IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.758 of 2008 Date of decision : April 6, 2011 State of H.P. ….Appellant. Versus Narain Dass and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. P.M. Negi, Deputy Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Ramakant Sharma, Advocate, for respondent No.1. M/s Bhuvnesh Sharma & Ramakant Sharma, Advocates, for respondent No.2. Mr. Adarsh Vashista, Advocate, for respondents No.3,4 & 6. Mr. S.C. Sharma, Advocate, for respondent No.5. Ms Ambika Kotwal, Advocate, for respondent No.7. Surjit Singh, Judge(Oral) State has appealed against the judgment dated 22nd August, 2008, of learned Special Judge, Una, whereby respondents Narain Dass and others, hereinafter called accused, have been acquitted of charge, under Sections 409, 420, 465, 468, 465, 471 & 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. State Government formulated a Scheme for construction of dry latrines, in rural areas of the State, and circulated the said Scheme, for implementation, to Block Development Officers. As per the Scheme, people living in rural areas were to be encouraged to construct dry latrines and by way of incentive they were to be paid `1,200/- per latrine, per family unit, in case of General Category people and at the rate of `1,500/-, per latrine, per family unit, in the case of SCs/STs. 3. Accused Narain Dass was Block Development Officer of Bangana, in District Una, in the year 1994-95, when the Scheme was circulated for implementation. Scheme provided that incentive money was to be paid to the persons, constructing latrines, under the Scheme, only after the construction of latrines and also on their giving undertaking, in writing, that the same would be used properly. Latrines were to be constructed by the persons concerned themselves, by engaging skilled persons or some contractor and the incentive money was also to be paid to such persons, directly. 4. Case of the prosecution is that accused Narain Dass engaged two contractors, one accused Prem Chand, for construction of 24 latrines, and the other Ashok Sharma, examined as PW-21, for construction of certain other latrines. These two contractors did not construct the latrines properly. They dug shallow pits and placed a …3… couple of drums and latrine seats and the total expenditure incurred, on each latrine, ranged between `500/- and `600/-. Also, the construction of latrines was carried out by the contractors, without the consent of the residents of the area. Applications of house owners were forged. Receipts, regarding payment of incentive money to those persons, were also forged. False entries were made in the Cash Book, showing disbursement of money to those persons, but in fact money had been disbursed to the contractors. Accused Prem Chand, who was engaged as Contractor, was paid a sum of `36,000/-, while the second contractor PW-21 Ashok Sharma was paid a sum of `54,000/-. 5. A case was registered, after inquiry was conducted by Vigilance Department of the State, vide FIR Ex. PW-28/C, on 28th November, 1998. 6. During the course of investigation, record, pertaining to construction of latrines, was seized. It consisted of applications, receipts, completion certificates, etc. and the Cash Book maintained in the Office of accused Narain Dass. Investigation revealed that accused Tarsem Kumar, who was working as Accountant, and accused Dwarka Dass, who was working as Superintendent, in the Office of Block Development Officer, prepared false record, showing payment of incentive money to the persons, for whom latrines were …4… constructed. Evidence also showed that on retirement of accused Narain Dass, accused Amar Nath took over as Block Development Officer and he also made payment to contractor PW-21 Ashok Sharma, but in the Cash Book, entries were made that the money had been disbursed to individual beneficiaries. Accused Shiv Dayal and Rattan Singh were the Gram Panchayat Development Officers- cum-Secretaries, at the relevant time. They were alleged to have falsely recommended that latrines had been constructed properly and, thus, facilitated disbursement of full money to the contractors, though the work executed by them was substandard. Accused Gulzari Lal was Member of Block Development Committee, at the relevant time. He recorded certificates in some of the cases that construction of latrines was satisfactory. 7. Specimen signatures of accused Narain Dass, Shiv Dayal, Rattan Singh, Tarsem Kumar and Dwarka Dass were taken during the investigation and sent to the Government of Examiner of Questioned Documents, for comparison with their purported signatures, on various documents, like completion certificates, payment orders, initials/signatures in the Cash Book, regarding disbursement of money to the individual beneficiaries, etc. Handwriting Expert opined that their purported signatures on the documents matched with their standard signatures. …5… 8. On completion of investigation, report, under Section 173 of the Code of Criminal Procedure, was filed in the Court of Special Judge, Una, who, after supplying copies of the report and the other documents filed therewith to the accused, and after hearing the learned Public Prosecutor and the learned counsel representing the accused, charged them with the aforesaid offences. On their pleading not guilty, they were put on trial. 9. Prosecution examined the alleged beneficiaries and certain other witnesses, besides proving various documents, to bring the charge home to the accused. Learned trial Court concluded that the case of the prosecution was not proved, beyond reasonable doubt, and consequently acquitted the accused. 