Criminal Appeal No. 388 of 2001 (S.J.) With Criminal Appeal No. 392 of 2001 (S.J.) **** Against the judgment and order of conviction and sentence, dated 19th October, 2001, passed by Sri Braj Nandan Sahay, Special Judge, C.B.I., North Bihar, Patna, in Special Case No. 64 of 1989/R.C. No. 27(A) of 1989 **** 1. Vidya Nand Jha @ Bidya Nand Jha, son of Sri Prayag Narain Jha, resident of village Dariyapur, P.S. Shahkund, district Bhagalpur at present working as Booking Clerk, N.E. Railway, Supaul, district Saharsa (Bihar) 2. Rahmat Hussain, son of Md. Afzal Hussain, resident of village + P.O. Kurha Sandalpur, P.S. Sahebpur Kamal, district Begusarai, at Present working as Booking Clerk, N.E. Railway At Methai Railway Station, P.S. Madhkepura, district Madhepura .. Appellants [in Cr.Appeal No.388/01(S.J.)] 1. Surendra Jha, son of Sri Mahendra Narayan Jha, resident of village Rewari, P.S. Angarghat, District Samastipur 2. Narendra Prasad Verma, son of late Basudeo Lal Resident of village Patori, P.S. Bihta, district Saharsa .. Appellants [in Cr.Appeal No.392/01(S.J.) Versus The State of Bihar .. Respondent (in both the appeals) **** For the appellants .. Mr. S.N. P. Sinha, Sr. Adv. with Mr. A.P.Singh, S.M. Ashraf 2 and Mira Kumari, Advs. For the respondent .. Mr. B.K. Sinha, S.C. (C.B.I) **** P R E S E N T THE HON’BLE JUSTICE MRS. MRIDULA MISHRA Mridula Mishra, J. Heard counsel for the parties. 2. Two appeals have been preferred by the appellants against the judgment and order of Special Judge (C.B.I.), North Bihar, Patna, dated 19th October, 2001, in Special Case No. 64 of 1989 arising out of SPE/CBI/Patna R.C. No. 27(A) of 1989, whereby appellants along with one Narendra Prasad Verma (now dead) were convicted and sentenced to undergo rigorous imprisonment for two years under Sections 120B, 420, 467, 468 read with 468 477A of the Indian Penal Code and 3(1)(c) and 13 read with 13(1)(d) of the Prevention of Corruption Act, 1988. Appellants were further convicted under Sections 471 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellants were also sentenced to pay a fine of Rs.10,000/- each under Sections 13(2) read with Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act,1988, in default to undergo further rigorous imprisonment for six months. Sentences were ordered to run concurrently. 3. On 08.09.1989 on the basis of written report of Inspector, C.B.I., Patna, R.C. Case No. 27(A) of 1989 was instituted against Surendra Jha Relieving Commercial Clerk, North Eastern Railway, Saharsa, and Bidyanand 3 Jha, Relieving Commercial Clerk, North Eastern Railway, Saharsa, and other unknown persons. The prosecution case was that through reliable sources the informant received information that Surendra Jha, Relieving Commercial Clerk, North Eastern Railway, Saharsa, and Bidyanand Jha, Relieving Commercial Clerk, North Eastern Railway, Saharsa, during the period January 1989, entered into a criminal conspiracy with railway staff and outsiders and cheated railway administration by misusing their official position willfully inasmuch as they issued Printed Card Tickets (PCT) for different destinations in exchange of forged railway warrants purported to have been issued by different officials of the Bihar Police Radio, causing loss to the railway to the extent of Rs.8,810/-. It is further alleged that Surendra Jha issued second class Printed Card Tickets No. 47705 to 47714, dated 07.01.1989, 49600 to 49609, dated 31.01.1989, and 48405 to 48414, dated 21.01.1989 from Saharsa to New Delhi in exchange of forged railway warrant nos. 076254/000052, dated 01.01.1989, 056465/000035, dated 28.01.1989, 042667/000045, dated 08.01.1989, purported to have been issued by the Supervisor, Bihar Police Radio, Muzaffarpur, Supervisor, Bihar Police Radio, Katihar, Supervisor, Bihar Police Radio, Bhagalpur, respectively for his personal gain. It is further alleged that Surendra Jha also issued Printed Card Tickets No. 09158 to 09167, dated 28.01.1989, Saharsa to Jalandhar City, 00941 to 00950, dated 31.01.1989 from Saharsa to Saharanpur, 03545 to 03554, dated 05.01.1989 from Saharsa to Firozpur, Ticket Nos. to 31397 to 31406, dated 05.01.1989, for railway warrant nos. 015368/000022, dated 27.01.1989, 052342/000035, dated 4 29.01.1989, 026603/000032, dated 30.12.1988, 076282/000016, dated 02.01.1989, purported to have been issued by the Supervisors, Muzaffarpur, Hajipur, Patna and Jamshedpur respectively for personal gain. It is also alleged that Vidyanand Jha issued second class Printed Card Tickets No. 43327 to 43336, dated 20.01.1989, Saharsa to New Delhi in exchange of forged railway warrants bearing nos. 42662/000045, dated 08.01.1989, purported to have been issued by Supervisor, Bihar Police Radio, Katihar, for personal gain. Besides the specific instance of issuance of Printed Card Tickets by Surendra Jha and Bidyanand Jha further allegation was that in conspiracy with other railway staffs and unknown outsiders they knowingly issued number of Printed Card Tickets in exchange of forged railway warrants (R/W) in contravention of the instruction directing not to issue Printed Card Tickets in exchange of railway warrants for defrauding the railway and to obtain pecuniary advantage to themselves and/or for others. 