1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.554 of 2002. Judgment Reserved on:2.8.2010. Decided on: November 22, 2010. State of H.P. …Appellant. VERSUS Baldev Kumar ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr.Rajinder Dogra, Addl.A.G. with Mr.Anil Jaswal, Dy.A.G. For the respondent: Mr.R.K.Gautam, Sr.Advocate with Mr.Mehar Chand, Advocate. R.B.Misra, Judge: The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 8th May, 2002, acquitting the accused respondent by learned Sessions Judge, Bilaspur, H.P., in Criminal Appeal No.4 of 1997 (Shri Baldev Kumar versus State of H.P.) preferred under Section 374 Cr.P.C. against the judgment dated 16th December, 1996 of learned Judicial Magistrate 1st Class, Bilaspur, passed in Case No.176/2 of 1995/91, convicting the respondent / Whether the reporters of the local papers maybe allowed to see the judgment? 2 accused for the offences under Sections 420, 467, 468 and 471 of the Indian Penal Code and sentencing him (a) to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months for the offence under Section 420 IPC, (b) rigorous imprisonment for three years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year for the offence punishable under Section 467 IPC, (c) rigorous imprisonment for two years and to pay a fine of Rs.2000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months, under Section 468 IPC and (d) rigorous imprisonment for one year and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months, under Section 471 IPC, however, ordering the sentences to run concurrently. 2. In order to adjudicate the present criminal appeal, we notice that on 30.3.1990, Shri S.R.Karad, the then Excise & Taxation Officer, In-charge M.P. Barrier, Swarghat, District Bilaspur, H.P in a routine checking to Shri Naina Devi Ji Barrier, checked two buses No.CHW-5609 and CHW-4109 coming from Gowalthai side. The Passenger Taxation Receipt was checked. On checking of such receipt, it was found that the serial number of the receipts were not one after the other. On further checking of Daily Collection Register, it was also noticed that one of the receipt mentioned herein-above was not entered in the Daily 3 Collection Register. On noticing prima-facie irregularity, a report was lodged with Superintendent of Police, Bilaspur and after investigation, it was found that the respondent / accused had made the forged receipts as genuine for the purpose of cheating, as such, the respondent / accused was charged for the aforesaid offences and the case was tried by the learned Judicial Magistrate 1st Class. 3. In order to prove its case, the prosecution has examined as many as twelve witnesses, whereas, the respondent / accused, through his testimony under Section 313 Cr.P.C., has denied the prosecution case. 4. It has been argued by Shri Rajinder Dogra, learned Additional Advocate General, appearing for the State, that the respondent / accused was posted as Excise & Taxation Officer at Gwalthai Barrier in reference to the appointment letters as Ext.PJ and Ext.PW-1/K and the receipts in question were issued by the respondent / accused and money was charged as passenger tax from the vehicles which had passed the barrier. The relevant receipt books Ext.PW-1/M and Ext.PW-1/N indicate that the respondent / accused had removed the genuine receipts and had inserted forged receipts in place of original genuine receipt books and realized the money on such receipts. Expert opinion Ext.PW- 2/G had also established that the respondent / accused had issued the receipts in question which were forged and not genuine and on the basis of appreciation of prosecution witnesses and materials on record, the learned trial Court (learned Judicial Magistrate 1st 4 Class, Bilaspur) has found the respondent / accused guilty of the aforesaid offences and has accordingly convicted him, as above. However, the first appellate Court i.e. learned Sessions Judge has erred in making proper appraisal of the prosecution witnesses and materials on record and has acquitted the respondent / accused ignoring the documentary evidences on record. 5. Prosecution examined PW-1 Sh. S.R. Kara, Assistant Excise & Taxation Officer, Nahan, PW-2 Mehar Chand, driver of vehicle No. PUR 7031, PW-3 Sh. Mohinder Singh, Questioned Documents Examiner, PW-4 SI Mehar Chand, PW-5 Ramesh Kumar, PW-6 Devi Dutt Sharma, retired Naib Tehsildar, PW-7 Parkash Chand, Excise & Taxation Inspector, PW-8 Inspector Govind Ram, PW-9 P.s. Chauhan, Additional Director, Welfare, PW-10 Jintender Srivastab and PW-11 Gurmeet Singh. 