CRIMINAL APPEAL No. 281 of 1997 ( S.J.) (Against the judgment and order of conviction dated 26.09.1997 passed by Special Judge, C.B.I.(North), Patna in Special Case No. 18/1982) Shiv Shankar Prasad Singh S/o Shri Kamaleshwari Prasad Singh, Resident of Village Manjhaul, Post Manjhaul, Dist. Begusarai,Assistant Grade-III, Food Corporation of India, F.S.D.Tilrath, Dist.Begusaria. ---(Appellant) -:Versus:- State of Bihar --- (Respondent) With CR. APP (SJ) No.282 of 1997 Ramdeo Prasad S/o Late Murlidhar Prasad, Resident of Mohalla Pathar Ki Maszid, Tekari Road, P.S.Sultanganj, Dist. Patna ---(Appellant) -:Versus:- State of Bihar ----(Respondent) With CR. APP (SJ) No.299 of 1997 Ram Nath Sharma @ Ram Nath Prasad Sharma S/o Shri Shiv Balak Sharma, Resident of village Sultanpur, P.S.Mokama, District-Patna at present posted as A.G.III,(D) at F.C.I. Food Storage Depot,Mokama,Dist.Patna ---(Appellant) -:Versus:- State of Bihar thro. CBI. ----(Respondent) With CR. APP (SJ) No.309 of 1997 Ram Uday Singh, S/o late Neeras Singh, resident of village- Baba Tola Manjhaul P.S.Manjhaul,Dist. Begusarai. ---(Appellant) -:Versus:- State of Bihar ---(Respondent) For the appellant ( Cr. App.No. 281/1997) : Mr. Suraj Narain Pd . Sinha,Sr.Advocate : Mr. Pramod Kumar,Advocate For the appellant( Cr.APP.No. 282/1997 : Mr. Sunil Kumar Singh,Advocate Mr. Arun,Advocate For the appellant( Cr. APP.,No.299/1997& Cr. APP.No. 309/1997) : Mr.Arun Kumar Arun & Mr. Siya Ram Pandey,Advocates. 2 For the Respondent/State : Mr. Bipin Kumar Sinha, S.C./C.B.I. P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K.Mandal,J. 1. All the four appeals, each preferred by one appellant, arise out of and are directed against the judgment and order of conviction dated 26.09.1997 passed by the Special Judge, C.B.I, (North) Patna whereby the appellants were found guilty under diverse Sections of the Penal Code as also the Prevention of Corruption Act, 1947 and sentenced thereunder for different terms beside fine. They have been heard together and are being disposed of by the present order. 2. Appellant Shiv Shankar Prasad Singh ( Cr. App (SJ) 281/1997) was charged under Section 477(A) and 409 of the Penal Code and Section 5(2), read with 5(1)(d) of the Prevention of Corruption Act,1947 ( hereinafter referred to as the P.C. Act). Appellant Ramdeo Prasad (Cr. App (SJ) 282/1997) was charged under Sections 477(A) of the Penal Code and Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act. Appellant Ram Nath Sharma @ Ram Nath Prasad Sharma ( Cr. App.(SJ) No.299/1997) was charged under Section 409 of the Penal Code as also under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. Appellant Ram Uday Singh (Cr. App.(SJ) No.309/1997) was charged under Section 409 of the 3 Penal Code.All the accuseds/appellants were further charged under Sections 120(B) read with Section 409 of the Penal Code and Section 5(2) read with Section 5(1) (c) and (d) of the P.C. Act, for criminally misappropriating 1040 bags of fertilizer/urea which were to be carried and deposited at the F.S.D., F.C.I, Tilrath from the Railway Siding,Barauni. 3. The basis of the First Information Report (Exhibit-9) is a complaint (Exhibit-8) lodged by Sri S.P. Singh (P.W.5), who, during the relevant time, was posted as the Deputy Manager (Vigilance and Security), Regional office, F.C.I. Patna. In the complaint so lodged by P.W.5 it was alleged that appellant Ramdeo Prasad while discharging his duties as the Depot Incharge, F.S.D.,F.C.I, Tilrath within the District of Begusarai in conspiracy with accused appellant Ramnath Sharma, A.G.III who was working as Incharge, F.C.I., Railway Siding, Barauni and one Rama Shankar Prasad Singh, the Handling/ Transporting contractor at F.S.D. F.C.I., Tilrath during March,1980 had criminally misappropriated 540 bags of fertilizers( urea) which were unloaded at the Railway siding, Barauni and were to be transported and delivered at the F.C.I. godown at Tilrath under the charge of appellant Ramdeo Prasad, the Depot Incharge. The allegation further revealed that on 24.03.1980 two wagons bearing no. NR 17797 and NR 61690 each containing 500 and 540 bags respectively of fertilizer/urea were unloaded at the Barauni Railway Station for the purpose of being transported to and 4 delivered at the F.C.I. godown Tilrath. 