4. Rahmat Hussain was not named in the first information report. The case was investigated and charge sheet, dated 30.03.1990, was filed in the Court of Special Judge (CBI) North Bihar, Patna, against three appellants as well as Narendra Prasad Verma and others. Charges were framed against four accused appellants in both the appeals. 5. The defence of the accused/appellants was of innocence and false implication on the basis of misconceived and baseless allegations. Further, their defence was that in none of the circumstances railway warrants were issued or any portion thereof was written by them. Specific defence of Rahmat Hussain 5 was that he did not work on railway ticket booking counters at North Eastern Railway, Saharsa, during the period in question rather he was attached to railway parcel booking office from 07.07.1988 to 28.02.1989. 6. The accused persons were charged by the trial Court under Section 120B read with 420 of the Indian Penal Code. They were separately charged under Sections 420, 467, 468, 471 and 477A of the Indian Penal Code and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,1988. 7. The prosecution, in support of it’s case, examined eight witnesses. P.W. 1, Arun Kumar Malhotra, Deputy Superintendent and Superintendent was posted in Government Press, Gaya, in between 01.01.1979 to 11.09.1990. P.W. 2, Ashok Kumar Singh, was Booking Clerk at Saharsa Railway Station in between 1987 to 1989. P.W. 3, Kailash Prasad, was posted as Head Booking Clerk at Saharsa Railway Station in between 1988 to 1989. P.W. 4, P.K. Biswas, was posted as Head Booking Clerk at Sharsa Railway Station in between 1988 to 1990. P.W.5, R.K.P. Verma, was posted as Confidential Assistant in the office of the Divisional Commercial Superintendent, Samastipur. P.W. 6, Manoranjan Prasad Sinha, was Assistant Commercial Manager in the office of the Divisional Manager, Samastipur, at the relevant time. P.W. 7, Sat Narain Prasad, was posted as Commercial Clerk at Saharsa Railway Station in between 1974 to 1990. P.W. 8, Jagdish Sah, is the informant and the investigating officer of the case. 6 8. Some documents were also exhibited by prosecution in support of allegations, but, not proved in accordance with law.Railway warrants alleged to have been issued by the appellant, Surendra Jha and Bidyanand Jha on the basis of forged railway Printed Card Tickets were marked “X” for identification and exhibited as Exhibits 1 to 1/7. Exhibits 2 to 2/2 are the signature of S.N.P Verma, Typist, and R.K.P. Verma on sanction order. Exhibits 3 to 3/4 is fare ticket book – 5 books. Exhibits 3/5 to 3/9 are five pages of fare ticket book. Exhibits 3/10 to 3/20 are 11 pages from fare ticket book. Exhibit 4 is the daily trains card summary book [DTC Book (A)]. Exhibit 5 is the ticket supply register. Exhibit 6 is the daily train card – summary book (DTC Book) three books from 11.01.1989 to 20.01.1989. Exhibit 3/21 fare ticket book no. 302. Exhibits 3/21 to 3/26 are six pages of fare ticket book no. 302. Exhibits 3/27 to 3/33 are seven pages of book no. 303 fare ticket book. Exhibit 3/34 to 3/37 are three pages of book and three fare ticket book. Exhibits 5/1 to 5/7 are the ticket supply register. Exhibits 6/1 to 6/3 are the D.T.C. (B) register, six pages. Exhibits 4/1 to 4/5 are D.T.C. (A) register, five pages. Exhibit 7 is the first information report. Besides the aforesaid documents a sanction order issued by the Divisional Commercial Superintendent, S.N.P. Verma, has been proved by P.W. 5. 9. Accused, Rahmat Hussain, in support of his defence, examined D.W. 1, Mahendra Rai, Booking Clerk, North Eastern Railway, Saharsa, who proved a certificate, dated 15.07.1990, Exhibit “A”, issued by 7 Jaddu Singh, the then Quoting Superintendent, Saharsa, to the effect that during the period in question Rahmat Hussain did not work on the Railway Ticket Booking Counters, he was attached to the Railway Parcel Booking Office from 07.07.1988 to 28.02.1989. 