IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.248 of 2001 Judgment reserved on: 15th October, 2008 Decided on: 17th October, 2008. Raj Kumar . …Appellant Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Vinay Thakur, Advocate. For the Respondent : Mr. P.M. Negi, Dy. Advocate General. Surjit Singh, Judge Appellant is aggrieved by the judgment of learned Special Judge, Shimla, whereby he has been convicted of offences, under Sections 409, 468 and 471 IPC, and Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-; in default of payment of fine to undergo simple imprisonment for a further period of two months, in respect of offence under Section 409 IPC, rigorous imprisonment for one year and fine of Rs.500/-, in default of payment of fine, to undergo simple imprisonment for a further period of four months, in respect of each of the offences, under Sections 468 and 471 IPC and to undergo rigorous imprisonment for a period of one year and to pay a fine of Whether reporters of the local papers may be allowed to see the judgment? …2… Rs.1000/-; in default of payment of fine to undergo simple imprisonment for a further period of four months, in respect of offence, under Section 13(2) of the Prevention of Corruption Act, 1988. 2. Prosecution case, which led to the charging, trial and finally conviction and sentencing of the appellant, may be summed up thus. Appellant was employed as a Male Health Supervisor in DDU Hospital at Shimla. He submitted an application Ext.PW2/A, some time in the year 1989, for availing Leave Travel concession (LTC), alongwith his family members, comprising of his wife, three sons and a daughter. He applied for advance of Rs.6000/-, but was paid Rs.5000/- only. As per this application, he was to travel from Shimla to Darbhanga and back. After performing journey, he was supposed to submit final claim and in case any amount of money remained in balance with him out of the advance of Rs.5000/-, taken by him, the same was required to be refunded, at the time of submission of the final claim. Journey was performed by the appellant and his above named family members in three phases, as per bill of claim Ext.PW5/K, submitted by him. As per this bill, he, his wife and a son performed the journey from Shimla to Darbhanga and back from 21st July, 1989 to 27th July, 1989. Two of his sons performed the journey from 13th August to 18th August, 1989. In the third phase, his mother and a son performed journey from 5th September, 1989 to 16th September, 1989. Bill was submitted to PW2 Dr. Hardev Singh, CMO, Rippon Hospital, …3… Shimla. He found some discrepancy in the bill and forwarded the same to PW-3 Dr. C.L. Malhotra, who was the Director Health Services, at the relevant time. He entertained some suspicion about the genuineness of the claim and referred the matter to Director (Vigilance), vide letter Ext.PW3/A, dated 22nd December, 1990. Inquiry conducted by the staff of the Director (Vigilance) revealed that wife of the appellant, who is employed as a Senior Assistant in H.P. Secretariat, had been attending the office and had not taken any leave for the period from 21st July, 1989 to 27th July, 1989, when according to claim bill Ext.PW5/K, she travelled with the appellant. 3. Similarly, it was found that appellant had only three sons and a daughter, but he had made claim on behalf of four sons (no claim was made on behalf of any daughter) and that one of his sons named Varun Kaushik, a student of St. Edward School in 5th standard, had been attending the school, during the periods of all the three phases of journey, shown in bill Ext.PW5/K. Case was registered against the appellant and formal investigation was conducted. Sanction to prosecute the appellant was accorded by the Director, Health Services, namely PW-4 N.P. Aggarwal, after the investigation was complete. Appellant was challaned. He was charged with the aforesaid offences and on his pleading not guilty was tried for the said offences and ultimately convicted and sentenced, as aforesaid. …4… 4. I have heard the learned counsel for the appellant as also the learned Deputy Advocate General and gone through the record. 5. It may be stated at the very outset that the appellant cannot be said to have committed the offences of forgery as also the offence of using the forged document as genuine with intent to cheat, because no document is alleged to have been forged by him. He submitted an application for permission to avail LTC in the company of his family members, in his own name. Claim bill Ext.PW5/K was also submitted by him in his own name and under his signature. No document submitted by him with the said bill is alleged to have been prepared by him in the name of any other person. Therefore, he cannot be said to have made any false document, within the meaning of Section 464 IPC, and if it is so, question of his having forged any document does not arise. Therefore, his conviction and sentence for the offences, under Sections 468 and 471 IPC, are liable to be set aside. 6. As regards the allegation that the wife of the appellant did not perform the journey, prosecution relies upon entry Ext.PW8/A-1, in the attendance register Ext. PW8/A, per which the wife of the appellant is alleged to have marked her presence in the attendance register of her office at Shimla from 17th July to 29th July, 1989. To prove that the initials in this entry Ext.PW8/A-1 are in the hand of the wife of the appellant, prosecution relies upon the testimony of PW-8 Sh. B.A. Vaid, Assistant Govt. Examiner of Questioned …5… Documents, Shimla. The witness testified that he compared the entry Ext. PW8/A-1 with the admitted initials, marked A-5 (Ext.PW8/G) in the attendance register Ext.PW8/A, and specimen signatures S-11 to S-14 (Ext.PW8/F-1 to Ext.PW8/F- 4). Prosecution has, however, not proved either the admitted initials marked A-5 (Ext.PW8/G) in the attendance register Ext.PW8/A or the specimen signatures Ext.PW8/F-1 to Ext.PW8/F-4 as the standard signatures of the wife of the appellant. The person in whose presence the alleged specimen initials of the wife of the appellant were taken was not examined. Even the Investigating Officer of the case, at whose instance the said signatures were obtained, had not been examined. The alleged admitted initials marked A-5 (Ext.PW8/G) have also not been proved to be the initials of the wife of the appellant, as nobody was examined to testify that these initials were in the hand of Priyadarshi, the wife of the appellant. 