1040 bags were unloaded on the same day and duly placed at the disposal of appellant Ramnath Sharma, A.G.III who was the F.C.I. representative at the Barauni Railway Siding and was supposed to take delivery of all the bags. All the 1040 bags were delivered to and received by appellant Ramnath Sharma by signing the Railway delivery book(s). The bags were allegedly shown to have been tendered to and received by the appellant Ram Uday Singh who was on that particular day nominated as representative of the Handling and Transporting Agent. The signature of appellant Ram Uday Singh was obtained on the Unloading register of F.C.I.. The gate passes were shown to have been issued in respect of those bags of urea but only 500 bags out of 1040 bags of fertilizer/urea were transported to and delivered at the F.C.I. godown, Tilrath on 24/25.03.1980 by truck Nos. BRI 7851 and BHF 3155. The remaining 540 bags were although received but not delivered at the F.C.I. godown Tilrath, and therefore, illegally kept out of the relevant records of the F.C.I. godown, Tilrath. On these facts it was alleged that appellants had connived amongst themselves and criminally misappropriated the aforesaid number of bags of urea and also indulged in falsifying of records of F.S.D., F.C.I., Tilrath for the purpose of covering their mis-deeds. 4. The aforesaid allegation contained in the complaint dated 23.12.1981 (Exhibit-8) authored by Sri S.P.Singh, Deputy Manager (Vigilance and Security) F.C.I. Regional Office ,Patna 5 addressed to his higher authorities was subsequently processed and verified and thereafter Sri J.P. Verma (P.W.6) got an F.I.R.(Exhibit-9) recorded vide R.C.19/82/Patna under Sections 120B read with Sections 409,477(A) of the Penal Code and Section 5(2) read with Section 5(1)(c) and (d) of the P. C. Act, 1947. The case, thereafter, investigated by Sri K.N. Sinha, Inspector of Police, S.P.E.,C.B.I., Patna (P.W.21) who seized several documents, got them examined by the Government Examiner of questionable documents (P.W.19), recorded the statement of the witnesses and thereafter sought sanction for prosecution which was accorded by Senior Divisional Manager, F.C.I., a competent authority, (Exhibit-1). The Investigating Officer (P.W.21), having found that a prima-facie case was made out, submitted charge sheet against the present appellants. The Handling and Transporting contractor/agent, namely, Rama Shankar Prasad Singh who also figured as an accused in the F.I.R. (Exhibit-9) was, however, not sent up for trial. As noticed above, his duly nominated representative i.e. appellant Ram Uday Singh was charged and sent up. The learned Special Judge thereafter took cognizance of the matter and subsequently framed charges under different heads as noticed above against the appellants. The accused/appellants abjured their guilt and thus claimed to be tried. 5. The defence of all the accused/appellant was/is that the charge(s) is/are misleading and without any basis. They further took the plea that charge sheet filed in the case was different from 6 what narrated in the F.I.R. They further took the plea that a serious prejudice has been caused to them as they were not made aware as to for what allegation they have been charged and are being put on trial. 6. In order to drive home the charges so framed against the accused/appellants, the prosecution examined, altogether 21(twenty one) witnesses besides bringing on record a host of documents in the shape of different exhibits to show the culpability of the appellants. The defence also adduced oral evidence (DW.1) 7. Mr. S.N.P.Sinha, learned senior Advocate appearing on behalf of the sole appellant in CR. APP.(SJ) No. 281/1997 ( Shiv Shankar Prasad Singh Versus State of Bihar) while assailing the judgment and order of appeal made elaborate submissions and took the court through relevant evidence and documents available on record. Learned counsels appearing in cognate appeals while adopting the arguments advanced by Senior counsel raised some issues/ points which shall be considered at appropriate stage. Mr. Bipin Kumar Sinha appearing on behalf of the C.B.I. supported the judgment and order of conviction recorded by the trial court. 