Gurjant Singh vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment and order dated August 22, 1986, passed by Special Judge, Faridkot, by which appellant Gurjant Singh has been convicted under Section 409, Indian Penal Code, and Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/ and in default of payment of fine, to undergo further rigorous imprisonment for four months, on each count. Both the substantive sentences were ordered to run concurrently.

The prosecution case, briefly stated, is that on August 23, 1984, a surprise checking was conducted by a Vigilance party comprising Mohinder Singh, Deputy Collector (Vigilance), Urmal Kumar, Sub Inspector of C.I.A., Mohinder Singh Garcha, Ziledar (Vigilance) and Harjit Singh, Revenue Clerk of Vigilance Bureau and after checking of stock register, M.A.S. register and indent Books, it was found that Gurjant Singh, Junior Engineer, posted in Canal Lining SubDivision, Moga, had misappropriated 2844 bags of cement and 1,20,900 bricks worth Rs. 1,90,000/. So, report, Ex. PN, was submitted by the Vigilance party and on the basis of this report, ruqa, PN/1, was sent to Police Station City; on the basis whereof the present case against the accused was registered. After completion of necessary investigation, challan against the accused was presented in Court by Sampuran Singh, Inspector Vigilance, Punjab, Chandigarh.

The prosecution, to substantiate its case against the accused, examined PW 1 Raj Kumar Sharma, PW 2 Kehar Singh, PW 3 Madan Lal, PW 4 Bhan Singh, PW 5 Head Constable Rajiv, PW 6 Gurdial Singh, PW 7 Baldev Singh, PW 8 Kishan Bahadur, PW 9 Mohinder Singh, PW 10 Urmal Kumar, Sub Inspector of C.I.A., PW 11 Teja Singh, D.S.P., PW 12 Mohinder Singh Garcha, Ziledar (Vigilance), PW 13 Baldev Singh Dhindsa, S.D.O., PW 14 Sampuran Singh and PW 15 Gajinder Singh.

When examined under Section 313, Criminal Procedure Code, the appellant admitted his appointment and posting as alleged by the prosecution. He also admitted the entries at pages 3 to 9, 16 and 17 in the stock register, Ex. P.2, to be in his handwriting and bearing his signatures. He also admitted that on September 18, 1983, the S.D.O. gave certificate, Ex. P.2/A and that he gave his own certificate, Ex. P/2/B. He further admitted to have maintained the Measurement Books, Exs. P.3, P.4 and P.5 and Indent Book, Ex. P.6. He also admitted the entries to be in his hand in register, Ex. P.1, at pages 16 to 19. However, he denied the allegations of the prosecution and pleaded his innocence and false implication. The appellant examined Hardev Singh, Junior Engineer as DW 1 in his defence.

I have heard Mr. R.S. Ghai, Senior Advocate, learned counsel for the appellant, and Mr. P.S. Tiwana, Deputy Advocate General, Punjab, for the State and have also gone through the record.

PW 1 Raj Kumar deposed that the accused was appointed on ad hoc basis vide letter No. 43032/3E dated 17.1.1977 by the Superintending Engineer, Construction Division, Irrigation Branch, Bathinda, and was posted in Canal Lining Circle, Division No. 3, Moga, vide letter dated 31.5.1982, Ex. PC. He also deposed that he had handed over copies of letter No. 632/PF dated 18.2.1985 and letter No. 633/PF dated 18.2.1985 to Sampuran Singh, Vigilance Inspector.

PW 2 Kehar Singh deposed that on 1.9.1982, he had joined Jagraon Canal Lining Sub Division, Moga and Gurjant Singh, accused, was already posted there as Junior Engineer. He further deposed that vide letter Ex. PE, he was asked to complete the work from Burji No. 66500 to 68000 relating to New Lined Alahiwah Distributory because Gurjant Singh, accused, was absent from duty since 6.12.1983; that he did not start the work on receipt of the said letter; that when he was again asked to complete the work, he made a report that there was no material to complete the work and that 402 bags of cement and 37,700 bricks were found to have been used earlier in that work that he made an entry in M.A.S. register, Ex. P1, to that effect, which was also attested by the S.D.O. Baldev Singh Dhindsa, whose signatures he identified. The witness further deposed that subsequently the S.D.O. had sent letter, Ex. PF/1, to the accused; that the portion, Ex. P.1/A in register, Ex. P.1, entries in the stock register, Ex. P.2, measurement books, Exs., P.3 to P.5, and Indent Book, Ex. P.6, were in the handwriting of the accused and the same were attested by the S.D.O. In his crossexamination he deposed that neither he nor B.S. Dhindsa, S.D.O. had checked the material in the Store or the birckkilns under the charge of the accused. He further stated that as per the practice, the contractor takes the material as per his requirement from the Stores or the brickkilns and the material, as a whole, as per the indents, is not sent at the site at a time and that the Junior Engineer concerned sends a chit to the owner of the brickkiln and the contractor takes the bricks in instalments as per his requirement. He further stated that the S.D.O. did not physically verify the stocks from the stores or from the brickkilns and that he did not know if the old material was misappropriated by Mohinder Singh, Contractor and Shri Dhindsa, S.D.O. He further stated that the Superintending Engineer had chargesheeted the accused for the loss of these bricks and bags of cement and that the accused, in his reply, had stated that he was in possession of the bricks and cement in set form and that he was ready to give the same in charge. He admitted that the accused had shown to him the cement in set form in thousand bags, in the godown at Kot Isa Khan, which was under the charge of the accused.

