IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 520 of 1999 and Cr. Appeal No. 530 of 1999 Reserved on: 02.06.2008 Date of decision: 18.06.2008 1. Cr. Appeal No. 520 of 1999: Khayali Ram ... Appellant Versus State of Himachal Pradesh … Respondent 2. Cr. Appeal No. 530 of 1999: Vashu Dev Sharma ... Appellant Versus State of Himachal Pradesh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. 1. Cr. Appeal no. 520 of 1999: For the appellant: Mr. Bimal Gupta, Advocate. For the respondent: Mr. J.S. Guleria, Law Officer. 2. Cr. Appeal no. 530 of 1999: For the appellant: Mr. Tarlok Chauhan, Advocate. For the respondent: Mr. J.S. Guleria, Law Officer. V.K. Ahuja , J. (Oral): This judgment shall dispose of appeals filed by appellants Khayali Ram and Vashu Dev Sharma against the judgment of the Court of 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 learned Special Judge, Solan, dated 19.11.1999/20.11.1999, vide which both the appellants were sentenced to rigorous imprisonment for a period of two years under Section 409 IPC and a fine of Rs.3000/- against each of them. Both the appellants were further sentenced to two years rigorous imprisonment under Section 13(2) of the Prevention of Corruption Act and a fine of Rs.3000/- against each of them. Both the sentences were to run concurrently. In default of payment of fine, both the appellants were to undergo rigorous imprisonment for a period of two months under each count. Briefly stated the facts of the case are that Khayali Ram, appellant was working as clerk – auditor in H.P. Khadi Gram Udyog Board, Solan, and he was entrusted with an amount of Rs.4200/- and Rs.6780/- pertaining to loan instalments of Shri Gulshan Kumar and Shri Ganesh Dutt respectively. It was alleged that he committed breach of trust and misappropriation in respect of the said amounts by conspiring with his co-accused Vashu Dev. The allegations against the appellant Vashu Dev are that he was working as Assistant Development Officer in the same Board and in such capacity, he received a sum of Rs.4621/- from Harbhajan Singh against loan instalment, but he did not deposit the amount in Government Treasury and he committed this act in furtherance of criminal conspiracy between him and Khayali Ram, co-accused and misappropriated this amount in connivance with the other accused. An inquiry was conducted regarding this allegations by the Khadi Board and a report was submitted against the appellants and the receipts issued by the appellants were got compared through handwriting 3 expert and thereafter, on conclusion of investigation, the challan was put up in the Court. Both the appellants were tried by the learned trial Court under Sections mentioned above leading to their conviction and sentence as detailed above. I have heard learned counsel for the parties and have gone through the record. In the case of appellant Khayali Ram: The submissions made by the learned counsel for the appellant were that the appellant has not denied having received the amount and issued the receipts, but it was submitted that since the appellant was holding the charge temporarily, he handed over these amounts to Vashu Dev Sharma who was working as Assistant Development Officer in the Board. It was submitted that the appellant has proved the photo copy of the said receipt Ext.PW8/E in evidence which proves that he had paid both these amounts to his co-accused and the mere fact that the original receipt was lost by him is not sufficient to hold that he is liable for the offence. It was submitted that the Court had held the appellant guilty on the basis of the denial made by the co-accused that he did not receive these amounts from the appellant which findings are not correct. The second point raised by the appellant was that no questions were put up to him that any prosecution sanction was taken or all the relevant papers were produced before the sanctioning authority at the time of sanction and, therefore, the sanction accorded as against him cannot be said to be proper since only signatures of sanctioning authority were proved. It was submitted that these questions were not 4 specifically put up to the appellant about the sanction and as such, conviction imposed upon the appellant was not proper. It was also submitted that the prosecution has not proved that duplicate Photostat receipt proved in evidence of the appellant Ext.PW8/E was forged one and no questions were put up to the appellant in his statement under Section 313 Cr.P.C. in this regard. It was further submitted that the ambiguity in dates stated by the appellant or proved in evidence is not material to hold that the amounts were not accounted for by the appellant and, therefore, the findings recorded against the appellant are liable to be reversed. Coming to the findings as against the appellant, the learned trial Court has referred to the testimony of Ganesh Dutt Sharma who has been examined as PW-6 and Gulshan Singh who has been examined as PW-9, who have stated that they handed over a sum of Rs.6780/- and Rs.4200/- respectively to Khayali Ram and obtained receipts Exts.PW4/B and PW4/A from him which were handed over to the police vide Memos Exts. PW6/A and PW9/A. In his statement under Section 313 Cr.P.C., the appellant has admitted that he was posted as Clerk in the said office at the relevant time and he received both these amounts from these persons and issued receipts also. However, he submitted that after receiving the amounts, he deposited the same on the same day with his co-accused Vashu Dev Sharma and had obtained the receipt, the photo copy of which has been proved in evidence as Ext. PW8/E. The appellant had appeared in the witness box as DW-1 and stated that he received these amounts from both these persons on 30.9.1986 and on the same day, handed over the said amount to Assistant Development Officer i.e. his co-accused. 