8. P.W.1 Shankar Choudhary, is a typist who has proved the sanction order (Exhibit1). P.W.2 is S.B.Lal Assistant Manager (contract) in the office of Regional Manager, F.C.I. Patna. He has deposed eloquently about the manner in which the F.C.I. appoints Handling/Transporting contractor/Agent for different F.C.I. 7 godowns/stores including F.S.D.,F.C.I., Tilrath. He has deposed to the effect that during the relevant time Rama Shankar Prasad Singh was functioning as Handling and Transporting agent for the F.C.I. godown situated at Tilrath. He has proved the appointment letter (Exhibit-3/1) as also Exhibit-4 which is tender/agreement in order to show that Rama Shankar Prasad Singh was duly appointed and functioning as the Handling and Transporting agent during the relevant time( March 1980). P.W.3 Mihir Kanti Dutta has been tendered and his cross-examination by the prosecution has been declined. P.W.4 Brijdeo Ram was during the relevant time functioning/posted as A.G.III at F.S.D., F.C.I., Tilrath between 1979-1980. He has proved the ‘O’-form which is also the godown stock register (Exhibit-4) of F.S.D.F.C.I. Tilrath dated 25.03.1980 to 24.12.1981, which according to him, was/were maintained in official course of business. He has proved the endorsement/writings of Ramphal Yadav (P.W.20) which also bore signature of appellant Ramdeo Prasad made on 25.03.1980. The ‘O’-form ( godown stock register) is Exhibit-4 and signature of accused/appellant Ramdeo Prasad appearing thereon are Exhibits 4/1 and 4/2. This witness has further proved the ‘G’- form book (Exhibit-5) of 18.02.1979 to 26.06.1981 containing entries and bearing signature of appellant Ramdeo Prasad. The relevant page containing signature of the appellant Ramdeo Prasad is Exhibit 5/1. The entry dated 25.03.1980, in the writing of Shiv Shankar Prasad Singh and bearing his signature is Exhibit 6/1. 8 Here it may be indicated that Exhibit-6 is Inward main gate register which is maintained in official course of business. The delivery book to be maintained at the Barauni Railway Station respecting delivery and receipt of the goods has been proved as Exhibit-7. Page numbers 12 and 13 of the delivery book (Exhibit- 7) indicates that 500 and 540 bags of urea was/were delivered to and received on 24.03.1980 at the Railway head at Barauni by appellant Ram Nath Prasad Sharma. Signature of the aforesaid appellant on delivery book has been proved by this witness and they are Exhibits 7/1 and 7/2. According to Exhibit 7/1 and 7/2, altogether 500 bags were delivered to the representative of the Handling/Transporting contractor on 24.03.1980 and not on 03.04.1980. As per evidence of this witness as also the document so proved (Exhibit 6/1) 500 bags were shown to have been delivered at the F.S.D.F.C.I., godown, Tilrath. Paragraph nos.8 and 9 of his deposition indicates that O-Form, ( Godown Stock Register) and G-form show that on 24/25-03-1980 two truck loads of urea totaling 500 bags were delivered at Tilrath godown. This witness has also proved (Exhibit 24) which is a document containing signatures of different officials present at the godown including that of PW’s 17 Ram Sagar Paswan and P.W.20 Ramphal Yadav besides signatures of others including appellant Shiv Shankar Prasad Singh. According to him, 500 bags were delivered on 24/25-03-1980 and were duly counted, verified and entered in concerned forms/registers. Referring to form-‘O’ it has 9 been deposed that this document ( godown stock register) is maintained at the godown and incorporates the details of receipt and delivery of goods to and from the F.S.D. F.C.I., godown,Tilrath. His evidence further discloses (as is the prosecution case) that on 25.03.1980 appellant Shiv Shankar Prasad Singh was posted at the main gate of the godown at Tilrath. 