CRIMINAL APPEAL No.322 OF 1997 With CRIMINAL APPEAL NO.325 OF 1997 ------ Against the judgment and order of sentence dated 29.11.1997, passed by Sri Shyam Kishore Sharma, Special Judge, C.B.I.(South), Patna in Special Case No.10 of 1969. ------- 1. AJIT KUMAR NANDI, son of late Bhudeo Chand Nandi, resident of mohalla: Anisabad, P.S.Gardanibagh, Patna 2. BRAJ MOHAN PRASAD, son of Late Ram Prasad Lal, resident of mohalla:- Sadar bazaar, P.S. Danapur Cant, Patna (Appellants in Cr.Appeal No.322/97) JANAK KISHORE PRASAD, son of Late Ram lakhan Prasad, resident of Village Taiyabpur, P.S.Mehnar at present Deari, Distt. Muzaffarpur at present Vaishali (Appellant in Cr.Appeal No.325/97) Versus STATE OF BIHAR (Respondent in both the cases) ------- For the Appellants :Mr.Kartik Kumar Sinha, Advocate (Cr.Appeal No.322/97) For the Appellant :Mr.Arun kumar Tripathi, Amicus curiae (Cr.Appeal No.325/97) For the State (CBI) :Mr.Bipin Kumar Sinha, Standing counsel,CBI ------- P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL *** K.K.Mandal, J Both the appeals arise out of and are directed against the same judgment and order dated 29.11.1997, passed by Sri Shyam Kishore Sharma, Special Judge, C.B.I. (South) Patna in Special Case No.10 of 1969 and, as such, they have been heard together and are being disposed of by this present order. - 2 - 2. In Cr.Appeal No.322 of 1997 there are two appellants, namely, Ajit Kumar Nandi and Braj Mohan Prasad, whereas in Cr.Appeal No.325 of 1997 there is only one appellant, namely, Janak Kishore Prasad. 3. All the appellants herein have been charged under section 120 (B) of the Indian Penal Code for misappropriating the electrical goods of Electrical Sub-division, Gulzarbagh by showing falsely in the records issue of such huge amount of electrical goods on account of maintenance and repairs of the Govt. buildings/premises located within Gulzarbagh Electrical Sub-division. They have also been charged under section 5(1) (c) read with section 5(2) of the Prevention of Corruption Act,1947 for dishonestly and fraudulently misappropriating electrical goods worth Rs.2,95,381.27 entrusted to them as the officers/employees working in the said electrical sub-division during the relevant time and they being the public servants showing falsely issue of such materials against the Govt. buildings, namely, Lady Health Visitors School,Gulzarbagh, Quarter of Inspector of Sale Tax, Patna, State dispensary, Gulzarbagh, Patna, Govt. Polytechnic, Patna, Govt. Printing Press, Patna and office of the Sub-divisional Officer (PWD) Gulzarbagh, Patna. They also seem to have been charged under section 5(1) (d) of the P.C. Act punishable under section 5(2) of the said Act for using corrupt or illegal means by abusing their position as public servants between 21.9.1966 to 20.3.1967 causing huge pecuniary loss of - 3 - Rs.2,95,381.27 to the State exchequer. Records indicate that besides the appellants, three accused persons, namely, Kailash Rai, Md. Hanif and Brahmanand were also put on trial but they died during the pendency of trial. 4. Background facts, in a nutshell, are as follows: The instant case being R.C. 4/69 was registered on the basis of a report submitted by one Sri J.P.Sharma, S.P. C.B.I. which ultimately resulted in registration of a case (Ext.21). The report/FIR alleged that Gulzarbagh Electrical Works Sub-division was one of the Sub-divisions of the then Electrical Works Division, Bhagalpur. Electrical installations, fittings, routine replacement or maintenance of electrical installation in Govt. buildings was the primary duty of the said Electrical Sub-division. During 21.9.1966 to 20.3.1967, co-accused Kailash Rai(since deceased) was posted as the Sub-divisional Officer at the Gulzarbagh Electrical Sub-division, whereas the appellant Janak Kishore Prasad was posted under him as E.S.O. The appellants Ajit Kumar Nandi and Braj Mohan Prasad (Cr.Appeal No.322 of 1997) were posted as the Works Sarkar under appellant Janak Kishore Prasad. Co-accused Brahmanand(since dead) was employed as a fitter in Electrical Works Sub-Division. As per the report, accused Kailash Rai (since deceased) was overall in- charge of the Sub-division and he was entrusted with the duty of repairing/maintaining Govt. buildings under his electrical sub- division with the assistance of other accused persons posted under - 4 - him like all the three present appellants. During the period in question abnormally huge demand of supply of electrical goods were shown and received. Electrical goods worth several lakhs were received through different bills in the said electrical works sub-division, Gulzarbagh. The allegation is that the accused persons with an object to misappropriate the electrical goods so allocated and received in Gulzarbagh Sub-division hatched a criminal conspiracy and exhibited bogus and false issue(s) of electrical goods for different Govt. buildings/premises and misappropriated them. Being the public servants, they were also charged under different provisions of Prevention of Corruption Act, as noticed above. 