RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.151 of 2006 (Old No.1477 of 1989) R.S. Pandey S/o Kamta Prasad Pandey, R/o Vill. Birsinghpur, P.S. Bhiti, Distt. Faizabad, Working as Assistant Spinning Master, Lord Krishna Textile Mill (NTC), Saharanpur ………….Appellant Versus The State …….. Respondent Dated: June 13, 2008 Sri Manoj Mohan, learned amicus curiae for the appellant Sri Harish Pujari, learned Addl. G.A. for the State/Respondent HON. DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 01.06.1989 passed by Special Judge, Anti Corruption, U.P. (East), Dehradun, in C.B.I. Case No.8/83, CBI Versus R.S. Pandey & others, whereby the learned Special Judge has convicted the appellant R.S. Pandey under Sections 420/468 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and also under Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) (hereinafter to be referred as the Act). The appellant was awarded sentence of one year’s R.I. u/s 420 IPC and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo six month’s further R.I. The appellant/accused R.S. Pandey was further awarded sentence of one year’s R.I. under section 468 IPC and fine of Rs.5,000/- and in 2 default of payment of fine, to undergo R.I. for further six months’. The appellant was further sentenced to undergo one year’s R.I. u/s 5(2) of the Act and fine of Rs.5,000/- and in default of payment of fine, to undergo six months’ further R.I. All the sentences were also directed to run concurrently. However, the appellant R.S. Pandey was acquitted of the charge punishable u/s 120-B of IPC. Co- accused S.K. Garg was found not guilty u/s 120-B IPC, 420 IPC, 471 IPC r/w 468 IPC and Section 5(2) of the Act and was acquitted of the same. 2. I have heard Sri Manoj Mohan, learned amicus curiae for the appellant and Sri Harish Pujari, learned Additional G.A. for the State and perused the entire material available on record. 3. In brief, the prosecution case is that appellant/ accused R.S. Pandey & Surendra Kumar Garg while posted and functioning as Assistant Spinning Master cum Maintenance In-charge & Cashier respectively at Lord Krishna Textile Mill, NTC, Saharanpur, during the year 1981, entered into a criminal conspiracy with some unknown persons with the object of cheating the N.T.C. In pursuance of the said criminal conspiracy, a verification of completion of work was falsely made by appellant/accused R.S. Pandey in the name of fictitious persons and recommended payment to them. Signatures of G.C. Jain, Spinning Master & A.K. Srivastava, Production Manager were also forged on the verification report showing the sanction of payment against the verification falsely made by appellant/accused R.S. Pandey. On the basis of forged sanction orders, four payment Vouchers were prepared in the Account Section under the forged signatures of Manager Finance & A/c of the Mill and payment of Rs.6,400/- was falsely shown to have been made by Cashier S.K. Garg in favour of Murlidhar & Ramakant after 3 attestation of their signatures of these fictitious persons by appellant/accused R.S. Pandey. When neither any such contract was awarded in favour of Murlidhar & Ramakant nor any such work was carried out by them. With the same averments, the FIR was lodged by Superintendent of Police, CBI/SPE/Dehradun on 18.5.1982 at 4:30 P.M., the FIR is Ex.Ka-73. During the course of investigation, the I.O. collected the relevant papers and also taken signatures for the handwriting expert and also prepared seizure memos, i.e. Ex.Ka-74/1 to 74/5. The I.O. also took the specimen signatures/handwritings of P.W.2 G.C. Jain, specimen writing of P.W.5 Antony Jacob i.e. Ex.Ka.75/1 to Ex.Ka.75/7; specimen writing of O.S. Bhatia i.e. Ex.Ka- 72/1 to Ex.Ka-72/6; specimen signatures/writings of S.K. Garg i.e. Ex.Ka-15 to Ex.Ka-19, specimen writings/ signatures of P.W.8 Murali Dutt i.e. Ex.Ka-64/1 to Ex.Ka.64/10 & also Ex.Ka-76/1 to Ex.Ka.76/2; specimen writing of P.W.6 Rama Kant i.e. Ex.Ka-54 to Ex.Ka-57; specimen