Crl.Appeal No. 340-SB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 13.5.2011 (I) Crl.Appeal No.340-SB of 2004 Nahar Singh ... Appellant versus State of Punjab ... Respondent (II) Crl.Appeal No.353-SB of 2004 Gurwinder Kumar ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.V.K.Sandhir, Advocate, for the appellant in Crl.Appeal No.340-SB of 2004. Mr.Mohd. Yousaf, Advocate, for the appellant in Crl.Appeal No.353-SB of 2004. Mr.P.S.Grewal, AAG, Punjab. ... JORA SINGH, J. Crl.Appeal No.340-SB of 2004 was preferred by Nahar Singh and Crl.Appeal No.353-SB of 2004 by Gurwinder Kumar to impugn the judgment of conviction and order of sentence dated 24.1.2004 rendered by Special Judge, Patiala, in CC No.39-T of 27.7.1999, arising out of FIR No.46 dated 10.7.1997 under Section 13(1)(c) read with Section 13(2) of Prevention of Corruption Act (for short, `the Act') and Sections 409/467/468/120-B IPC, Police Station Vigilance Bureau, Patiala. Crl.Appeal No. 340-SB of 2004 2 By the said judgment, they were convicted under Sections 409/120-B IPC and Section 13(1)(c) read with Section 13(2) of the Act and sentenced to undergo RI for 2-1/2 years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for 4 months each under Section 409 IPC, to undergo RI for 6 months each under Section 120-B IPC and to undergo RI for 2 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 2 months each under Section 13 (1)(c) read with Section 13(2) of the Act. All the sentences were ordered to run concurrently. Prosecution story, in brief, is that Nahar Singh, accused, was Sarpanch of Gram Panchayat of Village Ajnauda Khurd since 1993 and as Sarpanch had embezzled panchayat funds in connivance with Gurwinder Kumar, accused after getting wrong entries incorporated. Rs.2,23,000/- was kept in cash in hand. On receipt of information regarding embezzlement of panchayat funds, ruqa was sent, on the basis of which, formal FIR was recorded. Nahar Singh suffered disclosure statement and in pursuance thereof, got recovered fridge of Godrej company from his residence. Fridge was purchased with the panchayat funds for Government dispensary. In the year 1994-95, land of Gram Panchayat was auctioned. Nahar Singh had collected Rs.3,29,050/- by leasing out panchayat land. Rs.5,61,300/- as lease money for the year 1994-95 was also collected. Rs.5,10,000/- was collected to lease out the land for the year 1995-96 and Rs.4,68,870/- for the year 1996-97. Total Rs.18,69,220/- was collected by auctioning the land owned by the Gram Panchayat. As Sarpanch, Nahar Singh had power to keep in hand cash amount of Rs.500/- only and not more than that, but he Crl.Appeal No. 340-SB of 2004 3 had kept Rs.2,29,338/- as cash in hand during the period 1996-97. As per receipts, bricks were purchased for construction of verandah of High School and Bus Stand of Village Ajnuada Khurd. As per different receipts, spare parts, sand, concrete and for repair of engines, Rs.3,41,899/- was spent in connivance with Gurwinder Kumar, Panchayat Secretary. In fact, material was not purchased and if purchased, then the same was used by the accused for their personal use. Verandah of High School was constructed earlier before Nahar Singh joined as Sarpanch. Bus Stand was not constructed. Waiting hall of High School was also not constructed. Material was not found in the school. Material was not handed over to the Administrator of Village Ajnuada Khurd. No entry regarding the material withdrawn for bores and engines. Fictitious entries regarding repair of bores and engines. Rs.2,29,338/- was embezzled by Nahar Singh by keeping the same in cash in hand. Rs.3,41,899/- was embezzled by showing excess expenditure in connivance with Gurwinder Singh, Panchayat Secretary. After completion of investigation, challan was presented in Court. Accused were charged under Section 13(1)(c) read with Section 13(2) of the Act and Sections 409/467/468/120-B IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Inderjit, retired Patwari, stated that Gram Panchayat of Village Ajnuada Khurd was owning land measuring 470 bighas and was auctioned