Geeta Ram vs State of Haryana

A. S. Nehra, J.

Petitioner was convicted under Section 409 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 25,375/ in default thereof to further undergo rigorous imprisonment for two years on 16.4.1982 by the Chief Judicial Magistrate, Hissar.

The appeal filed by the petitioner was dismissed on 25th March, 1986 by the Additional Sessions Judge, Hissar but the sentence of the petitioner was reduced to three years'' rigorous imprisonment and imposition of fine and imprisonment in default thereof was upheld by the learned Additional Sessions Judge, Hissar.

The prosecution story is that the petitioner was Sectional Officer Incharge in the month of February, 1972, when the work of construction of Government College, was started. The duties of the petitioner as Sectional Officer were to receive the material and use it in the construction and to maintain its proper account. When Shri B. S. Khurana, Sub Divisional Officer was to leave the University, the physical verification of the material lying on the work was necessary. The Executive Engineer (Civil) vide his letter No. 543944 dated 8.9.1975 asked Sarvshri B. D. Singh, Sub Divisional Officer, Kapoor Singh, Sub Divisional Officer (Design) and Alwyn Veigns Sectional Officer to carry out physical verification of material lying on the site of Government College, in the charge of the petitioner and B. S. Khurana. A copy of the said letter was endorsed to the petitioner and Shri B. S. Khurana. Sarvshri B. D. Singh and K. Singh carried out physical checking on 1.10.1975 and submitted report Ex. P6 showing thereunder that 26401 C.ft. Bajri was lying at site. The discrepancy/shortages could not be worked out by them as the MAS registers were lying in the custody of petitioner and Shri B. S. Khurana Sub Divisional Officer Incharge of the work. The petitioner left the MAS register in the Sub Division No. 1975 when he submitted his resignation. The quantity of Bajri shown in the MAS register as lying at the site of two sizes was 46853 (22440 plus 24413) C.ft. exists, whereas collectively the quantity of two sizes found physically at site was 26401 Cft. according to physical verification carried out by Shri D. D. Singh on 1.10.1975. Thus there was a shortage of 20452 C.ft. The value of which worked out to Rs. 25565/. Petitioner used to take the supply from M/s. National Stone Crushing Mills, Khanak, (Tusham) from 16.3.1972 to 13.2.1973. The receipts were shown in the measurement books and checked by Shri B. S. Khurana, Sub Divisional Officer.

No theft was ever reported by the petitioner and Shri B. S. Khurana. During investigation, Assistant Sub Inspector Ram Lal on 17.2.1976 carried out physical verification in the presence of Shri B. S. Dhawan PW4 and Aditya Gaur Sectional Officer. On physical verification total quantity of 26553 C.ft. Bajri was found lying. Report Ex. P7 containing details of Bajri lying at the site of Government College, was prepared. The shortage of 20300 C.ft. was found during investigation.

During trial, B. S. Khurana absconded and he was declared proclaimed offender.

Ram Dass Pipal PW 1 Sub Divisional Accountant, identified the signature of the petitioner as Ex. P 1/2 on page 18 of register Ex. P 1. He also identified the signatures Ex. P 1/1 of Shri B. S. Khurana at page 18 of the register Ex. P 1. It is pertinent to mention that Ex. P 1/2 and Ex. P/1/1 signature of the petitioner and Shri B. S. Khurana are on Goshwara showing the material at site as on 12.9.1975. Suresh Jain PW 2 is only a formal witness and proved the posting of the petitioner at the relevant time. B. D. Singh PW 3 Sub Divisional Officer stated that on 1.10.1975 he had conducted physical verification of the material lying on Government College''s site under the directions of Chief Engineer, Haryana Agricultural University, Hissar in the company of Shri K. Singh and Shri J. M. Chakarvarti. He submitted report Ex. P 6 signed by him and K. Singh. He also stated that the petitioner used to maintain register Ex. P 1. B. S. Dhawan PW 4 stated that on 17.2.1976 he along with Aditya Gaur and ASI Ram Lal made physical verification of the material at site and submitted report Ex. P 7. B. R. Sharma PW 5 stated that he produced measurement books Ex. P 8 and Ex. P 10 and MAS register vide recovery memo attested by Shri B. D. Taneja PW 6. He also stated that he identified the handwriting and signature of the petitioner and also stated that the entries in register, Ex. P 1 and Ex. P 11 were in the hand of the petitioner. He further stated that pages 16 to 18 of the measurement book Ex. P 10 were also in the hands of the petitioner and also stated that the entries in the register Ex. P 1 also tallied with the measurement books. B. D. Taneja PW 6 stated that in his presence B. R. Sharma, PW 5 produced measurement books Ex. P 8 to Ex. P 10 and MAS register Ex. P 1 before police which were taken into possession vide recovery memo attested by him, K. C. Jain PW 7 identified signatures of the petitioner Ex. P 1/2 and Ex. P/1/1 of Shri B. S. Khurana on register Ex. P 1 at page 18. Shri P. P. Ludha Executive Engineer PW 9 stated that he asked Shri B. D. Singh, Sub Divisional Officer and K. Singh to carry out physical checking. He also stated that the petitioner used to maintain record of material received for the construction of the Government College, Hissar. He also stated that he asked the petitioner to handover MAS register, but the petitioner did not hand over the register. He further stated that physical checking report Ex. P 6 was submitted by the two Sub Divisional Officers deputed for the parties. Gurdial Singh PW 10 Sub Inspector stated that he partly investigated the case and recorded statements of Shri R. D. Pipal and Kailash Chand Jain. Ram Lal ASI PW 11 stated that he took up initially the investigation of the case and took record into possession on 12.2.1976 vide recovery memo Ex. P 7/C and carried out physical verification with Shri B. S. Dhawan. PW 11 further stated that he recorded statements under Section 161 of the Code of Criminal Procedure of Kailash Chander, Ram Dayal and B. S. Dhawan. Bihari Lal ASI PW 12 also partly investigated the case. He only obtained warrant of arrest of the petitioner. Roshan Lal PW 13 stated he recorded formal First Information Report Ex. PW 13/C on receipt of letter Ex. PW 13/A. He also submitted report under Section 173 of the Code of Criminal Procedure. Mukhtiar Singh, PWthe ASI stated that he recorded the statements of S/Shri G. S. Tandon, Bishamber Dayal, Kapoor Singh, P. P. Ludha, B. R. Sharma, and B. B. Taneja, under Section 161 of the Code of Criminal Procedure on 25.1.1977. On 26.10.1977 Shri B. R. Sharma produced record which was taken into possession vide recovery memo Ex. PW 5/A attested by Shri B. B. Taneja. B. P. Aggarwal PW 16 proved copy of letter Ex. P3, vide which Chief Engineer appointed the petitioner on 2.2.1972 for the construction of Government College, Hissar.

As far as the question of entrustment is concerned, it is proved beyond doubt. The petitioner has admitted in his statement under Section 313 of the Code of Criminal Procedure that he was appointed vide order Ex. P 2 for the construction work in question. He also admitted that the material was checked at the site in his presence. He only denied that the measurement was not proper and he had pointed out this to the members of the inspecting committee. His stand in the statement under Section 313 of the Code of Criminal Procedure, therefore, clearly establishes that he was entrusted with the material and he had been posted for the construction work in question. If the material had not been entrusted to him, the stand would have been that the same was not entrusted and there was no question of its verification from him. On the contrary, he admitted the verification but stated that it was not correct. Even otherwise the record produced by the department also establishes that the petitioner had been receiving the material from time to time. He had been signing the entries in register Ex. P 1, measurement books Exs. P 8 and P 10. Bajri was entrusted to the petitioner on 12.9.1975 as per entry Ex. P 1/2 in register Ex. P 1 signed by the petitioner and the quantity of Bajri with him was 46, 853 C.ft. of both the types. It was for him to establish that the shortage found to the tune of 20,450 C.ft. on 1.10.1975 by Shri B. D. Singh was in fact no shortage and was result of various factors now urged by the learned counsel for the petitioner. No doubt B. D. Singh has admitted in his statement about the factors now urged by learned counsel for the petitioner as being responsible for defective measurement, his statement cannot lead this Court to believe that there was no shortage at all as contended by the learned counsel for the petitioner. In reply to Court question Mr. B. D. Singh has stated as follows :

