Bachchu Singh vs State of Haryana

Dr. Sarojnei Saksena, J.

Petitioneraccused is challenging his conviction under Section 409 of the Indian Penal Code, whereby he is sentenced to undergo rigorous imprisonment for six months with a fine of Rs. 1,000/.

Brief facts of the case are that on the basis of the letter No. 2385/Panchyat dated 18.10.1984 First Information Report was registered. In this letter, allegations were made that the accusedpetitioner Bachchu Singh, while being posted as Gram Sachiv in Gram Panchayat School had realised a sum of Rs. 644/ towards the house tax from 35 persons against receipts No. 37 to 71, but had not accounted the said money in cash book of the said Gram Panchayat and has thus, embezzled the said amount. During investigation, it was found that a sum of Rs. 648/ was collected by the accused against receipts from various persons.

After holding investigation, chargesheet was filed against the petitioner under Section 409 of the Indian Penal Code. Accordingly, charge under Section 409 of the Indian Penal Code was framed. Petitioneraccused denied the guilt. During trial, prosecution examined many witnesses. The trial court scanned the evidence minutely and came to the conclusion that the petitioner realised/collected a sum of Rs. 648/ from the various persons including Hari PW2, Ram Kishan PW3, Puran PW4, Ramji Lal PW5, Amar Singh PW6, Chhattar PW7, Mohal Lal PW8, Shahbuddin PW9, Brij Pal PW10, Azad Singh PW11, Bhagwan Sahai PW12, Kishori Lal PW13, Nathi PW14 and Desh Raj PW15, but this amount was not deposited nor it was recorded in the record of the Gram Panchayat. The accusedpetitioner was examined under Section 313 of the Code of Criminal Procedure. He pleaded that the Panchayat elections were being conducted at different places from 19.6.1983 to 28.6.1983. He was Gram Sachiv of eight Panchayats and on the date of filing of nomination, he was to reach every place and was to collect the house tax at the spot as it was a condition precedent for enabling one to contest the election for the Gram Panchayat. He also pleaded that after collecting house tax from different places, he handed over the same to the Sarpanches of the said Panchayats as he was unable to deposit the same on that very date on account of rush of work. According to him, seven Sarpanches had deposited the arrears of house tax, but Ram Kishan, Sarpanch of Gram Panchayat Sehol, PW3, to whom also he paid the collected amount of house tax did not deposit the same with an ulterior motive as Ram Kishan had strained relations with exSarpanch Devi Ram. Therefore, this false report was lodged against him and Devi Ram. In the meantime, he was transferred to some other place. Later on, when the Block Development Officer, during enquiry advised him, he deposited the whole of the amount from his own pocket. Thus, he denied that the amount has been embezzled by him. In his defence, he examined Shahbuddin, Block Development and Panchayat Officer, Palwal, who stated that during enquiry, accused took the plea that he had handed over the amount in question to Ram Kishan, Sarpanch and as Ram Kishan, Sarpanch, denied on oath the receipt of the said amount from the accused petitioner, he (accused) deposited the same from his own pocket.

On scanning the evidence minutely and after hearing arguments from both the sides, the learned lower Court convicted the petitioner for an offence under Section 409 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for six months with a fine of Rs. 1,000/ in default further rigorous imprisonment for four months.

Accusedpetitioner preferred an appeal against his conviction and sentence, which was heard and decided by Shri J.K. Sood, Additional Sessions Judge, Faridabad. As per his judgment dated 13.7.1989, wherein petitioner''s conviction was affirmed and on his request, sentence was reduced to imprisonment till the rising of the Court with a fine of Rs. 1,000/. Still being aggrieved with this judgment, accusedpetitioner filed Criminal Revision No. 1001 of 1989 in the High Court and pleaded that he never authorised his counsel not to challenge his conviction and to make submissions with regard to sentence only. This revision was allowed by the High Court on 28.8.1997 and the case was remanded to the lower appellate Court for rehearing of the appeal on merits.

