drp {1} Cri. APPEAL No.1/2002 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.1 OF 2002 WITH CRIMINAL APPEAL NO.2 OF 2002 WITH CRIMINAL APPEAL NO.4 OF 2002 WITH CRIMINAL APPEAL NO.7 OF 2002 WITH CRIMINAL APPEAL NO.8 OF 2002 WITH CRIMINAL APPEAL NO.9 OF 2002 WITH CRIMINAL APPEAL NO.10 OF 2002 WITH CRIMINAL APPEAL NO.15 OF 2002 WITH CRIMINAL APPEAL NO.19 OF 2002 XXXXX CRIMINAL APPEAL NO.1 OF 2002 Bhaskar Nathu Patil APPELLANT Age-56 years, Occ-Divisional Accountant R/o Datta Mandir, Deopur Near Hospital of Dr.Sanjay Joshi, Plot No.6, Dhule, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT drp {2} Cri. APPEAL No.1/2002 ....... Mr.N.B.Suryawanshi, Advocate for the appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... WITH CRIMINAL APPEAL NO.2 OF 2002 Madan Dayaram Borwal APPELLANT Age-61 years, Occ-Executive Engineer, R/o Abhiyanta Nagar, Plot No.19, Wadibhokar Road, Deopur Dhule, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.C.R.Deshpande, Advocate for the appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... WITH CRIMINAL APPEAL NO.4 OF 2002 Dwarkanath Wasudeo Deshpande APPELLANT Age-68 years, Occ-Executive Engineer, R/o 29, Vinayak Modakeshwar Society, Indira Nagar, Nashik-422 009 VERSUS The State of Maharashtra RESPONDENT ....... Mr.S.C.Bora, Advocate for the appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... drp {3} Cri. APPEAL No.1/2002 WITH CRIMINAL APPEAL NO.7 OF 2002 Daulat Bhivsan Patil APPELLANT Age-73 years, Occ-Retired, R/o 6, Pramod Nagar, Deopur, Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.P.M.Shah Sr.Counsel i/b Mr.J.R.Shah,, Advocate for appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... WITH CRIMINAL APPEAL NO.8 OF 2002 Murar Lotan Nikum APPELLANT Age-72 years, Occ-Retired, R/o Lane NO.2, H.No.254, Subhash Nagar, Dhule, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.P.M.Shah Sr.Counsel i/b Mr.J.R.Shah,, Advocate for appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... WITH CRIMINAL APPEAL NO.9 OF 2002 Bhima Kailas Bharati APPELLANT Age-63 years, Occ-Retired, drp {4} Cri. APPEAL No.1/2002 R/o Suyog Nagar, Wadibhokar Road, Deopur, Dhule, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.P.M.Shah Sr.Counsel i/b Mr.J.R.Shah,, Advocate for appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... WITH CRIMINAL APPEAL NO.10 OF 2002 Sakharam Raoji Vasave APPELLANT Age-62 years, Occ-Divisional Accountant, R/o Kalika Devi Nagar, Plot No.23, Near Golibar Tekadi Dhule, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.B.Suryawanshi, Advocate for the appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... WITH CRIMINAL APPEAL NO.15 OF 2002 Benusing Shankarsing Pardeshi APPELLANT Age-56 years, Occ-Executive Engineer, R/o Plot No.58, Gondur Vimantal Road Telephone Colony Deopur, Dhule, Dist-Dhule drp {5} Cri. APPEAL No.1/2002 VERSUS 1. The State of Maharashtra RESPONDENTS (Gulabrao Chaman Ahire) Office Superintendent MID Zilla Parishad Dhule 2. Police Inspector, Dhule City Police Station, Dhule ....... Mr.Joydeep Chatterjee, Advocate for the appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... WITH CRIMINAL APPEAL NO.19 OF 2002 Bhaskar Shankar Wagh APPELLANT Age-52 years, Occ-Nil, R/o Deopur Dhule, Dist-Dhule VERSUS The State of Maharashtra RESPONDENT ....... Mr.Mukul Kulkarni, Advocate for the appellant Mr.S.S.Chaudhari, Special Public Prosecutor for respondent State ....... [CORAM : A.V.POTDAR, J.] RESERVED ON : 25 th April 2011 PRONOUNCED ON : 6 th May 2011 JUDGMENT: drp {6} Cri. APPEAL No.1/2002 1. Appellants in all these appeals have questioned the correctness of their conviction and sentence awarded by learned Special Judge, Dhule, vide judgment and order dated 26.12.2001 rendered in Special Case No.120/1996. All the appellants, vide the impugned judgment, have been convicted for an offence punishable u/s 120B of the Indian Penal Code and are sentenced to suffer RI for four years and to pay a fine of Rs.5000/- each with default stipulation of undergoing further RI for three months. The appellants are further convicted for an offence punishable u/s 409 