Parimal Kumar De vs The State of Bihar

P.K. Deb, J.—Both the appeals have been heard analogously as they arise out of the common judgment and order dated 22.2.89 passed by Smt. Rekha Kumari the then Special Judge, C.B.I., Patna, in Special Case No. 12 of 1982 whereby and whereunder both the accused Appellants have been convicted under Sections 409/477 of the Indian Penal Code read with Sections 5(1)(c), 5(1)(d) and 5(2) of the Prevention and Corruption Act and the accused- Appellant Kirtan Rout has been convicted with the rope of Section 120B of the Indian Penal Code and on the said Sections of the penal provisions and accused-Appellant P.K. De has been sentenced to undergo R.I. for one year for each of the offences as mentioned above and to pay a fine of Rs. two lacs for the offence committed u/s 409 of the Indian Penal Code, in default to undergo R.I. for one year more. The accused-Appellant Kirtan Rout has been sentenced to R.I. for one year in each of the offences committed and also pay a fine of Rs. 2,000/ -, in default to undergo R.I. for two months more. The sentences were directed to run concurrently. The Appellant P.K. De during the pendency of the appeal died on 25.3.1989 and his wife Smt. Niharika De filed petition u/s 394 of the Code of Criminal Procedure for leave of the court to continue the appeal in respect of imposition of fine alone as the sentences of imprisonment had al. ready been abated in respect of her husband P.K. De due to his death. The said petition was allowed by grant of leave

The admitted position remains that both the Appellants P.K. De and Kirtan Rout were the employees of Indian Oil Company. At the relevant time P.K. De was Installation Manager in the Indian Oil Company, Sipara Patna, and he remained in that capacity from July, 1976 till February, 1979. The accused Appellant Kirtan Rout had joined at Indian Oil Company, Sipara, as an assistant in the year 1975 and remained in the said capacity till 1981. During that period of the employment of the accused-Appellants in the Indian Oil Company at Sipara petroleum products, namely, Motor Spirit (Petrol), Diesel (HSD) and Kerosene Oil (SKO) were being sent through pipeline division Sipara at Patna from the oil refineries for the purpose of distribution to the different petroleum dealers of Patna, Ara, Sasaram, Aurangabad etc. through the contractors tank lorries. The head office of the Indian Oil Company at Bombay used to fix the permissible loss of each petroleum products on account of evaporation, operation technicalities basing on climates and atmosphere etc. of the places of distribution. The regional office of the I.O.C. in Calcutta had fixed the permissible loss allowed for Patna installation for each year and the said permissible loss had been mentioned in details in para-2 of the impugned order. It is the case of the prosecution that during the period from July, 1976 to February, 1979 based on the performance of selected months, abnormal loss could be detected much beyond the permissible limits. Even after giving and allowing condonable limit for each products the loss could be found in heavy quantities regarding H.S.D. and petrol installation stand at Sipara. The loss was calculated on the basis of rate for each product inclusive of applicable duties and thus it was charged that the accused-Appellants committed criminal breach of trust regarding petroleum products valued at Rs. 6,96,284.41 paise. According to the prosecution, the loss could be detected as there was interpolation in the gauge book, AC-2A register maintained in the installation office under the direct control of the Installation Manager P.K. De. The loss was found in the audit report and eyebrows were raised by the auditors when the statements were sent by the installation office to the regional office at Calcutta. Some explanations were given by the regional office and no steps were taken against such huge loss which should have been construed as embezzlement by the accused-Appellants. The gauge book and AC-2A register were manipulated by P.K. De in collusion with Kirtan Rout the other accused-Appellant. On an information from reliable source, the C.B.I. conducted investigation and a chargesheet was submitted against both the accused-Appellants. The charge stood for commission of criminal breach of trust in respect of the petroleum products valuing Rs. 6,96,284.41 paise in the capacity of their public servant posted and functioned as Installation Manager and Assistant respectively in the Indian Oil Corporation, Sipara, Patna. It was further charged that with wilful intention and to defraud, the records were falsely prepared and as such they were further charged under Sections 5(1)d and 5(1)c read with Section 5(2) of the Prevention of Corruption Act for embezzling the petroleum products abusing their official position and obtaining pecuniary advantage to the extent of the said sum of rupees. There was also charge for criminal conspiracy between the two accused-Appellants as contemplated u/s 120B of the Indian Penal Code.

