D.P.S. Choudhary, J.@mdashThese two appeals have been heard together as they arise out of the common judgment and this judgment shall govern both of them. The appellants have preferred these appeals against the judgment and order dated 17th April, 1989, passed by Sri Rameshwar Tiwary, Special Judge, C.B.I. North, Bihar Patna, in Special Case no. 41/81/ R.C. no. 38/81, whereby and where under he has convicted both the appellants u/s 409 IPC and sentenced to undergo rigorous imprisonment for one year each and to pay fine of Rs. 20,000/-, and in default to payment of fine further imprisonment for four month R.I. The amount of fine, if deposited was directed to be paid in favour of the Food Corporation of India (F.C.I.), as price of 9.40 bags of wheat. Both the appellants have further been convicted u/s 5(2) of the Prevention of Corruption Act and each of them has been sentenced to undergo R.I. for six months. However, the sentences were ordered to run concurrently.
2. The appellants were jointly charged for the offence punishable under sections 409, 120B, 476A IPC and also under sections 5(1)(C) and (D) of the Prevention of Corruption Act. They were further separately charged for the offence under sections 5 (1) (C) (D) and section 5(2) of the Prevention of Corruption Act and Section 477 of the IPC. However, the trial court acquitted them under these sections and convicted them only for the charges as indicated above.
3. The case of the prosecution in brief is that vide Railway Receipt no. 07/068260, dated 18.9.79, four wagons each loaded with 240 bags of wheat of F.C.I, originally booked for other destination reached Bhagalpur Railway Station and from Bhagaipur Rly. Station all the four wagons were rebooked with original seal intact to Barahat Railway station, by the Assistant Manager, F.C.I. The consignment was consigned to the Assistant Depot Superintendent, A.R.D.C., Barahat. On 21.9.79 three wagons arrived at Barahat Railway station and as ordered by accused Bisheshwar Pandey, the entire wheat of three wagons were taken by Sri. U.C. Singh, Assistant on the strength of indemnity bond, executed by accused Bisheshwar Pandey. Further, 240 bags of wheat unloaded from wagon no. SR 39533 were received at Barahat Depot on 21.2.79, which was transported by the Transport contractor of F.C.I. The fourth wagon bearing no. ER 6228, containing 240 bags of wheat reached Barahat Railway station on 2.10.79 and accused appellant Ganga Sagar Ojha unloaded the said wagon on the same date and took delivery of 240 bags of wheat on the strength of indemnity bond, executed by Bisheshwar Pandey on the same date. The consignment of 240 bags of wheat was removed from the Railway premises on the same date i.e. on 2.10.79, but the same did not reach the Depot of F.C.I., Barahat.
It is further case of the prosecution that accused appellant Bisheshwar Pandey had already got Railway receipt no. 07/066260, dated 18.9.79, prior to the arrival of the fourth wagon, but yet he managed to get delivery of the fourth wagon through Ganga Sagar Ojha on the strength of indemnity bond and in the monthly stock statement of wheat for the month of September, 1979, submitted on 4.10.79, to the District Office of the F.C.I. Bhagalpur, accused appellant Bisheshwar Pandey dishonestly suppressed the Act and the actual number of bags (sic) under the Railway receipt mentioned above, by showing receipt of full consignment booked upon the (sic) way receipt in question, without (sic) any remark regarding short (sic) though the consignment (sic) way receipt in question had (sic) wheat. Again in the months (sic) for the month of October (sic) stock of wheat was shown by the (sic) appellant Bisheshwar Pandey as ''NIL'', although 240 bags had been received on 2.10.79. Appellant Bisheshwar war Pandey on 6.10.79, surrendered the original Railway receipt in question along with the credit note no. 971518, dated 6.10.79 for Rs. 835/- towards payment of full freight charge for 960 bags of wheat and on 11.2.80 appellant Bisheshar Pandey falsely showed to have preferred claim with the Railways for non-receipt of wagon no. ER 6228, containing 240 bags, of wheat.