5. The charges were framed to which the appellants pleaded not guilty and thus claimed to be tried. The defence of the appellants is/was false implication on account of certain illusion and also that none of the accused persons were directly connected with the supply or maintenance nor they were, in any manner, entrusted with the electrical goods alleged to have been misappropriated. They also criticized the sanction order(Ext.19) and thus the entire trial. 6. In order to prove the charge(s) so framed against the appellants, the prosecution examined as many as 64 witnesses, besides bringing on record a serious of documents. 7. This Court refrains from detailing the PWs. on the point of which they deposed, as Shri Kartik Kumar Sinha, learned - 5 - counsel appearing on behalf of the appellants in Cr.Appeal No.322 of 1997 took the Court through the selective witnesses in order to prove the innocence of the appellants. He further submitted that the trial of the appellants stands vitiated in law as there was no valid sanction granted in the eye of law. 8. Mr. Arun Kumar Tripathi, learned amicus curiae, appearing in Cr. Appeal No. 325 of 1997, adopted the arguments so advanced on behalf of Mr. Kartik Kumar Sinha, learned counsel for the appellants (Cr. Appeal No.322 of 1997). 9. Mr. Bipin Kumar Sinha, learned counsel for the C.B.I., on the other hand, supported the judgment and order recording conviction against the appellants and made submissions chiefly referring to the witnesses which have been referred to and relied upon by Mr. Kartik Kumar Sinha, learned counsel for the appellants. 10. Mr. Kartik Kumar Sinha, learned counsel for the appellants (Cr.Appeal No.322 of 1997) first drew attention of the Court to the deposition of PW 61 (Vidyanand Sinha). This witness, during the relevant time, was posted as Junior Engineer at Gulzarbagh Electrical Sub-division. According to him, he made physical verification of different public buildings/premises under focus along with the Investigating Officer. In Paragraph 2 he has detailed the administrative set up at the Sub-division level of the department of electricity. According to him, the Sub-divisional Officer (SDO) is the head of the Sub-division and to assist him - 6 - there are few Junior Engineers (ESO) and Works Sarkar and fitters. The main job of this Sub-division is to attend to the complaint(s) relating to the electrical fitments in Govt. building/premises under the jurisdiction of the Sub-division and to remedy the same by replacement or repairing. The electrical materials were used to be issued to the fitters and in emergency to the Works Sarkar as well by the ESOs under the orders of the S.D.O. In paragraph 4 he has deposed that in stock register(Ext.21) entries were used to be made on the basis of indents. Such entries used to be made by the Junior Engineer (ESO) as well as the Works Sarkar, posted at the Sub-division which used to be counter- signed by the SDO of the Electrical Sub-division being the head of the office. According to this witnesses, the electrical goods were used to be delivered by the suppliers directly to the Electrical Sub- division. In paragraph 8 he has admitted that he was part of the team as technical expert along with I.O. of the case which made physical verification of different buildings/premises. Different physical verifications reports have been proved by him which are on record as Ext. 16/13 (Govt. Polytechnic, Patna), Ext.16/14(State Dispensary, Gulzarbagh,Patna), Ext.16/15, (Lady Health Visitors School), Ext.16/16 (Lady Health Visitors School), Ext.16/17 (Assistant Superintendent Office) and Ext. 16/18(office of the SDO, PWD). It further appears from his deposition that several seizures of electrical fitting were also made and his signatures appearing on those seizures have been proved by him as - 7 - Exts.16/19,16/20 and 16/21. 