6. PW-1 (S.R. Karad) deposed that from November, 1987 to January, 1993, while being posted as ETO, Swarghat, he was supervising the work of Naina Devi Ji barrier. During the period on 30.3.90, on checking, he noticed two buses CHW-5609 and CHW 4109 coming from the Gowalthai side and on asking the drivers of the buses to produce documents regarding passenger tax. The driver of bus No. CHW 5609 produced receipt Ex PW-1/A issued for Rs. 200/- and the driver of another bus CHW 4109 produced receipt Ex PW-1/B, as both the buses had crossed Gowalthai barrier simultaneously. According to PW-1, from perusal of both the receipts, it could be noticed that serial numbers were different, therefore, for the purposes of verification, both the 5 receipts were kept by him and found that both the receipts were issued by accused Baldev Kumar. At about 7.30 PM when PW-1 reached Gowalthai barrier, accused was not present . On 31.3.1990 at about 7.30 AM, accused had reported at Gowalthai barrier and on checking it was found that the receipt Ex PW-1/B was not registered in the daily register by the accused. Therefore, PW-1 seized both the receipt books and the daily register and recorded the statement of the accused Ex PW-1/G and the statement Ex PW-1/H was written by the accused himself. PW-1, during investigation, had handed over to the police the posting and appointment orders of the accused Ex PW-1/J and PW-1/K and the two receipts Ex PW-1/M and Ex PW-1/N were taken into possession at Gowalthai barrier. 7. PW-2 (Mehar Chand) deposed that Raj Kumar of Nangal was the owner of vehicles No. PUR 7031 and PCU 9993. PW-2 was the driver of vehicle No. PUR 7031 and both the vehicles had passed Gowalthai barrier and the passengers and goods tax was paid vide receipt Ex PW-2/A, Ex PW-2/B and Ex PW-2/C which were taken into possession by the police. PW-3 Mohinder Singh, the Questioned Documents Examiner deposed that he had taken the training of examination of documents including Hand writings identification and forgery detection in Govt. of India Lab at Hyderabad for three years and had been in the profession for the last 20 years and had occasion to examine thousands of documents. PW-3 further stated that all the relevant receipts and receipt books and daily register pertaining to the case 6 were examined by him along with the admitted and specimen hand writings and signatures of the accused. After examining the above said documents carefully, he had given his report Ex PW-3/G and gave his opinion for the same Ex PW-3/H. ASI Mehar Chand (PW- 4) partly investigated the case by taking into possession of daily register of Gowalthai barrier as Ex PW-4/C and the specimen hand writing/signatures of the accused Ex PW-3/A to Ex PW-3/F. PW-2/B and PW-2/C were taken into possession by him vide recovery memo Ex PW-2/A. PW-4, during investigation, came to know that forged receipts were got printed from Anshu Printing Press, Delhi as the said Press was closed after the death of its owner Maharaj Charan Dass. Registration certificate of the press and death certificate of the owner Ex PW-4/D and Ex PW-4/E were taken into possession by PW-4 vide recovery memo Ex PW-4/F. PW-5 (Ramesh Kumar) was examined to prove the recovery memo vide which the posting and appointment orders of the accused were taken into possession. PW-6 (Devi Dutt Sharma), retired Naib Tehsildar, the Executive Magistrate from 1990 to 1992 at Shri Naina Devi Ji deposed that in his presence the police had obtained the specimen hand writings/signatures of the accused vide memo Ex PW-4/A to Ex PW-4/F. Parkash Chand (PW-7) deposed that at the relevant time he was posted as ETI Gowalthai barrier along with accused. PW-6 further disposed that they had been issuing receipts from the receipt book handed over to them by the Department. After issuing the receipt, its entry was made in the daily collection register. PW-7 has further deposed that 7 accused had gone for 4-5 days leave, therefore, he had taken the charge of the barrier and also found during that time that 4-5 receipts, which appears to be forged, were different in serial numbers and after making inquiry from the accused on his joining duty, the accused expressed his ignorance. Such receipts were Ex PW-7/A to Ex PW-7/E in the receipt book Ex PW-1/M. The said receipt books were taken for verification and accordingly complaint was written to ETO and upon this ETO reached Gowalthai barrier and had taken into possession the same receipt book Ex PW-1/M also having the receipt Ex PW-7/F to Ex PW-7/J. PW-7 further deposed that the photocopies of daily collection register Ex PW- 7/K was also taken into possession by the police vide recovery memo Ex PW-7/L. PW-8 Inspector Govind Ram had registered the FIR Ex PW-8/A and had also taken into possession all the relevant receipts and receipt book from ETO S.R. Karad vide memo Ex PW-8/B. PW-9 P.S. Chauhan, Additional Director, Welfare deposed that from 1987 to 1992 Deputy Excise Commissioner, Headquarter Shimla had received a complaint from ETO, S.R. Karad, PW-1 which was sent to S.P. Bilaspur for registration of case vide letter Ex PW-9/A. PW-10 (Jitender Shrivastab) deposed that his late father (who died on 14.8.90), was the owner of Anshu Printing Press having registration certificate Ex PW-4/D. PW-11 (Gurmeet Singh) deposed that in 1990 he was conductor in the Paunta Sahib Company, said company was having buses No. CHW 5609 and CHW 4109. PW-11, further deposed that on 30.3.90, said buses had gone to Shri Naina Devi Ji and he had 8 also gone alongwith said buses at Gowalthai, the buses had entered into H.P and tax was paid at Gowalthai barrier vide two different receipts. PW-11 has categorically deposed that the said receipts were Ex PW-1/A and Ex PW-2/B . PW-12 Jai Lal deposed that in 1991 he was SHO, Police Station, Kot and after the completion of the investigation on 26.9.9, he had prepared the challan. 