10. Counsel for the appellants has submitted that evidence on record is not sufficient to hold that prosecution has succeeded in bringing home the charges. The prosecution has placed reliance on Exhibit “X/7” which is railway warrants alleged to have been issued by the accused appellants. These warrants have not been marked Exhibit rather for the purposes of identification have been marked “X”. Since warrant is not legally proved, it can not be relied upon for proving prosecution. P.W. 1 is an officer of Government Press, Gaya, who in his evidence has stated that there appears to be printing mistake in Exhibits X to X/7 as rule quoted appears to be mistaken. He has stated that X/5 has been printed under correct rules. He has found no variation in the printing warrants. He also admitted that no yearly serial number is given in railway warrants. He also admitted that such mistake do occur in printing and if it was a printing error in that case the appellants can not be held guilty of the charge as they are not author or printer of the warrants in question. The Printer of Government Press, Gaya, has not been examined nor have the warrants been legally marked exhibits. 11. P.W. 2, Ashok Kumar Singh, was Booking Clerk, then posted at Saharsa Railway Station. He had identified the signature and writing of 8 accused, Surendra Jha, on forged railway warrants (exhibits 1 to 1/3) and also identified the writing in columns no. 8, 9 and 10 of these railway warrants marked as exhibits ¼ to 1/7. Counsel for the appellants has submitted that even if the writing and signature of Surendra Jha is admitted on exhibits 1 to 1/7 in his pen, it do not lead to conclusion that he is guilty of the charge as the prosecution has not been able to prove that any of the warrants exhibits X to X/7 is forged. Any officer, in-charge of issuing tickets on the railway counter, has to issue tickets either on payment of cash or on police warrants. Surendra Jha, in this circumstance, if issued tickets in question on the basis of warrants, it can not be said he acted illegally or for any gain. P.W. 3, Kailash Paswan, was the Head Booking Clerk at Saharsa Railway Station at the relevant time. He has been examined basically to highlight the procedure of filling of railway warrants. P.W. 3 has not deposed that any of the warrants were filled by any of the appellants. P.W. 3 has not stated that any specific training is given to the Booking Clerks to detect genuine or forged railway warrants. He has also deposed that it is difficult for any clerk issuing ticket on the counter to decipher the warrant as forged. P.W. 3 has admitted in paragraph 3 of his evidence that cash and warrants are sent every day to cash office, Samastipur. Counsel for the appellants submits that evidence of P.W. 3 support this fact that appellants could not have deciphered the genuine or forged railway warrants. He has also admitted that these railway warrants have not been legally brought on the record. 9 12. P.K. Biswas is P.W. 4. He was posted as Coaching Superintendent at Saharsa at the relevant time and was Head Booking Clerk. He has proved exhibits 3 series, DTC book (daily train card – summary book) DTC book (exhibit 4 series) ticket supply book and DTC book (exhibit 5 series) and some writing of appellant, Surendra Jha. P.W. 4 has also deposed on the point of sanction for prosecution. In paragraph 19 of his cross examination P.W. 4 has admitted that Booking Clerks are appointed by General Manager, Personnel. In paragraph 21 he has stated that excess forged tickets has no concern with railway warrants. This witness in paragraph 22 of his evidence has demolished the entire prosecution case by stating that railway warrants produced before the Court as Exhibits X to X/7 are genuine railway warrants. He has also deposed that tickets were issued by the concerned staff only after finding same to be genuine and in the same sequence he has stated that railway has been paid for these railway warrants by the Bihar Government. So, there has been no loss to the railway as none of the railway warrants were refused by the railway authorities. P.W. 4 has also deposed in paragraph 23 of his evidence that no railway warrants were returned as forged and if there would have been any irregularity/illegality, he must have received this report. P.W. 4, in paragraph 24 of his evidence has said that no specimen signature of issuing railway authority is kept in the evidence to verify the same. In paragraph 25 of his evidence he has stated that he too would have issued tickets against the railway warrants in question and in paragraph 26 he has stated about different types of railway warrants. P.W. 4 in paragraph 27 of 10 his evidence has admitted that none of the documents produced in Court are forged. When P.W. 4 was put a question that whether accused appellants have been rightly prosecuted he has stated in paragraph 28 that they have been falsely implicated. 