r/w section 120 B of the Indian Penal Code and are sentenced to suffer RI for 7 years and to pay a fine of Rs.1,00,000/- each with default stipulation of undergoing further RI for one year. The appellants are also convicted for an offence punishable u/s 477-A r/w section 120 B of the Indian Penal Code and are sentenced to suffer RI for 5 years, and to pay a fine of Rs.1,00,000/- each with default stipulation of undergoing further RI for one year. The appellants are also convicted for an offence punishable u/s 13 (1) (c) r/w section 13 (2) of the Prevention of Corruption Act, 1988 r/w section 120 B of the Indian Penal Code and are sentenced to suffer RI for 2 years and to pay a fine of Rs.10,000/- each with default stipulation of undergoing RI for further 6 months. Ultimately, the appellants are also convicted for an offence punishable u/s 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act 1988 r/w section 120 (B) of the Indian Penal Code and are sentenced to suffer RI for 2 years and to pay a fine of Rs,10,000/- each with default drp {7} Cri. APPEAL No.1/2002 stipulation of undergoing further RI for 6 months. All the substantive sentences are directed to run concurrently. 2. All these 9 appeals arise out of the judgment and order rendered in Special Case No.120/1996 and hence they are being disposed of by this common judgment. 3. Prosecution case, as unfolded during the trial, may briefly be summarized thus - a) PW-4 Gulabrao Daman Ahire, who was working as Office Superintendent in Minor Irrigation Department, Zilla Parishad, Dhule, lodged a complaint (Exhibit-64) on 26.12.1991 with Dhule City Police Station, Dhule. Pursuant to the said complaint (Exhibit-64) an offence at Crime No.451/1991 u/s 409, 420, 467, 468, 471, 477 r/w 34 of the Indian Penal Code was registered against appellants in Criminal Appeal No.2/2002, 4/2002, 9/2002, 15/2002, 19/2002 and late P.H.Patil, B.D.Lele and B.J.Borse. Initially, investigation was carried out by PI Gujar, who was attached to Dhule City police station at the relevant time. b) It appears that later on the investigation of the said crime was handed over to the State CID. On 16.01.1992, investigation of the said crime was entrusted to PI Mohan Sitaram Pawar, who was attached to CID Nashik. During the investigation PI Pawar moved an application (Exhibit-117) to CJM, Dhule seeking drp {8} Cri. APPEAL No.1/2002 permission to carry out investigation for the offence under the Prevention of Corruption Act. During the investigation, on 05.02.1992, PI Pawar addressed a letter of request to Dhule District Central Cooperative Bank Ltd., (for short DDCC Bank) and to Minor Irrigation Department, Zilla Parishad, Dhule, requesting to furnish requisite documents pertaining to the challans in respect of deposit of amounts. PI Pawar had received 6 orders in respect of Cement advance on 22.04.1992 along with letter (Exhibit-118) from Chief Accountant and Finance Officer (CAFO) in response to his correspondence dated 07.04.1992. c) During further investigation, on 26.05.1992, Assistant Branch Manager, DDCC Bank, had produced challans by which the amounts were deposited in the bank. On 27.05.1992, Junior Assistant Arvind Kotkar, produced 13 files in the police station, which were seized under Panchanama (Exhibit-54) in presence of PW-1 Subhash Mali. On 11.12.1992, Assistant Manager, DDCC Bank, Garudbag Branch, produced scroll book (Exhibit-119) in respect of account No.10691 along with covering letter. On verification of the entries in the cash book and scroll book, in respect of the amounts deposited in the bank, it transpired that an amount of Rs.12,84,336.62 was misappropriated. Investigation further revealed that by the office order, issued by Executive Engineer, dated 27.11.1975, accused No.1 Bhaskar Shankar Wagh (Appellant in Criminal Appeal No.19/2002), was assigned the work of cashier. Though accused Bhaskar Wagh was posted as Junior drp {9} Cri. APPEAL No.1/2002 Assistant, yet he was assigned the work of writing accounts, writing cheques and writing registers pertaining to accounts. Original accused No.2 to 5, who