8. PW-1 R.L. Karad, the then ETO as well as PW- 7 Parkash Chand the then ETI were the star witnesses and it was not denied by the accused that he was posted as ETI at Gowalthai barrier at the relevant time. Appointment order Ex PW-1/J and posting order Ex PW-1/K also established that at the relevant time, he was working as Excise & Taxation Inspector and in view of the testimony of PW-1, at the relevant day, i.e.30.3.1990 he had checked the passenger tax of two buses No. CHW-5609 and CHW 4109 and after perusing said receipts Ex PW-1/A and Ex PW-1/B, he noticed some anomaly in both the receipts. Consequently, PW-1 had visited the Gowalthai barrier and on the next day, i.e. 31.3.90 when accused came to join on duty, PW-1 took into possession the relevant receipts books Ex PW-1/M and Ex PW-1/N. All the relevant receipts Ex PW-7/A to Ex PW/7/J were suspected to be forged and accordingly a formal complaint Ex PW-9/A was lodged with SP Police, upon which relevant FIR Ex PW-8/A was registered against the accused. Parkash Chand PW- 7, ETI who was also on duty at the relevant time with the accused, has categorically stated that accused had taken 4-5 days leave, 9 therefore, he was Incharge at Gowalthai barrier and at that time he found some of the fake receipts as there was difference in serial number in the receipts contained in receipts books Ex PW-1/N and Ex PW-1/M. Therefore, he reported the matter to PW-1, the then ETO, who subsequently visited Gowalthai barrier and carried out initial inquiry. 9. On the basis of materials on record, it is proved that on 30.3.90 and 31.3.90, accused Baldev Kumar was ETI at Gowalthai barrier, his colleague Parkash Chand PW-7 and his officer PW-1 the ETO R.K. Karad had suspected some of the receipts to be forged one. The specimen hand writings/signatures of the accused were obtained by the police before Executive Magistrate vide Ex PW-3/A to Ex PW-3/F and the said specimen signatures were sent to the Questioned Documents Examiner for comparison and the expert opinion Ex PW-3/G divulged that the hand writings and signatures appended over the disputed receipts Ex PW-1/B and Ex PW-2/B were of the same person who had appended his hand writings/signatures with Ex PW-3/A to Ex PW- 3/F. Mohinder Singh, PW-3 has also given detailed reasons with his opinion Ex PW-3/H. 10. The accused, on the other hand, has tried to take defence that he has used only the receipts which were issued by the department , whereas as per the prosecution case, the accused had removed some of the genuine receipts from the receipt book and in place of those genuine receipts, he has placed the forged receipts. It is also pertinent to note that certified copies 10 of the register Ex PW-1/F and Ex PW-7/K have been placed on record by the prosecution and the forged receipts Ex PW-1/B and Ex PW-2/B were issued by the accused on 30.3.90 and 10.1.90. On perusal of the above said copies of daily cash register, it appears that the accused had not entered the said receipts in the said register, whereas he had duly entered all the genuine receipts. Whereas PW-7 Parkash Chand while working with the accused had been entering all the receipts in daily register and during his time, no unusual thing had happened and PW-7 had no idea whether receipts Ex PW-7/A and Ex PW-7/B which were issued by him were not genuine. PW-11 (Gurmeet Singh), employee of Paunta Transport Company has very categorically deposed that two buses of company No. CHW 4109 and CHW 5609 had crossed Gowalthai barrier at the relevant time and the passenger tax was charged under the receipts Ex PW-1/A and Ex PW-1/B and out of the said receipts, the receipt Ex PW-1/B was forged one. Mehar Chand, PW-2, driver of vehicle No. PUR 7031 had also very categorically deposed that the said vehicle had also crossed the Gowalthai barrier in January, 1990 and the passengers tax was charged vide receipt Ex PW-2/B. Since these two receipts Ex PW-1/A and Ex PW-1/B through which the alleged passenger tax was recovered was not shown in the register, as such the money received by the accused are said to be misappropriated dishonestly. The testimonies of PW-1, PW-7 and PW-11 have corroborated the expert opinion Ex PW-3/H. As such, it is proved on record that the accused had fraudulently and 11 dishonestly used the forged receipts as genuine which the accused knew to be forged receipt and as such the accused has committed an offence punishable under section 471 IPC. 11. On analysis in detail, the prosecution witnesses and materials on record, we notice that receipt Ex PW-1/A issued for Rs. 200/- and another receipt Ex