writing/signatures of A.K. Srivastava i.e. Ex.Ka.67/1 to Ex.Ka-67/3; specimen signatures of P.W.10 Murlidhar i.e. Ex.Ka-68/1 to Ex.Ka.68/8 and specimen signatures/writings of appellant/accused R.S.Pandey i.e. Ex.Ka.77/1 to Ex.Ka.77/19. The I.O. during the course of investigation also took the sanction for prosecution of appellant/accused R.S. Pandey and co-accused S.K. Garg from Chairman-cum-Managing Director, National Textile Corporation (UP) Ltd., Kanpur, that sanction is Ex.Ka.28. The I.O. during the course of investigation, apart from other relevant documents, also took in his possession the disputed documents i.e. Ex.Ka-29 to Ex.Ka-36. The documents of the case were also sent to Government Examiner for the purpose of examination and Sri R.P. Singh, Govt. Examiner of Questioned Documents & Sri D.D. Goel, Assistant Government 4 Examiner of Questioned Documents, submitted their joint report, i.e. Ex.Ka-59. P.W.8 D.D. Goel, Assistant Govt. Examiner of Questioned Documents, also given the reasons for his opinion by his report, i.e. Ex.Ka-60. After completing the investigation, the I.O. submitted the charge sheet in the court of Special Judge, Anti Corruption, U.P. (East) Dehradun against the appellant/accused R.S. Pandey and one another co-accused S.K. Garg u/s 120- B/420/468/471 IPC and also u/s 5(2) r/w 5(1)(d) of the Act, that charge sheet is Ex.Ka-78. 4. On 22.06.1984, the charge was framed against the appellant/accused R.S. Pandey by Special Judge, Anti Corruption, U.P. (East), Dehradun under Section 120-B I.P.C.; u/s 420 I.P.C.; u/s 468 I.P.C. and under Section 5(1)(d) punishable under Section 5(2) of the Act. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. The charge was also framed against the co-accused S.K. Garg under Section 120-B I.P.C.; u/s 420 r/w 109 I.P.C.; u/s 471 r/w Section 468 I.P.C. and under Section 5(1)(d) punishable under Section 5(2) of the Act. 5. To prove its case, the prosecution examined P.W.1 R.V. Sharma, Secretary to Chairman cum Managing Director, National Textile Corporation, U.P. Kanpur; P.W.2 is G.C. Jain, Superintendent, Lord Krishna Textile Mill, Saharanpur; P.W.3 is P.N. Batra, Head Time Keeper, Lord Krishna Textile Mill, Saharanpur; P.W.4 is Daya Shankar Sharma, Manager Administration; P.W.5 Antony Jacob, Accounts Clerk, Lord Krishna Textile Mill, Saharanpur; P.W.6 Rama Kant Rai, Maintenance Supervisor, Lord Krishna Textile Mill, Saharanpur; P.W.7 D.D. Goel, A.G.E. & Q.D.; P.W.8 Murli Dutt, Fitter, Lord Krishna Textile Mill, Saharanpur; P.W.9 A.K. Srivastava, Additional Production Manager, Lord Krishna Textile Mill, Saharanpur; P.W.10 5 Murlidhar, also an employee of Lord Krishna Textile Mill, Saharanpur; P.W.11 O.S. Bhatia, Chief Finance Manager, National Thermal Power, Allahabad and P.W.12 S.R. Jaiswal, Additional Director Vigilance/I.O. of the case. 6. After that the statement of the appellant/accused R.S. Pandey was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question and answer form. In reply, he has admitted that in the year 1981, he was posted in Unit Lord Krishna Textile Mill, Saharanpur as Assistant Spinning Master, but he has denied the rest of the allegations made against him and stated that he has been falsely implicated. In oral evidence, he got examined D.W.1 Sushil Kumar and D.W.5 Dr. H.L. Bami. D.W. 2 S.C. Sachdeva, D.W.3 Praduman Kumar, D.W.4 Harbansh Lal and D.W.6 Hukum Chand Garg, were the oral witness got examined by co-accused S.K. Garg. The appellant/accused in support of documentary evidence produced documents i.e. Ex. Kha, Ex.Kha-1 to Ex.Kha-16 and Ex.D.E.-1. 7. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Special Judge, Anti Corruption, U.P. (East), Dehradun vide his judgment and order dated 1.06.1989 has convicted the appellant R.S. Pandey under Sections 420/468 of I.P.C. and also under Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). The appellant was awarded sentence of one year’s R.I. u/s 420 IPC and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo six month’s R.I. The appellant was further awarded sentence of one year’s R.I. u/s 468 IPC and fine of Rs.5,000/- and in default of payment of fine, to undergo R.I. for further six months. The appellant was further sentenced to undergo one year’s R.I. u/s 5(2) of the Prevention of Corruption Act, 1947 and fine of Rs.5,000/- 6 and in default of payment of fine, to undergo six months’ further R.I. All the sentences were also directed to run concurrently. However, the appellant R.S. Pandey was acquitted of the charge punishable u/s 120-B of IPC. Co- accused S.K. Garg was found not guilty u/s 120-B IPC, 420 IPC, 471 IPC r/w 468 IPC and Section 5(2) of the Act and he was acquitted of the same. Feeling aggrieved by the aforesaid judgment and order dated 01.06.1989, the appellant/accused R.S. Pandey has come up in appeal. 8. To prove its case, the prosecution has examined P.W.1 R.V. Sharma, Secretary to Chairman cum Managing Director, who has been examined to prove the sanction order for prosecution of the appellant-accused R.S. Pandey and also of co-accused S.K. Garg, being a public servant, the sanction is Ex.Ka.28. The sanction was given and accorded by B.S. Sandhu, Chairman cum Managing Director and he typed the letter on the dictation of B.S. Sandhu. Sri B.S. Sandhu accorded the sanction after reading all the connected papers of this case. 9. P.W.2 is G.C. Jain, who was the Spinning Master in Lord Krishna Textile Mill, Saharanpur in the year 1981 and appellant/accused R.S. Pandey was working under him as Assistant Spinning Master. He has stated in his evidence that he was posted as Spinning Master and no bill could be passed without his signatures if any work is undertaken for the overhauling or repairs of the machine. He has also stated that in all the four payment invoices i.e. Exs.Ka.29, Ka.31, Ka.33 & Ka-35, his signatures were forged and those signatures were not genuine. 10. P.W.3 is P.N. Batra who was the Head Time Keeper in Lord Krishna Textile Mill, Saharanpur. He has been examined to prove that the vouchers were prepared in the name of Murlidhar & Ramakant, who were the fictitious 7 persons and no such persons were in the employment of the said Mill as per the record. He has also stated that the payments were also made to fictitious persons. 11. P.W.4 is Daya Shanker Sharma, who was the officiating General Manager in the said Mill. He has stated that the contract in regard the modernization of the machine was not ever given to Murlidhar and there was no any such person in the name of Murlidhar, who had undertaken any work for modernization of the machine. He also stated that the completion of the contract in the name of Murlidhar was falsely shown in the bill and the payment was also made to a fictitious person with the help of four bills and vouchers. 12. P.W.5 is Antony Jacob, who was the Accounts Clerk in the Mill, has stated that all the four bills i.e. Ex.Ka.29, Ka-31, Ka-33 & Ka-35 were the bills which were prepared by appellant/accused R.S. Pandey. He further stated that on the basis of those bills, which were prepared by appellant/accused R.S. Pandey, he prepared the vouchers i.e. Ex.Ka-30, Ka-32, Ka-34 & Ka-36. He also stated that he prepared the above-said vouchers on the basis of the bills which were prepared and produced before him by appellant/ accused R.S. Pandey. 13. P.W.6 is Rama Kant Rai, who has been produced by the prosecution in order to prove that he had never undertaken the work as shown in the bill in his name and his signatures on the bills as well as on vouchers were forged. He also stated that his signatures on Vouchers i.e. Ex.Ka-32 and Ex.Ka-36, which was under his name, were forged by appellant/accused R.S. Pandey himself. On both the vouchers, it was alleged by the prosecution that the appellant/accused R.S. Pandey had verified the payees to 8 whom the payments were to be made and he has specifically alleged in his evidence that signatures in the name of Rama Kant