"If I had given all the concession as stated by me above to the accused in my report, there would have been a difference in between 10 to 15 per cent in favour of the accused."

In further crossexamination, he stated as follows :

"I have only given the approximate figure. It can be on the lower and can be on the higher side. Since this matter was not looked into there, exact data cannot be given."

The statement reproduced above makes it clear that the shortage found by Mr. B. D. Singh could also be more. In any case even if it be accepted that it could have been 10 to 15 per cent in favour of the petitioner, this percentage would be applicable to the shortage actually found i.e. in 20,452 C.ft. 10 per cent of 20,452 would mean 2045 C.ft. and if 15 per cent is given, the shortage would still work to over 17,000 C.ft. which by no standard can be considered a marginal shortage. The statement of Mr. B. D. Singh cannot be meant to conclude that 10 to 15 per cent was to be worked on the total amount of Bajri received during the period i.e. 1,40,661 C.ft. as has been contended by the learned counsel for the petitioner. If physical verification had not been done by the petitioner once a year or twice a year as is required under the rule, fault lies with him. On the contrary, the Goshwara worked out by him at Ex. P. 1/2 would mean that he had taken all the factors into consideration and then come to the conclusion that Bajri with him on September 12, 1975 was 46,853 C.ft. If the petitioner was feeling any difficulty on account of there being no Chowkidar or place being open, he should have brought it to the notice of the authorities and in that case insisted on periodical verification. Having not taken such a step, it was rightly presumed by both the Courts below that the Bajri with him on September 12, 1975 was 46,853 C.ft. The actual verification took place only 18 days thereafter. The shortage was of about 20,000 C.ft. If there had been some theft etc. it, could easily have been detected by the petitioner as he had been daily coming to the site. The only inference, therefore, possible is that the said Bajri was pilfered by the petitioner and he misappropriated the amount. Either he obtained short supply and misappropriated the amount so earned or he diverted the Bajri for some other purposes and misappropriated the amount received. There can be no other inference possible. The appellant was on deputation with the University. He was a Government servant and was entrusted with the execution of the work relating to the Govt. i.e. the construction of Government College, Hissar. He was fully covered by Section 21 of the Indian Penal Code and was rightly prosecuted under Section 409, IPC.

In view of the discussion made hereinafter, both the Courts were justified in recording order of conviction of the petitioner under Section 409, IPC.

Sh. R. S. Cheema, learned counsel for the petitioner further contended that speedy trial was the essence of justice and inordinate delay in disposal of the case itself caused a sufficient agony to the petitioner; so, it is a fit case where the petitioner should not be sent to jail at this stage and sentence awarded to him may be reduced to the period during which he remained in jail. His contention is that the case against the petitioner was registered on 12.2.1975, i.e., more than 18 years back. He has further submitted that the present revision petition is pending since 1986; that the petitioner is on bail and that the prolonged litigation itself is a ground for treating the petitioner in a lenient manner.

Taking into consideration the facts and circumstances of the case that the petitioner is not stated to be a previous convict; that he is employed with the State Government and that he may lose his job in case he remains in jail, I find that the petitioner has faced protracted litigation and has undergone sufficient mental harassment. So, keeping in view the circumstances of the case, I find it is a fit case that no useful purpose would be served by sending the petitioner to jail for undergoing the remaining period of imprisonment.

As a result, I partly allow this revision petition and limit the sentence of imprisonment to the period already undergone by the petitioner. The sentence of fine along with its default clause is maintained.