It is also the case of the prosecutors that on 14.8.80, appellant Ganga Sagar Ojha unauthorisedly scored through his signature dated 2.10.79 in the Railway delivery book at Barahat and put another signature with date as 20.9.79 against wagon no. 6228 and later on he tried to tamper with entries of delivery of 240 ba gs of wheat recorded in the delivery book. The District Manager F.C.I. Bhagalpur got verified by special physical verification on 1.9.80 and 2.9.80, through the Assistant Manager, Regional Office Patna, of Barahat F.C.I. depot and shortage of 240 bags of wheat were detected. The verification party also found huge shortage of wheat prior to the aforesaid period and it was noted by the inspectors party that no stock of 240 bags received through the aforesaid wagon on 2.10.79 was found in the relevant register of the Depot. Thereafter the District Manager of the F.C.I. Bhagalpur after getting information about the above shortage, lodged the F.I.R. against the accused persons, on the basis of which Barahat P.S. Case no. 10(8)80 u/s 409 IPC was registered. The Regional Manager, F.C.I, Patna being not satisfied with the investigation of the case by the local police lodged a written information on 14.8.80 with the Superintendent of Police, C.B.I. Patna, on the basis of which the present case was instituted and investigated. After investigation, it was found that both the appellants in pursuance of criminal conspiracy criminally misappropriated 240 bags of wheat valued at Rs. 33,600/- approximately by falsifying the records of the depot and obtained undue pecuniary advantage for themselves and abused their position as a public servant. After the investigation, chargesheet was submitted against both the appellants as mentioned above. After cognizance trial proceeded in the Court below.
4. The case of the appellants is that they have been falsely implicated in this case. Defence of accused Bisheshwar Pandey is that he left the Headquarters in between 28.9.79 to 2.10.79 to perform Durga Puja at home and in that period vide office order dated 28.9.79, he handed over the charge of the godown and the key of the office to another appellant Ganga Sagar Ojha to look after the work of the depot in his absence. His further defence is that he did not execute the indemnity bond, nor he put his signature on that, nor he took it back from the possession of Barahat Railway station, nor he received 240 bags of wheat from Ganga Sagar Ojha on 3.10.79. As such he has denied the total allegation against him. In support of his defence, he has examined two D.Ws. and also filed some documents marked as Exts. A-1 to D-1 series.
The defence of appellant Ganga Sagar Ojha is that on the instruction of co-accused Bisheshwar Pandey, he took delivery of 240 bags of wheat on 2.10.79 and the bags were unloaded in the Railway godown shed on 3.10.79 and after taking charge of these bags he executed the receipt dated 3.10.79 and also issued a credit note no. 9798, being freight of the wagon. His further defence is that ''Sala'' (brother-in-law) of co-accused Satyendra Pandey informed him about the sudden illness of his father-in-law at Kahalgaon and thereafter he handed over the 240 bags of wheat in question and after obtaining a receipt from appellant Bisheshwar Pandey, he accompanied the ''Sala'' of Satyendra Pandey to Kahalgaon. Specific defence of this accused is that appellant Bisheshwar Pandey has alone misappropriated 240 bags of wheat. In support of his defence he examined 3 D. Ws. and filed some documents marked as Exts. A to C series.
5. Prosecution, in support of its case, examined 21 P.Ws., out of them P.W. 1, Bimal Kumar Sinha, Stenographer in the office of F.C.I., P.W. 4, Rajendra Sinha, Constable, CBI, P.W. 5, Ram Pukar Mahto and P.W. 14, Yogendra Mahto have been tendered by the prosecution for cross-examination. The remaining P.Ws. are material witnesses in the case, including P.W. 21, Gopi Nath Gupta, Inspector of Police, C.B.I., who is the Investigating officer of this case. Prosecution has also got inspected several documents which have been marked as Exts. 1 to 45 series, out of which Ext. I is the sanction order for prosecution of both the accused appellant. The detailed list of the P.Ws. and the documentary evidence are mentioned in paragraph 6 of the impugned judgment.