5 He stated that the Assistant Development Officer gave the hand receipt which he has lost and its photo copy is Ext. PW8/E. The learned trial Court observed that the statement of Khayali Ram is contradicted by the document itself which has been issued by him to Gulshan which is dated 29.9.1986, whereas the receipt issued to Ganesh Dutt is dated 30.9.1986. Thus it was observed that since he stated that he handed over the amounts on the same day to Vashu Dev Sharma does not stand proved since this payment was made to Vashu Dev Sharma on 30.9.1986 and payment from Gulshan has been received on 29.9.1986. Thus, in view of the contradictions and the fact that receipt Ext. PW8/E is for both the amounts and no dates have been mentioned in it, the learned trial Court disbelieved the version of the appellant as his own witness. The amounts were paid on different dates and receipt has been issued common for both the amounts on the one date which weighed in the mind of the Court in disbelieving the version of the appellant. The learned trial Court was required to consider the evidence led by the prosecution as against the appellant and whether it proved that the amounts were received by the appellant but were not accounted for and rather reliance has been placed more on the admission made by the appellant when he appeared in the witness box as his own witness. The said evidence has not to be ignored as led by the accused/appellant in his defence, but it is for the prosecution to prove that these payments were not received and not accounted for by the appellant. Coming to the question as to the effect of the photo copy of receipt Ext. PW8/E, it is true that the appellant had failed to offer any 6 explanation as to under what circumstances he retained the photo copy or how the said copy was lost and when the original was lost. The prosecution is required to prove its case beyond any reasonable doubt but the said standard does not apply in the case of defence version. In the case of defence, the accused has only to raise a doubt in the mind of the Court that his version may be correct and if that conclusion can be drawn from the evidence, it can be said that the case as against the accused was not proved. There is nothing in the receipt Ext.PW8/E that it was compared with the alleged signatures of the co-accused or that this receipt was a forged one having been produced by the appellant. In his statement under Section 313 Cr.P.C. no questions were put up to the appellant that this receipt was forged one or had been prepared by him by fabrication and it was not a photo copy of the genuine receipt issued by his co-accused. The only question put up to him was that the accused/appellant had produced photo copy of receipt Ext. PW8/E and this receipt was taken in possession by the police vide recovery memo. The appellant was never asked any question that this was a forged receipt prepared by him and as such, he is liable for the offence. The appellant may have failed to offer a reasonable explanation as to how the original was lost and under what circumstances, the photo copy was retained, but he has produced the photo copy and the signatures on it were allegedly of the co-accused which could have been got compared as to whether these were of the co-accused or not. However, the learned trial Court disbelieved the receipt since co-accused had denied having issued any 7 such receipt and, therefore, the appellant was held guilty which findings to my mind cannot be said to be correct applying the test as is required in regard to defence plea raised by the accused. The appellant has been able to raise a doubt in the mind of the Court that he accounted for the amounts and gave it to co-accused who issued him this receipt. A photo copy has been proved and this plea can be said to have been substantiated by the evidence or by the defence evidence produced by him. He was not required to prove his case beyond any reasonable doubt. He admitted having received the amounts and took up the plea that these were duly accounted for, which plea did not find favour with the learned trial Court. There is another aspect of the matter. DW-3 Roop Ram, an employee of the Khadi Board has stated that Khayali Ram was a Clerk and the cash used to be received by the A.D.O. and in his absence by Khayali Ram, Clerk, used to receive the amount and hand over the same to A.D.O. He identified the signatures of Vashu Dev on Ext. PW8/A and no questions were put up to him that he has deposed falsely or that these signatures are not of Vashu Dev. PW-6 Ganesh Dutt Sharma who had made one payment to appellant of Rs.6780/- has stated that when he went to deposit the amount in the office Vashu Dev was not present in the office and he obtained receipt from the appellant Ext. PW4/B. In his cross-examination, he stated that after depositing the instalment he once visited Khyali Ram’s office and on enquiry was told by Vashu Dev that his instalment had been accounted for. This clearly shows that the witness has clearly stated that the co-accused had admitted having received the 8 amount paid by this witness. PW-9 Gulshan Singh who deposited the sum of Rs.4200/- with the appellant, has stated that he enquired from Khayali Ram about depositing the amount who told him that he has deposited this money with Vashu Dev Sharma. These statements further give credence to my above conclusion that the appellant has been able to raise a reasonable doubt