1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DIVISION BENCH: HON. MR. JUSTICE S.K. SETH & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) Criminal Appeal No.229/2000 Harisingh Jaat, Reserve Inspector, Police Line, Dewas, At present - Inspector, P.T.S., Panchmadhi. .... Appellant Vs. State of M.P. Through Special Police Establishment, Lokayukt, Ujjain (M.P.) .... Respondent ------------------------------------------------------------------------------- Shri S.K. Vyas, learned senior Advocate with Shri L.S. Chandiramani advocate, for the appellant. Shri Anand Soni, learned counsel for the respondent. ------------------------------------------------------------------------------- Whether approved for reporting:- JUDGMENT (Delivered on 17/3/2011) Per Prakash Shrivastava, J :- 1/ The appellant has been convicted for offences under Section 13(1)(d) read with S. 13(2) of the Prevention of Corruption Act, 1988 (for short “PC Act”) and under Section 418, 420 read with S. 34 and Sections 467, 468, 471 of the IPC and sentenced for one year's RI for offences under Section 13(2) of the PC Act with 2 fine and default stipulation, and one year RI for each offence under Section 418, 420 read with S. 34, 467, 468, 471 with default stipulation, by the judgment dated 21.1.2000 passed by the Special Judge and Ist Additional Sessions Judge, Dewas in Special Trial No.01/95. 2/ During the relevant time the appellant was working as Reserve Inspector, Police Line, Dewas and the co-accused Premchand Shukla, who died during the pendency of the trial, was working as security officer in Kirloskar factory, Dewas. 3/ The prosecution story is that there was labour unrest in Kirloskar factory, Dewas in 1991 and for the safety of the factory the appellant, by his order, on demand, had sent SAF guard between the period 5.2.1991 to March 1991 but no entry of departure and arrival of the force was made in the Rojnamcha of Police Line, Dewas. Appellant had sent two letters Ex.P/6 and P/7 to the manager, Kirloskar factory demanding service charges at the rate of Rs.1,130/- per day for deploying the force and on those letters forged dispatch No.14/91 was mentioned. It was necessary to obtain orders from Superintendent of Police for deploying the police force for security of a private factory. Appellant and the co- accused Premchand Shukla with their mutual consent, to benefit each other in the name of deploying SAF and home guard in Kirloskar factory, had sent the forged demand letter and receipt dated 5.2.1991 to 13.6.1992 through Premchand Shukla to the Kirloskar company and on the basis of these forged documents, by committing fraud, they illegally obtained Rs.4,95,990/- from the Kirloskar company. On the written complaint of the manager of the factory, FIR was registered and after investigation charge sheet was 3 filed and the appellant was charged for commission of offence under Section 13(1)(d)/13(2) of the PC Act and Section 418, 420, 467, 468 and 471 of the IPC. The appellant abjured the guilt and the trial took place. 4/ During the trial prosecution examined as many as 12 witnesses. The statement of the appellant under Section 313 of the Code of Criminal Procedure was recorded and the prosecution proved 151 documents. 5/ The trial Court while convicting the appellant for offences under Section 13(1)(d)/13(2) of the PC Act and S. 418, 420 read with S. 34, 467, 468 and 471 of the IPC, found that the appellant had forged the letter Ex.P/7 by dishonestly mentioning the dispatch No.14/91 on it, and no Rojnamcha entry was made in the Police Line, Dewas for arrival and departure of the police force deployed in Kirloskar factory. The appellant was not authorized to deploy the police force for private security and he was also not authorized to raise a demand as per Ex.P/6 and P/7 and these documents were forged documents. He obtained the amount for the period 5.2.1991 to 18.2.1992 dishonestly and did not deposit it in the Government treasury and by the common intention with the co- accused Premchand Shukla, illegally and dishonestly obtained money from the Kirloskar factory. He along with Premchand Shukla abetted the Kirloskar company to make a payment of Rs.38,420/- and for his personal monetary gain used corrupt and illegal means. On these finding the trial Court found that the appellant had committed the offences mentioned above. 