Criminal Appeal No. 1468-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 1468-SB of 2003 Date of decision : September 15, 2011 Janak Singh since deceased and represented by his widow Bhinder Kaur ....Appellant versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms. Puja Chopra, Advocate, for the appellant Ms. Gagan Mohini, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) Accused Janak Singh by filing the instant criminal appeal has challenged his conviction and sentence recorded by learned Special Judge, Patiala vide judgment and order dated 26.7.2003 thereby convicting the appellant under section 420 IPC and section 13(1)(c) read with section 13 (2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentencing the appellant to undergo rigorous imprisonment for 1½ years and to pay fine of Rs 1500/- and in default thereof, to undergo rigorous Criminal Appeal No. 1468-SB of 2003 -2- imprisonment for two months for each of the two offences but both the sentences have been ordered to run concurrently. Prosecution case is that the accused was posted as Headmaster of Government High School, Kularan in 1994-95. At his asking, excess fee was collected from the students. Prescribed fee for students of 9th and 10th standard was Rs 28/- per student, but fee was collected from them at the rate of Rs 150/- per student. Similarly prescribed fee for students of class 6th to 8th standard was Rs 18/- per student, but fee collected from the said students was Rs 130/- per student. In this way, Nirmla Devi, S.S. Teacher collected Rs 17030/- from 131 students out of which fee at the rate of Rs 18/- per student amounting to Rs 2358/- was deposited in Government Treasury and the balance amount of Rs 14672/- was embezzled by the accused. Similarly, Sukhdev Singh Math teacher collected Rs 5850/- as fee from 39 students of 10th standard at the rate of Rs 150/- per student and out of it, amount of Rs 1092/- only was deposited in the treasury and the balance amount of Rs 4758/- was embezzled by the accused. The prosecution case was also regarding embezzlement of Rs 11312/- out of fee collected from 101 students of 8th class by Jagdish Kumar, Drawing Teacher. There was also allegation of embezzlement of amount out of some other funds including Sanchaika Scheme and Parent Teacher Association (PTA) fund. Charge under sections 420, 467, 471, 409 and 467 IPC and sections 13(1)(c) read with section 13(2) of the Act was framed against the Criminal Appeal No. 1468-SB of 2003 -3- accused. He pleaded not guilty and claimed trial. In support of its case, the prosecution examined 12 witnesses. Nirmla Devi, PW1 was S.S.Mistress in the school. She took charge on 21.8.1995 from the accused on his transfer from the school. She stated about collection of Rs 17030/- as fee from 130 students at the rate of Rs 130/- per student and deposit of fee at the rate of Rs 18/- per student in the treasury and embezzlement of Rs 14672/- by the accused. Ram Singh, PW2 proved sanction order for prosecution of the accused. Subhadra Devi, Hindi Teacher, PW3 stated about fund of Sanchaika scheme. Sangita Rani, PW4 is Clerk of the school. She stated about cuttings in the cash book in her hand. Some cuttings in the cash book were cancelled by the accused under his initials. She was maintaining cash book under instructions of the accused. She also stated about scholarship amount. Gurpiar Singh, PW5 student of 10th class turned hostile and did not support the prosecution case. Jagdish Kumar, Drawing Master, PW6 stated that he did not remember the amount of fee collected by him from students of 8th class nor he remembered the number of students from whom the fee was collected. He was also declared hostile. Satpal also numbered as PW6 stated that he did not go to the Criminal Appeal No. 1468-SB of 2003 -4- school to get his daughter admitted nor he remembered the amount paid at the time of admission. He was also declared hostile. Harminder Singh, PW7 was a student in the school. He stated that he paid Rs 150/- to his class teacher Sukhdev Singh. Mangat Singh, PW8 took admission in the school in 10th standard. He also paid Rs 150/- to class Incharge Sukhdev Singh teacher. Prem Kumar, PW9 got his daughter admitted in the school in 10th standard but he did not support the prosecution case regarding payment of fee. He was declared hostile. Labh Singh PW10 got his daughter admitted in 10th standard in school. He met the accused who was Headmaster of the school. The accused directed him to deposit Rs 