were working as Executive Engineers, at the relevant time, were the drawing and disbursing officers. They were authorized to sign cheques and to distribute amounts and have overall supervision. Original accused No.6 to 9 and deceased Bhalchandra Lele were working as Divisional Accountants and were duty bound to check account and to keep control over the financial affairs of the Minor Irrigation Department, Zilla Parishad, Dhule. During the investigation, statements of certain witnesses were recorded. After completion of the investigation, file / papers of investigation were forwarded to the competent authority to accord sanction for prosecution of the appellants. After receipt of the requisite sanction, charge sheet was filed by PI Shirode before the learned Special Judge, Dhule, on 28.08.1996. After registration of the complaint, but before filing of the charge sheet, Mr.P.H.Patil and B.J.Borse, Executive Engineers expired and hence charge sheet was not filed against them before the Special Judge. d) Record and proceedings show that after the charge sheet was filed and before the learned Special Judge could frame charge, Mr.B.D.Lele (Accused No.10) expired and hence by order dated 24.08.2001 passed on Exhibit-28, trial against Mr.Lele was abated. drp {10} Cri. APPEAL No.1/2002 e) Record further shows that the learned Special Judge, Dhule framed charge (Exhibit-34) against all the appellants for an offence punishable u/s 120B, 409 r/w 120B, 477A r/w 120B of Indian Penal Code, u/s 13 (1) (c) r/w 13 (2) of the Prevention of Corruption Act r/w 120B of the Indian Penal Code and for an offence 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act r/w 120B of the Indian Penal Code. The appellants pleaded not guilty to the charge and claimed to be tried. Prosecution, to substantiate the charges levelled against the accused, examined in all 9 witnesses. Defence of accused No.1 Bhaskar Wagh was that he was working as Junior Assistant and was not working as cashier, no proper sanction was accorded to prosecute him and the documents, on which the prosecution has placed reliance, are not in his hand writing nor had he put signature or initials on the same. Defence of the remaining accused was of total denial and that no proper sanction was accorded to prosecute them for the offence under the Prevention of Corruption Act. The trial court, vide the judgment impugned in the present appeals, convicted and sentenced the appellants, as stated in paragraph No.1 of the judgment. 4. For better appreciation of the submissions advanced by learned counsel for respective appellants and that of learned Special Public Prosecutor, it may be useful to advert to the evidence of material witnesses examined before the trial court. drp {11} Cri. APPEAL No.1/2002 5. For the sake of convenience, the appellants are referred as per their number mentioned in the charge (Exhibit-34). 6. It transpired in the evidence of Ganesh Shelke (PW-6) that he was working as Deputy Chief Auditor (Senior) Local Funds Accounts, Nashik. During 17.12.1990 to 20.02.1991, he had conducted Special Audit of Minor Irrigation Department, Zilla Parishad, Dhule for the period from 17.11.1975 to 15.11.1990, as per the orders of the State Government. During the said special audit, he had examined Petty cash book, challans, pay in slips, bank scroll book in respect of Account No.10961 with DDCC Bank and all the documents relating to the advances received from CAFO. It is the practice that after the cheuqe is received and the same is encashed, an entry has to be effected in the petty cash book, however, on verification of the entries in the petty cash book and the amounts deposited in account No.10961, he had found that the amounts mentioned in the petty as deposited in the said account, were not at all deposited and in some cases less amounts, than shown, were deposited. According to him, deficit amount, which are not deposited in the said bank account, amounts to misappropriation. The said amounts were sanctioned for purchase of cement, natural calamities and carting charges. During the said special audit, he had examined total 18 transactions. He has referred Exhibit-81, an entry in the petty cash book, which shows that Rs.1,53,000/- were deposited in account No.10961 on 22.06.1982, however the bank scroll of the said date shows that drp {12} Cri. APPEAL No.1/2002 only Rs.1,00,000/- were deposited and thus the deficit amount of Rs.53,000/- has been misappropriated. According to him, the cashier, head accountant and executive engineer are responsible for misappropriation of the funds of Minor Irrigation Department, for the said period. 