9. P.W.5 Sudarshan Prasad Singh, is the then Deputy Manager (Vigilance and Security), F.C.I.. He has proved the initial complaint dated the 23.12.1981, which was addressed to the Regional Manager F.C.I., Patna indicating the illegalities and misappropriation of several bags of urea. In this complaint a request was made for investigation by the C.B.I.. A perusal of Exhibit-8 definitely indicates that prima-facie till 23.12.1981 it was found and noticed that although 540 bags of urea were also delivered to and received at the Railway Head by the F.C.I. representative( Ramnath Prasad Sharma) but the same was/were never delivered at the godown, and , as such, seemingly they were misappropriated by the officials in connivance with the Handling/Transporting contractor/agent. The said complaint further disclosed that in order to assess the actual quantity of urea/fertilizer misappropriated by the officials of F.C.I. at Tilrath a physical verification is/was under way. 10. P.W.6 Shri J.P.Verma, was then posted as the Inspector, C.B.I., Patna Branch, Patna, in October, 1982. He has proved 10 institution of F.I.R. (Exhibit-9) giving rise to R. C. Case No. 19/82 on verification of the complaint(Exhibit-8) lodged by P.W.5. 11. P.W.7 Md. Ibrahim, was during the relevant time Head Goods Clerk at the Railway Siding, Barauni. This witness describes entire process to be followed/undergone at the Railway Siding upon the arrival of Railway wagons containing goods for F.C.I. He narrates the process as to how the goods are unloaded and maintained in Wagon Maintenance Register (Exhibit10) and thereafter handed over/delivered to the F.C.I. representative at the Railway Head. The wagon maintenance Register No. S.N.76 containing details of unloading for the period 16.12.1979 to 26.06.1980 can be seen from Exhibit-10. According to him, entries respecting wagon Nos. 17797 and 61690 do prove that these two wagons each containing 500 bags and 540 bags of urea were unloaded on 24.03.1980 at the Railway Siding. According to him, the unloading was complete on 24.03.1980 itself. The delivery book maintained at the Railway side has been proved as Exhibit-7. 12. P.W.8 Binod Kumar Srivastava has been tendered. P.W.9 Ram Baran Mahto is/was driver of truck/vehicle bearing No. BHF/3155. It is one of the trucks which is said to have carried 250 bags of urea from Barauni Railway Head to F.S.D.,F.C.I. godown, Tilrath on 25.03.1980. According to his evidence, 250 bags were loaded on the truck but the same was transported and delivered to a different destination at Manjhaul and not at F.S.D., F.C.I., 11 Tilrath. P.W.10 Rajendra Mahto is the Khalashi of truck No. BHF/3155. He has also deposed to the same effect. 13. P.W.11 Dulal Kumar Biswas is the Assistant Manager, Accounts, F.C.I., Muzaffarpur. P.W.12 Tiloki Ram is the Assistant Manager, Audit, Regional office, F.C.I. Patna who is said to have carried out audit of the F.C.I. godown at Tilrath. P.W.13 M.K.Pathak, Assistant Manager, F.C.I. is said to have conducted the physical verification for the period October 1982 to December 1982. His report is on record as Exhibit 13. According to him, he conducted the physical verification on the basis of opening balance as existing on 06-10-1982 and did not find any shortage. The report (Exhibit 13), however, shows that on the dates of physical verifications he did find that 540 bags of urea were not at all delivered at F.S.D.F.C.I.Tilrath and thus appeared to have been swindled by the Handling/Transporting agent. 14. P.W.14 Manmohan Singh is owner of Truck bearing no. BHF/3155, one of the two trucks used for carrying urea to the F.S.D. godown, Tilrath on 25.03.1980. According to him, the bags loaded on the truck on 25.03.1980 were not delivered at F.S.D., F.C.I., Tilrath but at a godown in Manjhaul. P.W.15 Pratul Kumar Singh is the owner of truck No. BRI/7851 which is the second truck allegedly used by the Handling/Transporting contractor or his representative for carrying 250 bags of Urea. P.W.18 Rama Rai is the driver of the said truck. According to the evidence of both these witnesses, on the relevant day i.e. on 12 24/25.03.1980 Urea belonging to F.C.I. were not carried by the said truck from Railway Siding Barauni to F.S.D. F.C.I., Tilrath. P.W.18 has further stated that no gate pass at the Railway Head was issued and handed over to him. He