IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal Nos.538, 564 & 575 of 2004 Decided on: April 1, 2011 Cr. A. No. 538 of 2004 R.C. Soda Vs. State of HP Cr. A No. 564 of 2004 Ajay Kumar and others Vs. State of HP. Cr. A. No. 575 of 2004 Jaswant Singh Vs. State of HP Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant(s): Mr. Anup Chitkara, Amicus Curiae in Cr. A. No. 538 of 2004. M/s N.K. Thakur and Ajay Dhiman, Advocates, in Cr. A. Nos. 564 and 575 of 2004. For the Respondent(s): Mr. P.M Negi, Dy. Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge (oral) By this common judgment, three appeals, all by different convicts, are being disposed of as the judgment, whereby they have been convicted is the same. It is dated 7.12.2003 and has been delivered by learned Special Judge. Whether reporters of the local papers may be allowed to see the judgment? …2… Appellants have been convicted of offences, under Sections 409, 420, 120-B, 465, 468, 470, 471 IPC and Section 13(2) of the Prevention of Corruption Act and sentenced to varying terms of imprisonment and amounts of fine for different offences. 2. Prosecution’s case may be summed up thus. During the period from 1993 to 1995, a scheme was introduced by the government for construction of dry latrines in rural areas of the State of Himachal Pradesh. Latrines were required to be constructed by the residents of villages and on construction of such latrines, they were to submit completion certificates, upon which they were to be paid, by way of incentive, `1500/-, in the case of SC/ST and `1200/-, in the case of general category of persons. This case pertains to some of the villages, falling in the area of Gagret Development Block in Una District. Appellant R.C. Soda was BDO during the aforesaid period. Other appellants, namely Ajay Kumar, Jaswant Singh, Devinder Kumar and Munshi Ram were Gram Panchayat Vikas Adhikaris-cum-Secretaries of four different Panchayats. 3. Applications in the names of forty four persons, alongwith documents, like completion certificates, issued by Gram Panchayat Vikas Adhikaris-cum-Secretaries, were submitted to appellant R.C. Soda, who passed orders for …3… payment of incentive money on those applications. Money was then shown to have been disbursed in the record, maintained in the office of appellant R.C. Soda, to the persons, in whose names applications had been submitted. As a matter of fact, none of the persons, in whose names applications were submitted, was paid any amount of money. In some cases, even the applications were forged. Not only that, in some cases even latrines had not been constructed. 4. Complaints were made by some of the alleged beneficiaries, under the scheme, in whose names applications were made and money was shown, in the record, to have been disbursed, that they had not received any money nor the latrines had been constructed or the latrines constructed were faulty and non-functional. Inquiry was conducted by the vigilance people. In the course of that inquiry, substance was found in the complaints and consequently, a case was registered vide FIR Ext. PW48/A. 5. During the course of investigation, applications in the names of alleged beneficiaries and the documents submitted alongwith those applications were taken into possession. Certification regarding completion of latrines, by Gram Panchayat Vikas Adhikaries-cum-Secretaries was done on the face of the applications themselves. Specimen …4… signatures of the four appellants, who were Gram Panchayat Vikas Adhikaris-cum-Secretaries, were obtained. Signatures below the certificates of completion were got compared with their specimen/admitted signatures. Handwriting Expert gave the opinion that certificates had been signed by them. Similarly, specimen signatures of appellant R.C. Soda were taken and sent for comparison to the Handwriting Expert with his purported signatures below the orders for payment of incentive, recorded on the applications or one of the documents submitted with the applications. Handwriting Expert opined that the purported signatures of appellant R.C. Soda matched with his standard signatures. It may be noticed at this stage that none of the appellants denied his signature below the aforesaid certificates or the orders of payment of incentive money. 6. Specimen signatures of the beneficiaries, named in the applications and the documents attached therewith, were also obtained and sent to Handwriting Expert, for comparison with their purported signatures, but the Handwriting Expert expressed inability to give any definite opinion, for want of material. …5… 7. On completion of investigation, sanction to prosecute the appellants, was applied for and on receipt of such sanction(s), Challan was filed. 8. Copies of Challan and other papers were supplied to the appellants by the trial Judge. A prima-facie case was found by the trial Judge against all the appellants, after perusing the record and hearing the learned Public Prosecutor and the learned defence counsel. So, the appellants were charged with the aforesaid offences. They pleaded not guilty. Therefore, they were put on trial. 9. Prosecution examined 54 witnesses, including 40 residents of various villages, to whom incentive had been shown to have been paid, as per record of Block Development Officer. Out of them, six witnesses denied having made any applications for payment of incentive. They also denied having received any incentive against the receipts purporting to have been furnished by them. Also, they denied that latrines had been constructed for them. Remaining beneficiaries admitted that latrines had been constructed. Twenty three of them denied their signatures on the receipts regarding payment of incentive. Eleven of them though admitted their signatures on the receipts, but denied having been paid the amount of money mentioned in the receipts. …6… 10. Appellant R.C. Soda admitted that he had passed orders for release of incentive money and also admitted the signatures below such orders, which are partly stamp impressed and partly handwritten in red ink. Amount is handwritten and rest of the order is stamp impressed. However, he stated that he passed the orders on the basis of certification by the other four appellants as also the Junior Engineers, working in his office, that latrines had been constructed for the individual residents of the villages, in whose names applications had been submitted. Other four appellants pleaded that they had signed the completion certificates in the office of BDO, where they used to go every month, in connection with monthly meetings, at the instance of Superintendent in the office of BDO, in good faith. They denied their involvement in the alleged bungling. 