11. Counsel for the appellants thereafter referred to the evidence of PW 64, K.C.Mandal who is a retired Overseer (ESO) and was posted at Gulzarbagh Electrical Sub-division between the period 1965-66. According to him, the appellant Janak Kishore Prasad was then posted in the said Sub-division as ESO. The other two appellants, namely, Braj Mohan Prasad and Ajit Kumar Nandi were posted as Works Sarkar under the ESO. Paragraph 2 of his evidence again clarifies the principal duty of the Electrical Sub- division. He categorically stated that the electrical goods supplied by the suppliers used to be directly received by the SDO of the Sub-division. The ESO used to function within his jurisdiction and different areas for maintenance and repairing works allocated to different ESOs. The job of the Works Sarkar(s) and fitter(s) posted in the sectional office under the ESO was primarily to assist the ESO in discharge of his duty. The stock register (Ext.21) contained signatures of the accused Kailash Rai (since deceased). The entire entry made in the said stock register has been marked as Ext. 11/5. Referring to different issue register(s) (marked as Ext.23), it has been deposed that the appellant Janak Kishore Prasad, being the ESO, was obliged to maintain the register(s) and entry therein. 64 signatures of the appellant Janak Kishore Prasad appearing on the said register have been conjointly marked as Ext. 16/104. Referring to another issue register (Ext.24), it has been deposed that the same was the half-yearly stock register of the Gulzarbagh - 8 - Sub-division which contained details of the electrical goods received within the last six months and issuance of the materials therefrom. Ext.22 is another issue register which contained signatures of the appellant Janak Kishore Prasad on each and every page thereof. The signature of the appellant Janak Kishore Prasad appearing on each page of the said register (Ext.22) has been marked as Ext.16/108. Paragraph 9 of his deposition sets out the rules and the processes which are applicable. He has further deposed to the effect that during the tenure when he was posted at the said Electrical Sub-division there was no abnormal requirements of any electrical goods from any Govt. premises/buildings qualifying for purchase thereof in bulk. He further deposed that under the rules they were required to submit monthly statements which used to be signed by the ESO (the appellant, Janak Kishore Prasad). These documents and statements according to him are maintained in the official course of business. This witness has proved different monthly returns between the period November 1966 to March 1967. All these returns were prepared and signed by the appellant Janak Kishore Prasad. The signature(s) appearing on those monthly returns have been marked and exhibited as Exts.16/110,16/111,16/112,16/113,16/114 and16/115. Counsel for the appellants thereafter took this Court through the deposition of PW 56, Ram Swaroop Mistry. It has been submitted that from their evidence it can be deciphered that as and when the - 9 - requirement arose/felt for issuance of electrical goods, the fitters or wiremen used to directly approached the ESO(the appellant Janak Kishore Prasad). Such requirement was used to be felt when there was/were requisition from different Govt. buildings/premises placed under the administrative control of the Electrical Sub- division 12. On the basis of the evidence so highlighted by the learned counsel for the appellants (Cr.Appeal No.322/1997), it has been submitted that there is absolute dearth of evidence to show that the electrical goods at no point of time was/were entrusted to the appellants who were surely working under ESO of the Sub- division, namely Janak Kishore Prasad and, as such, they cannot be held to be liable for having misappropriated the electrical goods of different quantities as alleged by the prosecution causing pecuniary loss to the State. He then refers to the sanction orders (Exts.19,19/2 and 19/4) in order to show that those sanctions were granted by the competent authority on 28.2.1972. He then placed the deposition of PW 52, retired Chief Engineer. Referring to paragraph 1 of his deposition, it has been submitted that he has deposed to the effect that he granted sanction on 28.9.1972. On the basis of such submission it has been submitted that there is apparent inconsistency so far as the date of grant of sanction is/are concerned and, as such, this Court should hold that there was/is no valid sanction to prosecute the appellants. 