150/- with Sukhdev Singh teacher. Accordingly, Labh Singh deposited Rs 150/- with Sukhdev Singh. Pritpal Singh, DSP, PW11 stated about investigation of the case. Sukhdev Singh, PW12 was Math Master in the school. He stated that he collected fee from 39 students of class 10th at the rate of Rs 150/- per student, but total amount of fee prescribed was Rs 1092/- i.e. at the rate of Rs 28/- per student and accordingly amount of Rs 1092/- was deposited and the balance amount of Rs 4758/- was given to the accused. The accused in his examination under section 313 Cr.P.C. while admitting his posting as Headmaster in the school denied all the other incriminating circumstances appearing against him in the prosecution Criminal Appeal No. 1468-SB of 2003 -5- evidence and claimed to be innocent. He stated that teachers had been made Incharge of different classes and they used to collect the fee from the students and deposit the same with cash clerk directly. The accused alleged that he had nothing to do with the fee amount. He had no knowledge if class teachers collected excess fee from the students. He never asked the teachers to collect excess fee nor he received any complaint in this regard. He also stated that on request of parents of students, extra teachers were appointed for taking extra classes of the students for their better studies and they were paid salary after collecting amount from the parents of the students. Some other pleas were also taken. In defence, the accused examined 11 witnesses. Gurdeep Singh, DW1 stated that he passed matriculation examination from this school and he used to pay his fee to Sukhdev Singh teacher. The accused never asked him to deposit any money with the class teacher. Lachhman, DW2 stated that he used to deposit school fee of his son with Krishan Lal, class teacher. The fee was Rs 50/- per month. Usha Sidhu, DW3 stated that Nirmla Devi was appointed as Incharge Headmistress of the school vide order dated 8.9.1995. She also stated about appointment of Sudesh Kumari as Headmistress vide order dated 13.8.2001. Janak Raj, DW4 was Sarpanch of the village in 1994. He was Ex-officio Chairman of the PTA. He stated that due to shortage of teachers Criminal Appeal No. 1468-SB of 2003 -6- in the school, extra teachers were engaged on the request of students and their parents by PTA. Salaries of these extra teachers were paid from PTA fund. Sudesh Kumari, DW5 brought summoned record except some record which was not in her custody. Kharak Singh, DW6 stated that cash book of PTA of the school was not in his custody. It was in the custody of Vigilance Bureau. Sudesh Kumari, Headmistress, DW7 stated about service book of the accused and building fund register and Sanchaika book of post office. Sangita Rani, Clerk, DW8 stated about cash book register maintained in the school and the amount of scholarship recorded therein. Subadhra Devi, Hindi Teacher, DW9 stated that she was included in PTA committee of 12 members at the instance of the accused. All other members of PTA committee were private persons. Krishan Lal, DW10 stated about recovery of Rs 2/- per student from 77 students of 6th class. He handed over the amount of Rs 154/- to Subadhra Devi. Nirmla Devi, DW11 stated about PTA register and the entries therein. She also stated about building fund register etc. Learned Special Judge vide impugned judgment and order dated 26.7.2003 convicted and sentenced the accused as already noticed hereinbefore. Feeling dissatisfied, the convict has filed the instant criminal appeal. Criminal Appeal No. 1468-SB of 2003 -7- I have heard learned counsel for the parties and perused the case file with their assistance. Before proceeding further, it has to be noticed that charge against the accused was regarding embezzlement of various amounts, fraud and forgery etc. However, the accused has been convicted for amount of Rs 4758/- only, being the excess amount collected by Sukhdev Singh PW12 who allegedly handed over the same to the accused, besides the prescribed fee amount collected from 39 students. The accused has been absolved of the charge regarding other amounts. Learned counsel for the appellant vehemently contended that it has come in evidence of the prosecution as well as of defence that extra teachers were appointed on the request of students and their parents who agreed to pay extra amount for salary of the extra teachers. It was contended that the accused as Headmaster had no concern with collection of fee from students and rather class