Crl. Appeal No. 121-SB of 1993 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 121-SB of 1993 Date of Decision: 01.04.2009 Lall Chand son of Jhuni Ram, Luggage Porter/Assistant Guard, Northern Railway, Bathinda. .... Appellant Versus 1. The State of Punjab 2. Central Bureau of Investigation through DIG, Chandigarh. .... Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Monika Jalota, Advocate (Amicus-curiae), for the appellant. Mr. Jaspreet Singh, AAG, Punjab for respondent no.1-State. Mr. Ajay Kaushik, Central Government Standing Counsel, for respondent No.2. **** Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 10.03.1993, rendered by the Special Judge, CBI, Punjab, Patiala, vide which he convicted and sentenced the accused (now appellant ), as under:- Names of the accused (now appellant) The offence for which conviction was recorded. Sentence awarded 1 Lall Chand U/S. 420 IPC Rigorous imprisonment for one year. Fine of Rs.100/-. In default of payment of fine to undergo rigorous imprisonment for one month. 2 Lall Chand U/S 5(2) of the Prevention of Corruption Act. Rigorous imprisonment for one year. Fine of Rs.200/-. In default of payment of fine to undergo rigorous imprisonment for two months. Crl. Appeal No. 121-SB of 1993 --2-- The substantive sentences of the accused were ordered to run concurrently. 2. The facts, in brief, are that the accused was posted as Luggage Porter in the parcel office, Northern Railway, Bathinda during the year 1986 and Assistant Guard, at the same station, from April, 1986 to April, 1987. According to the procedure all the goods/parcel consignments booked by the Railways are delivered at the destination station, to the consignee, on the production of railway receipt/parcel way bill. However, in the case of consignments of perishable goods, like fruits, vegetables etc. the same are delivered even without production of the railway receipt or parcel way bill, if the consignee deposits the cost of perishable goods with the Parcel Clerk. On deposit of the amount, money receipt is issued by the Parcel Clerk. When the railway receipt becomes available, with the consignee, he deposits the same alongwith money receipt, for the refund of the amount, deposited by him. The parcel office, on receipt of the said documents, prepares a fresh fruit refund summary, wherein, the particulars of the money receipt are entered and the same is signed by the In-charge of the Parcel Office. Thereafter the summary alongwith the money receipt is sent to the booking office for making refund of the amount, to the consignee. The Booking Clerk/Supervisor obtains the signatures of the consignee, on the back of the money receipt, and then makes the refund to the consignee, through in-charge of the parcel office. Crl. Appeal No. 121-SB of 1993 --3-- 3. Lall Chand, accused, dishonestly and fraudulently managed the payee copy of the money receipt, from the parcel office of Northern Railway, Bathinda, prepared and issued the same indicating therein, the bogus amounts of deposits. It was further alleged that he prepared fresh fruit summary, mentioning therein, fictitiously the amount deposited, as mentioned in the money receipt. He, thus, withdrew the amount of Rs.2400/- on 04.01.1987, on the basis of forged money receipt No.928209 dated 21.12.1986, an amount of Rs.1600/-, on the basis of forged money receipt No. 435993 dated 15.01.1987, and an amount of Rs.1400/-, on 06.02.1987, on the basis of forged money receipt No.928250 dated 25.12.1986. In this way, the accused defrauded and cheated the Railways to the tune of Rs.5440/-. The FIR was registered against the accused. During the course of investigation, the statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 4. On his appearance, in the Court, the accused was supplied the copies of all the documents, relied upon by the prosecution. Charge under Sections 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947, and 420 of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial. Crl. Appeal No. 121-SB of 1993 --4-- 5. The prosecution, in support of its case, examined Subash Chander, Lower Division Clerk,( PW-1 ), O.P. Vashishat, Railway Sectional Officer, (PW-2), Virender Kumar, Superintendent, ( PW-3 ), Sher Singh, Senior Train Clerk, ( PW-4 ), Baldev Raj, Parcel Supervisor, (PW-5), P.K. Sharma, Superintendent, (PW-6), Assa Nand, (PW-7), Vijay Kumar, (PW-8), Jagdish Kumar, (PW-9), Ram Mitter Kapoor, Booking Supervisor, (PW-10), Amesh Kumar, Senior T.I.A., (PW-11), Sudip Roy, Inspector, (PW-12), Dr. B. A. Vaid, Government Questioned Documents Examiner, Shimla (PW- 13), Bhagwan Dass, (PW-14), R.C. Joshi, Inspector, (PW-15), Hardwari Lal, (PW-16) and Harnarain, Head Parcel Clerk, (PW-17). Thereafter, the Public Prosecutor for the CBI, closed the prosecution evidence. 