13. This Court considers it appropriate to first deal - 10 - with the said arguments of the learned counsel for the appellants. Perusal of the deposition of P.W.52 shows that the said contention of the appellants is misplaced and misconceived. It appears that by mistake and or by slip of tongue this PW has deposed to the effect that the sanctions, in fact, were granted on 28.9.72 in stead of 28.2.72. There is no merit in the said contention which is accordingly rejected. 14. Per contra, learned counsel for the Central Bureau of Investigation (CBI) drew attention of this Court to the evidence of PW 61 Vidyanand Sinha, particularly paragraph 17 wherein he is said to have stated that specimen signature of the appellant Braj Mohan Prasad was taken (Ext.25). PW 63, A Sr. Scientific Officer (an expert) in paragraphs 7 and 8 of his evidence has categorically stated that he submitted his report(Ext.30) containing signatures on each page of the said report. Referring to the report, he has deposed that opinion no.1 was found to be the writing of the appellant Janak Kishore Prasad. Opinion no.2 confined to the writing of the co-accused Brahmanand. Opinion no.3 related to the another accused, opinion no.4 related to the co-accused Md. Hanif (since deceased). Opinion no.5 related to the writings of the appellant Ajit Kumar Nandi, opinion no.6 related to the writing of appellant Braj Mohan Prasad, whereas opinion no.7 related to the signature of the accused Kailash Rai (since deceased) and opinion no.8 is relating to the signature of the appellant Janak Kishore Prasad. These opinions have not been questioned either by Mr. - 11 - Kartik Kumar Sinha, learned counsel for the appellants or by the amicus curiae. Records further indicates that in fact they refused to cross-examine this witness. 15. Mr. Bipin Kumar Sinha, learned counsel for the CBI then took this Court to the deposition of PW 59 at paragraph 2 to show that this witness has also admitted the fact that store materials kept were under the charge of the Sectional Officer posted at the Section, i.e., ESO. This witness appears to have further stated that normally the electrician and fitters used to receive the electrical equipments/goods, but sometimes in emergency the Works Sarkar also used to take delivery of the electrical materials so supplied to the Electrical Sub-division. Referring to the evidence of PW 64 (K.C.Mandal), it has been pointed out that the issue registers (Exts.22,23 and 24) were at few places found to have been entered in the handwritings of the appellants Ajit Kumar Nandi and Braj Mohan, although they were counter-signed by the ESO who is supposed to maintain the said register at the Electrical Sub-division. He then referred to the evidence of PW 21 Smt. Kamla Awasthi who was then posted as House-keeper at the Lady Health Visitors Training School, Patna as also the evidence of PW 32 another lady employee posted at the said school. According to the evidence of these witnesses, a register (Ext.3) was maintained in the said office incorporating the details of the electrical supply to the said building. Positive evidence of these witnesses are that beyond the entry no supply - 12 - was ever made to the Institute/Govt. buildings. This Court is conscious of the finding which has already been recorded by the learned trial court relating to other buildings, such as Govt. Polytechnic, Patna, Govt. Printing Press, Lady Visitors School, Quarter of Inspector of Sale Tax, Patna, State Dispensary and the office of S.D.O., Patna wherein huge and disproportionate quantity of electrical goods are said to have been supplied showing replacements of electrical goods in those buildings, but on physical verification the same were not found to have been supplied and/or fitted/replaced in those Govt. buildings. Counsel for the CBI on the strength of these evidence, submits that admittedly the appellants were posted during the relevant time as Works Sarkar in the Electrical Sub-division and they were bound to assist the ESO and their superior officers. The evidence available on record is that they also at some point of time indulged in making relevant entries in the issue registers (Exts.22,23 and 24). According to him, if the allegations and the charges are considered on larger spectrum considering the official duty of the appellants and fact that they had directly worked under the officer/including ESO (appellant Janak Kishore Prasad) and had also indulged in maintaining records in their own handwriting respecting issue of huge amount of electrical goods the complicity of the appellants in the offence(s) becomes writ large. It has been then highlighted that the appellants have also been charged under section 120(B) of the Penal Code which, on the facts proved at the trial, engulfs the - 13 - appellants. In order to support his submission, he referred to and relied upon the judgment rendered by Hon’ble Supreme Court in the case of Yash Pal Mittal Vs. State of Punjab reported in (1977) 4 SCC page 540. 