6/ Learned counsel appearing for the appellant submitted that the trial Court has committed an error in convicting the 4 appellant without appreciating that the necessary ingredients of none of the offences mentioned above, have been proved against the appellant. Ex.P/6 and P/7 were written by the appellant in his official capacity and they are the admitted documents, therefore, mere wrong mentioning of the dispatch number, does not make them forged documents. He submitted that since the force was deployed by the appellant, therefore, he had written letters Ex.P/6 & P/7 demanding service charges for deploying the force. He further submitted that there is no proof of receipt of any money by the appellant and there is also no proof that the appellant had colluded with the co-accused Premchand Shukla. 7/ Learned counsel appearing for the respondent supporting the judgment of the trial Court submitted that the trial Court has not committed any error in finding the documents Ex.P/6 & P/7 as forged documents and since the appellant had demanded money without deploying the force, therefore, the alleged offences have rightly been proved against him. 8/ We have heard the learned counsel for the parties at length and minutely examined the record of the case. 9/ On the analysis of the evidence on record we have noticed that the oral as well as the documentary evidence indicates that the police force was deployed at the Kirloskar factory and that the present appellant had not received any amount from Kirloskar company on that account. It is also noticed that the force was deployed on the orders of the appellant, therefore, he had issued letters Ex.P/6 and P/7 demanding charges for the deployment of the police force. 10/ PW-1 Omprakash, who is the Labour Welfare Officer 5 in the Kirloskar Company, PW-2 Shashi Kant Keskar - Manager Accounts in Kirloskar factor, PW-3 G.S. Karandikar - Accounts Manager in Kirloskar factor, PW-4 Manohar - Supervisor Account and PW-5 Kapil Dev Shukla - Cashier, who are the employees of the Kirloskar factor, have admitted that there was labour unrest in the Kirloskar factory and in 1991 the Kirloskar Company had made a demand from the Government for deploying security force, which was made available by the Government. None of these witnesses have stated anything against the present appellant. 11/ PW-7 Balaprasad, Company Commander, First Battalion, Indore, has admitted that on 5.2.1991 orders were received from Police Line, Dewas for deployment of the force, an entry was made in the Rojnamcha and the force was deployed in the Kirloskar Company. The meals and the vehicle for this force were used to be sent to the Company and there was Rojnamcha entry for departure of the force to the Kirloskar factory. PW-8 Rajaram Jatav, the Constable in 32nd B Battalion, B Company, has also admitted that the orders were received from the appellant, for which the entry was made and 1 x 4 police force was sent to the Kirloskar factory which is recorded in Rojnamcha Sanha No.120 (Ex.P/76) and which remained posted in the Kirloskar factory for about one and half month. He has admitted that the entries in Ex.P/77 to P/81 were made by him. PW-9 Jai Singh of 32nd B Battalion, Ujjain has admitted that he was sent on duty to Kirloskar factory and the appellant used to come for inspection. The Ex.P/75 to P/89 are the Rojnamcha entries of 32 B Battalion, SAF Company, Dewas which prove that the special force was deployed at the Kirloskar factory. 6 12/ Thus on the basis of the aforesaid evidence, it is proved that the Kirloskar company had made a demand for deployment of the special force in the factory due to the labour unrest and the special force from 32 B Battalion, SAF Company, Dewas, was deployed in the Kirloskar factory, Dewas from 5.2.1991 to 18.3.1991. 13/ Ex.P/6 is the letter written by the appellant on 28.2.1991 to the manager of Kirloskar Company stating that the special force was deployed in the company from 5.2.1991 and requiring them to pay the charges at the rate of Rs.1,130/- per day from 19.2.1991 to 10.3.1991. Similarly Ex.P/7 with the similar contents was written by the appellant to the manager Kirloskar Company on 21.2.1991. These letters were written by the appellant in his official capacity as Reserve Inspector, Police Line, Dewas. From these letters it can not be inferred that the appellant had demanded the money for himself and these letters show that the demand of money apparently was made on behalf of the government. The appellant in his statement under Section 313 CrPC has admitted that these letters were sent by him and since the payment was not made by the factory, therefore, the guard was withdrawn. Thus the writing of Ex.P/6 & P/7 by the appellant in his capacity as Reserve Inspector, is not in dispute. The appellant has neither forged the signature on these letters nor has mentioned any incorrect designation on it. The Ex.P/7 bears dispatch No.14/91. The evidence on record indicates that the dispatch number mentioned on Ex.P/7 is incorrect. By Ex.P/139, the Reserve Inspector, Dewas had informed the Dy. Superintendent of