6.. The statement of the accused, under Section 313 of the Code of Criminal Procedure was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence in his defence. 7. After hearing the Public Prosecutor for the CBI, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant. Crl. Appeal No. 121-SB of 1993 --5-- 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The first question that falls for determination, is as to whether the accused was posted as a Luggage Porter, in the parcel office, Northern Railway, Bathinda, and Assistant Guard at the same station from April 1986 to April 1987, and as such a public servant. The posting of the accused at Bathinda Railway Station as Luggage Porter and Assistant Guard, for the period, referred to above, was not disputed. Even otherwise, this factum was proved from the statements of Baldev Raj, Parcel Supervisor, (PW-5), Vijay Kumar, (PW-8), Jagdish Kumar, (PW-9), and Ram Mitter Kapoor, Booking Supervisor, (PW-10). From the statement of Baldev Raj, Parcel Supervisor, (PW-5), it was also proved that the services of the accused were being utilized, as a Record Lifter also. The trial Court was, thus, right, in coming to the conclusion that the accused was posted as a Luggage Porter as also the Assistant Guard at the Railway Station, Bathinda, during the period, aforesaid, and his services were being utilized as Record Lifter also. The findings of the trial Court, in this regard, being correct are affirmed. 11. The second question, that arises for consideration, is, as to whether, the receipts Ex.PW5/1 to Ex.PW5/3 and the summaries Ex.PW5/4 and Ex.PW5/5 bear the signatures/handwriting of the accused or not. Baldev Raj, Parcel Supervisor, (PW-5), with whom the accused was working as a luggage porter, in the parcel office, Bathinda, identified the handwriting and signatures of the Crl. Appeal No. 121-SB of 1993 --6-- accused on the receipts and summaries Ex.PW5/1 to Ex.PW5/5. Since Baldev Raj, Parcel Supervisor, was conversant with the handwriting and signatures of the accused, he correctly identified the same, on the aforesaid documents. Not only this, O.P. Vashishat, Railway Sectional Officer, (PW-2) deposed that the specimen signatures/hand-writings, of the accused, were taken, in his presence. This witness, after seeing the specimen signatures and hand-writing of the accused, deposed that the photocopies thereof were Ex.PW2/1 to Ex.PW2/11. Sher Singh, Senior Train Clerk, Patiala, (PW-4), also deposed that the specimen signatures and the hand-writing of the accused, copies whereof Ex.PW4/1 to Ex.PW4/6 were taken in his presence. The questioned receipts and summaries, referred to above, alongwith the specimen signatures and handwriting of the accused taken on separate sheets, were sent to the Documents Expert for comparison. Dr. B. A. Vaid, Government Questioned Documents Examiner, Shimla, while appearing as PW-13, stated that after comparison of the questioned hand-writing and signatures of the accused with his specimen handwriting and signatures, he came to the conclusion that the writings Q-257, Q-345 and Q-399 on the receipts Ex.PW5/1 to Ex.PW5/3, as also the writings Q-539 and Q-521 on the summaries Ex.PW-5/4 and the Ex.PW5/5, as also specimen handwritings/signatures were of one and the same person. The ocular evidence, produced by the prosecution, that the handwriting and signatures on receipts and summaries, referred to above, were that of the accused, was duly corroborated by the opinion of the Crl. Appeal No. 121-SB of 1993 --7-- Hand-writing Expert. The Courts, therefore, did not only rely on the opinion of the Hand Writing Expert, to come to the conclusion, that the receipts and the summaries, referred to above, were in the handwriting of the accused and bear his signatures. No doubt, the science with regard to the identification of handwriting and signatures, is not conclusive like that the science of identification of thumb-impressions, yet when due corroboration to the opinion of a handwriting expert, through ocular and circumstantial evidence is provided, then certainly such an opinion, could be relied upon. Receipt Ex.PW5/3 was shown to have been issued by Assa Nand, (PW-7), whereas receipt Ex.PW5/1 was shown to have been issued by Vijay Kumar, (PW-8) and receipt Ex.PW5/2 was shown to have been issued by Jagdish Kumar, (PW-9). They in one voice, stated that these receipts neither bear their handwriting nor signatures, nor they deposited any