PW-1/B was not covered by genuine receipt of the department and the money recovered from these receipts were fraudulently misappropriated and, as such, the accused respondent was rightly held guilty of the aforesaid offences in the facts and circumstances by learned Judicial Magistrate and was rightly sentenced and imposed fine. 12. On analysis of the appellate order dated 8.5.2002, we find that appraisal of the prosecution witnesses has not been made properly on conjectures and surmises, it has been presumed that the benefit of doubt could be given to the accused, whereas the prosecution witnesses, PW-1, PW-7 and PW-3 have very coherently proved the prosecution case. 13. Sh. R.K. Gautam, Senior Advocate has vehemently argued that the accused/respondent, in due discharge of his official duty as Excise and Taxation Inspector on 30.3.90 at Gowalthai barrier had issued the receipts in lieu of passenger tax and those receipts were issued as per the receipt book obtained from the department and there was no bad motive of the accused . As such, issuance of receipts in lieu of passenger tax was in the discharge of official duty as such, sanction under section 197 (1) of Cr.P.C was necessary to be obtained from the appropriate 12 authority before proceeding against him. Whereas, on analysis of the receipts in question, having been issued by the accused/respondent, it could safely be inferred that the money realized and for that bogus and forged receipts were issued for misappropriating the amount by the accused/respondent by cheating and the act of the kind of cheating cannot be an act purported to have been done in the discharge of official duty of an employee, in view of the decision of Hon’ble Supreme Court in Manohar Nath Kaul Vs. State of Jammu & Kashmir 1983 Crl L.J. 988 = AIR 1983 SC 610. 14. Even the fabrication of the record and misappropriation of public fund by public servant cannot be treated to have done in official duty and sanction for prosecution of such public servant for the alleged offence is not necessary in view of the decision of Hon’ble Supreme Court in Shambhoo Nath Misra Vs. State of U.P. & ors, 1997 Crl. L.J. 2491. 15. In State of H.P. Vs. M.P. Gupta (2004) 2 SCC 349, the Hon’ble Supreme Court has observed that though there is a bar of taking cognizance of any offence by any Court without obtaining sanction under section 197 Cr.PC and unless sanction is obtained from an appropriate authority, accused cannot be held guilty for the offence committed in discharge of official duty by an employee, but here the act of cheating, misappropriation, forgery and issuance of fake and forged receipts for realization of passenger tax could never be said to be an act to have been done in due discharge of official duty by the accused. 13 16. Under official duty, the accused/respondent was not supposed to issue a forged receipt for realization of passenger tax. As such, expression “any offence” alleged to have been committed by an employee while acting or purported to act in discharge of his official duty cannot give protection to the accused/respondent as the acts done by the accused/respondent are not covered in the official duty of the accused. As such, it was not necessary to be obtain sanction for proceeding against the accused/respondent, more so, such aspects have not been argued before the learned trial court or before learned first appellate court. 17. Hon’ble Supreme Court in State of Uttar Pradesh Vs. Paras Nath Singh, (2009) 6 SCC 372 has observed that the burden to proof failure of justice is on the accused in criminal trial and for the offence under section 409 IPC (criminal breach of trust by public servant etc) and for the offence under section 468 IPC (forgery for the purpose of cheating) sanction for prosecution is not required. Since in our considered view, the offences in question are not committed in discharge of the official duty by the accused, as such, submission of Mr. R.K.Gautam, Senior Advocate appearing for the accused/respondent is devoid of legal force. In the facts and circumstances, learned Judicial Magistrate has rightly found the accused/respondent guilty of the aforesaid offences under sections 420, 467,468 and 471 of IPC, whereas, learned Sessions Judge, Bilaspur has erroneously and illegally failed to make proper appraisal of the prosecution witnesses and materials on record. The impugned order dated 8th 14 May, 2002 passed by learned Sessions Judge is not legally sustainable, therefore, it is set aside and the accused/respondent is held guilty of the offences under sections 420, 467,468 and 471 of IPC and the judgment dated 16th December, 1996 passed by learned Judicial Magistrate, 1st Class Bilaspur, in case No.176/2 of 1995/91 is affirmed. The criminal Appeal accordingly is allowed and the accused/respondent has to be apprehended so that he may go for sentence awarded above mentioned. Bail bonds furnished by the accused / respondent are hereby cancelled. ( R.B.Misra ), J. November 22, 2010 ( V.K.Sharma ), J. (sl)