were not his genuine signatures but his signatures were forged. He also stated that Bills i.e. Ex.Ka-31 & Ka-35 were also falsely prepared in his name and he also stated that he had never undertaken the said work nor received any payment in regard the same. 14. P.W.7 is D.D. Goel who was the Assistant Government Examiner of Questioned Documents. He had taken specimen, admitted and disputed signatures of all those persons connected with the bills and vouchers. After examining those signatures, he gave his expert opinion to the effect that the signatures on the bills were not genuine signatures of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava and P.W.11 O.S. Bhatia and their signatures were actually forged. He also stated that the verification in regard the work as well as the writing on the bills (Ex.Ka-29, Ka-31, Ka-33 & Ka-35) were in the writing and signatures of appellant/accused R.S. Pandey. He also stated that the verification and signatures made on the vouchers (Ex.Ka- 30, Ka-32, Ka-34 & Ka-36) were also in the writing and signatures of appellant/accused R.S. Pandey. He has given his specific opinion in regard the fact that the verification and signatures on the payment vouchers under the name of P.W.6 Rama Kant (Ex.Ka-32 & Ka-36) were forged by appellant/accused R.S. Pandey himself. 15. P.W.8 is Murlidutt who has stated that the payments made through Vouchers Ex.Ka-30, Ka-34 & Ka- 36 were neither signed by him nor he received any payment thereof. 9 16. P.W.9 is A.K. Srivastava who was examined by the prosecution to prove that his signatures were not genuine on the bills i.e. Exs.Ka-29, Ka-31, Ka-33 & Ka-35 and his signatures were actually forged on the above- mentioned bills. 17. P.W.10 is Murlidhar, who has stated that his name and signatures shown in the vouchers were totally false as he has not received any payment nor had taken any work on behalf of the Mill as mentioned in the Bills. He also stated that signatures on Exs.Ex.Ka-30, Ka-34 and Ka-36 were not his signatures. He further stated that the vouchers relating to his name were alleged to be forged one. 18. P.W.11 is O.S. Bhatia, who was the Manager Finance & Accounts in the said Mill. He has stated that no any voucher could have been prepared unless the same was passed by him. He also stated that his signatures on the bills were alleged to have been verified under his forged signatures. He also stated that his signatures on all the four bills were forged. 19. P.W.12 is S.R. Jayaswal, Investigating Officer of the case. He has stated that from the year 1976 to April, 1985, he was posted as Dy. S.P. CBI, Special Police Establishment, Dehradun. This case was registered on 18.5.1982 as per the orders of Sri Tilak Kak, the then S.P. CBI. He also identified the signatures of Sri Tilak Kak of FIR i.e. on Paper No.6/A, i.e. Ex.Ka-73. During the course of investigation, he recorded the statements of witnesses and for taking the documents in his possession, he prepared seizure memos i.e. Ex.Ka-74/1 to Ex.Ka-74/5. He also took the specimen writing of G.C. Jain i.e. Ex.Ka- 41 to Ex.Ka-46. He also took the specimen writing of Antony Jacob, Ex.Ka-75/1 to Ex.Ka-75/7. He also taken the specimen writing of O.S. Bhatia i.e. Ex.Ka-72/1 to Ex.Ka.72/6 and specimen signature and writing of S.K. 10 Garg i.e. Ex.Ka-15 to Ex.Ka-19 and specimen writing of Murlidutt i.e. Ex.Ka-76/1 & Ex.Ka.76/2 and also Ex.Ka- 64/3 to Ex.Ka-64/10. He also took the specimen handwriting of Rama Kant Rai i.e. Ex.Ka-54 to Ex.Ka-57 and also took the specimen handwriting/ signatures of A.K. Srivastava i.e. Ex.Ka-67/1 to Ex.Ka-67/3 and specimen handwriting of Murlidhar i.e. Ex.Ka-68/1 to Ex.Ka-68/8. Specimen signature and writing of appellant/ accused R.S Pandey was also taken i.e. Ex.Ka-77/1 to Ex.Ka.77/19. All the specimen handwriting and signatures were sent to the handwriting expert for the expert opinion. He also took the sanction for the prosecution of the appellant/ accused R.S. Pandey and another co-accused. After completing the investigation, he submitted the charge sheet i.e. Ex.Ka-78. 