PW 3 Madan Lal deposed that he had leased out one store situated on Railway Road, Moga, to Shri Dhindsa; S.D.O. of Jagraon Canal Lining Sub Division, Moga, on a monthly rent of Rs. 500/; that he had received the rent to the tune of Rs. 3,750/ and that the lease continued for about 6 or 7 months.

PW 4 Bhan Singh deposed that the Measurement Book, Ex. P3, previously concerned Hardev Singh, S.O. and from 19.10.1982, it concerned the accused and the same was taken into possession vide recovery memo, Ex. PF. He also produced before the police letters, Exs. PG, PH, PJ and PK.

PW 5 HC Rajiv deposed that he had produced stock register, Ex. P2, M.A.S. register, Ex. P.1, as well as Indent Book, Ex. P.6, before Teja Singh, Vigilance Inspector, who took the same into possession vide recovery memo, Ex. PL.

PW 6 Gurdial Singh deposed that on 22.8.1984, on an enquiry made by Mohinder Singh, Deputy Director, Vigilance, regarding whereabouts of S.D.O. and Junior Engineer, he had informed him that these persons had gone to the office of Executive Engineer, Ludhiana.

PW 7 Baldev Singh deposed that his mother Surjit Kaur owned a store, which was leased out to Gurjant Singh accused in the year 198384 for about 8 or 9 months, on a monthly rent of Rs. 300/. He further deposed that the accused did not pay the rent through Government bills but he used to pay on his own accord and that the accused had kept cement and other articles in that store.

PW 3 Kishan Bahadur also corroborated the testimony of PW 6 Gurdial Singh.

PW 9 Mohinder Singh, Deputy Collector (Vigilance) deposed that on 22.8.1984, he along with Urmal Kumar, Mohinder Singh Garcha and Harjit Singh went to Moga in connection with an enquiry against the accused, where they learnt that the accused and the S.D.O. had gone to Ludhiana. He further stated that on 23.8.1984, they went to Ludhiana, brought Baldev Singh Dhindsa, S.D.O. and the accused from there; that the accused produced the Stock Register, M.A.S. register and two Indent Books; that according to the Stock Register, Ex. P.2, 1226 bags of cement and 14,600 bricks were found short in Store, about which the accused showed his ignorance. The witness further deposed that on checking of M.A.S. Register, Ex. P.1, 1010 bags of cement and 94,500 bricks were shown to have been issued for work vide Indent No. 27/1/G dated 19.8.1983 and from that material, only 402 bags of cement and 37,700 bricks were shown to have been consumed and, as such, 608 bags of cement and 56,800 bricks were found in balance with the accused. Similarly, he found that vide Indent No. 28/1/G dated 19.8.1983, 1010 bags of cement and 49,500 bricks were shown to have been issued, but no material was found to have been consumed at the site. As such, according to the record, 2844 bags of cement and 1,12,900 bricks were found short. He further stated that he had submitted his report, Ex. PN, which was also countersigned by Urmal Kumar, SubInspector (Vigilance). In his crossexamination, he deposed that he did not go to Kot Isa Khan to check the store of the accused, as in those days the accused had no store at Kot Isa Khan; that he did not know if the accused had dealings with 4 or 5 brickkiln owners and had accounts with them; and that the accused had told him that the bricks in thousands were lying at different brickkilns in his account. The witness further stated that they did not visit any such brickkiln and neither did they go to the site to see the work nor he recorded the statement of any of the contractors. The statement of this witness finds corroboration from the statements of PW 10 Urmal Kumar, PW 12 Mohinder Singh and PW 13 Baldev Singh Dhindsa, who also deposed that 2844 bags of cement and 1,20,900 bricks were recoverable from Gurjant Singh accused. Baldev Singh Dhindsa, S.D.O., also deposed that on 31.3.1983 he gave certificate, Ex. P.2/B, regarding the physical verification of the stock. He also deposed that the accused had remained absent from 6.12.1983 to 2.4.1984; that the store at Kot Isa Khan had been hired by the accused himself and not by the Department; that there was no sanction for hiring that store; that the Store on Railway Road, Moga, belonging to Madan Lal, remained with the accused from 16.3.1983 to 31.3.1983 and the total rent paid was Rs. 3,750/; that he did not check the store at Moga on 31.3.1984 as he learnt that the accused had vacated the store of Madan Lal at Moga; that he wrote letters; copies Exhibits PW13/B, PW13/C, PW13/D, PW13/E and PW13/F, to the accused and that the letter dated 8.8.1984, copy Ex. PW13/G, was written to the accused by the S.D.O. He admitted that in the store at Moga, the accused had 1188 bags of cement, which he checked on 31.3.1984. He also admitted in his crossexamination that he had checked the store of the accused at Kot Isa Khan on 31.3.1984 and found the stock correct.