denied his signature(s) on them. 15. P.W.16 Ram Narain Singh during the relevant time was posted as Head Watch Man at F.S.D. F.C.I., godown, Tilrath. P.W.17 Ram Sagar Paswan is another F.C.I. official, A.G.III, posted at F.S.D.F.C.I., godown, Tilrath. P.W.19 is the Deputy Government Examiner of the questioned documents who has proved his opinion (Exhibit 20) and the reasons for recording the opinion (Exhibit-20/1). Exhibit-29 is the questioned/admitted document and admitted signatures. It is to be highlighted here that his evidence and the reports so submitted by him including Exhibits 20, 20/1 and Exhibit 29 have not been questioned by any of the parties. His evidence has not been even referred to by the learned senior counsel appearing on behalf of the appellant(s). 16. P.W.20 Ramphal Yadav is an employee of F.C.I. (A.G.II) who claims to be posted at F.C.I. godown, Tilrath during the relevant time. P.W. 21 K.N.Sinha, Inspector, C.B.I./S.P.E., Patna is the Investigating Officer of the case. He conducted the investigation and after recording the statements, effecting seizure(s) and getting them examined by the Government examiner and after obtaining sanction filed the charge sheet finding the case to be prima-facie true against the 13 accuseds/appellants. 17. As seen above, all the appellants have been charged for criminally misappropriating 1040 bags of urea which was/were to be carried and stored at the F.S.D., F.C.I., Tilrath. Appellant Shiv Shankar Prasad Singh has been charged under Section 477(A) of the Penal Code for having defrauded, falsified main gate register (Exhibit-6), arrival tally Book, G-form and O-form dated 24/25- 03-1980 by making false entries in respect of arrival of 500 bags urea in the said depot from the Railway Siding which did belong to F.C.I., F.S.D., Tilrath with a view to criminally misappropriate them. This appellant has also been charged under Section 5(1) (d) of the P. C. Act punishable under Section 5(2) of the Act. Appellant Ramdeo Prasad in (CR. APP. (SJ) No. 282/1997) has been charged under Section 477A of the Indian Penal Code for having misappropriated 1040 bags of urea belonging to F.C.I. He has also been charged under Sections 5(1)(d) of the P.C. Act punishable under Section 5(2) of the Act. Appellant Ram Nath Sharma in (CR.APP. (SJ) No. 299/1997) has been charged under Section 409 of the Penal Code for having intentionally and criminally misappropriated 1040 bags of urea after having received as F.C.I. representative at the Railway Head which was supposed to be transported to and delivered at F.S.D.,F.C.I., godown Tilrath. He has further been charged under Section 5(1) (c) & (d)of the P.C. Act punishable under Section 5(2) of the Act. Appellant Ram Uday Singh in ( Cr. APP.(SJ) No. 309/1997) has 14 been charged under Section 409 of the Penal Code for having misappropriated 1040 bags of urea being the Representative of the Handling/Transporting Contractor/Agent who was delivered 1040 bags of urea for being transported to and delivered at the F.S.D.,F.C.I., godown, Tilrath. All the appellants thereafter have been charged under Sections 120B read with Section 409 of the Penal Code and Section 5(2) read with 5(1) ( c) and (d) of the P.C. Act for having connived and using their official positions as public servants to criminally misappropriate 1040 bags of urea worth about Rs. 98,540/- which was entrusted to appellant Ram Nath Sharma as representative of F.C.I. at the railway Siding Barauni and were to be transported to F.S.D., F.C.I., Tilrath for unlawful gain/enrichment. 