7. It transpired from his cross examination, conducted on behalf of accused No.1 Bhaskar Wagh, that account No.10961 was used for all the schemes of the Zilla Parishad. He has denied that the special audit report prepared by him, is false. He has admitted in the cross examination conducted on behalf of accused No.2 that he has stated in paragraph No.25 of the report that he was not supplied with the necessary documents. He has, in the cross examination conducted on behalf of accused No.3 and 8, admitted that he has not carried out the audit under the provisions of Local Funds Audit Act 1930. He has also admitted that as per rules, Accountant General is the statutory auditor to audit the accounts of the Zilla Parishad for Agency Scheme and service requisition scheme, every year. He has further admitted that he has mentioned in the Special Audit Report that the Accountant General had carried out audit till the year 1984, in respect of Agency and service requisition schemes, so also the local auditor had conducted audit every year and no objections were taken in the said report in respect of any misappropriation. In the cross examination conducted on behalf of accused No.4, 6, 7 and 9, he has admitted that for the first time he had done special audit of drp {13} Cri. APPEAL No.1/2002 Zilla Parishad. He has admitted that it was not his routine work to conduct the audit of Zilla Parishad. He has further admitted that in the regular audits, objections mentioned are known as half memos and the auditor has to give notice to the concerned calling upon him to explain the objections taken in the regular audit. He has also admitted that sometime is required to be given for compliance of the objections. He has further admitted that the audit, he had carried out, was special audit and was not a regular audit and hence no such explanation was called for from the concerned. He has denied that he has prepared the audit report on the basis of insufficient documents in respect of minor irrigation department, Zilla Parishad and Panchayat Samiti. In the cross examination conducted on behalf of accused No.5, he denied that he has wrongly came to the conclusion in respect of misappropriation of the funds of the Zilla Parishad on the basis of insufficient documents. 8. At this stage, a serious note of the fact, that though some questions were put to PW-6 in respect of contents of the special audit report, yet he has not tendered the same in the evidence, for the reasons best known to him and the prosecution, is required to be taken. The criminal complaint against all the appellants is filed on the basis of the very special audit report. What is the effect of non production of the special audit report during the evidence, will be considered in the later part of the judgment. drp {14} Cri. APPEAL No.1/2002 9. Gulabrao Daman Ahire (PW-4) complainant has stated in his evidence that he was working as Office Superintendent in the Minor Irrigation Department, Zilla Parishad, Dhule for two years from 06.09.1990. He has given all the details in respect of the duties assigned to all the appellants. He has stated that accused No.1 Bhaskar Wagh was working as a cashier and as a part of his duty, he was required to write cash book, distribute the amounts received from Government to the concerned and to maintain account of the same, to purchase demand drafts, to encash the demand drafts and to deposit the amounts received in the concerned account, to obtain signature of the Executive Engineer, to maintain register in respect of cheques received and