IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 95 of 2004 Decided on : May 2, 2011 State of H.P. …Appellant. Versus Dharam Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents: Mr. Satyen Vaidya and Mr. Rajiv Jiwan Advocates. Surjit Singh, Judge(Oral) State has appealed against the judgment, dated 19.11.2003, of learned Special Judge (Forests), Shimla, whereby respondents, who all are public servants, have been acquitted of charge, under Sections 409, 420, 467, 468, 471, 420 IPC and Section 13(2) of the Prevention of Corruption Act, 1988. 2. Prosecution case, which led to the trial of the respondents, is that in the year 1994-95, when respondent No.1 Dharam Singh was working as Pardhan of Gram Panchayt, Chanog, respondent No.2 Tarun Nehru as Secretary of that Panchayat and respondent No.3 Suresh Kumar as Junior Engineer in Block Development Whether reporters of the local papers may be allowed to see the judgment? …2… Office, Mashobra, money was withdrawn for executing four items of works, for different villages, failing in the area of Gram Panchayat, Chanog, by respondent No.1 Dharam Singh, but only very small amounts of money had been spent on those works and the rest of the money remained unaccounted. 3. Construction of irrigation tank at village Sujana at a cost of `20,000/- was approved by the Panchayat. A sum of `10,740/- was withdrawn and shown to have been spent on the execution of that work, but actually no work had been executed on the spot. Similarly, a sum of `17,839.50 was shown to have been spent on construction of irrigation tank for village Bambin, but no work had been executed, except that material worth `594/-, in the form of sand and Bajri, was found, on the spot. Another amount of `20,000/- had been sanctioned for construction of a Sarai for Hanuman Temple at village Sal and a sum of `20,670/- was shown to have been spent, but actually very small amount of work had been executed on the spot, which consisted of erection of walls upto a height of 5-6 feet. Again, a sum of `6000/- had been withdrawn for construction of a “Bauri”, but no work had been executed. 4. Matter came to light, when a complaint was lodged by the residents of the village to the Director Panchayati Raj and the latter deputed PW-18 Bal Krishan, …3… a Joint Director, to enquire into the matter. The said Joint Director submitted his report Ext. PW5/A, per which none of the aforesaid works had been executed. On the basis of that report, complaint Ext. PW5/B was lodged by PW-5 Jai Lal Kanan, District Panchayat Officer and a case was formally registered, vide FIR Ext. PW9/A. 5. During investigation, PW-21 ASI Gurdeep Singh, visited the spot. He also found that except for stacking of some material on the sites of the aforesaid works and erection of walls of Sarai for Hanuman Temple upto the door level, no work had been executed. Inspection was also carried out, during the course of investigation, by PW-27 Smt. Prabha Rajiv, the then Block Development Officer as also by PW-5 Jai Lal Kanan, Panchayat Officer. Investigation further revealed that three muster rolls had been forged. 6. On completion of investigation and after obtaining sanction to prosecute the respondents, report, under Section 173 Cr. P.C. was filed in the Court of Special Judge, who supplied copies of the said report and relevant papers to the respondents and after hearing learned Public Prosecutor, learned defence counsel and perusing the record, felt that a prima-facie case, under the aforesaid penal provisions of law was made out. Respondents were charged accordingly and on their pleading not guilty, they were ordered to be tried. …4… 7. Prosecution examined a number of witnesses and also proved certain documents to substantiate the charge. 8. Respondents denied that they had misappropriated any amount of money. Respondents Dharam Singh and Suresh Kumar, JE, pleaded that there was no time limit prescribed for completing execution of works and that as a matter of fact they had spent the entire withdrawn amount of money on part execution of the aforesaid works and purchase of material required for construction of those works. Respondent Tarun Nehru pleaded that he was Secretary of Panchayat and except for maintaining the records, as per instructions of elected representatives of the Panchayat, including respondent Dharam Singh, Pardhan, he had no role in the execution of the works. 9. Learned trial Court concluded that prosecution case did not stand established, beyond reasonable doubt, inasmuch as the evidence indicated that all the works had been executed, though partly, and that the respondents had, at no stage, claimed that the works stood completed nor did they submit the final bills to claim remaining sanctioned amounts. Also, it has been held by the learned trial Court that the allegation of muster-rolls having been forged does not stand proved. Consequently, respondents were acquitted. …5… 10. We have heard learned Assistant Advocate General as also learned counsel, representing the respondents and gone through the record. 