When the appeal was pending, the petitioner filed on application submiting that he collected a sum of Rs. 653/ from various persons on 22.6.1983 for which he issued receipts to them and on 25.6.1983 he handed over this amount to Shri Ram Kishan, who was elected as Sarpanch. Ram Kishan also executed a receipt in that behalf which was attested by his son Shri P.S. Gehlot, Advocate, Palwal. He also averred that on 8.8.1991 Shri Ram Kishan had sworn an affidavit to this effect before the Executive Magistrate, Palwal and at that time also he was identified by his son Shri P.S. Gehlot, Advocate. Shri Ram Kishan also swore another affidavit on 7.9.1995 before the Notary Public, Palwal, wherein also he was identified hy his son Shri P.S. Gehlot, Advocate. Ram Kishan has since died. Therefore, he made a prayer that he be allowed to examine Shri P.S. Gehlot, Advocate and Shri Devi Ram as defence witnesses. The application was allowed vide order dated 4.10.1997. The petitioneraccused examined Shri P.S. Gehlot, Advocate, as DW1 by way of additional evidence. In his sworn statement, Shri P.S. Gehlot, Advocate stated that on 25.6.1983 his father Ram Kishan was elected as Sarpanch of Gram Panchayat; he has seen the receipt Exhibit D2 dated 25.6.1983, which bears the signature of his father. He also testified that he too has put his signature on this receipt. This witness stated on oath that accused Bachchu Singh deposited the amount of Rs. 648/ with his father, whereupon his father issued receipt Exhibit D3. He also identified the signature of his father Ram Kishan on photo copy of the affidavit attested on 8.8.1991 Mark X and another attested affidavit dated 7.9.1995 Mark Y. In both these affidavits Ram Kishan testified that Bachchu Singh had handed over an amount of Rs. 648/ to him which he earlier denied under political pressure/extraneous political considerations.

During arguments, petitioner''s learned counsel relying on the aforementioned additional evidence adduced by him in the Appellate Court as well as on the basis of the evidence already adduced by him before the trial court, strongly canvassed that thereby the petitioneraccused has proved that the amount of Rs. 648/, which he collected form various villagers as house tax was paid by him to Shri Ram Kishan on 25.6.1983. Admitting this fact Ram Kishan issued receipt Exhibit D3 which not only bears the signature of Ram Kishan, but also that of his son P.S. Gehlot, Advocate. He also pointed out that in both the affidavits Mark X and Mark Y, Ram Kishan has admitted this fact. According to the learned counsel, these affidavits are proved by the testimony of Shri P.S. Gehlot, Advocate, as he had identified Shri Ram Kishan, when these affidavits were sworn in by him before the Executive Magistrate and Notary Public respectively. Thus, on that premise, the learned counsel submitted before the lower Appellate Court that the petitioner is entitled to acquittal.

Learned lower Appellate Court considered the defence evidence adduced by the accusedpetitioner earlier before the trial court as well as before the lower Appellate Court and disbelieved the defence evidence. He observed that these documents are creation of the appellant on tactics, whereby he had won over Ram Kishan PW3 and his son Shri P.S. Gehlot, DW2 after conclusion of the trial before the learned Magistrate. He also commented that if he would have paid the amount to Shri Ram Kishan PW3 on 25.6.1983, his failure to account for the said amount in the cashbook of the Gram Panchayat, goes a long way in demolishing the defence version, which is clearly manipulated by him. Thus, discarding the defence evidence, the learned Additional Sessions Judge affirmed his conviction and sentence, as awarded to him by the learned Magistrate vide his judgment dated 10.12.1997.

