Jat Ram vs State of H.P.

Bhawani Singh, J.—By this appeal, the Appellant, Shri Jat Ram (75), challenges the judgment of Special Judge, Kangra Division in C.C. No. 8/85 decided on 11-3-1987, whereby the Appellant has been convicted under Sections 409/467/471 of the Indian Penal Code and Section 5(1)(c) of the Prevention of Corruption Act and sentenced to three months rigorous imprisonment and to a fine of Rs. 100/-and in default of payment of fine, further simple imprisonment for 15 days u/s 409 of the Indian Penal Code. Similar, sentences have been awarded under the remaining provisions referred to above. The sentences have been ordered to run concurrently. The Appellant feels aggrieved by this judgment, hence this appeal.

The facts, in brief, are that the Appellant remained Pradhan of Gram Panchayat, Panther, in Development Block, Baijnath from 1960 to 1972. In that capacity, it is alleged, that the Appellant used to handle the cash, and records of the Panchayat and received and disbursed payment for and on behalf of the Panchayat. He also maintained accounts of the Panchayat. The prosecution case is that the Appellant embezzled an amount of Rs. 117/- out of the total amount of Rs. 850/- entrusted to him for the construction of a Bowli (water spring) k in village Pantehar in between the period commencing from 19-5-1969 to 31-5-1969 by forging receipts Ex. P. W. 1/G. 13 and Ex. PW1/G. 14 and Cash Book Ex. P. 7, which were the valuable-securities and, thus, showed false payments to Shri Jaunda Ram (deceased) towards transport charges of sand and cement which was to be used for the aforesaid construction of the bowl and on the relevant date, time and place, the Appellant fraudulently used the said documents knowing full well that they were not genuine and he being a public servant and entrusted with the dominion over the property, i.e. Rs. 850/-, released to the said Panchayat by the Panchayat Samiti Officer (B.D.O.), dishonestly and fraudulently misappropriated an amount of Rs. 117/- out of it and converted the same to his own use and r thereby committed the offences as indicated above.

The accounts of the Panchayat were audited by the District Audit Officer (Panchayat) and in December, 1978, under the orders of the Director, Panchayat, Himachal Pradesh, one Shri Sita Ram (P.W.10) conducted an inquiry in relation to the expenditure incurred on the developmental works in the Panchayat. By his report (Ex. PX/1), he found that the Appellant had committed misappropriation of funds, forgery and use of the muster-rolls and cash-book belonging to the Panchayat as genuine documents to adjust the amounts entrusted to him by the Panchayat Samiti office. A case was registered with the police, Anti Corruption Unit Branch, Dharamsala, on the basis of the said audit report.

Investigation commenced and the police took the entire record, including the muster-rolls, cash books, resolutions of the Panchayat, extracts of cash books and the specimen signatures of various witnesses as well as the Appellant for comparison and it was found that the entries in relation to the payment of Rs. 100.50 and Rs. 16.50, alleged to have been made in favour of Shri Jaunda Ram, deceased, through receipts Ex. PW1/G. 13 and Ex. P.W. 1/G. 14 and the corresponding entries in the cash book Ex. P. 7 were found to be forged as bearing the signatures of the accused and his thumb impressions. The investigation followed by a challan in the Court of Special Judge under Sections 409, 467 and 471 of the Indian Penal Code and Section 5(1)(c); of the Prevention of Corruption Act. The Appellant denied: the same and claimed to be tried.

The Appellant in his statement u/s 313 of the Code of Criminal Procedure admitted that he had remained President of the Gram Panchayat continuously from 1960 to 1972. It has also been admitted by him that he received the amount in question. He states that he used to receive cash and also disbursed the same along with the Mate. The record of the Panchayat used to remain in the custody of the Secretary. He further states that the entry regarding the payment of Rs. 850/- was made in the Cash Book by the Secretary of the Panchayat, although he had signed the same. Relating to Ex. P.W. 1/G. 13 and Ex. P.W. 1/G. 14, he states that the same were prepared by the Secretary and the Secretary might have obtained his thumb impressions thereon. Here the question is as to whether the Appellant has misappropriated the sum of Rs. 117/- out of the total amount of Rs. 850/- as alleged by the prosecution and by doing so, committed forgery in the records of the Panchayat within the meaning of Section 467 of the Indian Penal Code and thereby committed an offence under Sections 471 and 409 of the Indian Penal Code.

The prosecution has produced number of witnesses to prove its case. It is relevant to see as to what, material witnesses have deposed as to the allegations set-up by the prosecution.

