Criminal Appeal (SJ) No.268 OF 2004 [Appeal against the judgment and order dated 31.3.2004 passed by the Special Judge, C.B.I., North Bihar, Patna in Special case No.18 of 1981, 13 of 1981, 17 of 1981, 19 of 1981 corresponding to R.C. No.52 of 1981, 36 of 1981, 51 of 1981 and 53 of 1981] 1. AMARNATH SHARMA SON OF RAM NARESH SHARMA 2. BAL KRISHNA SHARMA SON OF AMARNATH SHARMA 3. MANDAKINI BALA SHARMA WIFE OF AMARNATH SHARMA, ALL RESIDENTS OF VILLAGE GAURA, P.S. MARIANU, DISTRICT JAUNPUR (U.P.) 4. UDAY BAHADUR SINGH SON OF SURAJ BHAN SINGH, RESIDENT OF VILLAGE RATANMAI, P.S. RANIGANJ, DISTRICT PRATAPGARH (U.P.) …………………….. Appellants Versus 1. THE STATE OF BIHAR 2. THE UNION OF INDIA ………….. Respondents For the Appellants : Mr. Yogesh Chandra Verma, Senior Advocate Mr. Sudama Singh, Advocate Mr. Rajnikant Singh, Advocate For the C.B.I. : Mr. Bipin Kumar Sinha, S.C., C.B.I. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant no.1 has been convicted u/s.5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 and sentenced to R.I. for two and half years. He has further been convicted u/ss.120B, 420, 467, 477A and 419 I.P.C. and sentenced to R.I. for two years under each count and in addition was to pay a fine of Rs.50,000/- and in default of which further sentence of R.I. for six months. Appellant no.2 has been convicted u/ss.420/120B I.P.C. and sentenced to R.I. for two - 2 - years, whereas the appellant no.3 has also been convicted u/s.420/120B I.P.C. but sentenced to R.I. for one year as also u/ss.419 and 468 I.P.C. and sentenced to one year under each count. She has further been sentenced to pay a fine of Rs.50,000/- and in default of which further sentence of R.I. for six months and the appellant no.4 has been convicted u/s.420/120B, 419 and 468 I.P.C. and sentenced to R.I. for two years under each count as also sentenced to pay a fine of Rs.25,000/- and in default of which further imprisonment of three months by a judgment dated 31.3.2004 passed by the Special Judge, C.B.I., North Bihar, Patna in Special case No.18 of 1981, 13 of 1981, 17 of 1981, 19 of 1981 corresponding to R.C. No.52 of 1981, 36 of 1981, 51 of 1981 and 53 of 1981. 2. The case of the prosecution is that while the appellant no.1 was working as Clerk, Grade-I in the Divisional Accounts Office, North East Railway, Samastipur in the period June 1977 to August 1980, he in conspiracy with others prepared 54 fake pay orders relating to provident fund settlement and diverted the same to the accounts of his family members either through money order or Bank drafts or cheques. Four cases were instituted in this regard in the year 1981 but were amalgamated by an order dated 24.10.1983. 3. During trial the prosecution has examined fifty five witnesses in all. Out of whom, P.W.32 to P.W.38, P.W.41, P.W.45, P.W.51, P.W.52 and P.W.53 are the Bank Officers, in - 3 - whose Bank the accounts of the appellant no.2 and some other fictitious persons were opened and was being operated by the appellant no.1 and his family members. P.W.11 to P.W.21 have testified on the factum of the names in which pay orders were prepared. P.W.4 to P.W.10, P.W.21, P.W.25, P.W.29, P.W.30, P.W.39 and P.W.55 were Officers posted at Samastipur Railway, whose signatures were forged by appellant Amarnath Sharma. P.W.4 was the then Assistant Personnel Officer, who testified that his signatures were forged on the pay orders and similarly P.W.5, who was the then A.P.O., North East Railway, Sonepur, has also given evidence in the same regard. P.W.6, who was posted as Assistant Divisional Account Officer, North East Railway, Samastipur, has also stated before the court that the pay orders which were allegedly prepared under his signatures were forged and the details in fact had been filled by the appellant no.1. P.W.48 D.P. Thakur has given the detailed procedure in which the pay orders were normally prepared in the department and how at the clerical level which was occupied by the appellant no.1 the forgeries had been made by him violating the procedure. All the disputed pay orders were allegedly passed by the appellant no.1 and the signatures of the Officers, who had purportedly signed on the pay orders, were not genuine. Moreover, he has substantiated how the appellant no.1 had extracted leaflets from the pay order book and had given divergent addresses as well as the different - 4 - names of his wife at his level. Further there is ample evidence that the appellant no.1 had siphoned off money to the account of his wife the appellant no.3 by showing her as the wife of different employees. Similarly the appellant no.4 was shown as son of dead employees and payments made to his account. Under the circumstances the prosecution has been successful in proving both by documentary as well as oral evidence that the appellant no.1 had undoubtedly defalcated a sum of Rs.5,46,570/-. 4. No doubt, on his behalf six witnesses were examined to substantiate that in fact he belonged to a substantial family and, therefore, the money found in the account of his family members were shown from his in-laws, but the same is merely by way of defence only to explain the factum of existence of money in the Bank Accounts. Whereas the allegation against the appellant no.1 is well substantiated, I find that the only allegation against appellant no.3 and 4 is that they had received money in their account but there is no further allegation against them. 5. Looking into the charge framed against them, it is difficult to accept that they were in conspiracy with the appellant no.1 or have practised impersonation or deception on any person and, therefore, the charge u/ss.419, 420/120B I.P.C. is not substantiated. As for the charge u/s.468 I.P.C., there is absolutely no substance to justify the said charge that the - 5 - appellant nos.3 and 4 had committed any forgery of any document. Under the circumstances, the appellant nos.3 and 4 are acquitted and discharged from the liabilities of their respective bail bonds. 6. As for the appellant no.2, the only additional evidence against him from the one enumerated above is that he had filled in pay slips in the name of his mother i.e. the appellant no.3 which by itself would not make out a case u/s.468 I.P.C. Under the circumstances, even appellant no.2 is acquitted of all the charges and discharged from the liability of his bail bond for the same reasons as mentioned above. 7. As for the appellant no.1, his conviction is maintained but sentence is modified to the one that has already undergone by the appellant no.1 during trial in view of the fact that 30 years have elapsed since the date of occurrence. However, since his conviction is maintained by holding that the prosecution has been able to prove beyond all reasonable doubt that he had defalcated a sum of Rs.5,46,570/-, in fitness of things he is directed to deposit the said amount in the Divisional Account Office presently East Central Railway, Samastipur within a period of three months. In case he defaults to do so he is sentenced to a period of two and half years R.I. In case the appellant no.1 defaults in payment of the amount mentioned above within the period as specified, he shall be immediately taken to custody to serve out the sentence. - 6 - 8. In the result, the appeal is allowed in part. Patna High Court Dated, 21st June, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )