1) These appeals are directed against the judgment of the learned Special Judge, AntiCorruption, Jammu dated 16.05.1992 whereby he has held
both the appellants guilty under section 5(2) of the Prevention of Corruption Act, 2006, read with section 120B R.P.C. and sentenced them to
undergo three years' rigorous imprisonment each and a fine of Rs.1,000/ each and in default of payment of this fine, they have been further directed
to undergo six months rigorous imprisonment each; and one year's rigorous imprisonment each and a fine of Rs.500/ each under section 120B
R.P.C. and in default of payment of this fine, appellants are further directed to suffer three months' imprisonment each. Both the sentences have
been ordered to run concurrently.
2) By means of these appeals, both the appellants have challenged the impugned judgment
3) Accusations against the appellants enumerated from the record, depicted in narration, are that K.S. Jasrotia, accused/appellant, while posted as
District Employment Officer, Rajouri, in the month of March, 1985 received an amount of Rs.4.100/ vide cheque no.349360 dated 13.03.1985
EXPWJR drawn on J&K Bank Ltd., Rajouri. Appellant K.S. Jasrotia endorsed the cheque and authorized Yog Raj Sudan, appellant/accused, to
draw the cheque from the J&K Bank Ltd., Rajouri. Yog Raj Sudan was functioning as Junior Stenographer in the office of District Employment
Exchange, Rajouri during the said period. After the encashment of the cheque and receipt of the amount from the bank, its entry neither was made
in the Cashbook EXPWRK/2 nor in any other record of the office. The amount encashed from the bank was not remitted in the Treasury and
K.S. Jasrotia in connivance with Yog Raj Sudan converted the said amount into their personal use and misappropriated the same. On an
anonymous complaint received by Commissioner of Vigilance, a departmental inquiry was initiated by Swami Raj Sharma, the then Director
Employment, J&K, and vide his report EXPWSR, it was disclosed that a cheque no.807564 dated 30.03.1983 amounting to Rs.6,5007 for
crediting the said amount in favour of three entrepreneurs namely Rakesh, Rajesh and Karnal was issued by K.S. Jasrotia, the then District
Employment Officer, Rajouri. Since no loan had been sanctioned in favour of Rakesh Kumar and Kamal Kishore, the margin money of Rs.4,1007
had not been credited in their favour. The margin money was only given to those persons found eligible to establish the unit at first instance and
since none of them had established their unit nor drawn the loan, an amount of Rs.4,1007 had not been credited in their favour. This amount was
returned by the Bank to the District Employment Officer, Rajouri, through Cheque no.349360 dated 13.03.1985. The report further disclosed that
this amount had been retained by the appellants till 02.01.1987 though it was immediately required to be remitted in the Government Treasury.
This amount, however, came to be deposited only after the departmental inquiry was initiated and when misappropriation of this amount having
been retained by the appellants came on surface. An application, however, was made by Yog Raj Sudan for the deposit of the amount into the
treasury addressed to District Employment Officer, Rajouri and the said amount stood immediately deposited. Director, Employment, J&K,
Swami Raj Sharma, however, from enquiry found that an amount of Rs.4,1007, received from the bank required to be remitted into the
government treasury, has been retained by the appellants/accused till 02.01.1987 and misappropriated. He reported to the Vigilance
Commissioner, J&K Government, based on the enquiry report, that the amount having been illegally retained by the appellants amounts to
misappropriation of government money and requested for action to be taken under law in the matter vide his communication dated 08.04.1987.
The case came to be registered by the Vigilance Organisation and on conclusion of the investigation obtained sanction for the prosecution and
presented challan against the accused before the Special Judge, Anti Corruption, Jammu.
4) The Trial Court, however, held the accused guilty under section 5(2) of the Prevention of Corruption Act, 2006 read with section 120B.R.P.C.,
on the basis of evidence produced in the case and convicted them, accordingly.
5) M/S. Sakal Bhusan & P.N. Raina, learned counsel appearing for the respective appellants, argued that there is no evidence, direct or
circumstantial, of criminal conspiracy between the accused in regard to the misappropriation of the amount drawn from the Bank. The amount
could not be deposited on account of the nonavailability of specific Head for which appellant K.S. Jasrotia had written to the higher authorities to
specify the Head in this regard. It is also contended that the amount was deposited after the inquiry and prior to the registration of the case. That
the entry of the receipt of the amount from the bank was made in the register of the office which clearly shows that neither there was any agreement
between the appellants nor intention to misappropriate the amount. That the Trial Court has mis appreciated the evidence in the case. Thus, the
evidence is qualitatively and quantitatively insufficient to sustain the charge against the accused.
6) Whereas, Mr. B.S. Salathia, Sr.Addl.AG, on the other hand argued that the evidence and the circumstances relied by the prosecution is
consistent only with the hypothesis that both the appellants retained the money after the withdrawal of the cheque from the bank for a period of
two years and misappropriated the same.
7) I have heard the arguments put forth by learned counsel appearing for the respective parties and a minute examination of facts on the file has
been made meticulously.
8) Star witnesses of the prosecution in this case are; Swami Raj Sharma, the then Director Employment, J&K, Amrit Sagar Gupta Inquiry Officer,
Labbu Ram, Rattan Lai and the Investigating Officer besides other oral and documentary evidence.
9) PWSwami Raj Sharma, who was Director Employment, J&K, in the year 1987 and on the receipt of a complaint from the Commissioner,
Vigilance Organisation, directed an inquiry to be conducted in the matter by Sh. Amrit Sagar Gupta. The inquiry report received from Sh. A.S.
Gupta revealed that the amount of Rs.4,1007 was not deposited into the Treasury and the accused/appellants had misappropriated it and later on
amount was deposited into the treasury on 02.01.1987. According to PWSwami Raj Sharma, the said amount was deposited by the appellants
when came to know that the misappropriation has been detected. Mr. Sharma also stated that the money was illegally retained by the appellants in
connivance with each other for about two years and misappropriated the same. Mr. Swami Raj Sharma further stated that since said amount of
Rs.4,1007 was not entered in the Cashbook though drawn from the bank on 13.03.1985 and illegally retained till 02.01.1987 when deposited in
the Government Treasury, illegal retention and misappropriation of government money had been established against the appellants and the
complaint in this respect was made to the Vigilance Commissioner. It is also in the evidence of Mr. Swami Raj Sharma that the person who made
the complaint about the misappropriation of the government money by the accused to the Vigilance Commissioner was not traced out.
10) PW Amrit Sagar Gupta conducted the inquiry into the embezzlement of Rs.4,1007against the appellants entrusted to him by the then Director
Employment, J&K PW Swami Raj Sharma. During inquiry he found that the department had released margin money in favour of three
entrepreneurs. Since Rajesh Kumar and Kamal Kishore had not obtained any loan and set up industry, this amount was not released in their favour
and an amount of Rs.4,1007as margin money in respect of aforesaid persons was sent to District Employment Exchange, Rajouri through cheque.
The said cheque was encashed on 13.03.1985 and was not entered in the concerned cashbook. He had submitted the inquiry report to the
Director Employment, J&K. Mr. A.S. Gupta in his crossexamination clearly stated that the amount of Rs.4,100/ was deposited in the government
treasury by the appellant Yog Raj Sudan after the inquiry. He also stated that it has come in his inquiry that there was shortage of staff in the office
of District Employment Exchange, Rajouri and the stenographer had also to perform the typing work, maintaining of cash and account books. It
has also come in his inquiry that Mr. K.S. Jasrotiaappellant/accused was negligent in handling the staff. During inquiry he had also not recorded the
statement of Yog Raj Sudanappellant/accused because he had also been transferred by that time. The cash book was seized by him during inquiry
at Canal Road Jammu.