by the Gram Panchayat every year. Copies of patanama for the years from 1993 to 1996 were proved as Ex.PA/1 to Ex.PA/53. PW2 Amar Nath stated that on 29.6.1995 and 30.6.1995, Nahar Crl.Appeal No. 340-SB of 2004 4 Singh purchased spare parts of oil engines worth Rs.17,225/- as per bills (Ex.PW2/1 to Ex.PW2/7). PW3 Darshan Singh stated that Nahar Singh, Sarpanch, suffered disclosure statement (Ex.PW3/A) and in pursuance thereof, got recovered one Godrej Fridge and the same was taken into police possession vide memo (Ex.PW3/B). PW4 Harbans Singh, Panchayat Secretary, stated that in his presence, cash books, proceeding books, stock register, voucher file and pass books were taken into police possession vide memo (Ex.PW4/A). Receipt book, lease register, proceeding book and one pass book of Bank of India were taken into police possession vide memo (Ex.PW4/B) attested by him. PW5 Kautalaya Sharma stated that in pursuance of disclosure statement (Ex.PW3/A) suffered by Nahar Singh, Sarpanch, Fridge was recovered and the same was taken into police possession vide memo (Ex.PW3/B). PW6 Hamir Singh, Ex.Sarpanch, stated that Nahar Singh was Sarpanch of Village Ajnuada Khurd. In the year 1994, Nahar Singh has shown receipt of purchase of gypsum. In fact, gypsum was not collected or used in the year 1994. Fridge worth Rs.7,000/- was purchased out of panchayat funds. Entries were made in the relevant registers. Rs.17,000/- was shown for construction of a room at the bus stand but no room was constructed. In the year, 1995-96, Nahar Singh has also shown expenditure on laying of lintel on two rooms. In fact, no lintel was laid because already there was a lintel. Nahar Singh had purchased engine for tubewell but engine went out of order within one year of its purchase. Payment was Crl.Appeal No. 340-SB of 2004 5 shown for its repair. Actually, there was no repair. Wall of stadium was shown to be constructed. Rs.70,000/- was shown for the construction of the wall. Nahar Singh had produced number of receipts regarding construction of wall. Lot of money was spent to arrange public meeting of Bahujan Samaj Party. PW7 Kulwant Singh, Ex. Sarpanch of Village Ajnuada Khurd, stated that Nahar Singh was a Sarpanch of Village Ajnuada Khurd. Gurwinder Kumar was Panchayat Secretary. Land of panchayat was auctioned every year. In the year 1994, land was auctioned for Rs.5,75,000/- and out of this payment, Rs.2,25,000/- was misappropriated. In the year 1995, fridge was purchased for Rs.7,625/- but fridge was kept by Nahar Singh at his residence. In the record, price of fridge was shown to be Rs.17,000/-. In the year 1994, Nahar Singh had shown purchase of spare parts of diesel engines but engines were condemned in the same year. PW8 Amar Chand Singla stated that Nahar Singh was Sarpanch of Village Ajnuada Khurd. Building of Primary School was constructed during the tenure of Hamir Singh, Ex.Sarpanch. After that, no improvement in the building. Bus Stand was also not constructed. Till 1997, no construction was raised by Nahar Singh, Sarpanch. PW9 Tek Chand stated that he was Proprietor of Singla Machinery Store, Patiala Road, Nabha. On 29.6.1995, spare parts of oil engine and pumping set were purchased by Nahar Singh. Nahar Singh signed the bills (Ex.P1 to Ex.P9). PW10 Pritam Singh stated that Nahar Singh was the Sarpanch of Village Ajnuada Khurd in the year 1996. As per record, Rs.2,63,488.25 ps. was due from Nahar Singh. Record of Gram Panchayat remained with Crl.Appeal No. 340-SB of 2004 6 the Sarpanch. As per cash book (Ex.MO/1), expenditure was shown for construction of school. All the entries were signed by Nahar Singh. PW11 Des Raj Gupta, Sr. Assistant, proved sanction (Ex.PW6/A and Ex.PW6/B). As per Ex.PW6/A and Ex.PW6/B, permission was accorded to launch prosecution against Gurwinder Kumar and Nahar Singh, respectively. PW12 DSP Sarup Singh had partly investigated the case in hand. PW13 Gurmukh Singh stated that 50 bags of cement worth Rs.6,100/- were purchased by Nahar Singh vide bill (Ex.PW8/A) on 31.12.1994. PW14 SP Ranjit Singh Dhillon had investigated the case in hand. PW15 DSP Gurmit Singh stated that he had also partly investigated the case in hand. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of Nahar Singh was that earlier, Hamir Singh was the Sarpanch of Village Ajnuada Khurd. He had filed complaint against Hamir Singh. Services of Hamir Singh were terminated. Against the order of termination, appeal was preferred by Hamir Singh but appeal was also dismissed. After dismissal of Hamir Singh, his uncle was appointed as Officiating Sarpanch. Hamir Singh was inimical towards him. Present case was registered at the instance of Hamir Singh with the connivance of police. There was no embezzlement of panchayat funds. Crl.Appeal No. 340-SB of 2004 7 Record of the panchayat was maintained by Gurwinder Kumar, Panchayat Secretary. Defence version of Gurwinder Kumar was that he was Panchayat Secretary of Village Ajnuada Khurd. Intimation was given to BDPO, Nabha, regarding non-deposit of money by Nahar Singh, Sarpanch. Sarpanch was responsible. He was simply to maintain the record as per instructions and bills produced before him. Panchayat funds were not misappropriated by him. In defence, DW1 Harjinder Kaur, Clerk, brought record and stated that letter (Ex.DW1/A) was issued by Gurwinder Kumar requesting BDPO, Nabha, to take action. Ex.DW1/B is the copy of letter dated 14.6.1996 issued by Gurwinder Kumar to BDPO, Nabha. Ex.DW1/C is the copy of letter dated 17.6.1996 written by BDPO, Nabha, to Sarpanch of Village Ajnuada Khurd, and Ex.DW1/D is the copy of letter dated 2.7.1996. DW2 Malagar Singh stated that Gram Panchayat of Village Ajnuada Khurd had an account in the bank. Account was operated sometime by the Sarpanch and Panchayat Secretary and some time by the Sarpanch and BDPO. After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on file, appellants were convicted and sentenced as stated aforesaid. I have heard learned counsel for the appellants, learned State counsel and have gone through the evidence on file. Learned defence counsel for Nahar Singh, appellant, argued that Hamir Singh was Ex.Sarpanch of Village Ajnuada Khurd. Complaint was sent against Hamir Singh. Hamir Singh was dismissed from the post of Crl.Appeal No. 340-SB of 2004 8 Sarpanch. Hamir Singh was inimical towards Nahar Singh, appellant. At the instance of Hamir Singh, false case was registered. Gram Panchayat was owning land and land was auctioned every year. Payment was deposited. Further argued that at the time of occurrence, Nahar Singh was 36 years' old. He is the first offender and has deposited the amount alleged to be embezzled. First of all, no evidence on the file to connect the appellant with the crime and if the Court is of the opinion that amount was embezzled, then lenient view be taken because entire amount stands deposited. Learned defence counsel for Gurwinder Kumar, appellant, argued that Gurwinder Kumar as Panchayat Secretary was to maintain the record. Payment was not collected by him. No evidence on the file that construction was got raised by Gurwinder Kumar. In fact, Gurwinder Kumar wrote letter dated 14.6.1996 (Ex.DW1/B) to BDPO, Nabha, regarding embezzlement of panchayat funds by Nahar Singh. Ex.DW1/C is the letter of BDPO, Nabha, to the Sarpanch, and Ex.DW1/D is the letter by Gurwinder Kumar to BDPO, Nabha, that Sarpanch is not depositing payment in view of earlier letter written. In case, appellant has misappropriated panchayat funds, then there was no idea to write letter. Without any reason, Gurwinder Kumar was implicated. According to the story, land owned by the panchayat was auctioned. Payment was kept by the Sarpanch. Entries in relevant registers are in the hands of Panchayat Secretary. If amount was found due from the appellants, then suit for recovery should have been filed. Criminal case was got registered to pressurize the appellants. Gurwinder Kumar was 52 years' old and has 4 children. He was to maintain old parents. In case Court is of the opinion Crl.Appeal No. 340-SB of 2004 9 that panchayat funds were embezzled, then lenient view be taken. Learned State counsel argued that