IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.409 of 2008 Decided on : May 23, 2011 State of H.P. …Appellant. Versus Sukar Deen and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : M/s Ramesh Thakur & J.S. Guleria, Assistant Advocate Generals. For the Respondents: M/s N.K. Thakur & Neel Kamal Sharma, Advocates. Surjit Singh, Judge(Oral) State has appealed against the judgment dated 31st March, 2008 of learned Special Judge, whereby respondents Sukar Deen, Satish Chander Sharma, Tarsem Lal Chandla and Parkash Chand Sharma, have been acquitted of charge, under Sections 409, 420, 467, 468, 471, 120-B of the Indian Penal Code, and Section 13(2) of the Prevention of Corruption Act, 1988. 2. Case of the prosecution is that respondent Sukar Deen, posing himself to be Pradhan of a Nirman Committee of Tissa, submitted plans for construction of a playground, a street and a Panihar/Khurli (water tank for providing water to cattle) to respondent Satish Chander Whether reporters of the local papers may be allowed to see the judgment? …2… Sharma, in his capacity as Block Development Officer, Tissa, under Vikas Mein Jan Sehyog Scheme and also deposited certain amount of money, representing that the same was the contribution of the people of the area. Respondent Satish Chander Sharma, despite having been informed by PW-33 Shri Kishori Lal, Senior Assistant, in writing, that playground had already been constructed by the Panchayat, under a different scheme, sanctioned an amount of `38,000/- for school playground, `22,800 for construction of street and `16,800/- for construction of Panihar/Khurli. Respondent Satish Chander Sharma was assisted, in sanctioning the aforesaid amounts, by respondent Tarsem Lal Chandla, working as Junior Engineer in his office. Respondent Sukar Deen prepared false record and respondent Parkash Chand Sharma, in his capacity as Secretary of Gram Panchayat, assisted respondent Sukar Deen in his design, by preparing false writings that the aforesaid three schemes had been approved by the Panchayat. 3. Prosecution alleged that all the four respondents were knowing that the aforesaid three works stood already executed, under different other schemes, for which money had been released in favour of Up Pradhan of the Panchayat, namely PW-12 Shri Nizam Deen and they conspired to misappropriate the funds, …3… under Vikas Mein Jan Sehyog Scheme. Out of the sanctioned amount of `38,000/- for playground, `22,800/- for street and `16,800/- for Panihar/Khurli, only a sum of `9,000/- and odds was utilized and the remaining amount of `66,500/- was misappropriated. 4. Case was registered, on the basis of a letter Ex. PW-35/C, written by Inspector General of Police to Vigilance Cell, Chamba. Formal FIR is Ex. PW-17/A. 5. During the course of investigation, record was seized from the Office of Block Development Officer, pertaining to the sanctioning of the aforesaid three amounts, in favour of respondent Sukar Deen, under Vikas Mein Jan Sehyog Scheme. Record pertaining to execution of the aforesaid three works earlier, by PW-12 Shri Nizam Deen, Up Pradhan of Gram Panchayat Tissa, was also seized. PW-16 Shri Madan Kumar, Executive Engineer, H.P.P.W.D., was required to assess the cost of the three works, as found on the spot. He submitted statements Ex. PW-3/A, Ex. PW-3/B, Ex. PW-3/C, Ex. PW- 3/D, Ex. PW-3/E and Ex. PW-3/F, per which a sum of `71,037/- had been spent, on execution of the work of school playground, in two parts; another sum of `22,790/- had been spent on construction of street and a sum of `9,022/- had been spent on construction of Panihar/Khurli. …4… 6. Prosecution case is that a sum of `38,000/- and odds had been spent on construction of school playground, a sum of `14,952/- had been spent on construction of street and a sum of `3,000/- had been spent on construction of Panihar/Khurli, by Up Pradhan of the Panchayat, PW-12 Shri Nizam Deen, in the year 1991. 7. On completion of investigation, sanction to prosecute those of the respondents, who are public servants, namely Satish Chander Sharma, Block Development Officer, Tarsem Lal Chandla, Junior Engineer and Prakash Chand Sharma, Secretary of Gram Panchayat, were obtained and report, under Section 173 of the Code of Criminal Procedure, alongwith the relevant papers, was filed in the Court of Special Judge. Learned Special Judge, after complying with the requirement of Section 207 of the Code of Criminal Procedure and hearing both the sides and perusing the record, charged the respondents under the aforesaid penal provisions of Indian Penal Code and Prevention of Corruption Act. 8. Prosecution examined 35 witnesses, besides proving various documents, to bring the charge home to the respondents. Respondents pleaded that playground and street had been constructed, under different schemes, only in parts and that funds were sanctioned under Vikas Mein Jan Sehyog Scheme, for further …5… construction of the playground and the street. As regards Panihar/Khurli, they stated that new Panihar had been constructed, after release of funds, under the said Vikas Mein Jan Sehyog Scheme. 