is supposed to arrive at its own findings, based on the evidence adduced before it. 11. Learned trial Court has also observed in para 20 of its judgment that vouchers in respect of the loan amount were issued in favour of PW-5 Bahadru and deceased Pyare Lal on 27th September, 1988, but the loan was sanctioned two days later i.e. on 29th September, 1988, as per documents Ext. PW2/A-1 and Ext. PW1/A-12. This observation of the learned trial Judge is incorrect. The two documents are not dated 29th September, 1988, as recorded by the learned trial Judge, but are dated 29th August, 1988. Also, these documents are not with regard to the sanction of the loan, but they are the applications for loan, purportedly submitted by PW-5 Bahadru and deceased Pyare Lal to BDO. 12. It has come in evidence that Pyare Lal had filed a complaint in the Court of Judicial Magistrate against the three appellants, under Sections 420 and 468 read with Section 34 IPC. Pyare Lal led pre-charge evidence in that complaint. Learned Judicial Magistrate dismissed that complaint and discharged the appellants, vide order Ext. DA. A perusal of this order, Ext.DA, suggests that Pyare Lal admitted, in his testimony, that he had made an application for grant of loan to the BDO and that the BDO had forwarded that application to the Bank for grant of loan. This order is a material piece of evidence - 7 - in favour of the appellants. Learned trial Court has totally ignored it while dealing with factual aspect of the matter. 13. PW-5 Bahadru was, of course, interested in denying that he had raised loan, so that he did not have to pay the money back. Therefore, his statement could not have been accepted on its face value by the learned trial Judge. It has come in the evidence that the bank filed a civil suit for recovery of the loan amount against PW-5 Bahadru and the said suit has not only been decreed, but Bahadru has even paid the decretal amount. The fact is admitted by him in his testimony as PW-5. Though the judgment of the said civil suit is not on record, yet it can legitimately be presumed that Bahadru raised plea in the civil Court based on the allegations made by him against the appellants. The fact that the suit was decreed implies that the said plea was rejected. If this is so, Bahadru’s statement as PW- 5, before the learned Special Judge, cannot be believed, unless corroborated by independent and convincing evidence. 14. In view of the above stated position, I do not think the learned trial Judge was justified in holding the appellants guilty of the offences of criminal conspiracy, cheating and criminal misconduct by public servants. Consequently, appeal is allowed. Impugned judgment of the learned Special Judge, convicting and sentencing the appellants, is set aside and the appellants are acquitted. June 17, 2009(ss) (Surjit Singh), J