teachers used to collect the fee from the students and the amount was handed over directly by them to the cash clerk and not to the accused. It was also pointed out that Gurpiar Singh PW5, Jagdish Kumar PW6, Satpal also numbered as PW6 and Prem Kumar PW9 have turned hostile whereas Harminder Singh, PW7 and Mangat Singh PW8, although supported the prosecution version, did not state that they paid excess fee amount to Sukhdev Singh teacher at the instance of the accused. It was also contended that Sukhdev Singh PW12 who collected excess fee amount is in the nature of accomplice and therefore, his Criminal Appeal No. 1468-SB of 2003 -8- uncorroborated statement would not be sufficient to convict the accused. It was emphatically argued that excess amount if any was collected to pay salary to extra teachers engaged on the request of students and their parents who voluntarily agreed to pay extra amount for the same and the accused did not come into picture in this regard. Reference in this regard was made to statements of defence witnesses and also to statements of Sukhdev Singh PW12 and Harminder Singh PW7 who stated about engagement of extra teachers. It was also argued that the trial court has made repeated observations against failure of the Investigating Officer to conduct the investigation properly. Sanction order for prosecution of the accused was also assailed to be defective. It was also pointed out that no complaint was made by any student or parent regarding collection of extra fee and the case was registered only on the basis of source information. It was submitted that the accused was not even member of PTA and had no concern with the PTA funds including payment of salary to extra teachers. It was also pointed out that no student from classes 6th to 8th or parent of any such student has been examined by the prosecution and only students of class 10th or their parents have been examined. It was also submitted that Sangita Rani PW4 being cash clerk used to receive the amount which was collected by class teachers. It was also canvassed that receipt of deposit of Rs 1092/- has not been produced by the prosecution in evidence. On the other hand, learned State counsel contended that guilt of the accused regarding part of the charge held proved by the trial Judge is Criminal Appeal No. 1468-SB of 2003 -9- fully established beyond reasonable doubt by cogent evidence led by the prosecution. I have carefully considered the rival contentions. As regards contention regarding sanction order being defective, the same cannot be accepted. Perusal of the sanction order reveals that detailed facts have been mentioned therein depicting due application of mind by the competent authority while granting the sanction. As regards contentions on merits, as noticed hereinbefore, the only charge held proved against the accused is regarding collection of fee from 39 students at the rate of Rs 150/- per student against prescribed fee of Rs 28/- per student and the embezzlement of the excess amount of Rs 4758/- by the accused. To prove the said charge, the prosecution has led sufficient cogent evidence. Harminder Singh, PW7 and Mangat Singh, PW8 have stated about payment of Rs 150/- as fee to Sukhdev Singh, class teacher. Of course, they have not stated that the accused had directed them to do so. Labh Singh PW10 has specifically stated that the accused as Headmaster directed him to deposit Rs 150/- with Sukhdev Singh, Master and accordingly Labh Singh paid Rs 150/- to Sukhdev Singh. There is also testimony of Sukhdev Singh PW12 that on instructions from the accused, he collected fee from 39 students of class 10th at the rate of Rs 150/- per student and paid the entire amount to the accused and out of it, amount of Rs 1092/- was deposited whereas the remaining amount of Rs 4758/- remained with the accused. These statements are sufficient to prove the charge against the Criminal Appeal No. 1468-SB of 2003 -10- accused to the extent of embezzlement of Rs 4758/-. Of course some students/parents have turned hostile, but the aforesaid four witnesses have fully supported the prosecution case. There is no reason to doubt their sworn statements. There is no reason why Sukhdev Singh would depose falsely against the accused. There is also no reason why the other three witnesses would depose falsely against the accused. On the other hand, the entire emphasis on behalf of the appellant was on appointment of extra teachers and payment of salary to them. However, the said emphasis is