PW 14 Sampuran Singh, Vigilance Inspector, stated that he had partly investigated the case and prepared rough site plan, Ex. PO, of the store at Kot Isa Khan and the rough site plan, Ex. PP, of the store of the accused at Moga; that on 13.3.1985, he took into possession the Measurement Book, Ex. P.3, vide memo, Ex. PF, and that Baldev Singh Dhindsa, S.D.O. and Bhan Singh had produced before him the relevant records, Exhibits PE, PF/1, PG, PJ, PK, and the documents, Exhibits PQ to PU. He admitted the correctness of the statement Ex. DA, of Urmal Kumar (PW 10).

PW 15 Gajinder Singh simply proved the sanction, Ex. PW 15/A, for prosecution of the accused.

Learned counsel for the appellant contended that the Vigilance Staff had not verified the stock physically and he pointed out certain contradictions in the statements of PW 10 Urmal Kumar. It is in the statement of PW 10 Urmal Kumar that the accused had told them that he had no Store for keeping stock and that he had no bricks lying anywhere. However, in his crossexamination, the witness deposed that in his statement, Ex. DA, made before the police, he had not stated that the accused had told them that he had no Store or bricks anywhere. So, according to the counsel for the appellant, it was an improvement in the statement of PW 10 and hence no reliance could be placed on his statement. Nevertheless it is in the statement of PW 9 Sh. Mohinder Singh, Deputy Collector Vigilance, that there was no Store with the accused, who had told them that he had no Store with him and that the building meant for Store had been vacated earlier. Thus, in view of that statement of the accused made before PW 9, there was no question for him to check the actual stock in the Store of the accused. PW 7 Baldev Singh had deposed that during the year 198384, for about 8 or 9 months, Gurjant Singh accused had taken on rent their store on a monthly rent of Rs. 300/ and that the accused had kept cement there. It is pertinent to note that PW 7 nowhere deposed that on 23.8.1984, the Store was still in possession of the accused much less that the cement of the accused was lying in that Store. Undoubtedly, PW 2 Kehar Singh deposed that the accused had shown to him the cement in set form in thousands of bags in the godown at Kot Isa Khan, but had it been a fact, PW 7 Baldev Singh must have deposed unequivocally that at the relevant time the cement in thousands of bags in set form, was lying in their Store. Simply because, PW 2 Kehar Singh, who is also a colleague of the accused, stretched a helping hand to the accused in crossexamination, it cannot be said that his testimony becomes the gospel truth. If the cement was actually lying in set form in the store of the accused, then the accused must have represented the same to the Vigilance party, who could go and inspect the store. On the contrary, the accused had represented to PW 9 that he had left the store earlier. Similarly, the learned counsel for the appellant argued that the accused had a store at Railway Road, Moga and the Investigating Officer had prepared the site plans of both the Stores, i.e. one at Moga and the other at Kot Isa Khan, but it is the statement of Madan Lal (PW 3) that his store had remained in possession of the Department for about 6 or 7 months and he received the total rent of Rs. 3,750/ from the S.D.O. So, even this witness nowhere deposed that on 23.8.1984, the cement of the accused was lying in his store. Learned counsel for the appellant also placed reliance on the statement of PW 2 Kehar Singh, who deposed that neither he nor the SDO had checked the material in the stores or brickkilns under the charge of the accused. Kehar Singh PW further stated that the contractor takes the material as per his requirement from the store or the brickkiln and that practice was adopted in those days. He also deposed that the accused had official dealings with 4 or 5 brick kiln owners and that in his presence, the SDO did not make any physical verification of the stores or the brickkilns. This witness did not quote any rule under which the said practice could be adopted. The learned counsel for the appellant also referred to the statement of DW 1 Hardev Singh, Junior Engineer, who deposed that he had handed over the charge to the accused in the year 1982 or 1983 and at that time, 36,000 bricks were lying at the brickkiln of "S.R." at Baja Marahar and for that purpose, he had introduced the accused to the brickkiln owner and had given a chit that the brickkiln owner should deliver those bricks to the accused. In cross examination, he deposed that he could not quote any rule under which the bricks could be allowed to be lying at the brickkiln, to be taken later on by the contractor. In crossexamination, he further stated that he had mentioned in the charge report that 36,000 bricks were lying at the said brickkiln, but no such charge report had been brought on the record to corroborate the testimony of the witness, nor any such chit issued to the brickkiln owner is forthcoming. No brickkiln owner was examined to prove the defence version. In my considered opinion, DW 1 Hardev Singh, Junior Engineer, for the reasons best known to him, had stepped into the witnessbox in defence to save the accused and as material evidence had been withheld, no reliance can be placed on his testimony.