amount against these receipts, nor did they receive the refund of the amounts, mentioned therein. As stated above, summaries Ex.PW5/4 and Ex.PW5/5 also bore the handwriting and signatures of the accused. These were, thus, also prepared by him. Once the aforesaid persons stated that neither they deposited the amounts, mentioned in the receipts, nor took the refund, nor the same bore their signatures, only one and one conclusion that could be arrived at was that it was the accused, whose handwriting and the signatures these receipts bear who forged the same. The trial Court was, thus, right in holding that the receipts and the summaries, referred to above, were in the handwriting of the accused and bore his Crl. Appeal No. 121-SB of 1993 --8-- signatures and he forged the same. After re-appraisal and re- appreciation of the evidence of the prosecution, this Court also comes to the same conclusion. Under these circumstances, the findings of the trial Court, in this regard, being correct, are affirmed. 12. The next question, that falls for determination, is as to what was the procedure for the refund of the amount. Ram Mitter Kapoor, (PW-10), at the relevant time, was posted as Booking Clerk in Northern Railway, Bathinda. He deposed that when the original receipt is not produced, then the money deposit receipt is issued against the perishable items to the consignee, on receipt of the amount of goods. He further stated that the goods are delivered to the party, on the basis of the said receipt. It was further deposed to by him, that after the receipt of railway receipt, the same is surrendered by the consignee to the parcel office. It was further stated by him that the parcel office thereafter prepares a duplicate list of the voucher for collecting the money from the booking office. It was further stated by him that in case, sufficient money is not available in the parcel office, then the amount is obtained from the booking office. His evidence was further to the effect that it was the duty of the Railway Supervisor to verify the documents alongwith the list. He further stated that thereafter the supervisor directs the booking clerk. He further deposed that the amounts of the summaries, were refunded by the booking office to the parcel office. Amesh Kumar, (PW-11), at the relevant time, who was posted as TIA in Northern Railway, deposed that he held an enquiry regarding the aforesaid fraud, at the Crl. Appeal No. 121-SB of 1993 --9-- Railway Office, Bathinda. It was stated by him that when the party does not produce the requisite railway receipt, a money receipt is issued on deposit of money by him, in respect of perishable goods. On enquiry, he found that no amount had been deposited in the parcel office regarding the disputed money receipts. It was further stated by him, that refund had been taken, on the basis of money receipts and summaries from booking office, Bhatinda. It was further stated by him that these money receipts were fictitious. It was further stated by him, that since the party had not deposited any amount, the question of refund of the amount did not at all arise. This witness also proved Ex.PW6/2 to Ex.PW6/18, photocopies of his reports. Bhagwan Dass, (PW-14), at the relevant time, posted as TIA, corroborated the statement of PW-11. He stated that the money receipts were forged documents. Since the money receipts and the summaries were in the handwriting of and bore the signatures of the accused and it was proved that no amount was deposited as depicted in the said receipts, there were no question of refund of the same. Even Hardwari Lal, (PW-16), who was posted as Chief Parcel Clerk, Incharge, at the relevant time, stated that summaries Ex.PW5/4 and Ex.PW5/5 did not bear his signatures. Had the summaries been genuine, then the same were supposed to be signed by Hardwari Lal, Parcel Supervisor, Delhi. Harnarain , (PW-17), who was posted as Head Parcel Clerk, at the relevant time, stated that the documents/summaries Ex.PW5/4 and Ex.PW5/5 did not bear his signatures. Since the receipts and the summaries did not bear the signatures of the concerned persons, it Crl. Appeal No. 121-SB of 1993 --10-- was for the accused, whose handwriting and signatures the same bore, to prove as to, under what circumstances and, on whose directions, he prepared the same. No evidence was produced by the accused, in this regard. 