IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 164 of 2010 Judgment reserved on: 8.9.2011. Date of Decision: 16.9.2011 Rasilu Ram …Appellant. Versus. State of H.P. .. Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. K.B. Khajuria, Advocate. For the Respondent(s): Mr. Vivek Singh Thakur, Addl. A.G. Deepak Gupta, J. 1. This appeal is directed against the judgment dated 15.6.2010/ 5.7.2010 passed by the learned Special Judge, Chamba whereby the appellant has been convicted of having committed offences punishable under Sections 409, 420, 468 and 471 IPC and Section 13(2) of the Prevention of Corruption Act, 1988 and has been sentenced to undergo simple imprisonment of three years for each offence and to pay fine of Rs.5000/- for each of the offences and in default of payment of fine to undergo simple imprisonment of six months in each case. All the sentences have been directed to run concurrently. 2. The undisputed facts are that the appellant was Pradhan of Gram Panchayat Parotha, Development Block Chamba, District Chamba. It is not disputed that a sum of Rs.60,000/- was sanctioned for construction of a Community Centre Building at 2 Parotha. Out of this amount, a sum of Rs.25,000/- was actually released and received by the appellant. The case of the prosecution is that the appellant did not construct any building and mis-appropriated the amount of Rs.25,000/-. It is also alleged that he also forged some documents for the purpose of mis-appropriating the said amount. Since he was a public servant being Pradhan of Gram Panchayat he is also liable to be punished under the Prevention of Corruption Act. 3. The case of the prosecution is that PW-4 Abdul Quadir and PW-9 Noormahi lodged a complaint with the Deputy Commissioner, Chamba in which it was alleged that though muster-rolls had been issued to them for carrying out leveling work of the site where the Community Hall was to be constructed, no amount was paid to them by the appellant on the pretext that he has not been released any amount by the Government, therefore, the labourers could not be paid and the Community Hall could not be constructed. However, these two persons came to know that in fact Rs.25,000/- had been released by the BDO Chamba in favour of the appellant and therefore they lodged complaint Ext.PW-1/C. This complaint was got looked into by the Deputy Commissioner and both the administrative authorities as well as the police authorities found that in fact no construction whatsoever had been raised at the spot. 4. After receipt of the complaint, the matter was marked to the Superintendent of Police (Vigilance), Chamba who in turn 3 marked it to the Dy.S.P. (Vigilance), Chamba. A criminal case was registered against the appellant and the matter was investigated and during investigation it was found that though Rs.25,000/- were specifically released for construction of a Community Hall at Parotha to the appellant this amount was not utilized and was mis-appropriated by the appellant. 5. The appellant does not deny the receipt of the amount of Rs.25,000/- but according to him this amount was spent by him for construction of the Community Centre but this construction could not be completed since the balance funds were not released to him. 6. At the outset, it may be mentioned that a number of labourers produced as witnesses turned hostile and stated that they had received the amount of daily-wages as depicted in the muster rolls. Only two muster rolls, Exts.P-4 & P-5, have been proved on record. At the stage of appeal it was argued by Sh.Khajuria, learned counsel for the appellant, that other muster-rolls had also been issued but he failed to give any satisfactory answer to the query of this Court as to why if such muster rolls were actually issued no questions in this regard were put to the witnesses nor such muster rolls produced before the police or before the Court alone. Even the muster rolls produced on record, at best, show that an amount of Rs.18,757.50 was paid to the labourers. There is virtually no explanation with regard to the balance amount. The only other document placed on record evidencing payment of any amount is Ext.P-3 which is a 4 receipt purported to be issued by Asho Ram on 31.3.1998 in which he has stated that he has received a sum of Rs.6,242.50 for supply of wood and stones to the appellant. The hand- writing expert has opined that even the signatures of Asho Ram on this receipt which have been marked as Q-15 are in the hand-writing of the appellant. The hand-writing expert has also not been cross examined on this aspect of the matter. It is, thus, apparent that the appellant even forged the receipt Ext.P-3. 7. Furthermore, there is no explanation as to where the wood and stones have been used. If the statements of all the witnesses including those who have turned hostile are read together, it is apparent that other than the leveling work of the site no construction was raised at the site. If no construction was raised where was the stone and wood used. 8. When an elected representative or a public servant is handed over money to be used for construction of a Community Centre i.e. for public use, he must give some plausible or reasonable explanation as to where this amount has been used. In the present case, other than the two muster rolls for a sum of Rs.18,757.50, there is no explanation as to where the amount paid to the appellant was spent. The evidence on record clearly shows, without any manner of doubt, that the prosecution has proved to the hilt that the appellant received Rs.25,000/- but did not spend it for the purpose of raising construction of the Community Hall for which purpose the amounts were released in his favour. 5 9. Inspector Shakuntla, PW-27, conducted the inquiry and according to her she alongwith the appellant Pradhan of the Gram Panchayat visited the spot and she found that neither any construction has been raised nor any wood or stone have been used for the purpose of such construction. Therefore, there is no manner of doubt that at best some amount may have been spent for leveling of the land but no construction was ever raised. Similar is the statement of Kumud Upadhaya PW-21 who was working as Junior Engineer and who also states that no construction was raised. This is also the statement of PW- 18 who is the other Junior Engineer. 10. It stands proved on record that at the site no construction has been raised. Therefore, even if the version of the appellant is taken at its best then also only some leveling work was got done but no stones or wood were used for raising construction. As already stated above, the receipt Ext.P-3 has been forged. 11. Therefore, the learned Court below was fully justified in holding the appellant guilty. However, I am of the considered view that the appellant having been entrusted with Rs.25,000/- was guilty of dishonest mis-appropriation of property and since he was a public servant he is guilty of criminal breach of trust and liable to be punished under Section 409 IPC. However, the appellant could not have been convicted for cheating and he is acquitted of the said offence. Therefore, the appellant is also acquitted under Section 468 IPC but since he is guilty of forging a receipt and using it, he is guilty of having committed 6 an offence punishable under Section 471 IPC. Since the appellant has misused his position as a public servant, he is also guilty of having committed mis-conduct within the meaning of Section 13(2) of the Prevention of Corruption Act. Therefore, he is also held guilty of committing such offence. 12. In view of the above discussion, the appeal is partly allowed and the appellant is convicted for having committed offences punishable under Sections 409, 471 IPC and Section 13(2) of the Prevention of Corruption Act. The appellant is a first time offender and therefore, in my opinion, interest of justice shall be served in case the appellant is sentenced to undergo one year rigorous imprisonment for each of the aforesaid offences and to pay fine of Rs.10,000/- for each of the aforesaid offences i.e. Rs.30,000/- in all. In case of default of payment of fine, the appellant shall be liable to undergo further rigorous imprisonment of six months on account of non-payment of fine under each offence. The appeal is, therefore, partly allowed and disposed of. Bail bonds of the appellant are cancelled and he is directed to surrender and undergo the sentence forthwith. The Registry is directed to send a copy of this judgment to the learned trial Court and in case the appellant does not surrender the learned trial Court shall ensure that he is arrested and made to undergo the sentence imposed upon him. September 16, 2011. ( Deepak Gupta ), J. PV