18. To appreciate the case a few facts which provide the background of the case need to be taken note of. The occurrence is said to have been committed in between March-April 1980. The first report suspecting foul play at the hands of the officials at F.S.D. F.C.I., Tilrath in connivance with Handling/Transporting Contractor/Agent was made sometimes in April, 1980 by appellant Ramdeo Prasad. The records indicate that the officer-in- charge Manjhaul police out post had in the beginning days of April 1980 got a secret information and acting thereon raided a godown at Manjhaul and recovered 519 bags of Urea from the godown belonging to Atul Kumar Singh and Pratul Kumar Singh. On his self statement an F.I.R. was lodged being Cheriya 15 Bariyarpur P.S. Case No. 2(4)/ 1980 under various Sections of the Penal Code against aforesaid Atul Kumar Singh, Pratul Kumar Singh and Rama Shankar Singh (the Handling/Transporting Contractor/Agent in the present case). The charge sheet was subsequently filed under Sections 411 and 407 of the Penal Code and Under Section 7 of the E.C. Act. The certified copy of the judgment dated 02.12.1986 rendered in the said case available on record indicates that no witness appeared in the said case and as such an order of acquittal was recorded therein. The complaint (Exhibit-8) therefore, discloses that the different records maintained at the F.S.D. F.C.I., Tilrath, Prima-facie, do indicate arrival and delivery of 500 bags of Urea in two truck loads but there was/were absolutely no indication/entry about the arrival of the rest 540 bags of Urea. It is the admitted case of the parties that 1040 bags of Urea were unloaded at the Railway Siding on 24/25- 03-1980 and delivered to and received by the F.C.I. Representative, namely, appellant Ram Nath Prasad Sharma. It is further admitted that appellant Shiv Shankar Prasad Singh who was during the relevant time posted at F.C.I. godown Tilrath and was deputed at the main gate of the godown and was obliged to make entries respecting entry of vehicles/goods at the said godown. Referring to the evidence of P.W.20 Ramphal Yadav it has been submitted by the learned senior counsel that the godown stock register dated 25.03.1980 ‘ O’- form (Exhibit 4/2) does indicate entry of 500 bags of urea on 25.03.1980. It further 16 indicates the ledger folio where the relevant entries were also to be entered/mentioned. This document has been signed by the depot Incharge i.e. Ram Deo Prasad apart from appellant Shiv Shankar Prasad Singh. He then refers to para 6 of his deposition where it has been stated that 500 bags did reach F.C.I. godown at Tilrath. It appears on 01.10.1982 a chart was prepared relating to arrival of 500 bags of urea on 25.03.1980 (that is much after the institution of the present case).It is admitted position at the bar that Exhibit-24 is not a statutory form/chart to be maintained in official course of business. This chart was prepared in October 1982 whereas the complaint (Exhibit-8) was made in December 1981 and upon verification the F.I.R. was drawn up on 03.05.1982. Referring to Exhibit-24 it has been argued that P.W.20 has stated categorically that the same was prepared by P.W.4 B.D. Ram in his presence which also contained his signature besides signature of P.W.17 (Ram Sagar Paswan).Learned counsel then referred to para 14 of his evidence where this witness is said to have stated that 1040 bags of urea were, in fact, handed over at the Railway Siding, Barauni to F.C.I. agent i.e. appellant Ramnath Prasad which was/were subsequently handed over to the F.C.I. agent namely appellant Ram Uday Singh for being transported to and delivered at Tilrath godown in which actually 500 bags did reach the said godown. Learned counsel then refers to the evidence of P.W.4 B.D. Ram who was during the relevant time posted at Tilrath as A.G.III. This 17 witness has detailed the process and procedures which are adopted at the godown upon arrival of goods of F.C.I. According to him, ‘O’-form (Exhibit 4 series), is/are the godown stock register maintained in the official course of business. ‘G’-From (Exhibit- 5) is another document which is to be maintained first before making appropriate entries in the ‘O’- form. According to him, the Inward main gate register (Exhibit-6) is also maintained in the official course of business and reflects the entries of the vehicle and the quantity of goods ladden thereon. This witness has further stated that delivery book maintained at the Railway Head (Exhibit-7) is also maintained in official course of business. According to him, Exhibit-7 at pages 12 and 13 do indicate that 500 plus 540 bags of urea were handed over to and received by appellant Ram Nath Prasad Sharma. His signatures appearing on Exhibit-7 have been marked