cheque drawn and he has also to tally the balance in the cash book. He has further stated that at the relevant time accused No.2 to 5 were working as Executive Engineers and it was the duty of the Executive Engineer, concerned, to utilize the amount received from the Government for the particular scheme and to check the accounts in supervisory capacity. He has further stated that the concerned Executive Engineers were the drawing and disbursing officers. He has further stated that accused No.6 to 9 were working as Divisional Accountants at the material time and it was their duty to supervise and check transactions carried out by the cashier and in case any discrepancy is found then to report the same to the Executive Engineer and they have also to supervise and maintain all the accounts. He has stated that on the basis of drp {15} Cri. APPEAL No.1/2002 directions received from Chief Executive Officer, Zilla Parishad, he had lodged the complaint. According to him, on verification of the cheques received and drawn register, petty cash book, bank scroll book, entries in the passbook in respect of account No.10961, it was revealed that there was misappropriation of Rs.12,89,336.62 during the period 30.01.1982 to 11.12.1987. The modus operandi of the accused was that after receipt of amount by cash or cheque, from the sub division or from the CAFO, the same were shown on the receipt side, and at the expenditure side the amount is shown as deposited in the bank account No.10961, but actually the amount is either partly deposited or was not deposited at all. He has further stated in the evidence that during the period of misappropriation i.e. between 30.01.1982 and 11.12.1987, accused No.1 was working as cashier while accused No.6, 7, 8 and 9 were working as Divisional Accountants, one after another, during said period whereas accused No.2, 3, 4 and 5 were working as Executive Engineers, one after another, during the said period. A scheme, known as “289 Relief Fund” was undertaken to overcome the scarcity of drinking water and funds were made available for the said scheme from the contingency fund. Entries at serial No.2, 3, 5 and 15 in the complaint (Exhibit-64) are in respect of 289 relief fund scheme. He has stated in the evidence that the entries in the petty cash book are in the handwriting of accused No.1. Entry (Exhibit-66) in the petty cash book at page No.30 dated 09.03.1982 indicates that Rs.55,000/- were deposited in the bank account No.10961, however, after verification of the bank scroll drp {16} Cri. APPEAL No.1/2002 book, entry of Rs.55,000/- was not tressed. Similarly, Entry in the petty cash book (Exhibit-70) at page No.14 dated 23.06.1982 indicates that Rs.20,229.25 were deposited in the said bank account, however on verification neither challan of deposit of said amount was found nor the bank scroll book shows that the said amount was deposited in the bank. Entry in the petty cash book (Exhibit-71) at page 31 dated 07.08.1982 indicates that Rs.12401/- were deposited in the said account, however, the bank scroll book does not show deposit of amount of Rs.12401/-. Entry in the petty cash book (Exhibit-72) at page 15 dated 26.07.1984 indicates that Rs.16493/- were deposited in the said account, however on verification of the bank scroll book it nowhere found that Rs. 16,493/- were deposited in the said account. Entry in the petty cash book (Exhibit-73) at page No.64 dated 23.04.1984 indicates that Rs.1104.50 were deposited in the said bank account, however after verification of bank scroll book it revealed that the said amount of Rs.1104.50 was not deposited in the said account of the bank. Though in the petty cash book it is shown that amounts are deposited in the bank account No.10961, yet on verification of the bank scroll book, it is revealed that these amounts were not actually deposited in the said account. Remaining 12 entries in Exhibit-64 relate to cement purchase, transport and towards traveling allowance. He has further deposed in the evidence that Entry in the petty cash book (Exhibit-74) at page No.24 dated 29.07.1982 in