Inderjit
Singh & Ors Vs. State of Punjab & Ors [1995] INSC 310 (13 July 1995)
Ray,
G.N. (J) Ray, G.N. (J) Faizan Uddin (J) G.N. Ray. J.
CITATION:
1995 SCC Supl. (3) 289 JT 1995 (5) 260 1995 SCALE (4)409
ACT:
HEAD NOTE:
THE
13TH DAY OF JULY, 1995 Present:
Hon'ble
Mr. Justice G.N. Ray Hon'ble Mr. Justice Faizan Uddin Mr. Ram Jethmalani, and
Mr. D.V. Sehgal, Sr. Advs., M/s.Kamini Jaiswal, Arvind Nigam, Abani Kumar Sahu,
Rekha Palli, Monica Goswamy, Advs. with him for the appellants.
Mr. R.S.
Suri, Adv. for the appellants in Crl.A.Nos.22-28/86 Mr.Ujagar Singh, M/s.Amita
Gupta, R.S. Suri, Naresh Bakshi, Ranjit Kumar, Advs. for the Respondents.
The
following Judgment of the Court was delivered:
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.
12-21 OF 1986. 22-28/86
AND 1-11/86 Inderjit Singh and others etc. ....appellants Versus State of
Punjab & Others ....respondents
These
twenty eight criminal appeals are directed against a common judgment dated May
15, 1985 passed by the High Court of Punjab and Haryana in Criminal Appeal
Nos.153- SB to 156-SB, 161-SB, 174-SB to 178-SB, 185-SB to 189-SB, 193-SB to
196-SB, 199-SB to 202-SB and 205-SB to 207-SB of 1983 and two Criminal
Revisions Nos.773 and 774 of 1983 since treated as appeals by the Punjab and Haryana
High Court. All the said appeals arose out of the judgment passed by the
learned Additional Sessions Judge exercising the powers of Special Judge,
convicting and sentencing the appellants. As the facts and circumstances were
similar in all the said 28 appeals, they were disposed of by the High Court of
Punjab and Haryana by a common judgment. Before this Court also all the above
28 appeals have been heard analogously and they are being disposed of by a
common judgment.
The
prosecution case in short is that the Government of India initiated a crash
scheme of rural employment to give relief in the rural areas by executing some
intensive projects to give employment in all the districts in the State of
Punjab. Under the instruction of Government of India, the Development
Commissioner and Secretary to the Government of Punjab apprised all the Deputy
Commissioners in the State of Punjab about such Scheme. Under the terms of the
said crash scheme, for each district, ten lacs of rupees were allocated. Over
and above, a sum of rupees two and a half lacs were also allowed for
implementing the said scheme. The said scheme was centrally controlled scheme
in the shape of grant-in-aid. For implementing the said crash scheme, six
projects were started by the Public Works Department (drainage Section) in the
district of Amritsar.
Shri Kailash
Chand was the Superintending Engineer and Shri Kuldip Singh Sidhu was the
Executive Engineer concerning the said projects. These six projects were meant
to desilt six drains, namely, Sakki Nullah, Kasur Nullah, Sohal Drain, Jhabal
Drain, Kairon Drain and Devi Dass Pura Drain. The amounts allotted to each of
the six projects were expected to be spent by the end of the financial year.
March 31, 1972. One Chanchal Singh of village Jhabal filed a complaint to the
Chief Engineer (drainage) alleging that although huge amounts were reportedly
spent on desilting Jhabal Drain out actually nothing had been done at the spot.
Such complaint was processed and in due course in April, 1972, the Minister
concerned ordered Superintending Engineer (vigilance) Shri B.R. Saini, of
public works Department to enquire into the allegations. Shri Saini thereafter
visited the sites of all the six projects and submitted his reports indicating
that ambezzlement of huge amount by the officials concerned had taken place in
implementing the said projects. On the basis of such report, investigations
were conducted by the Vigilance Bureau and after the completion of investigations,
six first information reports were registared in July, 1973, pertaining to all
the six projects. Amongst the accused in the Criminal cases instituted on the
basis of the said F.I.Rs, Shri K.S.Sidhu. Executive Engineer, was stated to be
the man-incharge of all these projects. The other accused persons were
Sub-Divisional Officers, Sectional Officers, Sub-Divisional Clerks. They were
divided into six groups to execute the work under Shri K.S.Sidhu. According to
the prosecution, during the police investigation it was detected that a sum of
Rs.4,35,832/- was embezzled in connection with implementation of Sakki Nullah
Project, Rs.7,74,000/- was embezzled relating to Kasur Nullah Project,
Rs.1,46,803/- was embezzied in respect of Sohal Drain Project, Rs.1,62,291/-
was embezzled in relation to Jhabal Drain Project, Rs.78,638/- was embezzled
relating to Kairon Drain Project and Rs.1,02,413/- was embezzled in respect or Devi
Dass Pura Drain Project. It was further found on the basis of the investigation
that the embezzlements were pursuant to criminal conspiracy of the accused
persons and while perpetrating the offences, they had also forged and falsified
the records and used such false and fabricated records as genuine. The accused
were eventually tried in six separate trials relating to each of the said
projects by a Special Judge appointed by the State Government under Section 6
of the Criminal Law (Amendment) Act. 1952. The accused, however, in their
statements made under Section 313, Code of Criminal Procedure, denied the
charges and pleaded innocence. The Special Judge after considering the evidence
adduced in the case convicted and sentenced all the accused under Section 5(1)(d)
of the Prevention of Corruption Act and under Sections 466, 468, 471, 477-A and
120-B of the Indian Penal Code and passed various sentences for the said
offences as referred to in the judgment of the learned trial Judge.
The
High Court in the impugned judgment has held that there was no direct evidence
against the accused persons who were appellants before the High Court in
support of the charges levelled against the accused and the prosecution has
relied only upon circumstantial evidence. Coming to the circumstantial
evidences sought to be relied on by the prosecution, the High Court has held that
the prosecution, in all the said cases, produced a number of witnesses to prove
that although vouchers had been prepared in the name of the said witnesses,
they had neither worked on such projects nor did they receive any payment. The
High Court has, however, held that the testimony of those witnesses had lost
its value because it was not possible to come to a conclusion that they were
the same persons in whose names the vouchers were prepared. It has been
categorically held by the High Court that the witnesses did not prove one way
or the other whether the payments were actually made on the vouchers which
contained their names.
The
prosecution also prepared the list of the labourers whose names were mentioned
in the vouchers but according to the prosecution a number of such persons did
not reside within a radius of five miles from the site of work. The High Court
has commented upon the said evidence by indicating that the said evidence
suffered from the same disability, and the evidence did not positively pinpoint
that the persons named in the lists were the same who were named in the
vouchers. It has been indicated by the High Court that it is not possible to
infer from the evidence that the persons named in the lists were in fact those labourers
in whose names the vouchers had been prepared. It was not unlikely that the labourers
who were actually engaged were residing more than 7 miles away from the site of
work. The High Court has therefore held that upon evidence of that nature, the
guilt of the accused could not be held to have been proved.
The
prosecution examined some labourers who admitted that they had worked in those
projects and they had also signed out some of the vouchers but they stated that
they were paid less amount than what was shown in the vouchers.
It has
been held by the High Court that it was difficult to rely upon the testimony of
such witnesses for the purpose of holding the accused guilty of recording
inflated payments in the vouchers. It has been indicated by the High Court that
the said witnesses had received payments and executed the vouchers in 1972 but
the said labourers were examined ten years thereafter and it is difficult to
believe that even though the said witnesses received less payment, they would
keep quiet and sleep over the matter for such a long period and would not make
any complaint to the higher authorities.
The
Reports of the finger print experts that in some cases the vouchers prepared in
the names of various persons bore thumb impressions of a single person, were
taken into consideration by the High Court. The High Court has noted that there
are conflicting reports given by the experts regarding the same thumb
impression. The High Court has also indicated that even if it is accepted,
despite the conflicting reports of the experts, that one person had received
the payment on behalf of others, such fact could not establish that the
payments were not made at all. It has been indicated by the High Court that
such a possibility cannot be ruled out that a member of the same family might
have out his thumb impression on various vouchers relating to the other members
of the family. The High Court has held that this evidence is highly
unsatisfactory and is quite inadequate to come to a conclusion that the
appellants had committed embezzlement.
During
the investigation of the cases thumb impressions of Vijay Kumar, Sectional
Officer, Surjit Singh, Sub- Divisional Clerk, who were connected with the Kasur
Nullah Project and thumb impression of Inderjit Singh Sectional Officer,
connected with the Kairon Drain Project were obtained. According to the
prosecution, the thumb impression taken by the police were compared with the
thumb impressions on the vouchers said to have been affixed by the labourers
but it was found that the thumb impressions of the said officials tallied with
some of the thumb impressions on the vouchers. On the basis of such evidence,
the prosecution contended that the said evidence established that the said
accused fabricated certain vouchers pursuant to the conspiracy to commit
embezzlement of the Government funds.
The
High Court has not accepted the said evidence. It has been indicated by the
High Court that if the specimen thumb impressions of the appellants had not
been taken under the orders of the Magistrate in accordance with Section 5 of
the Identification of Prisoners Act. such thumb impressions should not be
accepted. It has been held by the High Court that there is no guarantee that
the thumb impressions which were compared with the thumb impressions on the
vouchers were in fact of the appellants. Referring to a decision of wherein
this Court has held that the specimen finger print of the appellants not having
been taken under the orders of a Magistrate in accordance with Section 5 of the
Identification of Prisoners Act, would raise suspicion about the conduct of
investigation and in view of possibility of fabrication of the evidence
furnished by the finger print expert, it would not be proper to sustain the
conviction of the accused on the basis of such expert evidence. The High Court
has also indicated that before the trial court the accused had applied to get
their thumb impressions compared with those on the disputed vouchers but such
prayer was declined by the trial court. The prosecution relied on the alleged
confession made by Shri J.N.Sood, Sub-Divisional Officer and Shri Hukam Chand,
Sectional Officer, before Shri B.R. Saini, Superintending Engineer, who had
been deputed to conduct investigation on the spot. According to Shri Saini, the
said persons threw themselves before him and confessed that no work had
actually been done at the spot and they had pleaded for mercy. The said Shri Saini
also stated that the Executive Engineer (Civil) Shri Sidhu was also present at
that time and he felt thoroughly ashamed. The High Court, however, has not
accepted the case of extra judicial confession and it has been held by the High
Court that the alleged extra judicial confession has lost its evidentiary value
in view of the fact that Shri B.R.Saini did not mention about this incident of
confession in his report, since admitted in crossexamination. The High Court is
of the view that no reliance should be placed on such extra judicial confession
said to have been made before Shri Saini.
It,
however, appears that the High Court has strongly relied on Rule 7.38 of the
Departmental Financial Rules which contain that the wages of members of the
work charged establishment should be drawn and paid according to Form D.F.R.
(P.W.) 29 which is a combined pay bill and acquittance roll form. Under this
rule, it is necessary that a consolidated bill in the said form should be
prepared monthly wherein full details of the work charged establishment
indicating the name, father's name, caste, full home address of the work charged
employees and work charged labourers are to be mentioned. The High Court has
indicated that payment to the labourers were not made by filling such form. In
none of the vouchers for payment, the full home address of the labourers was
incorporated. For want of such detailed particulars, it was impossible to trace
the labourers who allegedly received payments on the basis of vouchers, during
the investigation of these cases.
Although
it was contended on behalf of the accused that the said form was not being used
anywhere in the State of Punjab and that the prevalent practice all over the
State was that the wages to the work charged labourers would be paid or the
basis of vouchers without mentioning their addresses, the High Court did not
accept such contention of the accused as the same was not supported by any
evidence and such suggestion was not even put to Shri B.R. Saini when he came
in the witness box to prove his reports. It has been held by the High Court
that it cannot be believed that the officers dealing with the disbursement of
wages to labourers were not aware of the said rules. Hence, it could be safely
concluded that the addresses of the labourers were not mentioned in the
vouchers so as to make it impossible to trace them and by such process, the
direct evidence of embezzlement stood deliberately obliterated. The High Court
has also held that the contention of the accused was that under para 1.3 of the
Irrigation Manual of Orders, it was the duty of the Divisional Accountant to
check every voucher and to return the incomplete and defective vouchers to the
Sub-Divisional Officers for completion and correction but in no case, the
vouchers on the basis of which payments were made had been returned by
Divisional Accountant for correction and presentation according to the said
Form No.29. Such submission on behalf of the accused, however, has not been
accepted by the High Court by indicating that if the Divisional Accountant did
not return the defective vouchers, it was a case of remiss on his part but for
such derelication of duties committed by the Divisional Accountant, the
disbursing officer could not derive any benefit. In view of not maintaining the
vouchers in accordance with the said form containing the detailed particulars
of the work charged labourers, it has been held by the High Court that the
inference was inevitable that the disbursing officers had omitted to mention
the addresses of the labourers on the payment vouchers with intent to embezzle
the government funds. According to the High Court, such inference is further
fortified from the impeccable testimony of Shri B.R.Saini, Superintending
Engineer, who deposed that his investigations at the spot revealed that much
less work had been done than the details of work mentioned in the records prepared
to indicate the actual work performed in implementing the projects. The High
Court has held that Shri Saini deposed in all the cases and Shri Saini was a
responsible senior officer of the department and he had no reason to falsely
inculpate junior officers dealing with the disbursement of wages to the labourers.
According
to the High Court, the testimony of Shri Saini was not to be doubted. The High
Court has held that from the said investigations and the enquiry held at the
spot, a conclusion can be drawn that large amounts out of the government funds
allocated to executed the six projects, were misappropriated and embezzled by
the officers dealing with the disbursement of the wages. The High Court has
further held that the facts so established are consistent with the hypothesis
of the perpetration of the crime of embezzlement. The High Court has further
held that the evidence of Shri B.R.Saini, Superintending Engineer, regarding
lesser work done and the factum that the wages were alleged to have been paid
to the labourers on the basis of vouchers from which it was impossible to trace
them, have completed the chain of circumstances which do not leave any
reasonable ground for the conclusion inconsistent with the innocence of the
officers dealing with the disoursement of the wages. Hence, the High Court has
held that from the aforesaid facts, the prosecution case should be accepted.
Coming
to the question as to whether all the accused can be held guilty of committing
the offence of criminal misappropriation and conspiracy, the High Court has
held that it was not disputed that Shri Sidhu had empowered the Sub-Divisional
Officers to make payments to the labourers.
The
Sub-Divisional Officers were required to maintain the records of the cash. Each
payment made by the Sub-Divisional Officers was required to be witnessed by
another official who was required to certify the payments. The High Court has
held that in the present cases, the disbursement of wages was made by the
Sub-Divisional Officers which was witnessed by the Sectional Officers who
certified payment on each voucher. In that view of the matter, the High Court
has held that it has been conclusively proved that the Sub-Divisional Officers
and the Sectional Officers dealing with the funds should be held guilty of
conspiracy and embezzlement.
Accordingly,
they should also be held guilty of criminal misconduct under Section 5 (1)(d)
of the Prevention of Corruption Act. The High Court has held that though the
Executive Engineer, Shri Sidhu was in over all charge of the projects but it is
manifest that he did not participate in the disbursement of wages to the labourers.
Hence, it becomes evident that though he was responsible for the execution of
the work to the Superintending Engineer, he was not directly involved in
payment of wages to the labourers.
The
High Court, therefore, has given him the benefit of doubt by indicating that
the department may, however, deal with him in a suitable manner for failure in
the discharge of his duties efficiently.
Coming
to the question of conviction of the Sub- Divisional Clerk, Shri Surjit Singh,
under Section 466 and 477A of the Indian Penal Code, the High Court has
indicated that the said Shri Surjit Singh was convicted as his thumb
impressions were found affixed on the vouchers containing alleged thumb
impressions of Subeg Singh, Mohinder Singh and Hans Raj. The High Court has
acquitted him by giving benefit of doubt in view of the fact that the thumb
impression of the said Shri Surjit Singh could not be held to have been proved
by admissible convincing evidence. Accordingly, the High Court has acquitted
the Executive Engineer Shri Sidhu and the said Sub-Divisional Clerk by giving
them benefit of doubt but the convictions of the other accused were upheld by
the High Court, The High Court, however, reduced the sentences to one year's
rigorous imprisonment if any of the accused had been sentenced to undergo
rigorous imprisonment for more than one year by the trial court.
Mr.Ram
Jethamalani, Senior Advocate, appearing for Inderjit Singh and others in the
group of these criminal appeals, has very strongly contended that the High
Court has not accepted most of the circumstantial evidences sought to be relied
upon by the prosecution by giving cogent reasons.
He has
submitted that it is only unfortunate that ultimately on surmise and
conjecture, the convictions have been upheld by the High Court on the ground
that the Superintending Engineer Shri Saini was a responsible officer and since
he made enquiry at the spot and found that the work in respect of the said six
projects was less than what was mentioned in the records, the case of
conspiracy and embezzlement have been conclusively proved. Mr.Jethamalani has
submitted that simply on the basis of the report of the Superintending
Engineer, it was not open for the Court to draw a conclusion that less work had
actually been done. The quantum of work actually done had not been proved by
leading any other convincing evidence or examining independent witnesses for
that purpose. The Court has not accepted any other evidence for the purpose of
holding that less work had been done in respect of the said six projects. The
Reports of Shri Saini is based on the personal assessment of the said
Superintending Engineer and it is not unlikely that the said Reports are
erroneous. Mr. Jethamalani has also submitted that even if it is assumed that
less work had been done, the said fact does not constitute the offence of
embezzlement and falsification of the records in perpetrating the said crime of
embezzlement until and unless it can be convincingly proved by leading
unimpeachable evidence that payment had not been actually made to the labourers
but in the name of work charged labourers, the bills were falsely drawn and
money under the bill had been misappropriated, no order of conviction against
the accused for the charges levelled against them can be passed simply on a
finding that less work had been done. He has submitted that even if it is
assumed that the local officers neglected in discharging their responsibilities
and duties, such officers may be held guilty in departmental proceedings for
the dereliction of duties but certainly cannot be convicted for the offence for
which they were charged. Mr.Jethamalani has also contended that the Divisional
Accountant admittedly did not return any of the vouchers for making payment on
the score that such voucher was incomplete and lacking in material particulars.