9. Learned trial Court believed the defence plea and passed the impugned judgment, acquitting all the respondents. 10. We have heard learned Assistant Advocate General as also learned counsel for the respondents and perused the record. 11. It is proved from prosecution’s own evidence, particularly the testimony of PW-16 Shri Madan Kumar, Executive Engineer and PW-12 Shri Nizam Deen, Up Pradhan of the Panchayat, that earlier only a part of the school playground and a part of the street had been constructed. According to PW-16 Shri Madan Kumar, Executive Engineer, playground had been constructed in two parts. On construction of first part, a sum of `34,425/- had been spent and on the construction of second part, a sum of `36,616/- had been spent. Total spending on the construction of the school playground, in two parts, comes to `71,037/-, as per statements of cost prepared by PW-16 Shri Madan Kumar, Executive Engineer. These statements are Ex.PW-16/A & Ex. PW- 16/B, in respect of first part and Ex. PW-16/C, in respect of …6… the second part. According to the prosecution, `38,000/- had already been spent by PW-12 Shri NIzam Deen, Up Pradhan of the Panchayat and that no further construction of the playground was carried out by respondent Sukar Deen. This plea of the prosecution is falsified by the aforesaid evidence of PW-16 Shri Madan Kumar, Executive Engineer and the aforesaid estimates prepared by him. PW-12 Shri Nizam Deen, Up Pradhan, has also testified that respondent Sukar Deen had constructed another part of the playground. 12. So is the case with respect to the street. PW-16 Shri Madan Kumar, Executive Engineer, prepared two separate statements of costs of street. One is Ex. PW-16/D, per which a sum of `14,952/- minus `2,162/- had been spent on the first part and `11,584/- minus `1582/- had been spent on the second part of the street. According to the prosecution, PW-12 Shri Nizam Deen had spent a sum of `13,000/-, under Jawahar Rozgar Yojna, on the construction of street and no money was spent by respondent Sukar Deen, under the Vikas Mein Jan Sehyog Scheme. This allegation stands falsified by the aforesaid evidence of PW-16 Shri Madan Kumar, Executive Engineer. No doubt, statement of cost Ex. PW-16/F, prepared by the witness, shows that only a sum of `11,584/- minus `1582/- had been spent on construction …7… of second part of the street and the respondents are alleged to have utilized a sum of `22,800/- on this count, but PW-16 Shri Madan Kumar, Executive Engineer, in his cross-examination, admitted that he had not taken into account the cost of cement used in the work. He also stated that sand and stones were available on the spot, but in cross-examination he admitted that there was nothing in his report, indicating that the same were available on spot. Rather, he stated that the sand and stones had been carried from a distance of 650 metres, from the spot. That means cost of carriage of stones and sand was not taken into account. Therefore, it cannot be said if the statement of costs, prepared by the witness is true and correct. 13. As regards Panihar/Khurli, according to the prosecution, a sum of `3,000/- had been spent in the year 1991. There is nothing on the record, indicating that there was no need for construction of any new Panihar/ Khurli. Testimony of PW-16 Shri Madan Kumar, Executive Engineer and the statement of costs Ex. PW-16/F, prepared by him, in respect of the Panihar/Khurli, show that a sum of `9,022/- was the cost of the Panihar, which he found on the spot. That means that Panihar is supposed to be different from the Panihar, which was constructed in the area, at the cost of `3,000/-, in the …8… year 1991. PW-16 Shri Madan Kumar, Executive Engineer admitted that he had not made any addition to the statement of cost, on account of the cost of cement. Panihar/Water tank must not have been constructed without the use of cement. Also, the witness stated that stones and sand were available on the spot, but in the cross-examination he stated that they were carried from a distance of 650 metres. In view of the abovestated position, we find no reason to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. ( Surjit Singh ), J May 23, 2011(sd) ( Rajiv Sharma ), J