6. From the evidence and the submissions made on behalf of the appellants, this fact is not in dispute that tour wagons of wheat containing 240 bags each were rebooked to ARDC, F.C.I. Barahat and original Railway receipt (Ext. 5) was sent along with the forwarding letter (Ext. 12), through outward register (Ext. 11) and despatched through registered post (Ext. 13) with acknowledgement due (Ext. 14). Ext. 14 shows that the registered cover was received by A.G. II of Barahat F.C.I. depot on 24.9.79 with acknowledgement. P.W. 9, S.N. Rajak admitted that he received the Railway Receipt (Ext. 5) along with the forwarding letter Ext. 12 and he put his signature on the acknowledgement and on the same day he handed over the said document to accused Bisheshwar Pandey Incharge of the depot. He further stated that accused Bisheshwar Pandey has put his signature at serial no. 7, page 46 of the Railway receipt book (Ext. 21). This witness is an employee of the FCI Barahat and was working as a subordinate to accused Bisheshwar Pandey. His evidence shows that Railway receipt (Ext. 5) was already with accused Bisheshwar Pandey since 24.9.79. Prosecution has placed reliance on Exts. 3, 4, 6, 7, 8 and 8/1, which are registers and documents of Barahat Railway station and office copy of credit note Ext. 9 is the cash book, which shows that consignment of four wagons relating to Railway receipt Ext. 5, had arrived at Railway station Barahat, out of which three wagons each containing 240 bags of wheat were unloaded and the consignment was taken by U.C. Sinha, A-G II, Barahat on the strength of indemnity bond. Further, the fourth wagon of the said Railway receipt containing 240 bags of wheat was delivered on 2.10.79 at Barahat Railway station and it was received by appellant Ganga Sagar Ojha P.Ws. 2 and 13 have stated that (sic) 2.10.79, 240 bags of wheat were us loaded from wagon no. 6228 in (sic) presence and it was received by accused Ganga Sagar Ojha in presence of accused Bisheshwar Pandey. These witnesses have proved the document and registers maintained at the Railway station, including Exts. 2 to 9. This fact has been admitted by accused Ganga Sagar Ojha vide Exts. 24. and also by his statement recorded u/s 313 Cr. P.C. that he received 240 bags of wheat of the fourth wagon and as per the evidence of P.Ws. 2 and 13, they gave delivery of the aforesaid fourth wagon to U.C. Sinha and Ganga Sagar Ojha on the strength of indemnity bond. They also stated that they were informed that Ganga Sagar Ojha (sic) one of the staff of the F.C.I. depot and they were requested to give delivery of the fourth wagon on the basis of the indemnity bond to appellant Ganga Sagar Ojha. He further stated that depot in charge of Barahat F.C.I. subsequently submitted the original railway receipt and took back the indemnity bond saying that now there was no necessity of indemnity bond to the Railways when the original Railway receipt is given. It was further stated that accused Bisheshwar Pandey gave a credit note of Rs. 835/- in respect of the freight charge of the fourth wagon on the same day. The evidence of P.W. 2 clearly shows that accused Ganga Sagar Ojha took delivery of 240 bags relating to the fourth wagon on 2.10.79 on the strength of indemnity bond which was executed by accused Bisheshwar Pandey and at that time this accused appellant was also present on the spot. From the evidence as discussed above, it is proved beyond doubt that the original Railway receipt, Ext. 5, despatched under registered cover along with the forwarding letter, Ext. 12 was sent to accused appellant Bisheshwar Pandey, Incharge, Barahat Depot and on 24.9.79, it was received by S.N. Rajak of F.C.I., and it came in the custody of Bisheshwar Pandey on the same day.
During the course of investigation, the C.B.I. officials have seized some documents from the office of the F.C.I., F.S.D. Barahat and they have been marked as Exts. 17 to 38 series. They have been dealt with in detail in paragraph 8 of the judgment of the trial court. Railway Receipt Book, Ext. 21, despatch Register, Ext. 27 and the entries made therein, statement of stock account for the month of September, 1979 and October, 1979 and its entries Exts. 22 to 25 coupled with final verification report, Exts. 32, 24 and 35 and the bills of the contractor Exts. 38 to 38/9, coupled with the oral evidence of P.Ws. 9 and 12, conclusively prove that 240 bags of wheat of wagon no. ER 6228 were although delivered on 2.10.79, but it could not reach in F.C.I. Barahat Depot, nor it could be accounted for in the records of F.C.I. Barahat Depot. Neither of the accused have challenged this part of the prosecution case. Therefore, this tact is almost admitted.
7. This fact has not been disputed on behalf of the defence that on 2.10.79, when Ganga Sagar Ojha took delivery of 240 bags of wheat of wagon no. 6228 co-accused Bisheshwar Pandey, Depot Incharge was also present on the spot. The defence has also not challenged that all the 960 bags of wheat relating to R.R. No. B- 068260/07 were delivered to Umesh Chandra Singh (3 wagons) and Ganga Sagar Ojha (one wagon), on the strength of indemnity bond. The dispute is only in respect of 240 bags of wheat as this could not be accounted for in the records of FSI Barahat. The indemnity bond which was executed by appellant Bisheshwar Pandey was subsequently returned when he produced the original Railway receipt on 6.10.79. The appellant Bisheshwar Pandey has disputed this fact, as the indemnity bond has neither been seized nor produced before the court. As stated above, there are reliable evidence on the record including that of P.Ws. 2 and 3 to show that appellant Ganga Sagar Ojha took delivery of 240 bags of wheat in presence of appellant Bisheshwar Pandey and on 6.10.79, appellant, Bisheshwar Pandey, produced the original railway receipt relating to all the four wagons of wheat and also deposited a sum of Rs. 835/- on credit note as freight of all the four wagons. P.W. 2 also stated that after deposit of the railway receipt on this date, appellant Bisheshwar Pandey took away the indemnity bond. It has come in the evidence of the investigating officer of the local police that when he asked the Railway staff to produce the indemnity bond, it was told to him that appellant Bisheshwar Pandey had taken away the said indemnity bond, after depositing the original Railway receipt. Therefore, the evidence of P.W. 2, on this point is supported from the evidence of the two I. Os. i.e. of the police department and the C.B.I. department.
In this regard the evidence of P.W. 2, is relevant who stated that appellant Ganga Sagar Ojha on 2.10.79, had made his signature (Ext. 4/2) in Hindi on delivery book (Ext. 4). This appellant again on 14.8.80, came to the office of Barahat Railway station and asked for the delivery book from P.Ws. 2 and 3, who handed over to him the book and while they were busy in booking railway tickets all of a sudden, it was noticed that appellant Ganga Sagar Ojha was making some overwriting in the delivery book. He took possession of the delivery book immediately from this appellant and detected that he had cut his signature and date 2.10.79 and put another signature with date as 22.9.79. This signature is marked as Ext. 4/3. P.W. 3 has also supported the overwriting and cutting over the signature made by appellant Ganga Sagar Ojha in the delivery book (Ext. 4). P.W. 2, made a special reference of this fact in the special report book, marked as Exts. 7 and 7/1 and also reported the matter to appellant Bisheshwar Pandey, being Depot Incharge. However, appellant Bisheshwar Pandey took no action in the matter. P.Ws. 2 and 3 both have stated that appellant Ganga Sagar Ojha made approach to P.W. 3 to help him in removing the overwriting and cutting made by him on Exts. 4/2 and 4/3. From a careful scrutiny of these exhibits read with oral evidences discussed above, it is crystal clear that 240 bags of wheat of this wagon were delivered on 2.10.79 to appellant Ganga Sagar Ojha, but later on he made overwriting on it and put another signature in Hindi dated 22.9.79. This action of appellant Ganga Sagar Ojha was with malafide intention and ulterior motive.
8. The trial court has come to the finding that inspite of the official reporting about this misconduct of appellant Ganga Sagar Ojha to appellant Bisheshwar Pandey who was the Depot Incharge, he took no action in the matter. This leads to the conclusion that his cutting and overwriting in Ext. 4 was made by Ganga Sagar Ojha in connivance with appellant Bisheshwar Pandey. Another circumstance which goes against appellant Bisheshwar Pandey is that when admittedly the Railway receipt was received on 24.9.79, why he produced it at Barahat Railway Station on 6.10.79. No valid explanation has come from this appellant for non-production of Railway receipt on 2.10.79, at the time of taking delivery of 240 bags of wheat of fourth wagon. Taking delivery of this wagon of wheat on the basis of indemnity bond is a strong circumstance to (sic) that both the appellants had (sic) with each other for misappropriating the 240 bags of wheat. The conduct of appellant Bisheshwar Pandey further becoming suspicious when he made payment freight charges of all the four wagons wheat on 6.10.79 without giving any (sic) endorsement that the fourth wagon (sic) wheat has not been delivered. Such endorsement was purposely not made by him because of his dishonest intentions. Appellant Bisheshwar Pandey has (sic) the carbon copy of the claim petitioner dated 11.2.80 and 19.2.80 sent under certificate of posting, which have been marked as Exts. 25 and 25/3, in order make out a case that he had informed the higher authorities about the shortage of 240 bags of wheat. But these exhibits to not inspire any confidence because (sic) admitted fact that appellant Bisheshwar Pandey did not obtain any short certificate or non-delivery certificate regarding 240 bags of wheat of wagon no. (sic) from the Station Master of Barahat Railway station. The appellant manufacture these documents because in the Railway office the original copy of Exts. 25 (sic0 25/2 were not found and it appears (sic) they were not sent to the competent officer of the Railway dealing with the (sic) matters. The prosecution has tiled Ext. 27, the despatch register of F.C.I Barahat and from the entries dated 11.2 80 and 19.2.80, it appears that two claim petitions were despatched to Railways (sic) the appellant has not produced any (sic) regarding receiving of the said claim petition purported to have been sent to Railway officials. Postage stamp register, Ext. 28 shows that stamp was used (sic) registered cover, but Ext. 25/3 shows there accused appellant Bisheshwar Pandey claimed to have sent the claim petition under certificate of posting. This further leads to the conclusion that appellant Bisheshwar Pandey had made manipulations in the postage stamp register. The appellant took no steps to call for the original claim petition, nor any witness has been produced in support of his claim petition. This conduct of appellant Bisheshwar Pandey shows that he had manufactured Ext. 25 series and made wrong entries in Ext. 28 with an intention to falsify F.C.I. records and also to defraud Railway officials in respect of wheat of wagon No. 6228.
9. Learned counsel appearing for appellant Ganga Sagar Ojha urged that this appellant got a receipt from appellant Bisheshwar Pandey while handing over 240 bags of wheat of the said wagon to appellant Bisheshwar Pandey on 3.10.79 and in its support he placed reliance on the photocopy of the alleged receipt Ext. 24 and its original copy having been marked as Ext. B. The contention of this appellant is that after taking Ext. B from appellant Bisheshwar Pandey, he proceeded on leave due to sudden illness of the father-in-law of his elder brother. P.W. 16 is the I.O. of Barahat P.S. case no. 10(8)80, which was earlier instituted with the police and P.W. 21 is the I.O. of the C.B.I. Both of them have stated that Ext. B or its photo copy Ext. 24 was never produced before them during the course of investigation. Ext. B was for first time produced in the court of ACJM, Banka on 12.11.80, when the prayer for bail was made on his behalf. During the course of investigation, P.W. 21, (I.O., C.B.I.) found from the perusal of Ext. 23, the forwarding letter along with Ext. 24, that appellant Ganga Sagar Ojha had not mentioned the date, month and the year of sending Exts. 23 And 24 to the District Manager, F.C.I. This fact has come on the record that there is printed form in the office for handing over or taking over of the charge when a person goes on leave. But Exts. B and 24 are on plain papers. Ext. B shows that there is signature of appellant, Bisheshwar Pandey and the date mentioned on it was 3.7.79. But at the time of taking photo copy, the date was made ''ten (10) in Roman in place of seven (7) mentioned in English number by making over-writing. Thus Ext. B is a doubtful document which was not produced at the earliest stage before the I.O. of the case. As such, the trial court has rightly not given any reliance on such a document, nor appellant Ganga Sagar Ojha can claim any benefit on the basis of the aforesaid document. In view of these discussions and a careful scrutiny of both the oral and documentary evidence, conspiracy of both the appellant for misappropriation of 240 bags of wheat of FCI is established beyond all reasonable doubt.
10. Before the trial court, on behalf of appellant Bisheshwar Pandey, it was pointed out that sanction accorded for the prosecution is defective as it was not accorded by a competent authority. It was argued that only the Managing Director was competent to accord sanction for prosecution of appellant Bisheshwar Pandey, but the sanction was accorded by the Regional Manager. In reply, it was pointed out on behalf of the C.B.I. that F.C.I., Manual shows that Regional Manager is the competent authority for category III employees of F.C.I. for their removal from service and as such sanction accorded by him is in accordance with law. The sanction order dated 17.7.82 accorded by the Regional Manager, F.C.I., Patna shows that it was accorded after perusal of all the relevant papers produced on behalf of the prosecution. The trial court after considering all these relevant provisions has come to the finding that the sanction Ext. I is in accordance with law.
11. Learned counsel appearing on behalf of appellant Bisheshwar Pandey has not seriously challenged the sanction order Ext. I in the appeal. As such I am of the view that the sanction order, Ext. I is proper and a valid order which was accorded by the competent authority after applying his mind and it is not a mechanical order.
12. From the submissions made on behalf of both the appellants, it is clear that they have tried to throw the responsibility on each other. Appellant, Ganga Sagar Ojha has examined three witnesses in defence, out of them D.W. 3 Kanhaiya Ojha is his nephew and D.W. 5, Satyendra Pandey is his ''Sala''. Their evidences have rightly been discarded by the trial court being interested witnesses and no document whatsoever has been produced in support of their contention. The defence of accused Ganga Sagar Ojha based on Exts. 24 and B as discussed in detail above read with the evidence of the D.Ws. shows that it is not acceptable and on its basis he is not entitled to get any benefit of doubt.
As discussed above, the main defence of appellant Bisheshwar Pandey in his absence in between the period from 29.9.79 to 2.10.79. The documents produced on his behalf Exts. B-1/5 and B-1/6 are one sided document. The original application for permission to leave the Head quarter has not been brought on record. There is also no paper on the record to show that the District Manager, Bhagaipur has permitted him for leaving the headquarters. Therefore, the defence of appellant Bisheshwar Pandey becomes doubtful and the trial court has rightly not accepted it. The bonafide of the conduct of appellant Bisheshwar Pandey in lodging the claim case with respect to 240 bags of wheat has not been found acceptable for the reasons discussed above. Therefore, the defence story as brought on record, by both the appellant are not acceptable and on their basis they, are not entitled to get any benefit of doubs.
13. From the above discussions and after having taken into consideration the evidence on record and the submissions urged on behalf of the appellants and after giving my anxious consideration, I am satisfied that the prosecution has been able to prove its case beyond all reasonable doubt that fourth wagon bearing no. ER 6228, loaded with 240 bags of wheat reached at Barahat Railway Static on 2.10.79 and appellant Ganga Sagar Ojha got it unloaded on the same day, and took delivery of these bags of wheat on the strength of indemnity bond executed by another appellant Bisheshwar Pandey on the same day. According to the entries in the delivery book of Barahat Railway Station, the consignment was removed from the Railway premises on 2.10.79, but the same did not reach the Depot of F.C.I. Barahat. As such, both the appellants, being public servants entrusted with 240 bags of wheat of F.C.I. Barahat have committed criminal breach of trust in respect of the said wheat bags. Therefore, their conviction for the said offence is in accordance with law and it does not require any interference.
Thus the finding of the trial court regarding the guilt of the appellants and the order of conviction is hereby confirmed.
14. Learned counsel for the appellants submitted that the date of offence is 2.10.79 and by now 21 years have elapsed and for this long period, the appellants have been facing the agony of criminal trial and suffered physically and economically. As such they should not be sentenced to any imprisonment. Heard learned counsel appearing on behalf of the C.B.I. Considering the long period in disposal of the case and the sufferings of the appellants, it is not desirable to send the appellants to jail custody for an offence which took place 21 years ago. Therefore, their conviction for the offence as indicated above, is maintained, but they are not sentenced to any imprisonment. However, the amount of fine i.e. Rs. 20,000/- imposed against each of the appellant is hereby confirmed and they are directed to deposit the fine amount within three months from today and in default to payment of fine, they are directed to undergo rigorous imprisonment for four months each. The amount of fine, so deposited will go in favour of the F.C.I. as the price of 240 bags of wheat. The appellants are accordingly discharged from the liability of their bail bonds.