Police, Special Police Establishment, Lokayukt that, vide dispatch 7 number14/91, no letter was sent to Kirloskar factory but this dispatch number relates to some other letter dated 1.1.1991 relating to grant of arm licence and the Ex.P/140 the entry relating to the dispatch no.14/1.1.91 has been proved showing the dispatch of some other letter, therefore, only to this extent it is established that Ex.P/7 bears incorrect dispatch no.14/91. The issue is if merely on the ground of incorrect mentioning of dispatch number, the letter Ex.P/7 can be held to be forged, specially when no other part of this letter is in dispute? The prosecution has failed to prove that the appellant was responsible for this incorrect dispatch entry. The prosecution has also not ruled out the possibility of making of such an incorrect dispatch entry by the dispatch clerk. The prosecution has also not produced the relevant extract of the dispatch register of the date, on which the letter was dispatched, to show that no entry of the dispatch of Ex.P/7 was made in the dispatch register. In these circumstances mere mention of the incorrect dispatch number in the letter Ex.P/7, without their being any dispute in respect of the other parts of the letter, does not make the letter a forged document. It is also pertinent to mention here that there is no such mistake of dispatch number in Ex.P/6. 14/ Another aspect of the matter is about the competency of the appellant to deploy the force and to demand the charges for the deployment of the force and its effect. PW-11 K.K. Soni is the investigating officer, who has proved the various documents collected by him during the investigation and he has filed the Police Regulation para 494-495 as Ex.P/141 to show that the guard can not be deployed on private duty without sanction of the Inspector General and has stated that no such sanction was obtained. 8 Therefore, even assuming that the appellant was not authorized to deploy the force and demanded the charges, then such an action will expose the appellant to the departmental action, and such an action would at the most amount to acting in violation of the relevant provisions of Police Act and the applicable service Rules, but for holding the appellant guilty of the alleged offences, the prosecution was required to establish the motive and other necessary ingredients of the alleged offences. 15/ The PW-2 Shashi Kant Keskar, who was the Manager Accounts in the Kirloskar factory during the relevant time, has stated that the charges for the deployment of the security force were debited to the personal internal account of co-accused Premchand Shukla and the payment for the deployment of the force was made to Premchand Shukla against the vouchers. PW-5 Kapil Dev Shukla, who was the Cashier in Kirloskar Company during the relevant time, has also stated that the payment through the different vouchers for the deployment of the security force was made to Premchand Shukla. There is not even an iota of evidence on record showing that any payment for the deployment of the security force was made to the present appellant. 16/ So far as the issue of the collusion of the appellant and the co-accused Premchand Shukla is concerned, the appellant during the relevant time was working as Reserve Inspector in Police Centre, Dewas, whereas co-accused Premchand Shukla was working as Security Officer in Kirloskar factory. None of the relevant witnesses have stated about the collusion of the appellant with the Premchand Shukla. There is also no such documentary evidence on record, from which the collusion of the appellant with 9 Premchand Shukla can be inferred. The evidence on record also does not indicate that any part of the amount received by the Premchand Shukla for deployment of the security force in the factory was given by him to the appellant. There is also no evidence on record indicating that the appellant had deployed the security force in the Kirloskar factory to cause any unlawful gain to Premchand Shukla or to himself. 17/ The trial Court has noted that there was no entry of deployment of the security force in the Rojnamcha Sanha of DRP Police Line, but the record indicates that entry was made in the Rojnamcha Sanha of 32 B Battalion SAF, vide Ex.P/75 to P/89, for deployment of the security forces in the Kirloskar factory between the period 5.2.1991 to 28.3.1991. The trial Court has placed reliance upon Ex.P/28 letter by the office of the Lokayukt and Ex.P/ 129 its reply by Reserve Inspector, Police Line, Dewas stating that during the relevant period no police guard was sent from Police Line, Dewas and there is no Rojnamcha entry in this regard in the Rojnamcha of Police Line Dewas but the trial Court ought to have appreciated that the special force was sent from the 32 B Battalion, SAF Company, Dewas, therefore, there was Rojnamcha entry, vide Ex.P/75 to Ex.P/89 in the 32 B Battalion, SAF Company, Dewas and from the other oral as well as documentary evidence, deployment of the security force at Kirloskar factory, Dewas was duly established. 