20. After that the statement of the appellant/accused R.S. Pandey was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question and answer form. In reply, he has admitted that in the year 1981, he was posted in Unit Lord Krishna Textile Mill, Saharanpur as Assistant Spinning Master, but he has denied the rest of the allegations made against him and stated that he has been falsely implicated. In oral evidence, he got examined D.W.1 Sushil Kumar and D.W.5 Dr. H.L. Bami. D.W. 2 S.C. Sachdeva, D.W.3 Praduman Kumar, D.W.4 Harbansh Lal and D.W.6 Hukum Chand Garg, were the oral witness got examined by co-accused S.K. Garg. The appellant/accused in support of documentary evidence produced documents i.e. Ex. Kha, Ex.Kha-1 to Ex.Kha-16 and Ex.D.E.-1. 21. The prosecution story is based on four vouchers and four bills which may be detailed as under: - A. Voucher (Ex.Ka.30) for Rs.1,600 dated 11.8.81 in favour of Murlidhar. 11 B. Voucher (Ex.Ka-32) for Rs.1,600/- dated 11.8.81 in favour of Rama Kant. C. Voucher (Ex.Ka-34) for Rs.1,600/- dated 26.8.81 in favour of Murlidhar. D. Voucher (Ex.Ka-36) for Rs.1,600/- dated 26.8.81 in favour of Rama Kant & Murlidhar. 22. All the payments were alleged to have been made to fictitious persons. It was also alleged that the payments were made to the fictitious persons by co-accused S.K. Garg (acquitted by the trial court) on the verification of appellant/ accused R.S. Pandey as appellant/accused R.S. Pandey himself verified all the four vouchers under his own signatures. These four vouchers were prepared on the basis of bills or payment invoices prepared by appellant/accused R.S. Pandey, who had prepared the bills falsely under the forged signatures. 23. The four bills or payment invoices alleged to have been prepared falsely under the forged signatures of different persons are as follows: - A. Ex.Ka-29 in which appellant/accused R.S. Pandey verified the completion of work done in accordance with the contract order and asked for payment for Rs.1,600/- to Murlidhar. This bill or payment invoice was alleged to have been prepared falsely and the signatures of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava & P.W.11 O.S. Bhatia were forged. The said bill was admittedly prepared by appellant/accused R.S. Pandey which was false as no work relating to the machine detailed in the bill was ever given on contract for which any payment was to be made. 12 B. Bill or payment invoice Ex.Ka-31 was also prepared by appellant/accused R.S. Pandey himself wherein he had verified that he work relating to the machine as detailed therein was completed as per contract for overhauling and asked for payment of Rs.1600/- to Rama Kant. It was alleged that the said bill was prepared falsely and signatures of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava & P.W.11 O.S. Bhatia were also forged. Further it was alleged that no any such work was given on contract and the said bill was prepared falsely under the forged signatures made by appellant /accused R.S. Pandey. C. The third bill or payment invoice is Ex.Ka-33 in which appellant/accused R.S. Pandey verified the completion of contract relating to machine of the Mill as detailed therein and asked for payment of Rs.1600/- to P.W.10 Murlidhar. The said bill was prepared by appellant/accused R.S. Pandey who had also verified the completion of work in the said Mill. It was alleged that no any such work was ever given on contract to any person and the signatures of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava & P.W.11 O.S. Bhatia were forged and on the basis of false bill, payments were also received by fictitious persons. D. The fourth bill or payment invoice proved by the prosecution is Ex.Ka-35 which was admittedly prepared by appellant/accused R.S. Pandey. It was alleged that appellant/accused R.S. Pandey falsely prepared the said bill as no work for dismantling the machine as detailed in the bill was given on contract and the payment of Rs.1600/- to Rama Kant as mentioned in the said bill was totally 13 false. Further, appellant/accused R.S. Pandey falsely verified the work done and the signatures of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava & P.W.11 O.S. Bhatia were also forged. 