The accused persons when charges being prepared and explained pleaded not guilty. Their case is that they have been falsely implicated at the instance of R.K. Srivastava (P.W.9) and Investigating Officer of the case. It is the further case of P.K. De that there was no misappropriation of stock and the loss which has been occurred in the stock is the natural phenomena of P.O.L. products. The accused-Appellant Kirtan Rout took the plea that he had TO concern with field work or operation of the P.O.L. stock. He was simply entrusted with the table work and whatever he had done in maintaining the register and others he had done so at the guidance and direction of the Installation Manager P.K. De.

During the course of investigation and in the trial, the mode in which such embezzlement was made had been proved at Sipara I.O.L. installation.'' Petroleum products were received through pipeline in six storage tanks. Out of which two tanks were used for storing kerosene oil, Motor spirit and H.S.D. respectively. After receipt of the petroleum products in the storage tanks, quantity of products of each tank were recorded in gauge book through dip rods. The quantity and the pipeline quantity (fixed quantity) were recorded in different registers then in AC-2A register. It appears that during those periods when such heavy loss were detected the gauge books after recording in the March when being sent to the Installation Manager the same.were interpolated and the AC-2A register was also being maintained on the basis of gauge books records were also manipulated. During that period it could also be found that the Weights and Messures Department received complaint from the contractors that delays are being caused in supplying and the quantities supplied were also not proper as the dip rods were not being properly used. The Weights and Measures Department came for inspection and on enquiry found that the dip rods used were unstamped which were being stamped by the regional office but the accused-Appellant P.K. De in the installation centre had used dip rods having no stamp and as such a complaint was registered and prosecution was lodged against him. Ultimately, the matter was compromised on payment of fine by Sri P.K. De. Thus the modes of embazzlement were doing mischief in using improper diprods for measurement of the P.O.L. products and then manipulating the gauge book and the AC-2A register. The hand writings in the gauge book and AC-2A register in the manipulating portion were of Sri P.K. De and his hand writing could be proved by hand writing expert. A plea was taken by the accused-Appellant P.K. De to the effect that loss which has been shown were kept in six empty barrels and those were sold to the contractors on valid discharge of receipts and some receipts to that effect were also proved from the side of the defence. But during the course of investigation it could be found that at the relevant time when loss was detected or shown, there was no empty barrel lying at the installation centre at Sipara or there was no scope of keeping such huge petroleum products in empty barrels. Thus these receipts etc. and keeping those petroleum products in empty barrels were found to be manufactured documents for the purpose of creating defence. It has come in evidence that during the course of filling up of tankers if a little quantity is left out, the same can be kept in empty barrels but a huge quantity of 34 kilolitres can never be kept in barrels and in this respect there is no explanation from the side of the defence. 5. For and on behalf of the prosecution as many as 24 witnesses have been examined and in respect of defence case also some witnesses have been examined. P.W1 Lal Mohan Choudhary, who is a formal witness, has simply proved the F.I.R. P.W.3 V.P. Dubey, P.W.8 J.P. Sinha, P.W.9 R.K. Srivastava, P.W.10. R.N. Dubey, P.W.11 Nagendra Pd. Singh, P.W.14 Om Prakash Salaspuria, P.W.16 K.K. Kakkar are the employees and officers of the I.O.C. They have proved the procedure of I.O.C. with regard to the stock storage in the installation and maintenance of the records. P.W.17 Subir Raha is the Chief L.P.G. Manager, Northern Region, I.O.C. He has been examined on the point of causes of loss in the P.O.L stock as per prescription being made by the head office time to time. P.W.2 Rajendra Singh, P.W.7 R.P. Sah are the witnesses from the Central Excise Department. They have been examined on the point of excise duty of the petroleum products when being fixed at the time of installation and supply. P.W.5 Samuel Ernest Lakra is the Controller of Weights and Measures Department who had seized the unstamped dip rods from the installation. P.W.12 Akhtar Hussain is an expert of Weights and Measures who submitted his report on examination of the dip rods of Sipara installation during the relevant period. P.W.13 H. Sattar has been examined regarding the duty and responsibility of the accused persons. P.W.18 S.C. Mukherjee who conducted internal audit of the installation centre at Sipara. P.W.4 Ram Naresh Pd., P.W.6 K. Jamal, P.W. 15 M.P. Gulati are only tendered witnesses. P.W.19 Kameshwar Paswan is the Superintendent of Police of Central Excise. He has also deposed regarding procedure of realisation of excise tax from the stock at Sipara installation. P.W.20 S.C. Ghosh is the officer of I.O.C. who had granted sanction for prosecution against the accused persons. P.W.21 R.C. Barnwal, P.W.23 Ram Sanaullah Sinyh are the witnesses in whose presence specimen signatures and writings of accused persons were taken. P.W.22 Mr. D.D. Goel is the hand writing expert who had examined the disputed documents and found that interpolation portion in the gauge book and AC-2A registers were in the handwritings of accused-Appellant P.K. De. P.W.24 K.N. Sinha is the Investigating Officer of the case.