11. Learned trial Court in view of the certification by appellants Ajay Kumar, Jawant Singh, Devinder Kumar and Munshi Ram, all Gram Panchayat Vikas Adhikaris-cum- Secretaries, that construction of latrines, meant for the alleged applicants, was complete, held them guilty of the aforesaid offences. Appellant R.C. Soda, who was BDO, was also held guilty, on account of his having passed the orders for payment of incentive money to the persons, who were …7… shown to be the applicants. Another reason for holding him guilty is that he had verified the payments, by putting his initials in the cash book. 12. I have heard learned counsel for the appellants as also the learned Deputy Advocate General and gone through the entire evidence. 13. So far as appellant R.C. Soda is concerned, he was Drawing and Disbursing Officer, under the scheme for construction of dry latrines in the villages. He passed payment orders, on the basis of certificates recorded not only by the other four appellants, but also by the Junior Engineers of his own office, whose names, as per evidence on record, were Satinder Kumar and Pawan Kumar. The fact that the orders for payment are stamp impressed and the amount in those orders is written in red ink not by appellant R.C. Soda himself, but someone else in his office and he only put his signatures below those certificates, does not prove that he was party to the alleged conspiracy for misappropriating the money meant for the people, living in rural area, as incentive for construction of dry latrines. His signatures in the cash book are also in the capacity of DDO. They are not to be interpreted to mean that he verified that the payments had been made in his presence. …8… 14. Evidence on record suggests that money used to be disbursed by the Superintendent in the office of BDO. His name was Bakshish Singh, who is not a co-accused. Similarly, the two Junior Engineers, who recorded certificates regarding completion of dry latrines, which certificates are alleged to be false by the prosecution, were also not made co-accused. Now, when the Panchayat Secretaries have been arrayed as accused, on account of their having certified that the latrines had been constructed and the construction was complete, why the two Junior Engineers, who were better equipped because of their skill, to say whether latrines had been constructed and the construction was complete or not, had not been arrayed as accused. Not only this, Superintendent Bakshish Singh and the two Junior Engineers Satinder Kumar and Pawan Kumar were not produced, even as witnesses, by the prosecution, probably for the same reason for which they were not arrayed as accused. Prosecution probably thought in case these persons were exposed to cross-examination, the Court might implead them as accused in the case, exercising power under Section 319 Cr. P.C. 15. In any case, there is no evidence on record, showing that respondent R.C. Soda was himself responsible for disbursement of incentive money to the beneficiaries or …9… that he took any part in the actual disbursement of incentive money to the beneficiaries. It was Superintendent Bakshish Singh, who used to disburse the money, as per evidence on record. Therefore, it cannot be said that appellant R.C. Soda had any conspiracy to defalcate the money meant for disbursement to the people, living in rural areas, as incentive for construction of dry latrines, with the appellants or his office Superintendent or his Junior Engineers, especially when the Superintendent and the Junior Engineers are not co-accused with him. 16. As regards the remaining four appellants, it is true that they have signed the certificates, recorded on the face of applications, that the latrines had been constructed, but their plea that they did so in good faith, on the asking of Superintendent Bakshish Singh, in the office of BDO, cannot be said to be improbable. Reasons are that certificates are not shown to be written in their hands. These are only signed by them. Another reason, which is stronger than the first one, is that Junior Engineers, working in the office of BDO, namely Satinder Kumar and Pawan Kumara, had also certified, independent of the certification by these four appellants, that construction of latrines was complete. It is quite likely that the certification …10… by the Junior Engineers was the basis of good faith, pleaded by the appellants for their signing the certificates. 17. Aforesaid four appellants did not identify the beneficiaries at the time of disbursement of money. Also, they are not shown to have been associated in the disbursement of money in any manner. Money was with the Superintendent in the office of BDO. It was he who disbursed it. There is absolutely no evidence that the aforesaid four appellants received any amount of money, shown to have been disbursed to the beneficiaries. 18. Evidence on record also shows that the money had, in fact, been paid to the contractor, who was engaged by the office of BDO for construction of latrines. The witnesses, who are the alleged beneficiaries and whom the prosecution examined to prove the allegation that no latrine had been constructed, admitted that material like drums and pots had been placed at their houses and they did not pay any money for that material. Some of the witnesses have stated that pits had also been dug and latrines had been constructed. Some of them further stated that entire material and the labour was provided by a Contractor and that they made available only Bajri, sand and some quantity of cement. Beneficiaries themselves did not spend any money from their pocket. So, the money which had been …11… spent on the drums and pots and also for digging pits was required to be adjusted against the amount of incentive payable to them. 19. Above discussion probabilizes the plea raised by appellants Ajay Kumar, Jaswant Singh, Devinder Kumar and Munshi Ram that they had signed certificates in good faith, on the asking of Superintendent, in the office of BDO. 20. As a result of the above stated position, I am of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Consequently, all the three appeals are accepted. Impugned judgment of the trial Court, convicting and sentencing the appellants, for the aforesaid offences, is set aside. All the appellants are acquitted. April 1, 2011 (ss) (Surjit Singh ), J.