Petitioner''s learned counsel contended that whole of the prosecution is vitiated, as no prior sanction was obtained under Section 197 of the Code of Criminal Procedure before prosecuting the accusedpetitioner. The learned counsel pointed out that the petitioner was working as Gram Sachiv. As per Section 15(2) of the Punjab Gram Panchayat Act, 1952, as made applicable to Haryana, Gram Sachiv is to be appointed by the government under Section 15(1) of the Act. He also pointed out that Section 3(h) of the Act defines government as government of the State of Punjab/Haryana. During arguments, he also placed on record the order of appointment of the petitioneraccused, which is dated 31.8.1979. Petitioner''s name appears at No. 22. Petitioner''s learned counsel submitted that vide this order, the petitioner was appointed as Gram Sachiv of village Palwal. After the conviction, has services were terminated. Thus, according to him, since as per Section 15(2) of the Act, the petitioneraccused being Gram Sachiv, was a government employee and was appointed by the Government, no criminal case could have been instituted against him without obtaining prior sanction of the government under Section 197 of the Code of Criminal Procedure.

Petitioner''s learned counsel also submitted that right from the initial stage, petitioner''s plea was that he has paid this amount of Rs. 648/ to Shri Ram Kishan Sapranch. No doubt, during trial when Ram Kishan was examined as PW3, he denied the receipt of the said amount of Rs. 648/ from the accusedpetitioner, but later on, in the Appellate Court, when the accused adduced additional defence evidence, he has proved that Ram Kishan not only received this amount from him on 25.6.1983 but also issued receipt Exhibit D3 on the same date, which is also attested by his son Shri P.S. Gehlot, Advocate. At the appellate stage, petitioner''s learned counsel also submitted two affidavits sworn in by Shri Ram Kishan, one before the Executive Magistrate Mark X dated 2.8.1991 and another before the Notary Public Mark Y dated 4.9.1995. At both the occasions, Ram Kishan was identified before these authorities by his son Shri P.S. Gehlot, Advocate. In both these affidavits, Ram Kishan has admitted that Bachchu Singh had handed over a sum of Rs. 648/ to him, but earlier he denied its receipt under political pressure. Thus, the learned counsel submitted that no doubt, petitioner, being Gram Sachiv, collected the amount of house tax from various villagers amounting to Rs. 648/, but he gave this amount to Ram Kishan, Sarpanch PW3 on 25.6.1983 and obtained the receipt Exhibit D3. Hence, the learned counsel submitted that the learned lower appellate Court has fallen into an error in disbelieving the evidence adduced by the petitioneraccused and convicting him again for the said offence. Hence, he prayed that revision be allowed; impugned judgment of the lower appellant Court be set aside the petitioner be acquitted of the said charge.

Learned Assistant Advocate General, Haryana, supported the judgment of the lower Appellate Court and submitted that no sanction was required in this case before prosecuting the petitioneraccused. He also submitted that the lower Appellate Court has rightly weighed the defence evidence and has correctly disbelieved the same and has arrived at the correct conclusion that the accused is liable to be punished under Section 409 of the Indian Penal Code.

After hearing the rival contentions, in my considered view, there is no merit in this revision.

So far as obtaining the sanction under Section 197 of the Code of Criminal Procedure is concerned, no doubt, as per Section 15(1) read with Section 3(h) of the said Act. Gram Sachiv is to be appointed by the State Government and as per Section 15(2) of the said Act, Gram Sachiv is a government employee but during arguments petitioner''s learned counsel has placed on record the order by which petitioner was appointed as well as the order by which his services were terminated. Both these orders are signed by the Block Development and Panchayat Officer. Hence it is apparent that petitioner was not appointed by the Government. After his conviction, his service was terminated by the same authority (Block Development and Panchayat Officer) by which he was appointed. Further from the appointment order it is apparent that petitioner''s appointment was subject to the approval of the Subordinate Service Selection Board, Haryana. This clearly indicates that petitioner was a Class III employee of the Government of Haryana. The trial Magistrate has rightly held so. Hence, as petitioner was neither appointed by the Government nor his service was terminable by or with the sanction of the Government, therefore, before prosecuting him it was not necessary for the prosecution to obtain prior sanction of the Government under Section 197 of the Code of Criminal Procedure. Hence, first contention is repelled.

So far as the second contention is concerned, the lower Appellate Court has considered all the aspects of the defence evidence adduced by the accused before the Magistrate as well as before him after remand of the case. Sarpanch Ram Kishan was examined as PW3 before the trial Magistrate. At that time, he categorically refused that an amount of Rs. 648/ was handed over to him by the accusedpetitioner. At that time, this receipt Exhibit D3 purporting to have been signed by Ram Kishan was not shown to him. If really the receipt was in existence at that time, i.e., June, 1983, accused would have definitely shown this receipt to Ram Kishan PW3, during cross examination. Even in the application which he filed before the lower appellate Court seeking permission to adduce additional defence evidence, it was not explained by him as to why this receipt was not placed on record earlier; there was no mention that it was misplaced or he has traced it subsequently. After the death of Ram Kishan PW3 he managed these documentsreceipts Exhibit D3 and affidavits Mark X and Y with the help of Shri P.S. Gehlot, Advocate. Even if is to be considered for the sake of arguments that subsequently on 2.8.1991 and 4.9.1995, Ram Kishan executed these affidavits Mark X and Mark Y before the Executive Magistrate and Notary Public and appended his signatures therein, it cannot help the accusedpetitioner, because this evidence was not subjected to corssexamination. And further only photo copies of these affidavits are produced, not the originals. These affidavits are not duly proved by the accused. It is also pertinent to note that affidavit mark X was attested by Advocate P.S. Gehlot, DW2 on 8.8.1991, while affidavit Mark `Y'' was attested by him on 7.9.1995. It seems that after his conviction this evidence is tailored at his instance to bolster up his defence. If really Ram Kishan would have received this amount from the petitioneraccused on 25.6.1983, he would have admitted this fact when he was examined before the trial Magistrate. He had no enmity with the accusedpetitioner. Even as per the defence plea projected by the petitioner, Ram Kishan PW3 was inimical towards exSarpanch Devi Ram but not against the petitioner Bachchu Singh.

Further the lower appellate Court has rightly mentioned that if really the petitioner would have handed over the amount of Rs. 648/ to Ram Kishan on 25.6.1983, he would have made relevant entry in the cash book of the Gram Panchayat. No explanation worth the name is offered by the petitioneraccused for not making such an entry in the cash book of Gram Panchayat that further goes a long way in demolishing this defence plea which he subsequently got engendered with the active assistance of Shri P.S. Gehlot, Advocate, Palwal, who came forward to assist him so that he may come out of this prosecution and be acquitted. This defence evidence is devoid of any credence and in my considered view, the lower appellate Court has rightly discarded this defence evidence.

So far as the realisation of an amount of Rs. 648/ as house tax from villagers is concerned, this fact was proved beyond doubt by the prosecution by examining the witnesses mentioned above, but even the accused admitted this fact in his examination under Section 313 of the Code of Criminal Procedure. In State of U.P. v. Lakhmi, 1998(1) RCR(Crl.) 754 : JT 1998(1) SC 679 , the Apex Court has considered the effects of answers given by the accused when he is examined under Section 313 of the Code of Criminal Procedure. The Apex Court has observed :

"The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminative circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstances appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.

Answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused had committed the offence."

Thus, even the statement of the accused under Section 313 of the Code of Criminal Procedure, wherein he has specifically admitted that he collected the amount of Rs. 648/ from villagers as house tax can be used against him for arriving at a finding that he has committed the said offence as prosecution has proved that he did not deposit that amount in the Gram Panchayat and illegally retained it, which amounts to embezzlement and is punishable under Section 409 I.P.C.

Thus, finding no force/merit in the revision, it is hereby dismissed.

Revision dismissed.