IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.251 of 2003 Decided on : March 29, 2011 Man Chand …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Anoop Chitkara, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge(Oral) Appellant Man Chand is aggrieved by the judgment dated 24th May, 2003 of learned Special Judge, whereby he has been convicted of offences, under Sections 467, 468, 471, 409 & 420 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced as follows: Sr. No. Offence Sentence Imposed 1. 2. 467 IPC 468 IPC Ten years simple imprisonment and fine of `10,000/-, in default of payment of fine, simple imprisonment for one year. Seven years simple imprisonment and fine of `10,000/-, in default of payment of fine, simple imprisonment for one year. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. 4. 5. 6. 471 IPC 409 IPC 420 IPC 13(2) of the Prevention of Corruption Act, 1988 Seven years simple imprisonment and fine of `10,000/-, in default of payment of fine, simple imprisonment for one year. Ten years simple imprisonment and fine of `10,000/-, in default of payment of fine, simple imprisonment for one year. Seven years simple imprisonment and fine of `10,000/-, in default of payment of fine, simple imprisonment for one year. Five years simple imprisonment and fine of `5,000/-, in default of payment of fine, simple imprisonment for one year. 2. Case of the prosecution, which led to the trial and conviction of the appellant, may be stated. Report, under Section 173 of the Code of Criminal Procedure, was filed, by the prosecution, against five persons, namely Sonam Chopal, Sonam Dorje, Govind Ram, Sanam Dev Thakur, and the present appellant. Case of the prosecution is that food grain supplies for snow-bound Sub Division of Spiti used to be made from Food Corporation of India Depot at Tapri. PW-4 Sher Singh was the Incharge of the Depot, at Tapri. Supplies used to be received by the employees of the Food and Supplies Department of the State of Himachal Pradesh and appellant Man Chand, who was working as Food Inspector …3… at Kaza, the headquarter of Spiti Sub Division, used to receive the supplies, on behalf of the aforesaid Department of the State Government. After receiving the supplies at Tapri, the Food and Supplies Department used to transport the supplies, through contractors, who would carry the supplies partly by automobiles and partly on mule back. Sonam Chopal and Sonam Dorje, who were co-accused with the appellant, were such contractors. 3. Appellant received 2500 quintals of wheat from Sher Singh (PW-4), in the year 1984, against receipts Ex. PW-4/G and Ex. PW-4/H. The entire quantity was handed over by the appellant to his co-accused Sonam Chopal and Sonam Dorje, for being carried to various depots, in Spiti Sub Division, under his personal control. The food grains were not carried by Sonam Chopal and Sonak Dorje to Spiti Sub Division. They, however, submitted bogus bills and receipts, showing that they had delivered the food grains to the appellant at Gulling in Spiti Sub Division and on the basis of those forged bills and receipts they received carriage charges from the Department. Sonam Chopal received `1,48,139.80 and Sonam Dorje `1,16,608.25, on account of carriage charges. 4. Two more persons, made co-accused with the appellant, were Govind Ram, an Accountant in the Office …4… of District Food and Supplies Controller, Keylong and Sonam Dev Thakur, District Food and Supplies Controller, Keylong. These two co-accused of the appellant were alleged to have passed the bills for carriage charges, based on the aforesaid allegedly forged receipts and challans, knowing or having reason to believe that the same were forged. 5. Case was registered, after it came to light, during physical verification of the store at Gulling, that there was shortage of about 4000 quintals of wheat and some quantity of rice also. During the course of investigation, Stock Register, pertaining to Gulling Centre, was taken into possession. Several other Registers were also seized. Receipts, against which 2500 quintals of wheat had been received by the appellant, were also taken into possession. The allegedly forged receipts, regarding delivery and carriage of food grains, by Sonam Chopal and Sonam Dorje, were also taken into possession. Specimen and admitted writings of the appellant and his co-accused were obtained and sent to the Handwriting Expert, for comparison of the alleged forged writings with their standard writings. On completion of investigation, report was filed. 6. Trial Court charged all the five accused with offences of forgery, cheating and conspiracy. Appellant …5… was charged additionally for offence of criminal misconduct, punishable under Section 13(2) of the Prevention of Corruption Act, 1988. None of the accused pleaded guilty to the charge. They were, therefore put on trial. At the end of the trial, learned Special Judge acquitted all the four co-accused of the appellant, but held him (the appellant) guilty of the aforesaid offences and convicted and sentenced him, as aforesaid. 7. We have heard learned counsel for the appellant as also learned Assistant Advocate General and gone through the record. 