11) PW Labhoo Ram was District Development Officer, Rajori, in the year 1987 when Yog Raj Sudan made an application EXPWRK/1 for
deposit of Rs.4,100/ as margin money into the treasury. Vide voucher EXPWLR dated 02.01.1987, said amount was deposited in the government
treasury and also reflected at page 20 of the cashbook. The amount was deposited by Yog Raj Sudan, appellant, himself after filling up the challan
into the treasury.
12) PW Rattan Lal was Junior Assistant in July 1987 in the office of District Employment Exchange, Rajouri. The record of the office vide
EXPWRL was seized by the Inspector, Vigilance in his presence and bears his signatures. He also stated that remittance register was maintained in
the office. The witness categorically stated that Rs.4,100/ was deposited through Labhoo Ram. It is also in his evidence that there are 3/4
cashbooks in the office of District Employment Exchange Rajouri.
13) On going through the entire gamut of evidence assembled by the prosecution during trial, what inevitably gatherable is that an amount of
Rs.4,100/ as margin money was not released by the bank in favour of Rajesh Kumar and Kamal Kishore as neither any loan was sanctioned nor
drawn in their favour. It is further exacted from the evidence that a cheque of this amount was sent to District Employment Officer, Rajouri who
encashed it through Yog Raj Sudan, Stenographer. The said amount was not deposited into the treasury nor reflected in the cashbook and stated
to have been retained illegally for two years till it came to be deposited on 02.01.1987 after inquiry but prior to investigation in the case. According
to the prosecution, the illegal retention of an amount of Rs.4,100/ as margin money by the accused/appellants till it was deposited on 02.01.1987
into the government treasury amounted to embezzlement and misappropriation of government money.
14) It has also come in the evidence of PW Rattan Lal, posted in the office of District Employment Exchange, Rajouri that there were 3/4
cashbooks maintained in the office but only one cash book was examined by the inquiry officer and subsequently seized in the case during
investigation by the Vigilance Organisation. Whereas Yog Raj Sudan, appellant/accused in his statement under section 342 Cr.P.C. admitted that
the amount of Rs.4,100/ was drawn from the bank but stated that the same was entered in the cash book no.DEXR/Overseas/Emp/83 at page 16
and also in the remittance register at page 2 and thereafter handed over to the officer concerned. He also stated that this amount was kept in the
chest of the office. But neither the cash book nor the remittance register were seized by the Vigilance during investigation. So is also found in the
statement under section 342 Cr.P.C. of K.S. Jasrotia. Mr. Jasrotia had also written a letter on 26.03.1985 to the Divisional Employment Officer,
Jammu for sanction of proper remittance head under which the said amount of Rs.4,1007 as margin money received from the bank could be
remitted into the treasury. Further stand of the accused/appellants is that the inquiry was conducted in their absence. That the amount was not
misappropriated and remained in the chest as K.S. Jasrotia stood transferred in June 1986 to Leh. In support of their plea, the accused/appellants
had examined S.M. Sharma who had brought the record of Self Employment Overseas for the year 198384. Entry on page 16 of the aforesaid
cash book pertains to Rs.4,100/ drawn by draft no.349360 dated 13.03.1985. The witness further stated that this money is shown to have been
entered in the Margin Money Register. It is also in his evidence that the said amount of Rs.4,100/ was remitted into government treasury on
02.01.1987. He also stated that letter no.DOER/Acctt/85 dated 01.04.1985 pertaining to Rs.4,100/ cannot be said to have been inserted
subsequently into the file EXPW DSM/2. Similarly, DW Manmohan Singh, Sr.Asstt. posted in the District Self Employment Office Rajouri stated
that in 19838485, there were four cash books maintained, one related to Recruitment Board; secondEmployment Exchange, third Self
Employment; and fourth Overseas Employment, out of which only one cash book of Recruitment Board was maintained by the concerned clerk.
15) On an analytical appreciation, estimation and assessment of the evidence adduced by the prosecution, the undisputed facts disclosed are that
an amount of Rs.4,100/ as margin money was drawn from the bank by the appellants. The said money was not immediately deposited in the
government treasury and is alleged to have been retained by them illegally till 02.01.1987 when deposited in the treasury. It is further revealed that
there was no Head allotted for the deposit of the margin money into the treasury. The appellant K.S. Jasrotia had also written a letter to the
Divisional Employment Officer, Jammu, for the allotment of the head in which the margin money is to be deposited. This communication was
addressed to the Divisional Employment Officer, Jammu on 26.03.1985. It is not the prosecution case that the Head was allotted in pursuance of
the communication of K.S. Jasrotia. It is further found from the evidence on record that there were more than one cash book maintained in the
office of District Employment Office, Rajouri. The record produced in the case by DW Manmohan Singh, Sr. Assistant was posted in the office of
District Self Employment Office, Rajouri. These four cash books pertain to Recruitment Board, Employment Exchange, Self Employment and
Overseas Employment.
16) Similarly, DW S.M. Sharma another employee of District Employment Exchange, Rajouri affirmed that in the record of Self Employment
Overseas produced by him, there is an entry at page 16 in which Rs.4,100/ have been shown in the cash book drawn vide draft no.349360 dated
13.03.1985 and exhibited as EXDWSM. This amount of Rs.4,100/ was also entered into the margin money register produced by him but this
record, however, has not been seized by the Vigilance during investigation.
From the file, the witness has also produced letter dated 26.03.1985 which related to the return of the margin money by the bankers. This letter
clearly shows that a request had been made for the allotment of remittance Head in respect of disputed amount of Rs.4,100/.
17) The appellants have taken a specific stand that the amount had been kept in the chest of the office and K.S. Jasrotia stood transferred in the
month of June, 1986. The margin money of Rs.4,100/, therefore, came to be deposited in the treasury on 02.01.1987 by Yog Raj Sudanappellant.
18) The department did not cross examine the witnesses examined by the appellants in defence who also happen to be the employees of the
department with regard to the entries of an amount of Rs.4,100/ into the cash book of Self Employment Overseas. DWs S.M. Sharma and
Manmohan Singh were not cross examined with regard to the letter shot off by K.S. Jasrotia on 26.03.1985 requesting the Divisional Employment
Officer, Jammu for allotment of appropriate Head for the remittance of the disputed amount of Rs.4,100/ in the treasury.
19) It is not the case of the prosecution that in pursuance of the aforesaid communication, the appropriate head was allotted for the remittance of
the said money nor there is a specific stand that the amount was not kept in the chest of the office.
20) PW Rattan Lai examined by the prosecution clearly stated that the margin amount of Rs.4,100/ was deposited through Labhoo Ram. Labboo
Ram, however, stated to have not remembered as to whether there were one or more than one cash book in the office. But Rattan Lal in his
statement unambiguously stated that there were 34 cash books in the District Employment Office, Rajouri. The Vigilance, however, seized only
one cash book from the office of District Employment Office, Rajouri. Cash book pertaining to the Self Employment Overseas, which contains the
entry with regard to the margin money of Rs.4,100/, has not been seized by the Vigilance. The witnesses have not stated anything with regard to
the nonexistence of chest in the office of District Employment Exchange, Rajouri. Even Labhoo Ram did not state anything about the chest in the
office of District Employment Exchange, Rajouri.
21) The prosecution evidence, when taken in its totality, has miserably failed to prove a criminal conspiracy between the appellants viz., an
agreement to do illegal act by illegal means or dishonest intention to misappropriate the margin money. The question that arises for consideration is
as to whether a temporary retention of money in the facts and circumstances of the case would amount to dishonest misappropriation or
conversion to one's own use against the appellants.
22) A question of dishonest misappropriation came up for consideration in case 'Desai Champaklal Nemchand v. State' 1961 (1) Cri.L.J. 654, the
Court held as under:
Retention of property entrusted would amount to this offence only if from the fact of retention of property, entrusted, the second ingredient stated
above, namely dishonest misappropriation or conversion etc. can be correctly inferred. Even if a person was required under rules to deposit the
amount entrusted in the Treasury within a few days, the failure to do so would not by itself amount to the offence of criminal breach of trust
because in addition it must be proved that there was dishonest misappropriation or conversion or dishonest use or disposal of that property etc.