the petty cash book indicates that Rs.2275/- was deposited in bank account No.10961, however, on verification of drp {17} Cri. APPEAL No.1/2002 bank scroll it was revealed that Rs.2275/- were not deposited in the said bank account and not even challans of the said entry were traced out in the record. Similarly, Entry in the petty cash book (Exhibit-75) at page No.47 dated 07.09.1982 indicates that Rs. 1,72,500/- were deposited in the said account, however, on verification of bank scroll book it revealed that only Rs.1,22,500/- were deposited in the said account and balance Rs.50,000/- were not deposited. Same is the case with Entry in the petty cash book (Exhibit-79) at page No.91 dated 20.11.1982, which indicates that Rs.1,39,000/- were deposited in the said bank account, however, on verification of the bank scroll book, dated 20.11.1982 it was found that only Rs.75,000/- were deposited as against Rs. 1,39,000/- shown in the petty cash book and thus there is deficit of Rs.64,000/- while depositing in the said bank account. Entry in the petty cash book (Exhibit-81) at page 98 dated 22.06.1982 indicates that Rs.1,53,000/- were deposited in the said account, however actual physical verification of bank scroll book indicates that only Rs.1,00,000/- were deposited on 22.06.1982 and Rs. 53,000/- were deposited deficit. Entry in the petty cash book (Exhibit-85) at page 98 dated 23.05.1993 indicates that Rs. 1,03,000/- were deposited in the said bank account, however on actual verification of the bank scroll book it revealed that the said amount of Rs.1,03.000/- was not deposited in the said bank account on 23.05.1983. Entry in the petty cash book (Exhibit-87) at page 49 dated 16.09.1983 indicates that Rs.1,65,604 were deposited in the said bank account, however bank scroll book drp {18} Cri. APPEAL No.1/2002 dated 16.09.1983 shows that only Rs.65,000/- were deposited in the said account as against Rs.1,65,604/- mentioned in the petty cash book and thus an amount of Rs.1,00,604 was found deposited less. Entry in the petty cash book (Exhibit-89) at page No.32 dated 21.12.1983 indicates that Rs.1,87,267 were deposited in the said bank account, however on verification of bank scroll dated 21.12.1983 indicates that the said amount of Rs.1,87,267/- was not at all deposited in the said bank account. Entry in the petty cash book (Exhibit-91) at page 32 dated 28.02.1984 indicates that Rs.2,09,708/- were deposited in the said bank account, however the bank scroll dated 28.02.1984 indicates that the said amount of Rs.2,09.708 was not actually deposited in said bank account. Entry in the petty cash book (Exhibit-93) dated 22.06.1984 indicates that Rs.1,22,054.24 were deposited in the said bank account, however the bank scroll dated 22.06.1984 reveals that the said amount of Rs.1,22,054.24 was not actually deposited in the said bank account. Entry in the petty cash book (Exhibit-95) at page 45 dated 03.10.1984 indicates that Rs. 1,58,750/- were deposited in the said bank account, however verification of the bank scroll book dated 03.10.1984 indicates that the said amount of Rs.1,58,750/- was not deposited in the said bank account. Entry in the petty cash book (Exhibit-97) at page 75 dated 14.10.1987 indicates that Rs.1,04,000/- were transferred to the bank account and an amount of Rs.23,090/- was paid to the staff towards T.A. D.A. Bills and Entry in the petty cash book (Exhibit-98) at page No.91 indicates that Rs.1,30.713/0- were not drp {19} Cri. APPEAL No.1/2002 utilized. All the above entries in the petty cash book are in the handwriting of accused No.1 Bhaskar Wagh. 10. The complainant, in his evidence, has identified the signatures of accused No.6, at page No.14, 24, 31 and 98 of the petty cash book. He has also identified the signatures of accused No.4 and 8, at page No.15 and 93. He further identified signatures of accused No.3 and 8 at page No.63. He also identified signature of accused No.7 at page No.32 and 98. He further identified signatures of accused No.2 and 8 at page No.3, signature of accused No.5 and 8 at page No.45, accused No.9 at page No.75