Mr. P.S. Tiwana, Deputy Advocate General, Punjab, contended that from the prosecution evidence, the entrustment of the cement bags and the bricks in question to the appellant in his capacity as Junior Engineer had been established on the record; that the correctness of the entries in the stock register, Ex. P.2, and the indents in question had also not been controverted by the appellant; that it was proved on record that on August 23, 1984, 1226 bags of cement and 14,600 bricks were found short in the charge though these were entered in the stock register, Ex. P.2; that it was also proved on the record that vide Indent No. 27/1/G dated 19.8.1983, the accused was issued 1010 bags of cement and 94,500 bricks for the work at site, but out of it only 402 bags of cement and 37,700 bricks were used and, thus, 608 bags of cement and 56,800 bags were as balance in hand with the accused and that it was also proved on the record that vide Indent No. 28/1/G dated August 19, 1983, the appellant was issued 1010 bags of cement and 49,500 bricks for the work at site, but neither any bag of cement nor any brick was used and, thus, 1010 bags of cement and 49,500 bricks remained as balance in hand with the appellant. The defalcation of the appellant came to light on August 23, 1984. The appellant remained absent from December 6, 1983 to April 1, 1984 and despite repeated letters written by Baldev Singh Dhindsa, S.D.O. and the Executive Engineer, the appellant did not make good the loss. It was further argued by Mr. Tiwana that the entrustment of 2844 bags of cement and 1,20,900 bricks, which were found short with the accused, had been proved on record not only from documentary evidence but also from the statements of PW 9 Mohinder Singh, PW 10 Urmal Kumar, PW 12 Mohinder Singh and PW 13 Baldev Singh Dhindsa and, therefore, there was no reason to discard the sworn testimony of these witnesses, as their testimony finds corroboration from the documents, especially when they were not proved to be inimically disposed towards the appellant. Mr. Tiwana further contended that since the entrustment of the said bags of cement and bricks to the appellant, in his capacity as public servant, had been proved and as the appellant had not accounted for storage of cement bags and bricks worth Rs. 1,90,000/, the appellant had misappropriated dishonestly the said bags of cement and bricks and had, thus, committed the offence punishable under Section 409, Indian Penal Code, as also under Section 5(1)(c) read with Section 5(2) of the Prevention of Corruption Act.

The learned counsel for the appellant argued that the entrustment of the cement bags and the bricks in question to the appellant had not been proved. This contention of the learned counsel for the appellant is devoid of force as the statements of PW 9, PW 10, PW 12, and PW 13 and the documentary evidence brought on the record clearly prove the said entrustment. In support of his contention that to prove entrustment, no reliance can be placed on the entries in the stock register or the indents dated August 19, 1983, the learned counsel for the appellant placed reliance on a decision of the apex Court in Dadarao v. The State of Maharashtra, 1974 SCC 120. This contention is also without any substance as the said ruling is not at all attracted to the case in hand, as in the present case, the prosecution not only relied upon the mere entries, but oral evidence had also corroborated those entries.

Learned counsel for the appellant further contended that the dishonest or fraudulent misappropriation on the part of the appellant had not been proved and that simply nondelivery of the cement bags and bricks by the appellant did not constitute an offence either under Section 409, Indian Penal Code, or under Section 5(1)(c) of the Prevention of Corruption Act. He further contended that the possibility of pilferage by private persons or even by dishonest labourers or contractors could not be ruled out and, therefore, the appellant was not liable to be convicted for criminal breach of trust simply on his failure to account for the bags of cement and the bricks to the Department. For this proposition, he placed reliance on Sardar Singh v. State of Haryana, 1971(2) Criminal Law Journal 1158, but this authority is equally distinguishable on facts as therein, the accused was not proved to have dishonestly misappropriated or converted to his own use the receipt book. Each case is to be decided on its own facts and the said authority is hardly applicable to the facts of the case in hand. The trial Court has rightly held that the appellant, who in his capacity as a public servant, was entrusted with material worth lacs of rupees and out of that, he had misappropriated the material to the extent of 2844 bags of cement and 1,20,900 bricks, the value of which is alleged by the prosecution to be Rs. 1,90,000/.

In view of the above discussion, there is no merit in the appeal and the same is dismissed.