10. We have heard learned Deputy Advocate General as also learned counsel representing the accused and gone through the record. 11. Scheme, under which the latrines were required to be constructed, has been proved on record. Its copy is Ex. PW-39/J. Scheme, though does say that the incentive money was to be disbursed to the individuals, who were to construct the latrines, on their giving undertakings that the latrines would be properly used, accused Narain Dass has placed on record a letter received from Additional District Magistrate, Una, Ex. D-4, per which services of accused Prem Chand Contractor …6… were directed to be made use of in the construction of all the 200 latrines, for which funds had been placed at the disposal of accused Narain Dass, in his capacity as Block Development Officer. 12. A reading of letter Ex. D-4 shows that Additional District Magistrate wrote the said letter to accused Narain Dass, Block Development Officer, as per direction of Deputy Commissioner, Una. Accused Prem Chand Contractor was awarded the work of constructing only 24 latrines, because by the time letter Ex. D-4 had been received, work for construction of remaining latrines had been allotted to other contractors. 13. Case of the prosecution is that record was falsified by accused Narain Dass, Block Development Officer, Superintendent Dwarka Dass and Accountant Tarsem Kumar, working under accused Narain Dass, to show that the money had been disbursed to individual residents of the villages, for whom latrines had been constructed. 14. It is true that there are receipts, purporting to have been furnished by the individual residents, per which they had received the incentive money and testimony of PW-21 Ashok Sharma and PW-31 Narinder Kumar Rana, an Advocate, prove beyond any pale of doubt that the money had not been disbursed to the individual beneficiaries and was in fact disbursed to the …7… contractors, but this, by itself, does not prove the charge of misappropriation and forgery. Though, the residents, in whose names latrines had been shown to have been constructed, while appearing in the Court as PW-1 to PW-18, PW-30, PW-32, PW-35 and PW-37, denied their signatures on the receipts, they did admit that latrines had been constructed at their places, by a contractor, by engaging labourers and using cement sheets and latrine seats. There is no corroborative evidence, with regard to their claim that the receipts, purporting to have been signed/thumb impressed by them, are in fact not signed or thumb impressed by them. Their purported signatures on the receipts, applications and other documents, had not been got compared with their standard signatures from the Handwriting Expert. Similarly, opinion of Fingerprint Bureau had not been obtained, in respect of those of the beneficiaries, by whom the documents purport to be thumb impressed. In the absence of corroborative evidence, it cannot be said that the thumb impressions/signatures of the beneficiaries are forged. This is especially so when they admitted that the latrines had been constructed at their places and they had not spent any amount of money on such construction. 15. No doubt, in Cash Book Ex. PW-24/A incentive money is shown to have been disbursed to the individuals, at whose places latrines had been …8… constructed, which is contrary to the testimony of PW-21 Ashok Sharma, Contractor and PW-31 Narinder Kumar Rana, which testimony is going to be referred to hereinafter, but since latrines had been constructed for individual residents of the area, without charging any money from them, the payment of incentive money to the contractors, who executed the work, would not amount to acts of misappropriation or forgery. Money was paid to the contractors, because of their having constructed latrines for individual beneficiaries and, thus, the payment to those contractors was on their behalf. Mens rea for the offences of misappropriation and forgery, i.e. dishonesty or fraudulent intention, are thus missing. 16. PW-21 Ashok Sharma testified that he had been paid `54,000/-, on account of his having constructed latrines for various residents of the area, at the instance of Block Development Officer. He is not an accused. Also, there is no evidence that out of this amount of `54,000/-, he paid any amount of money to any of his co- accused, by way of bribe. Record also does not show that he was not paid the entire amount of `54,000/-. Thus, question of demanding and receiving bribe or misappropriation of Government money does not arise. 17. PW-31 Narinder Kumar Rana, practicing as an Advocate, stated that he had been engaged by one Karam Chand, for issuing notice to accused Prem Chand, …9… as the latter had, under an agreement with said Karam Chand, associated said Karam Chand with him, in the construction of latrines and had agreed to pay him 1/3rd of the toral amount of money, which he was to receive from the Block Development Office, but after receiving an amount of `36,000/-, did not pay anything to said Karam Chand. The witness stated that after he served notice, copy Ex. D-5, to accused Prem Dass, the latter paid `12,000/- to his client Karam Chand. There is no evidence, indicating that any of the co-accused of accused Prem Chand demanded or received any bribe from him or that the entire amount of `36,000/-, shown in the record to have been disbursed, was not paid to him. In view of the above discussion, we see no merit in the present appeal. The same is, therefore, dismissed. ( Surjit Singh ), J April 6, 2011(sd) ( Kuldip Singh ), J.