16. Before this Court considers the said judgment of the Hon’ble Supreme Court, it is deemed apposite that few provisions of the Penal Code as well as the Prevention of Corruption Act,1947 which are relevant are taken note of. As noticed above, the appellants have been charged under section 120(B) of the Penal code and under different provisions contained in section 5 of the P.C. Act,1947. 17. Section 120(B) IPC is with respect to punishment, whereas section 120 (A) deals with substantive offence. Section 120(A) IPC reads thus: “Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done.- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.” Relevant paragraphs of Section 5 of the Prevention of Corruption Act reads thus: “5. Criminal misconduct in discharge of official duty.-(1) A. public servant is said to commit the offence of criminal misconduct. (a) xxx xxx xxx (b) xxx xxx xxx (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use - 14 - any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for another person any valuable thing or pecuniary advantage, or (e) xxx xxx xxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year.” 18. The Hon’ble Supreme Court in the case of Yash Pal Mittal Vs. State of Punjab (supra) while dealing with sections 120-A of the Indian Penal Code in paragraph 9( at page 543 of the report) held as under: “9. The offence of criminal conspiracy under section 120A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and technique adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means some-times even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes mis- fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when - 15 - they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120A is brought out pithily by this Court in Major E.G. Barsay v. The State of Bombay thus…….” 19. On the basis of the said decision, it has been submitted that in such matter the Court has to ponder over the entire facts appearing from the records and to infer therefrom unity of object amongst the conspirators in achieving the goal which in the present case is misappropriation of huge amount of electrical goods showing them to have been received and issued in connection with maintenance/repair of the Govt. buildings under focus. Counsel for the CBI referring to different provisions contained in section 5 of the Prevention of Corruption Act,1947 submits that a person can be held liable under the said provisions for misappropriation of the property even if it is found from the evidence on record that he allowed any other person to do so, although not entrusted with the property alleged to have been misappropriated. 20. This Court thoughtfully reflected over the rival submissions advanced on behalf of both the parties. The evidence on record do indicate that during the relevant time the appellants herein were posted as ESO(Overseer) and Works Sarkar at the Electrical Sub-division in question. Their duty was obviously to maintain the electrical fitments in Govt. buildings/premises under their jurisdiction. The evidence on record further demonstrates that the Government buildings, namely, Govt. Printing Press, State - 16 - Dispensary, Gulzarbagh, office of the SDO (PWD), Gulzarbagh, Govt. Polytechnic and Lady Health Visitors School were under their jurisdiction and huge amount of electrical goods have been shown to have been issued on repairing/maintenance of the electrical fitments/equipment(s) of these buildings. The stock register (Ext.21) does indicate that the Electrical Sub-division in question did receive huge amount of electrical goods of different categories under different bills and entered therein. The demand of supply of electrical goods during the period(s) in question abnormally rose high. The issue register(s) (Exts.22,23 and 24) set out that the electrical goods of different categories in huge and more often in disproportional number(s) were issued in order to maintain/repair electrical installations in those Govt. buildings. The signature/writings appearing in those issue registers (Exts.22,23 and 24) were found that of the appellant Janak Kishore Prasad and at few places that of the appellants, namely, Ajit Kumar Nandi and Braj Mohan Prasad who were working as Works Sarkar under appellant Janak Kishore Prasad. 21. The inspection memo(s) are