IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 249 of 1996 Date of decision: 5.3.2010 State of H.P. …. Appellant. Vs. Tirath Ram ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent: Mr. Ramakant Sharma, Advocate. Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement of the learned Special Judge, Una, in Corruption case No. 1 of 1993 dated 20.3.1995 whereby he acquitted the accused of having committed offences punishable under Sections 420, 465, 467, 468, 471 of the Indian Penal Code and under Section 5(2) of Prevention of Corruption Act. The Admitted facts are that the accused was working as a teacher in Government Primary School, Jhambar. He applied for grant of Leave Travel Concession to travel alongwith his family members to Goa and back to his place of posting. He was granted an advance of Rs.4200/- on 21.7.1983. The accused submitted certain vouchers showing that he had traveled to Goa and back to the superior authorities between the period 15.8.1983 to 25.8.1983. He submitted total bills of Rs.6990/- 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 and after deducting advance of Rs.4200/- he was paid balance amount of Rs.2790/- on 13.9.1983. Here the dispute begins. According to the prosecution the accused and his family never traveled to Goa. The accused had produced vouchers from India Tourist Bus Service for the journey from Delhi to Goa and back to Delhi. According to him he had traveled from Una to Delhi and back to Una by HRTC bus. There is no serious challenge to the claim of the accused for his journey upto Delhi. The main dispute is whether the accused and his family traveled from Delhi to Goa and back. The main plank of the prosecution case is that in fact no India Tourist Bus Service exists at the address given in the vouchers Ext.PW-2/B to Ext.PW2/D and that these vouchers produced by the accused are forged one. The defence of the accused is that in fact his family members traveled from Una to Delhi by HRTC bus and thereafter he obtained the services of a travel agent who booked him on a bus belonging to the India Tourist Bus Service to Goa. However, on the way the bridge between Banda and Goa had been damaged and heavy vehicles were not allowed to cross the said bridge and therefore, he and his family members went to Goa from Banda by taxi and came back in a taxi and then took the bus back to Delhi. The learned Trial Court held that even if the allegation of prosecution is proved no offences under the Prevention of 3 Corruption Act are made out since there is nothing to show that any amount was entrusted to the accused or that he by illegal means obtained any pecuniary advantage for himself. Though we are not going into the matter in detail, we are prima-facie of the opinion that this legal finding of the learned trial Court is wholly incorrect. If a person falsely claims LTC then it is a corrupt or illegal means for obtaining pecuniary advantage and it definitely would amount to an offence within the meaning of the Prevention of Corruption Act. Having said so, it is for the prosecution to prove that actually a false claim was made by the accused. The main crux of the prosecution case is that vouchers Ext.PW-2/B to Ext.PW- 2/D are forged. The original vouchers have not seen light of day. Only photostat copies of the vouchers have been produced. It is stated that the original were destroyed in the office of the Accountant General. Despite PW-7 having made a statement that the original documents had been destroyed no attempt whatsoever was made to seek permission of the Court to lead secondary evidence. Without seeking such permission the photostat copies of the vouchers were not admissible and therefore, cannot be read in evidence. On this short ground alone the accused deserve to be acquitted. Even if for the sake of argument these photostat copies are taken into consideration, the only evidence led by the 4 prosecution is that of PW-3 who states that there was no office of the India Tourist Bus Service in existence at the address given in the vouchers. This does not mean that the accused did not travel in the bus. If a transport operator runs a bus under a false name or under a false permit, the passenger of the bus cannot be said to have committed any offence. The accused could have been held guilty only if the prosecution had proved beyond reasonable doubt that there was no India Tourist Bus Service in existence but also that the accused and his family never went to Goa. The second part has not been proved by the prosecution at all. The entire case of the prosecution is based on the statement of PW-3. In Ext.PW-2/B and Ext.PW2/D the address of the India Tourist Bus Service is shown to be D-61, West Gali No.2, Bhagat Singh Road, Chander Nagar, Delhi. PW-3 Ramesh Kumar is a diary owner, who states that he is living in that area and there is no such address and no office of India Tourist Bus Service exists. If the prosecution really wanted to prove that such a Gali number does not exist it should have called for the record from the authorities, like Municipal Authorities or the Development Authorities of the area concerned or even from the Postal Authorities but a statement of a random witness in this behalf cannot be read as evidence. Ext.PW-2/C is a list of passenger who are said to have been travelling in the bus No.DEP-3920 in which the accused and 5 his family members are said to have traveled. One of the passengers mentioned is one Shri Jagdish Parsad and his complete address 78/1, East Moti Bag, Sarai Rohilla, Delhi, has been given. Prosecution has made no effort to trace out this witness. The other limb of the prosecution argument is that Bus No. DEP-3920 was in fact owned by PW-11. This witness states that his bus had been attached with Panicaers Travels Delhi in the relevant year. According to this witness, he does not know India Tourist Bus Service nor had attached his bus with the said company. Admittedly, this witness was not running his own bus. It was attached with Panicaers Travels. There may have been some arrangements between India Tourist Bus Service and Panicaers Travels. That is one possible view. In the cross- examination the witness has clearly stated that he is not sure whether his bus went to Goa during this period or not. When two views are possible the view in favour of the accused has to be taken. In view of the above discussion we find no merit in the appeal, which is accordingly dismissed. Bail bonds are discharged. (Deepak Gupta) Judge. 5th March, 2010 (Sanjay Karol) ™ Judge.