Such
fact really supports the case of the accused that for payment of work charged labourers,
the maintenance of form P.W.29 had been insisted upon. Mr.Jethamalani has also
submitted that the High Court has given benefit of doubt to the two accused but
unfortunately has upheld the conviction against the other appellants without
appreciating that the circumstantial evidence was miserably lacking to
establish the complicity of the accused in the offence alleged against them. Mr.Jethamalani
has submitted that it is unfortunate that despite the absence of intrinsic
evidence from which irresistible conclusion about the guilt of the accused by
eliminating any other hypothesis, can be drawn, the High Court has jumped on
the conclusion that the accused must be held guilty simply by assuming that in
order to cover up the crime of embezzlement improper vouchers were prepared and
bills were drawn showing greater volume of the work when in fact lesser work,
as revealed in spot enquiry, was executed.
As
from both the said facts, namely, execution of lesser work than mentioned in
the records and payment to labourers on the basis of improper vouchers lacking
in detailed particulars, the prosecution case is not established even if
correctness of assumed facts is accepted, the conviction of the appellants must
be held to be illegal. He has, therefore, submitted that grave injustice has
been done to the accused and the appeals should be allowed by setting aside
convictions and sentences.
The
other learned counsel appearing for the appellants in the connected appeals
have adopted the arguments of Mr.Jethamalani and have submitted that the
convictions and sentences of the accused should be set aside.
Learned
counsel appearing for the State in these appeals has, however, disputed the
contentions made by Mr.Jethamalani and has contended that in the instant case,
the concerned accused hatched the conspiracy to defraud the public exchequer
and with such intention deliberately prepared some vouchers showing alleged
payments to various labourers for the works done by them without giving
particulars of such workers contrary to the instructions for maintaining
vouchers in a particular manner, in order to make it impossible to verify the
actual payment by examining the concerned labourers. The learned counsel has
also submitted that the Superintending Engineer made spot enquiries about the
quantum of work done in respect of the six projects and he has deposed
categorically that the work mentioned in the records on the basis of which the
alleged payments had been made to the workers was much less than what had
actually been done. The High Court has rightly pointed out that the said
Superintending Engineer was a responsible senior officer who had no animus
against any of the accused who were his subordinate officers and his deposition
should be accepted. The learned counsel for the respondent has submitted that
if such evidence is accepted, the falsification of records is writ large and
the case of embezzlement is also established beyond reasonable doubt. He has
submitted that the Court below, therefore, had no hesitation in holding the
accused guilty and this Court should not interfere with the concurrent finding
made by the courts below and the appeals should be dismissed.
After
giving our anxious consideration to the facts and circumstances of the case and
the evidence adduced in the trials, it appears to us that simply on the basis
of the reports of the Superintending Engineer that less work than what was
stated in the records was done, the case of embezzlement by deliberately
falsifying the records is not established. Until and unless by cogent and
unimpeachable evidence about the factum of non payment to labourers of the
amount drawn in their names can be established, the case of embezzlement by the
government officers and misappropriation of government fund cannot be sustained.
The Superintending Engineer may be responsible officer but it would not be safe
to simply rely on his assessment of the work done and in our view, for basing
the conviction, other convincing corroborative evidences about the quantum of
work done is necessary. In the facts of the case, it will not be just and
proper to accept the said report and deposition of Shri Saini to be conclusive
about the quantum of work done. That apart, Mr.Jethamalani is justified in his
contention that unless and until the factum of non payment to the workers is
established, over payment to the workers on account of less work done cannot be
held to be sufficient evidence to convict the accused for the offences alleged
against them.
Even
if it is assumed that the local officers who were entrusted with the task of
payment to the labourers were careless and did not actually ascertain the
quantum of work executed by the labourers but made payments to the labourers on
the basis of work as indicated in the bills, such local officers may be held
guilty of dereliction of duty but they cannot be held to be guilty for the
offences alleged against them. In the instant case, the chain of circumstantial
evidence is far from being complete and the conviction, in our view, has been
based more on surmise and conjecture than on the basis of convincing and
unimpeachable evidences. We, therefore, have no hesitation to allow all the
appeals and set aside the conviction and sentences passed against the
appellants.
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