24. Sri Manoj Mohan, learned amicus curiae for the appellant argued that prosecution has not proved its case against the appellant beyond reasonable doubt. The argument advanced by learned amicus curiae has no force. From a perusal of the four bills referred to above, it is proved that that they were written in the handwriting and signatures of appellant/accused R.S. Pandey as alleged by the prosecution. 25. In order to prove the same, the prosecution examined P.W.2 G.C. Jain, P.W.9 A.K. Srivastava and P.W.11 O.S. Bhatia, officers of the Mill, who categorically stated that their signatures were forged on all the four bills. Besides, there is independent witness of Government Expert P.W.7 D.D. Goel to the effect that those bills were written in the writing of appellant/accused R.S. Pandey and the signatures on the bills were also forged by appellant/accused R.S. Pandey. In order to see whether those bills were false one, the prosecution examined those persons who were named in these bills having undertaken the work on behalf of the Mill. P.W.10 Murlidhar was produced by the prosecution and he stated before the court that he had not undertaken any work in the Mill nor received any payment in respect of the same bill, meaning thereby that the bill was prepared falsely under the forged signatures. 26. Same is the condition with regard to second bill i.e. Ex.Ka-31 which was admitted by appellant/accused R.S. Pandey to have been prepared and signed by him verifying that Rama Kant had worked in the machine 14 for overhauling. P.W.6 Rama Kant Rai appeared before the court and he stated that he had not undertaken any such work nor had received any money for the same work, meaning thereby that the said bill was also prepared falsely. This bill also contains the signatures of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava & P.W.11 O.S. Bhatia who have stated that their signatures were forged on this bill (Ex.Ka.31). Even, P.W.7 D.D. Goel has also corroborated the fact that the signatures of these persons were forged on the bill which was prepared and signed by appellant/accused R.S. Pandey. Since, both these bills (Exs.Ka-29 & Ka-31) were admitted by appellant/ accused R.S. Pandey to have been written and prepared, therefore, nothing is left to doubt that both these bills were actually false and contained the forged signatures of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava & P.W.11 O.S. Bhatia. 27. With regard to the bill Ex.Ka-33 for Rs.1600/- in favour of P.W.10 Murlidhar, the prosecution produced P.W.10 Murlidhar who stated that the said bill was falsely prepared under his forged signatures. He also stated that his signatures on the bill were forged and no any such work was ever undertaken on behalf of the Mill for which the payment be made to him. In this regard, P.W.7 D.D. Goel has also given his opinion that the bill Ex.Ka-33 was prepared and signed by appellant/accused R.S. Pandey and signatures on those bills of P.W.2 G.C. Jain, P.W.9 A.K. Srivastava & P.W.11 O.S. Bhatia were forged and the same was also supported by the evidence of these officers as well. 28. Same is the case with regard to the bill Ex.Ka.35 for Rs.1600/- in favour of Rama Kant. The prosecution produced P.W.6 Rama Kant Rai who also stated that this bill was a false bill. He also stated that his signatures were also forged and no any such work was ever 15 undertaken on behalf of the Mill for which the payment be made to him. P.W.7 D.D. Goel has also given his opinion that the bill Ex.Ka-35 was prepared and signed by appellant/accused R.S. Pandey and signatures on the bill of P.W.2 G.C. Jain, P.W.9 A.K.