13. Counsel for the appellants submits that P.W. 4, who has deposed to this effect that prosecution of the appellants itself was not proper and none of the railway warrants were forged, he was a very important witness, but, not cross examined by the prosecution declaring him hostile. In this circumstance, the evidence of P.W. 4 is sufficient go give death blow to the prosecution as entire prosecution story has collapsed. 14. P.W. 5, R.K.P. Verma, is formal witness. He was posted as a Confidential Assistant of Divisional Commercial Superintendent. He has proved sanction order against Surendra Jha granted by Divisional Commercial Superintendent, S.N.P. Verma. Appellant’s case is that entire prosecution is bad and illegal as there was no proper sanction as required for prosecuting any State or Central Government employees. The Divisional Commercial Superintendent is not the competent authority to grant sanction for prosecution. In support of this contention the counsel has placed reliance on evidence of P.W. 4, who in paragraph 19 of his cross examination has admitted that Booking Clerks are appointed by General Manager, Personnel, and they are only competent to grant sanction for prosecution. Since, P.W. 4 has not been cross examined by prosecution, as such, there is no other evidence on record to consider the 11 submissions made by the counsel for the Central Bureau of Investigation to this effect that sanction granted by the Divisional Commercial Superintendent was proper and legal for prosecution. 15. P.W. 6, Manoranjan Prasad Sinha, was Commercial Inspector at the relevant time. This witness has also been examined to highlight the procedure for filling of railway warrants. He has admitted that no specimen signature of issuing police officer is kept at the Railway Station to compare it with the signature on the railway warrants. P.W. 6 has also clarified that if any irregularity is detected, the Station Master, In-charge, takes steps to clarify it. Counsel for the appellants submits that evidence of this witness do not lend support to the prosecution case. 16. P.W. 7, Satya Narain Prasad, is a formal witness. He was Commercial Clerk at Saharsa Railway Station at the relevant time. He has proved the signature of Surendra Jha on railway warrants (exhibits 1/6 and 1/7). 17. P.W., Jagdish Sah, is the informant and investigating officer of the present case. He has proved certain signatures on first information report. Specially signature of Rahmat Hussain, Bidyanand Jha and signature on expert’s opinion exhibits 7, 8 series, 10 series and 11 series respectively. P.W. 8 has admitted in paragraph 8 of his evidence that he was Assistant in the Police Department, but, had no experience of investigation of any criminal case till 1989. He has also admitted that none of the tickets, which are subject matter of the case, were procured by him. He has also stated in paragraph 13 of his evidence that 12 specimen signature of any accused was never taken in presence of any Magistrate. He denied that he knew Bidya Nand Jha from before. This witness has admitted in paragraph 14 of his evidence that during investigation he did not verify whether Police Department had paid the amount to the Railway. He also admitted that he had not obtained any copy of railway warrant from the Police Department and sent any genuine warrants for it’s verification from expert. P.W. 8 has also admitted hat specimen signature of the accused taken by him was not sent to Government examiner for it’s examination and report after collecting the same. In paragraph 15 when P.W. 8 was cross examined on the point of sanction, he admitted that he has no knowledge that who are appointing authority of the accused persons and whether sanction for prosecution was legal and proper. 