Nahar Singh was Sarpanch of Village Ajnuada Khurd. Panchayat was owning land and every year, land was auctioned but payment was kept by Nahar Singh. Entries were made in the record by Gurwinder Kumar. Number of receipts on the file showing the fact that payment was spent to raise construction, i.e., room at the bus stand, verandah of school etc. When complaint was sent by Hamir Singh and matter was being investigated, then letter was written by Gurwinder Kumar that panchayat funds are not being deposited by Nahar Singh, Sarpanch. When material was shown to have been purchased by different receipts and, in fact, material was not purchased, then there was no idea to remain silent and make entries in the record maintained by the panchayat. Nahar Singh with the connivance of Gurwinder Kumar has embezzled panchayat funds. Admittedly, Nahar Singh was the Sarpanch of Gram Panchayat of Village Ajnuada Khurd in years 1994-95, 1995-96 and 1996-97. Gurwinder Kumar was the Panchayat Secretary. According to story, both the appellants with the connivance of each other have embezzled panchayat funds, whereas defence version of the appellants was that false case was registered at the instance of Hamir Singh, Ex.Sarpanch. Now the question is whether prosecution story inspires confidence or defence version seems to be more probable. PW1 Inderjit stated that land of Village Ajnuada Khurd was auctioned every year. Ex.PA/1 to Ex.PA/53 are the copies of patanama. No suggestion to the witness that land was not auctioned. Lease money was not deposited by the leasee. Crl.Appeal No. 340-SB of 2004 10 One fridge for Govt. Dispensary was purchased but fridge was recovered in pursuance of disclosure statement suffered by Nahar Singh from his residence. In fact, fridge was purchased for dispensary and entry was made in the register, then why fridge was kept by Nahar Singh at his residence. When fridge was purchased for dispensary and fridge was not kept in the dispensary, then Gurwinder Kumar, Panchayat Secretary, should have reported the matter to the higher authorities. There was no idea to remain silent. Panchayat had account in the bank but account was not operatable single handedly. PW4 Harbans Singh stated that account of Gram Panchayat cannot be operated without the signatures of Gurwinder Kumar, Panchayat Secretary. Evidence shows that payment was withdrawn on different dates with this idea that same was to be spent for development of the village, i.e., for construction of waiting hall, verandah in the school etc. As discussed earlier, fridge was purchased for dispensary but in pursuance of disclosure statement of Nahar Singh, fridge was recovered from his residence. No receipt by the appellants that fridge was not purchased for dispensary. In fact, fridge was private property of Nahar Singh or Gurwinder Kumar. PW5 Kautalaya Sharma is the witness, in whose presence, fridge was recovered from the house of Nahar Singh. PW6 Hamir Singh is the Ex. Sarpanch of Village Ajnuada Khurd, and stated that Nahar Singh was the Sarpanch of Village Ajnuada Khurd in the year 1994. Receipt regarding purchase of gypsum was shown by Nahar Singh but no gypsum was collected or used as per receipt. In the year 1995, fridge was purchased in the sum of Rs.7,000/-, but fridge was Crl.Appeal No. 340-SB of 2004 11 kept by Nahar Singh, Sarpanch, at his residence. Rs.17,000/- was shown as expenditure for construction of a room at bus stand but no room was constructed. Two rooms were constructed over the panchayat land. As per record, wall of stadium and waiting room at the bus stand were shown to have been constructed in papers. Actually, wall was not constructed. No room was constructed at the bus stand. PW7 Kulwant Singh also supported the version of PW6 Hamir Singh by saying that panchayat land was auctioned. Fridge was purchased in the sum of Rs.7,625/- but in papers, price of the fridge was shown to be Rs.17,000/-. Nahar Singh has withdrawn payment from the bank to construct room at the bus stand but no room was constructed. Payment was also withdrawn to construct wall of the school but