Shri Trilok Nath Mehta (P.W. 8) was the Secretary of the Gram Panchayat during 1968 to 1973. He states that during his time, the Appellant used to handle the cash. He further states that on 19-5-1969, he made the entry of the receipt of Rs. 850/- from the Executive Officer, Panchayat Samitf Baijnath, which is Ex. P-7. This amount was received for the construction of a Bowl. On 30-5-1969 and 31-5-1969, an expenditure of Rs. 100.50 and Rs. 16.50 was entered by him at the instance of the Appellant on page 15 of the cash book (Ex. P. 7) on Ex. P. W./G-5 and the Appellant has signed the same at Q-148. The receipts of this amount are alleged to have been issued by Shri Jaunda Ram and these receipts have been attested by the Appellant at mark Q-159 and Q-157. These receipts have been issued by the Appellant and he identifies his signatures. The amount of Rs. 100.50 was not paid in his presence, although the receipt was scribed by him. The same thing happened with regard to the amount of Rs. 16.50 In cross-examination he states that he used to scribe the receipts at the instance of the Appellant believing that the Appellant would make the payment in due course. The name of Shri Jaunda Rajn alleged payee, was in his hand and in this receipt (Ex. P. W. 1/G. 14) he had certified that the payment of Rs. 16.50 paise had been received and in token of this the receipt had'' been made. In Ex. P.W. 1/G. 13, the word ''attested'' is in his hand certifying the payment. As Secretary of the Panchayat, he used to make entries at the instance of the Appellant in the Cash Book. Whatever was used to be stated by the Appellant was recorded in the cash book.

Shri K.L. Batra, Inspector Vigilance (P. W. 11) states in his cross-examination that he did not know if receipt Ex. P.W. 1/G-14 had been written by Shri Trilok Nath Mehta and he could not say whether the said receipt is only attested by the Appellant. During investigation, he interrogated various laborers who had worked on the concerned works but he did not remember whether he had made any inquiry from the said laborers as to why they had remained silent for such a long time and did not report the matter to the concerned authority.

Shri Dharam Chand Premi (D.W.1) states that he remained member of the Block Samiti, Baijnath, from 1972 and continued to remain as such till the Samiti was dissolved sometime in 1980. He states that the Panchayat had formed a Committee for the verification of the works which were assigned to the Gram Panchayat, Pantehar, and he was member of that Committee and they had conducted inquiries regarding the works executed by the Panchayat. He found that the Bowli work had been carried out. He further states that no one complained against the Appellant regarding any defalcation of the amount etc. nor anyone reported that the Appellant had not paid the wages. He further states that he had brought the record relating to all the works verified by them.

Shri Mast Ram (D.W.2) had undertaken the work of breaking the stones, construction of dangas, Bowlis and Kuhdls in Panchayat, Pantehar. He states that he was paid his wages and the wages of the laborers, who worked with him, were also paid. No one complained to him that no such wages were paid or the wages were misappropriated by the Appellant. The attendance used to be marked by the Appellant as well as by Mate Lachhi Ram.

The perusal of the statement of these witnesses indicates that their versions are in favour of the Appellant. No one has alleged that the wages were misappropriated by the Appellant. Due to the death of Shri Jaunda Ram, it cannot be said that the allegation of the prosecution against the Appellant is correct. Who knows had he been alive and produced by the prosecution, he may have also stated having received the amounts in question. Otherwise also, it can also be said that in case the amounts in question were not paid to him, he would have complained the matter to the authorities concerned against the Appellant. No one has made any complaint as to the conduct of the Appellant which means the allegations are thoroughly wrong and afterthought. It appears that the Appellant, an illiterate person, thumb marked and signed the documents prepared by the Secretary of the Panchayat, without knowing the contents and implications thereof. In the absence of any complaint from any of the beneficiary, the record appears to have been prepared by the Secretary and dhobi marked by the Appellant routinely but without any criminal intention as required under Sections 467 and 471 of the Indian Penal Code. Besides, it cannot be easily inferred that the Appellant, an old man of 75 years, who had remained Pradhan from 1960 to 1972, would swindle away such a petty amount. The fact-situation of the case, therefore, does not attract the fundamental ingredients of the offences alleged against the Appellant. Things may have been done foolishly but not with guilty intention.

In view of the findings as above, it is not necessary to examine the statements of other witnesses as they come in picture at a subsequent stage.

The explanation of the Appellant, as given in his statement u/s 313 of the Code of Criminal Procedure, is also quite convincing. The Appellant has in a straightforward manner stated that the record used to be prepared by the Secretary and he used to append his thumb impression to the same at the instance of the Secretary. There is evidence to show that the work against which this amount in question was given to the Panchayat had been carried out in accordance with the requirements.

In the above circumstances, it is difficult to appreciate and affirm the judgment of the learned Special Judge.

In view of the discussion made above, I am of the opinion that the learned Special Judge has not correctly appreciated the nature of the case and the judgment, therefore, is liable to be set-aside.

The result is, there is merit in this appeal and the same is accordingly allowed; the conviction of the Appellant under Sections 409, 467 and 471 of the Indian Penal Code and Sections 5(1)(c) of the Prevention of Corruption Act is set-aside. The bail bond and surety bond, if any, executed by the Appellant at any stage of this case are hereby cancelled. Fine, if any, paid by the Appellant, be refunded to him.