18. Counsel for the appellants submits that on careful scrutiny of the evidence of P.W. 8, who is informant and the investigating officer of the case, it is clear that he was the lowest rank Inspector having no manner of training or knowledge about investigation of such a sensitive case in which career of public servants were involved. The evidence of P.W. 8 is sufficient to indicate that without probing properly and collecting the materials to indicate that prima facie case is made out, he submitted charge sheet against the accused persons. The Department gave charge of investigation of such a sensitive case to a lowest rank Inspector, like P.W. 8, which in itself is sufficient to show that how callously prestigious department of Government of India, like Central Bureau Investigation has handled this case. The counsel for the appellants has further 13 submitted that evidence on record is sufficient to show that prosecution has miserably failed to bring home charges under any section of the Penal Code or Prevention of Corruption Act, 1988. 19. Counsel for the appellants has further submitted that from the evidence on record, prosecution of appellant, Surendra Jha, on the basis of sanction (exhibit 2) is illegal as the General Manager is the competent authority to accord sanction and not the Divisional Commercial Superintendent. This has been admitted by P.W. 4. In support of this contention the counsel for the appellants has relied upon an unreported decision of this Hon’ble Court in Cr. Appeals No. 251, 261, 264 and 267 of 1992 (Nand Kishore Rai & Ors. Vrs. The State of Bihar). In this judgment it has been held that the Divisional Manager or Chief Commercial Manager is not a competent authority to accord sanction for prosecution under Prevention of Corruption Act, 1988, rather the General Manager is the competent authority to grant sanction under Section 6 of the Prevention of Corruption Act, 1988. 20. The counsel representing the Central Bureau of Investigation, on the other hand, has tried to defend the sanction order by producing before the Court different Rules and Regulations, such as, the Indian Railway Establishment Code and other administrative rules. None of the rules which were brought on record is clear enough to show that the Divisional 14 Railway Manager or Chief Commercial Superintendent is competent to sanction the prosecution under Prevention of Corruption Act, 1988. 21. Counsel for the appellant has also strenuously argued that the charge had been illegally framed showing some of the railway warrants and tickets to have been used and issued by surendra Jha, Rahmat Hussain, Nand Kishore Prsad, N.P. Verma and Bidyanand Jha, same warrant such as, warrant no. 076254/000012, dated 01.01.1989, has been shown in the charge of Surendra Jha and Rahmat Hussain. Similarly Bidyanand Jha has been charged with issuing railway warrant no. 056465/000035, dated 28.01.1989, and railway warrant no. 042662/000032, dated 16.01.1989. These warrants are also mentioned in the charge of Rahmat Hussain. Railway warrant no. 026603/000032, dated 30.12.1988, has simultaneously been included in the charge of N.P. Verma, Surendra Jha and Rahmat Hussain. Counsel for the appelalnts submits that such error in the charge has highly prejudiced the accused persons. The prosecution failed to detect this error and lost sight of the glaring illegality in framing charge, thus, the trial and conviction of the accused persons’ needs consideration by the High Court for setting aside the conviction of the appellants. 22. The counsel appearing for the Central Bureau of Investigation could not justify that why the documentary evidence brought were not proved rather marked as “X” for identification purposes. Even the documents which were brought on record marked as “X” were not sufficient to prove that the railway warrants were forged or in the normal case on production of such 15 warrants a Booking Clerk sitting on counter will refuse to issue tickets. In fact, the prosecution witnesses have demolished the case of prosecution by deposing that railway warrants brought before the Court in evidence are not forged rather genuine one. 23. The prosecution witnesses in their evidence have also admitted that the railway was paid by the Government for the tickets issued on the basis of alleged railway warrants. In absence of evidence that the Central Government suffered any monetary loss and money paid was not deposited by the accused appellants, charge of forgery is not proved against the accused appellants. The charge of cheating and conspiracy has also not been proved against these accused appellants. 24. Considering the evidence on record, I find that the prosecution has failed to establish the charges on it’s own premises. In the result, conviction of appellants is set aside. Both the appeals are allowed and the appellants are set at liberty from the liability of bail bonds. ( Mridula Mishra, J.) The Patna High Court The 15th day of April, 2009, A.F.R./S.A.