completely misplaced and misconceived and cannot be accepted to exonerate the accused. In this regard, statement of Janak Raj, DW4 star witness of the accused is very significant. He has stated that the extra teachers were paid salary from PTA fund. It is undisputed as also borne out from the defence evidence that there was separate PTA fund. If the extra teachers were paid salary from PTA fund, there was no occasion for the accused to get collected extra fee from the students through class teachers. It cannot be said that the extra amount collected from the students as excess fee was utilized to pay salaries to the extra teachers allegedly engaged on the request of students and their parents. Non-production of receipt of deposit of Rs 1092/- does not give rise to adverse inference against the prosecution because the said amount is not the embezzled amount. It is the prosecution case that the said amount being amount of prescribed fee was deposited in the treasury. Criminal Appeal No. 1468-SB of 2003 -11- Consequently, the prosecution was not required to produce receipt of deposit of the said amount. On the other hand, if the accused wanted to derive any benefit from the said receipt, the accused was at liberty to produce relevant record regarding said receipt. The accused has produced plethora of evidence in his defence, but the accused did not produce the aforesaid receipt. Role of Sangita Rani, Cash Clerk would also not help the accused in any manner because she was concerned with the receipt and deposit of prescribed amount and not the excess fee amount. The excess fee amount was paid to the accused as stated by Sukhdev Singh PW12 and it was not paid to Sangita Rani. On the other hand, role of Sangita Rani was also regarding amounts relating to other funds, but the accused has been absolved of the charge regarding the said other funds including cuttings and forgery in the cash book for which role of Sangita Rani was in picture. However, Sangita Rani had no role to play in the embezzled amount of Rs 4758/- for which the accused has been held guilty by the trial Judge. The fact that the excess amount was collected by teachers who were incharge of the classes would not make any difference because Sukhdev Singh PW12 concerned class incharge has specifically stated that he collected the amount in question on instructions from the accused and paid the excess amount to him. Reference was also made by defence counsel to testimony of Krishan Lal, DW10 who was posted as Punjabi Teacher in the school at the Criminal Appeal No. 1468-SB of 2003 -12- relevant time. However, he stated about collection of Rs 2/- per student from 77 students and payment of the said amount of Rs 154/- to Subadhra Devi. Obviously the said amount did not pertain to the fee of the students because admittedly the fee for classes 6th to 8th was Rs 18/- per student and for classes 9th and 10th, the fee was Rs 28/- per student. The amount of Rs 2/- per student allegedly collected by Krishan Lal could be of some other fund which is not relevant for the charge of which the appellant has been held guilty. The fact that some witnesses have turned hostile would not help the appellant in any manner because the appellant has been acquitted of substantial part of the charge. However, part of the charge of which he has been held guilty is proved by statements of Harminder Singh, PW7, Mangat Singh, PW8, Labh Singh, PW10 and Sukhdev Singh PW12. Defence evidence also does not come to the rescue of the appellant because it relates to funds of PTA and payment of salary to extra teachers which was also paid out of PTA fund. The appellant has been acquitted of the charge relating to embezzlement of amount of PTA fund. Consequently, the said defence evidence is of no help to the appellant. For the reasons aforesaid, I find that guilt of the accused to the extent he has been held guilty by the trial Court is proved beyond reasonable doubt. Accordingly, the impugned judgment of conviction is upheld. As regards quantum of sentence, the said issue is of academic Criminal Appeal No. 1468-SB of 2003 -13- importance only because the appellant has since died and the appeal is now being pursued by his wife Bhinder Kaur who was granted leave to continue the appeal vide order dated 12.11.2010 passed on her application. As a necessary consequence of what has been said hereinbefore, there is no merit in the instant criminal appeal which is accordingly dismissed. ( L.N. Mittal ) September 15, 2011 Judge 'dalbir'