7. As regards the allegation that one of the sons of the appellant named Varun Kaushik had been attending St. Edward School during the period of all the three phases of journey, prosecution has proved a writing Ext.PW5/L, signed by the appellant, by which he furnished information of his family members, during investigation of the case, and the copies of relevant folios from the attendance register of St. Edward Scholl, which are Ext.PW1/A. Signature of appellant on Ext.PW5/L has been proved by PW-5 Dina Nath, working as Superintendent in the office of Chief Medical Officer, Shimla. …6… The witness stated that he had seen the appellant writing and signing and so, he was in a position to identify his signature and that signature on Ext.PW5/L was in the hand of the appellant. As per this letter, name of the youngest son of the appellant is Varun Kaushik and he was a student of 5th standard in St. Edward School, in the year 1989. PW-1 Sunita Jaggi, a teacher from St. Edward School, appeared with the original attendance register and proved Ext.PW1/A, copies of folios from the attendance register, for the months of July, August and September, 1989. According to these folios, Varun Kaushik attended the school during the periods of all the three phases of journey, mentioned in claim bill Ext.PW5/K. No doubt in the testimony of the witness it is mentioned that presence of Varun Kaushik is marked for all the school days in months of July, August and September, 1989, except from 27th July, 1989 to 1st September, 1989, meaning thereby that as per this statement, Varun Kaushik was not present in the school from 27th July to 1st September, 1989, but this statement on the face of it is incorrect, being contrary to copies of attendance register Ext.PW1/A in which Varun Kaushik’s presence is marked throughout the months of July and August, 1989 and it is only in the month of September, 1989, that he is shown absent from 27th September to 30th September, 1989. It appears that in the statement of PW-1, figure and words “27th July to 1st September” have been written due to typographical mistake and that in fact what the witness wanted to say was that …7… Varun Kaushsik remained absent from 27th September to 1st October. 8. Thus, the evidence on record conclusively proves that at least in the case of one of his sons, i.e Varun Kaushik, the appellant made a false claim of leave travel concession. 9. Learned counsel representing the appellant submitted that submission of false claim does not by itself amount to offence of criminal breach of trust, under Section 409 IPC or offence of misconduct, under Section 13(2) of the Prevention of Corruption Act, 1988, and that as a matter of fact, prosecution was supposed to have proved the necessary ingredients of the two offences, viz. entrustment of money to the appellant and its misappropriation by him. 10. Admittedly, an advance of Rs.5000/- had been taken by the appellant from the Chief Medical Officer, Shimla, in connection with the leave travel concession. He was supposed to have refunded the money out of that advance, which remained unspent with him, after availing the aforesaid concession. Instead of refunding the money equivalent to the claim made by him, in respect of his son Varun Kaushik, he misappropriated that his said son had also travelled with him and a portion of the advance money had been spent on his traveling. Claim bill Ext.PW5/K submitted by him was to the tune of Rs.5091/-. This claim was in respect of seven persons, i.e. the appellant himself, his wife, four sons and mother. If we divide the amount of claim submitted by the appellant, vide bill Ext. PW5/K, i.e. Rs.5091/-, expenditure …8… incurred on the traveling of each person comes to Rs.725/- approximately. Had the appellant made the claim in respect of only six persons, who are shown to have availed the concession, he was supposed to have refunded at least Rs.650/- out of the advance of Rs.5000/-. Thus, it is a clear case of misappropriation of a sum of Rs.650/- approximately, out of the advance money, which was entrusted to the appellant by way of advance travelling expenditure. Therefore, the aforesaid submission made by the learned counsel for the appellant has no merit. 11. Learned counsel representing the appellant further submitted that the LTC Rules and the instructions provided that in case an employee makes a false or fraudulent claim, he can be denied LTC, in future, and that this implies that an employee cannot be prosecuted for misappropriation of advance taken to meet the travelling expenses, in connection with LTC. The argument has been noticed only to be rejected. Rules or instructions do not lay any bar to the prosecution of an employee, who makes a false or fraudulent claim or misappropriates the advance or a portion of thereof taken by him, in connection with the availing of Leave Travel Concession. 12. In view of what has been stated hereinabove, appeal is partly allowed and partly dismissed. Conviction and sentence of the appellant for offences, under Sections 468 and 471 IPC are set aside. However, his conviction and sentence …9… for offences, under Section 409 IPC and Section 13(2) of the Prevention of Corruption Act, 1988, are upheld. October 17, 2008 (ss) ( Surjit Singh ), J.