11. PW-5 Jai Lal Kanan, District Panchayat Officer, who lodged complaint Ext. PW5/B on the basis of report Ext. PW5/A of PW-18 Bal Krishan, stated in his cross- examination that when he visited the spot it was found that construction of irrigation tank in village Sujan had almost been completed, except for the plastering of walls. If that is so, prosecution case that no work had been executed on the spot cannot be accepted. May be that the construction of the tank was completed after registration of the case, but then we find no reason to disagree with the view taken by the learned trial Court that no time limit having been prescribed or fixed for the execution of the works, this would not be a case of misappropriation of money released for the works, but only a case of delayed execution of works. 12. With regard to the construction of irrigation tank in village Bambin, PW-5 Jai Lal Kanan stated that on the spot he found no construction. However, in the cross- examination he stated that he did not know if a hamlet Jalani is also part of village Bambin and an irrigation tank had been partly constructed in that hamlet. 13. PW-27 Prabha Rajiv, the then Block Development Officer stated that as regards irrigation tank …6… in village Bambin, work was shown to have been commenced at Jalani-ki-Khal instead of Stawari-ki-Khal. Report Ext. PW27/A submitted by this witness suggests that irrigation tank was to be constructed at a place called Stawari-ki-Khal in village Bambin, but it was started at village Jalani-ki-Khal in that village. 14. By changing the site of the work respondents cannot be said to have misappropriated the money. It has come in prosecution evidence that selection of sites was the job of Panchayat and not of any other authority, including the office of Block Development, per cross- examination of PW-27 Prabha Rajiv. Though intimation of change in the site is required to be given to the BDO concerned, but it is nobody’s case that no such information was given. 15. As regards Sarai for Hanuman Temple, all the witnesses say that the work had been executed in part and the walls upto the door level had been constructed. That means, the construction work for Sarai of Hanuman Temple had also been commenced. 16. So far as the allegation with regard to the construction of a Bouri is concerned, there is absolutely no evidence, indicating that the same had not been constructed. 17. It is also the allegation of the prosecution that in Muster Rolls Exts. PW5/D-24, PW5/D-25 and PW5/D-39, …7… names of two persons, namely PW-15 Ram Lal and PW26 Prabhu Ram have been falsely indicated, as labourers, and that as a matter of fact neither these two persons were ever engaged nor was any money paid to them and, thus, the aforesaid three muster rolls had been forged. 18. Names of the aforesaid two witnesses are there in Muster Rolls Ext. PW5/D-24, Ext. PW5/D-25 and PW5/D-39. Also, their purported signatures are there in the muter rolls, in token of their having been paid the wages. Their purported signatures had not been got compared with their standard signatures from Handwriting Expert. Testimony of the two witnesses does not inspire confidence. PW-15 Ram Lal though denied his signatures on the muster rolls, in token of his having received the wages or having worked on the projects to which these muster rolls pertain, he stands contradicted with his statement, under Section 161 Cr. P.C, with which he was duly confronted, during the course of his cross- examination. That statement is Mark PW15/A, wherein he stated to the police that his signatures were there on the muter rolls, but he had not been engaged in connection with any of the works nor had he received the wages, mentioned against his name. In view of the witness having been contradicted with his previous statement, under Section 161 Cr. P.C., as also the fact that his purported signatures on the muster rolls have not been …8… opined to have not been written by him, no reliance can be placed upon his statement to hold the respondents guilty of forgery. 19. Name of PW-26 Prabhu Ram is shown in two of the aforesaid muster rolls. He admitted his signature on one of the muster rolls, though he denied having received any wages. Once his signature is there in token of his having received the money, his uncorroborated testimony that he did not receive any wages cannot be believed. On the second muster roll he denied his signatures, but that signature was not got compared with his standard signature and so, his sole testimony cannot be said to be enough to conclude that his purported signature is forged. 20. As a result of above discussion, we find no merit in the present appeal. Hence, the same is dismissed. (Surjit Singh), J. May 2, 2011 (ss) (Rajiv Sharma), J