13. The next question, that arises for consideration, is as to why the receipts and the summaries were forged by the accused. As stated above, the persons, who purportedly signed these receipts, denied their handwriting and signatures thereon as also the deposit of the amount and refund thereof. Since it was proved, beyond a reasonable doubt, that the receipts and the summaries, referred to above, were in the handwriting and under the signatures of the accused and, as such, he forged these documents, it was he, who was to be benefitted by preparation of the same. Under these circumstances, it could be said that by forging the receipts and summaries, the only motive of the accused, was to withdraw the money. Such a withdrawal/refund of the money, depicted in the receipts, which was never deposited, was nothing but illegal. The amount of the receipts was neither deposited by the consignees, nor refunded to them. The only inference that could be drawn was that the accused by forging the receipts and obtaining the refund on the basis thereof of the amount, which was never deposited, cheated the Northern Railways. The trial Court was, thus, right in holding that the accused by his such act and conduct, committed the offence, punishable under Section 420 of the Indian Penal Code. This Court, on re-appraisal and re-appreciation of the evidence of the prosecution, Crl. Appeal No. 121-SB of 1993 --11-- also comes to the same conclusion. The findings of the trial Court, in this regard, being based, on the correct appreciation of evidence, are upheld. 14. The Counsel for the appellant, submitted that it was not the duty of the appellant, to prepare the receipts and summaries, and, as such, he could not be held liable for the commission of any offence. The accused, was posted as Luggage Porter in the parcel office, Northern Railway, Bathinda during the year 1986 and Assistant Guard, at the same station, from April, 1986 to April, 1987, and, as such was a public servant. It is to be determined, as to whether, the accused committed an offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947 or not, though it was not the duty of the accused to prepare the receipts and the summaries. It has also come in the evidence that in addition to his own duties, the services of the accused were also being utilized to perform the duties of record lifter. Section 5(2) of the Prevention of Corruption Act, relates to the commission of criminal misconduct, in the discharge of official duties. For constituting the offence, punishable under Section 5(2) of the Prevention of Corruption Act, the words “in the discharge of his duty” do not constitute an essential ingredient of the offence. By forging the receipts and the summaries, referred to above, and withdrawing the refund of the amount, which was never deposited on the basis thereof, by the accused, he certainly committed criminal misconduct, in the discharge of official duty, as a public servant. Crl. Appeal No. 121-SB of 1993 --12-- The ingredients required for constituting the offence, punishable under Section 5(2) of the Prevention of Corruption Act, therefore, were fulfilled. In Dhaneshwar Narain Sexena v. The Delhi Administration reported as 1962(1) Crl. L.J. 203(SC), the Apex Court observed that the heading of Section 5 is “Criminal misconduct in the discharge of official duty.” That is a new offence which was created by the Act, apart from and in addition to offences under the Indian Penal Code, like those under Section 161 etc. The legislature advisedly widened the scope of the crime by giving a very wide definition in Section 5 with a view to punish those who by holding public office and taking advantage of their official position, obtain any valuable thing or pecuniary advantage. The necessary ingredient of an offence under Section 161 of the Indian Penal Code, is the clause” as a motive or reward for doing or forbearing to do any official act or for showing or fore bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the legislature of any State, or with any public servant,” but it need not be there in order to bring an offence under Section 5 of the Act home to the accused. The offence under this section is, thus, wider and not narrower, than the offence of bribery as defined in Section 161 IPC. The words “in the discharge of his duty” do not constitute an essential ingredient of the offence.” Crl. Appeal No. 121-SB of 1993 --13-- 14-A. In view of the principle of law, laid down, in the aforesaid case, the submission of the Counsel for the appellant, that since it was not the duty of the accused to prepare the receipts and refund the amount, the charge under Section 5(2) of the Act was not proved, falls to the ground. The trial Court was, thus, right in holding that the accused committed an offence, punishable under Section 5(2) of the Act. This Court after re-appraisal