that he had accounted for the money in a proper manner and had not misappropriated the sum. Coming to the question of sanction, the statement made by PW-7 Chander Parkash Pal, Senior Assistant, is that the sanction order Exts. PW7/A and PW7/B bears signatures of Mr. Bajowaria and he identifies the same. In cross-examination, he further stated that the contents of Ext. PW7/B were typed by him on a standard proforma and placed before Mr. Bajowaria for signatures. The prosecution is not required to prove only the signatures of the sanctioning authority and it has to be proved that there was due application of mind by the sanctioning authority. To prove a sanction order either the sanctioning authority is required to be examined to prove that all the necessary papers were produced before him and he applied his mind and then accorded sanction. In the alternative, some person conversant with the facts had to be examined who could state that at the time of obtaining sanction, he had produced all the necessary papers before the sanctioning authority who applied its mind and then granted sanction. Neither the sanction can be granted in a routine manner by just getting signatures of the sanctioning authority nor it can be proved from the mere signatures of the sanctioning authority. 9 A perusal of the statement of appellant recorded under Section 313 Cr.P.C. shows that only this question was put up to the appellant that the Chairman of the Board had accorded the prosecution sanction Ext.PW7/A for launching the prosecution as against the appellant, but there is nothing to show that all the relevant papers were also produced before him or he granted sanction after due application of mind. In view of the above discussion, I accordingly hold that the prosecution has failed to prove its case beyond any reasonable doubt as against the appellant and it has also failed to prove that due prosecution sanction was granted before prosecuting the appellant and the findings recorded by the learned trial Court holding the appellant guilty and convicting and sentencing him are liable to be set aside. In the case of appellant Vashu Dev Sharma: Coming to the submissions made by the learned counsel for the appellant, it was submitted that the appellant has been charged for misappropriation of the amount of Rs.4621/- pertaining to the loan instalment of Shri Harbhajan Singh. This charge was only required to be proved by the prosecution and not that he had also misappropriated two amounts for which no charge was framed as against him. Coming to the question of misappropriation of this amount of Rs.4621/- in regard to loan instalment of Harbhajan Singh, no prosecution sanction was accorded by the sanctioning authority for his prosecution. A perusal of Ext. PW7/B, the sanction order shows that the sanction was granted for his prosecution for having misappropriated the sum of Rs.6780/- and Rs.4200/- for which his co-accused Khayali Ram had issued receipts to the 10 loanees to this effect. This clearly shows that the sanctioning authority did not apply its mind at the time of grant of sanction that the appellant was to be tried for misappropriation of the sum of Rs.4621/- pertaining to the loan instalment of Harbhajan Singh and no sanction was granted to prosecute the appellant for misappropriation of this amount. The charge has been framed for misappropriation of sum of Rs.4621/-, while the sanction accorded as against the appellant is in regard to two amounts received by his co-accused and once no sanction was granted for his prosecution for having misappropriated this amount, he cannot be held guilty and punished accordingly. The sanction was proved from the statement of PW-7 Chander Parkash Pal as mentioned above and the same reasoning given in the case of appellant Khayali Ram applies to the case of appellant that there is no proof of grant of proper sanction for his prosecution and, therefore, the said defect cannot be cured. The submissions made by the learned Law Officer has no substance that minor defect in proving the sanction order or granting of sanction is not sufficient to hold that the appellant can be held guilty since the law is clear that it has to be proved that due sanction was granted by application of mind and the sanction granted was proper for which the appellant was tried by the Court. From whichever angle the facts of the case are looked into, therefore, no proper sanction was taken for prosecution of the appellant and as such, the findings recorded by the learned trial Court holding the appellant guilty and convicting and sentencing him are liable to be set aside. 11 In view of the above discussion, I accordingly, hold that findings recorded by the learned trial Court convicting and sentencing both the appellants are liable to be set aside and a such, are set aside accordingly. However, I am of the opinion that since the public money was involved and the case was of misappropriation of public money that it was not duly accounted for, the department is at liberty to proceed against the appellants, in case no departmental enquiry has been conducted and if they come to the conclusion that this amount was misappropriated and not accounted for by the appellants, they can proceed departmentally against the appellants for recovery of the amount in question. However, criminal liability cannot be fastened upon the appellants and as such, their conviction and sentence has been set aside. Both the appeals are accordingly allowed. The fine if recovered, shall be refunded back forthwith to the appellants. Bail bonds furnished by the respondents are discharged. ( V.K. Ahuja ) June 18, 2008 Judge (BSS) 12