18/ The trial Court has drawn an inference about receipt of the amount by the appellant for the period 5.2.1991 to 18.2.1991 only on the ground that for this period the demand was not raised by the appellant but it is not permissible to draw such an inference 10 unless there is some positive evidence in respect of the receipt of money by the appellant, specially when the PW-2 Shashi Kaat Keskar - Manager Accounts in Kirloskar factory and PW-5 Kapil Dev Shukla - Cashier in Kirloskar factory, Dewas have categorically stated that the payment against the vouchers was made to the co-accused Premchand Shukla. 19/ Thus in the present case the evidence proves that forces were deployed in the Kirloskar factor and the appellant had demanded charges for the deployment of the forces, vide Ex.P/6 & P/7. The deployment of the forces has duly been established from the evidence on record, therefore, the demand for the charges for the deployment of forces would not constitute an offence falling under Section 418 of the IPC. The demand of charges was not made by the appellant for himself but he had written letters Ex.P/6 & P/7 in his official capacity. The dishonest intention for writing the letters Ex.P/6 and P/7 is not established. The amount demanded by Ex.P/6 and P/7 was paid by the Kirloskar Company to the co- accused Premchand Shukla and if he had not deposited the said amount in the Government treasury, then that alone would not lead to the inference, without any further evidence in this regard, that the appellant had the knowledge that Premchand was likely to cause wrongful loss to the Government. 20/ So far as the offence under Section 420 of the IPC is concerned, the appellant, vide Ex.P/6 and P/7, had demanded the charges for deployment of the force in the Kirloskar factory in his official capacity. There was no direction in the said letters to pay the amount to Premchand Shukla. If the Kirloskar Company paid the amount to Premchand Shukla and he misappropriated it, then in 11 the absence of any evidence that the appellant was in collusion with Premchand Shukla and he had dishonest intention to send Ex.P/6 and P/7, the offence under Section 420 of the IPC cannot be said to have been made out. 21/ The appellant has been convicted for offences under Section 148 and 420 of the IPC with the aid of Section 34 of the IPC but there is nothing on record to show that the appellant was sharing the common intention to commit the alleged offences with the co-accused Premchand Shukla. 22/ So far as the offences under Section 467, 468 and 471 of the IPC are concerned, the appellant has admitted the writing of the letters Ex.P/6 and P/7. Those letters were written by him in his capacity as Reserve Inspector. He has not forged any part of these documents except that Ex.P/7 bears incorrect dispatch number. The appellant has stated in the statement under Section 313 CrPC that since the forces were deployed in the Kirloskar factory and the payment was not made, therefore, he had written Ex.P/6 & P/7. The intention to cause damage or injury by writing these documents, is not establish, nor the intention to commit fraud is proved. 23/ So far as the offence under Section 13(1)(d) of the PC Act is concerned, the prosecution was required to establish that the appellant by corrupt or illegal means had obtained, for himself or for any other person, any valuable thing or pecuniary advantage or had abused his position for that purpose or had did it without any public interest. Ex.P/6 & P/7 do not indicate that he had demanded money either for himself or for the co-accused Premchand Shukla. The deployment of force and making demand for the charges for its 12 deployment alone, does not fall within the meaning of obtaining pecuniary advantage by corrupt or illegal means. 24/ Thus from the evidence on record the necessary ingredients of offence under Section 418, 420 r/w S.34 and Sections 467, 468, 471 of IPC and Section 13(1)(d) r/w S.13(2) of PC Act are not established and, therefore, the trial Court has committed an error in convicting the appellant for committing these offences. Therefore, conviction of the appellant for these offences is set aside and accordingly the appellant is acquitted of these offences. 25/ The appeal is allowed to the extent indicated above. The appellant is on bail, his bail and surety bonds stand discharged. (S.K. SETH) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-