there was no construction. Payment was also withdrawn to purchase components of diesel engines but in the same year, engines were condemned. Payment was also withdrawn for the repair of engines. PW8 Amar Chand Singla was serving as SDO and stated that there was no construction by Nahar Singh. Construction was already there. PW9 Tek Chand stated that on 29.6.1995, spare parts of oil engine and pumping set were purchased vide bills (Ex.P1 to Ex.P9). PW13 Gurmukh Singh stated that vide bill (Ex.PW8/A), 50 bags of cement were purchased by Nahar Singh. Now, one thing is clear from the evidence on file that as per different receipts, material was purchased, but, in fact, construction was already there. No new construction by Nahar Singh, Sarpanch. Regarding purchase of material, entries were made in the register maintained by Gurwinder Kumar, Panchayat Secretary, but no Crl.Appeal No. 340-SB of 2004 12 complaint that actually material was not purchased and only receipts were procured by the Sarpanch. Evidence on file shows that Hamir Singh was Ex. Sarpanch. Complaint was sent by Nahar Singh against Hamir Singh. After enquiry, services of Hamir Singh were terminated and after that, uncle of Nahar Singh was appointed as officiating Sarpanch. But no documentary proof on the file that present appellant Nahar Singh had filed complaint against Hamir Singh and after enquiry, on the basis of the complaint sent, services of Hamir Singh were terminated. Defence version of Gurwinder Kumar was that land was auctioned but payment was not deposited. Letter was sent to BDPO but after reply of BDPO, payment was not deposited by the Sarpanch. As discussed earlier, record of Gram Panchayat was under the custody of Gurwinder Kumar, Panchayat Secretary. Entries in the record were in the hand of Gurwinder Kumar. No explanation of Gurwinder Kumar as to who had made entries in the record when record was in his custody. Without proof entries in the record regarding purchase of material, expenditure etc. but actually when there was no construction, then why no report by Gurwinder Kumar. When there were complaints against Sarpanch and the matter was being investigated, then letter (Ex.DW1/A) dated 2.4.1996 and letter (Ex.DW1/B) dated 14.6.1996 were written by Gurwinder Kumar to the BDPO, Nabha, and as per letter (Ex.DW1/C) dated 17.6.1996 by BDPO, Nabha, Sarpanch was directed to deposit payment, but as letter (Ex.DW1/D) dated 2.7.1996, Nahar Singh, Sarpanch, was not depositing payment. To embezzle panchayat funds, record was fabricated. When dispute was regarding payment only, then civil dispute, but when Crl.Appeal No. 340-SB of 2004 13 record was manipulated, then appellants are liable for punishment under Section 409 etc. IPC and not under the Prevention of Corruption Act. During the pendency of appeal, Rs.2,63,500/- was deposited by Nahar Singh and this fact is clear from the photocopy of letter dated 15.4.2011 of Panchayat Secretary to BDPO, Nabha (Patiala). In view of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld. Nahar Singh, appellant, was the Sarpanch. He was 36 years' old at the time of occurrence. He is the first offender and remained in custody for 12 days. Gurwinder Kumar was 52 years' old. He remained in custody for 3 days. Embezzlement was in the years 1994 to 1997. Embezzled amount, i.e., Rs.2,63,500/- was deposited on 15.4.2011. Keeping in view the circumstances of this case, I take lenient view. Nahar Singh and Gurwinder Kumar, appellants, are directed to undergo RI for one year under Sections 409 and 120-B IPC and Section 13 (1)(c) read with Section 13(2) of the Act each. All the sentences are ordered to run concurrently. For the reasons recorded above, Crl.Appeal No.340-SB of 2004 and Crl.Appeal No.353-SB of 2004 without merit are dismissed with modification on the point of sentence. Appellants are on bail. They are directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Patiala, to issue re-arrest Crl.Appeal No. 340-SB of 2004 14 warrants to undergo the remaining period of sentence as ordered by this Court. 13.5.2011 ( JORA SINGH ) pk JUDGE