8. Acquittal of Sonam Chopal, Sonam Dorje, Govind Ram and Sonam Dev Thakur of all the offences itself demolishes prosecution’s story that receipts and challans were forged, for claiming carriage charges. Therefore, trial Court was not justified, in holding the appellant guilty of forgery, under various punitive provisions of offence of forgery. As a matter of fact, from a reading of the judgment of the trial Court, it appears that the trial Court held the respondent guilty of mis- appropriation of food grains stock. 9. Evidence, which the prosecution led to prove the entrustment of food grains, consists of the testimony of PW-4 Sher Singh, Incharge of Food Corporation of India at Tapri, and receipts Ex. PW-5/E-11 to Ex. PW/E-83, which …6… the appellant furnished to the carriage contractors, i.e. co-accused Sonam Chopal and Sonam Dorje. Now, according to PW-4 Sher Singh, he had issued 2500 quintals of wheat for Spiti area against receipts Ex. PW- 4/G and Ex. PW-4/H. Receipt Ex. PW-4/G is for 1500 quintals of wheat. This receipt is not signed by the appellant, but by District Food and Supplies Inspector, namely R.P. Panchhi, who has been examined by the prosecution as PW-14. The second receipt Ex. PW-4/H is signed by the appellant. R.P. Panchhi, while in the witness-box as PW-14, stated that after furnishing receipt Ex. PW-4/G to PW-4 Sher Singh, he had directed the carriage contractors to deliver the wheat to the appellant in Spiti area. This part of his statement has not been challenged by the appellant, while cross-examining him and, therefore, there should be no reason to disbelieve the same. 10. Now, the question arises, whether 2500 quintals of wheat actually reached the appellant. Prosecution has proved on record 73 receipts (Ex. PW-5/E- 11 to Ex. PW-5/E-83). Against these receipts, appellant received 2060.87 quintals of wheat from carriage contractors, who were co-accused with him. All these receipts, very specifically, record that the food grains had been received at Gulling. …7… 11. We find two entries, one regarding receipt of 570 quintals, in February, 1985 and another regarding receipt of 530 quintals in June, 1985, in the Stock Register, which is Ex. PW-5/B. The Register pertains to Gulling and Sagnam godowns. However, aforesaid receipts Ex. PW-5/E-11 to Ex. PW-5/E-83 indicate that he had received 2060.87 quintals of wheat. May be that the aforesaid two entries of February 1985 and June 1985, in Stock Register Ex. PW-5/B, pertain to a part of the wheat received against the aforesaid receipts, but there is no explanation from the side of the appellant, with respect to the rest of the quantity, which is 961 quintals. 12. We also find another entry in the Stock Register, according to which 3909.45 quintals of wheat had been received in April 1996. Out of this quantity 500 quintals of wheat is shown to have been issued. It is because of this entry, regarding receipt of 3909.45 quintals of wheat, that the trial Court has held that there is misappropriation of about 400 quintals of wheat. We do not find any evidence, except for this entry, which too is not proved to have been made by the appellant, suggesting that this quantity of wheat had been received by him. There is no evidence that wheat entered against this entry had been issued from Food Corporation of India godown at Tapri or from some other store nor is there any …8… other document, in the form of any challan of carriage or receipt(s) furnished by the appellant. So, it cannot be said that in addition to the wheat received against receipts Ex. PW-4/G and Ex. PW-4/H, appellant had received any other consignment of wheat. 13. Appellant deposited a sum of `2,54,807/-, on account of the aforesaid shortage of wheat and this fact finds mention, even in the charge that had been framed against the appellant. This amount was deposited by him only during investigation and, thus, he is guilty of the offence of temporary criminal misappropriation. 14. There is no evidence of criminal misconduct, punishable under Section 13(2) of the Prevention of Corruption Act, 1988. 15. As already noticed, offences of forgery and cheating cannot be said to have been committed. Consequently, appeal is partly accepted, conviction and sentence of the appellant for offences, under Sections 467, 468, 471, 420 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988 are set aside. However, conviction of the appellant, under Section 409 of the Indian Penal Code is upheld. 16. Appellant is stated to be an old man of 70 years, now. He deposited the money, equivalent to the entire quantity of misappropriated wheat, during …9… investigation. So, we are of the view that ends of justice would be met in case the sentence of the appellant for offence, under Section 409 of the Indian Penal Code, is reduced to the imprisonment already undergone, after conviction by the trial Court, but the amount of fine is raised to `75,000/-. We order accordingly. Appellant has already deposited a sum of `55,000/-. The remaining amount may be deposited within two months. Appeal stands disposed of. ( Surjit Singh ), J March 29, 2011(sd) ( Rajiv Sharma ), J