IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev. No. 208 of 2003. Date of Decision: 5.10.2010. _______________________________________________ Ram Swaroop Sumra. ….Petitioner. Versus. State of H.P. .Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner :Mr.K.D.Sood, Advocate. For the Respondent. :Mr.P.K.Sharma, Addl. Advocate General With Ms. Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner is aggrieved by his conviction by two courts below for offences under Sections 420, 471 and 120-B I.P.C. for which he has been sentenced to undergo imprisonment for various terms. 2. The petitioner in this case is the Bank Manager of Punjab National Bank, Subathu, who has been an accused of entering into a conspiracy with the other accused, namely, Liaq Ram, Pradhan of the Gram Panchayat, Ashok Girdhar, Manager Insurance Company and Chander Mohan, Veterinary doctor working in the Animal Husbandry Department. The Whether reporters of the Local papers are allowed to see the judgment? yes. 2 genesis of the entire case seems to be a complaint lodged by PW1 Tula Ram (since deceased), who was working as a District Manager of the Scheduled Caste & Scheduled Tribe Development Corporation at Solan which had floated a scheme for helping Scheduled Caste and Scheduled Tribe persons to raise loans from the Bank for the purposes of purchase of mules and sheep etc. On the evidence before the learned trial Court, the petitioner along with other co-accused has been convicted. 3. In appeal, the judgment of the learned trial Court has been affirmed. Case of each of the accused is being considered separately by me for the reasons that not only has the learned trial Court jumbled up the facts but I also find that the appellate Court has not made any effort to sift through the evidence to find out the guilt of each of the persons involved. 4. The case against the petitioner was that he was the Bank Manager, Liaq Ram was the Pradhan of the Gram Panchayat, Ashok Girdhar was employed in the United Insurance Company and Chander Mohan was the Animal Husbandry Officer. The First Information Report recorded on the complaint made by PW1 Tula Ram Verma records that he suspects cheating and defrauding of the Corporation as in some loan cases which were received through the Pradhan accused were in fact not genuine cases and the amounts were not disbursed to the persons so named. In particular, the case was that there was no person by the name of Biptu son 3 of Sh. Gorkhu in village Kawalag, P.O.Subathu Tehsil and District Solan and Sawanu son of Sh.Mathru in village Panuh Chibra, P.O.Subathu to whom a loan of Rs.7,000/- each has been disbursed for which margin money of Rs.1750/- has been paid by the Corporation. 5. Investigation commenced and the police seized voluminous documents in order to substantiate its allegation. Twelve witnesses were examined in the case. 6. Adverting to the case of PW1 Tula Ram, all that I need to observe and say that this statement is no evidence at all. This witness says that in the year 1983 to 1989, he was the District Manager of the Himachal Pradesh S.T. & S.C. Corporation. Ext.PW1/A and Ext.PW2/B was the complaint addressed by him to the Superintendent of Police. He then states: “Muhjey P.N.B. Subathu ke Manger dawara suchana aye ki kuch case doubtful hai. Jish per maine apney staff key sath jakar tasdik key va adami maukey per naa miley.” 7. Translated, he states that a complaint was made to him by the Manager, Punjab National Bank, Subathu that some cases of loan disbursed were doubtful upon which he made an inquiry in the staff and found such persons were not in existence. He then states: “ Jin vaykatiyoo ki tasdik mainey va Pradhan ney ki thee unkey name yad naa hai”. 8. At this stage his examination was deferred on the request made by the Public Prosecutor. What his testimony is worth would be evident from a complete reading of the statement, he does not state as to who was the staff etc. who 4 have accompanied him to identify the people he found were not the same people. He admits that he and the Pradhan identified the loanees. The reason for deferring the statement is not known except that another criminal trial was pending. This was hardly a genuine reason in law to have deferred recording his statement. Since he was the person who had the primary knowledge regarding the persons, who were involved in the offence because he had personally investigated the case, there was a duty cast upon not only the prosecutor but also the Court to have recorded his statement in full. This witness is since dead and his testimony incomplete as it is only assists the defence. 9. The second witness PW3-A Pradeep Pushkaran was the Assistant Manager in the Punjab National Bank at the relevant time. He states that Sh. P.C.Kainth was the Bank Manager at that point of time. He further states in evidence that the loan documents seized by the police were filled in by him in the presence of the Bank Manager. He then says in cross-examination that the loan documents were filled in the presence of the loanees, these documents were read over and explained to each of the borrowers. There is not a word in his evidence about the present petitioner or any role ascribed to him. An important aspect of his testimony which has remained un-challenged by the prosecution is that the amount is not disbursed to the loanee but payment is made directly to the seller. In these circumstances, it becomes difficult to hold that the loans were not, in fact, sanctioned 5 and utilized. He admits in his cross-examination that both the loanee Sawanu Ram and Biptu had come to the bank and signed in his presence. This aspect of the case has been totally ignored by the courts below. 10. PW5 Sunil Chand Joshi, who was working with the Corporation at the relevant point of time, admits in his cross examination: “ Mey Pehle Corporation Vibhag mey nokari karta tha. Mey Tula Ram Manager ko Janta tha. Loan application Zila Manager ke name address hoti hai. Loan manjoor karne se pehle Manager sahib prathi ko bulate hai. Agreement va security bond par Zila Manager va Loanee va Jamanti key dastkhat apney samney karwatey hai. Mey Tula Ram Verma kay dastkhat pehchanta hoo. Jamanti va gawahoo kay dastkhato kee identification Pradhan karta tha. Final verification bank Manager karta hai. Unkee jimedari hoti hai. Karja denay kee jimedari bank kee hai.” 11. PW6 Sh. Liaq Ram has admitted in his cross- examination that Sawanu Ram is living in the house of Paras Ram and he is alive. Why Sawanu Ram was not produced by the prosecution, though he was the star witness, remains a mystery. 12. This evidence has not been considered by both the courts below. This is not a case of re-appreciation of evidence but one of perversity of conclusions arrived at by the trial Court without considering the entirety of the evidence on record. It is not as if two views from the evidence are possible and this Court has re-appreciated to take another view. What this Court is mystified by is the fact as to why the 6 best evidence was not produced. What was there on the record to establish the ingredients of Section 120-B I.P.C. which reads: “120-B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both” 13. There is no evidence at all to establish this offence. It is by now well established by a catena of decision that criminal conspiracy cannot usually be established by direct evidence but by circumstantial evidence also. But for that, there should and ought to be ample evidence on the record to show that the chain of events forms a complete whole which leads to no other conclusion save and except the fact that the conspirators were at ad-idem to commit the offence. There is not even an iota of evidence on the record so far as this aspect of the case is concerned. On the other aspect as to whether the petitioner was involved or not I have already extracted the evidence of the witnesses who at the relevant time were working with the Bank and none of them have named the petitioner. There is no evidence on record that the petitioner was, in fact, instrumental for committing any offence more especially in view of the statement of PW3- 7 A Pradeep Pushkaran, PW5 Sunil Chand Joshi and PW6 Sh.Liaq Ram. 14. Adverting to the judgment of the learned appellate Court, I must say that it only notices certain judgments which have been cited and then affirms findings of the court below. Both the courts below were bound in law that in order to attract criminality what was required was to ascertain each and every fact from the evidence which would implicate the petitioner. 15. In the facts and circumstances of the case, I hold that there was no evidence worth the name on the record to implicate the petitioner. This revision petition is accepted. The petitioner is acquitted of all the offences as charged. Bail bonds furnished by the petitioner shall stand discharged. (Dev Darshan Sud), Judge. October 5,2010(R)