The element of dishonesty must also be proved. Sometimes a person may due to negligence or forgetfulness, fail to deposit the money which may
have been entrusted to him. The mere failure to deposit the money would not, therefore, prove dishonesty and there must be other circumstances
to prove the element of dishonesty and unless the element of dishonesty is proved, the mere retention of the money would not by itself be the
offence of criminal breach of trust.
23) The margin money of Rs.4,1007, in respect of which the prosecution alleged misappropriation against the appellants on account of its retention
for two years, had been deposited by the appellants prior to the registration of F.I.R., and investigation of the case. This shows that there was
nothing recoverable from the appellants when the investigation was started. The appellants had remitted the amount into the treasury on
02.01.1987 through PW Labhoo Ram, the then District Development Officer, Rajouri. This was done immediately after the inquiry held by Mr.
A.S. Gupta. The inquiry was not conducted in their presence. The moment the appellants learnt about the inquiry, the amount of margin money
which was stated to have been kept in the chest of the office was deposited by Yog Raj Sudanappellant by making an application to this effect
through Labhoo Ram. This clearly shows that the prosecution has not established sufficiently and satisfactorily by cogent, consistent and positive
evidence, the main ingredient of criminal conspiracy, dishonest intention and subsequent misappropriation of the said money.
24) In case 'Narendra Pratap Narain Singh and another v. state of U.P.1 AIR 1991 SC 1394, the Apex Court observed that where amount
alleged to have been misappropriated is proved to be deposited by the appellants before investigation, the charge under section 409 I.P.C. could
not be sustained.
25) Turning to the present case, a close examination of the entire evidence and documents do not reveal any material, worth mentioning for jointly
fastening both the appellants with the offence under section 5(2) ( c) of the Prevention of Corruption Act, 2006. Further, there is no evidence that
there was any conspiracy, preconcert or concert of minds of the appellants or any prearranged plan between the two appellants to commit the
offence under section 120B R.P.C.
26) In my considered view, the Trial Court has not at all discussed the legal question of dishonest misappropriation or conversion to their use of the
margin money of Rs.4,1007 as contemplated under section 5(1)( c) of the Prevention of Corruption Act, punishable under section 5(2) of the Act.
The trial court instead of dealing with the intrinsic merits of the evidence of the witnesses has acted perversely by summarily disposing of the case,
pretermitting the manifest errors both legal and factual appearing in these cases.
27) The prosecution has, therefore, failed to establish by any reliable and credible evidence that the accused/appellants with dishonest intention
have misappropriated the margin money of Rs.4,1007 or converted it to their own use. Temporary retention of the government money, if any, in
these circumstances could not by any stretch of reasoning be termed as dishonest misappropriation particularly when same stood deposited in the
Government Treasury much prior to the registration and investigation of a case.
28) I find that the evidence on which the conviction based is wholly unworthy of acceptance. Trial Court has not discussed various aspect of the
matter, which in my opinion is wholly unsatisfactory. The trial court convicted the accused/appellants on perverse view of the evidence. The
prosecution further failed to establish by evidence that there was intention on the part of the accused to misappropriate to their benefit the margin
money drawn from the bank which was subsequently deposited into the treasury. Temporary retention in such circumstances without there being
any proof of dishonest misappropriation or conversion to their use would not amount to embezzlement of the government money so as to constitute
a criminal misconduct on the part of the government employees viz., accused/appellants. The appellants did not stand to gain in any manner.
29) On the conspectus of the aforesaid discussion, the irresistible conclusion reached is that both the appeals deserve to be allowed and are
allowed, accordingly. The sentences awarded by the trial court are set aside and the appellants are acquitted. The appellants are on bail, their bail
bonds shall stand cancelled.
30) Both appeals stand disposed of.