and re-appreciation of the evidence, also comes to the same conclusion. The findings of the trial Court, being based on the correct appreciation of the evidence and law, on the point, are upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellant that the sanction accorded, for launching the prosecution, against the accused, was invalid as neither the entire record was produced before the competent authority, nor it applied its mind while granting sanction. Varinder Kumar, Superintendent Operating Office, Northern Railways, while appearing as PW-3, proved the sanction order, copy whereof Ex.PW3/1. He also stated that Sanjiv Garg, Senior Divisional Operating Superintendent, Northern Railways, Ambala, who was the competent authority, signed the sanction order, in his presence. He identified his signatures, as he was working under him. He further stated that an official of the C.B.I. had gone to the Crl. Appeal No. 121-SB of 1993 --14-- office of the Divisional Operating Superintendent alongwith the relevant record. He further stated that after applying mind, the Senior Divisional Operating Superintendent, Northern Railways, Ambala, accorded the sanction. The perusal of the sanction order, copy whereof Ex.PW3/1, clearly indicates that the documents of the case were carefully and thoroughly examined by the competent authority and after application of mind to the same, the sanction was accorded. Even, in the sanction order, copy whereof Ex.PW3/1, it was in clear cut terms recited by the competent authority, that after fully and carefully examining the material placed before him, in regard to the said allegations, and circumstances, of the case, he was of the opinion that Lal Chand should be prosecuted in the Court of law for the said offences. Under these circumstances, to say that the record was not produced before the competent authority; and that no due application of mind was made to the same, is not correct. In Shiv Raj Singh v. Delhi Administration, AIR 1968 (SC), 1419, it was held that where the order of sanction shows, on the face of it, what were the facts, constituting the offence charged, against the accused, and the order further recites that the sanctioning authority after fully and carefully examining the material before it, in regard to the aforesaid allegations, in the case, considers that a prima facie case is made out, against the accused, the order fulfills the requirements of Section 6 of the Prevention of Corruption Act, 1947. The principle of law, laid Crl. Appeal No. 121-SB of 1993 --15-- down, in Shiv Raj Singh's case ( supra ), is fully applicable, to the facts of the instant case. In the instant case, the case file was produced before the competent authority. The competent authority, after due application of mind, to the facts and circumstances of the case, came to the conclusion that it was a fit case, in which, the sanction, should be accorded for launching prosecution against the accused. The findings of the trial Court, that the sanction was valid, being based on the correct appreciation of evidence, and law, on the point, are upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellant, that the appellant has been facing the agony of the protracted criminal proceedings since 29.02.1988, the date when the FIR was registered against him and, as such, lenient view be taken and the sentence awarded to him, be reduced to the minimum. The submission of the Counsel for the appellant, in this regard, does not carry any weight. The appellant, as a public servant of Northern Railways, by forging the receipts and the summaries and by misusing his official position, withdrew the money, by way of refund, on the basis of the said documents, though no such amount was deposited with the Railways. If a public servant, acts in this manner, then he brings disrepute to the Institution, as a whole. The trial Court, as is evident, from the record, in my opinion, took a lenient view and awarded sentence of rigorous imprisonment for a period of one year Crl. Appeal No. 121-SB of 1993 --16-- on each of count. The sentence awarded by the trial Court, being already on the lower side, no ground, whatsoever, is made out, for reduction of the same. However, the mere fact that the appellant has been facing the criminal proceedings, for the last more than 20 years , in itself, is not sufficient to reduce the sentence, awarded to him by the trial Court. Further reduction of sentence, would amount to mockery and travesty of justice. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. No other point, was urged, by the Counsel for the parties. 18. In view of