For and on behalf of the accused P.K. De defence witnesses have been examined to show his bonafide regarding the loss incurred. He made an attempt to the effect that the extra petroleum products had been kept in barrels which was in practice at the installation station and those were sold from barrels on valid discharge of receipts.

After elaborate discussions of the evidence of both sides learned court below came to the finding that'' the prosecution could be able to prove the charges against both the accused persons beyond all reasonable doubt and as such convicted and sentenced them accordingly as mentioned above.

Regarding accused-Appellant Kirtan Rout, it has been argued that even if prosecution story is taken as it is then also the conviction arrived at against the accused-Appellant Kirtan Rout is net maintainable in the eye of law. The over all responsibility with the installation of the centre was with the other accused-Appellant P.K. De. It was admitted by the prosecution witnesses also that Kirtan Rout was a newly appointed employee and that he had nothing to do with the operational or field work. He used to do only table works. It is also the case that AC-2A register was prepared by him at the direction and instruction of the accused-Appellant P.K. De and after preparation whatever interpolation had made was by P.K. De alone. The gauge book on the basis of which AC-2A register was prepared by Kirtan Rout also suffers from cutting and interpolation made by P.K. De. It is not that the AC-2A register which was prepared by Kirtan Rout was not on the basis of the gauge book. There was no fault on his part in the process except that AC-2A register had been in the handwriting of Kirtan Rout. There is no evidence to connect him with the operational work by which the loss of petroleum products was held. There is no. other evidence to the effect that the other accused-Appellant P.K. De had made a criminal conspiracy with Kirtan Rout for preparation of the register. Interpolations were never done by Kirtan Rout but was done by P.K. De alone. Thus conviction arrived at with the aid of Section 120B of the Indian Penal Code is bad. I am totally in agreement with the submissions made for and on behalf of the accused-Appellant Kirtan Rout. The evidence adduced from the side of the prosecution do not disclose any conspiracy being made by Kirtan Rout with P.K. De in doing the mischief. Being a petty assistant that too newly joined in the installation centre, he was totally under the guidance and control of the accused-Appellant P.K. De. No. where it has been shown that whatever gain P.K. De had made by doing mischief or alteration of the figures in different registers have been paid a part of it to. Kirtan Rout. Unless the criminal conspiracy could be proved by any cogent evidence either circumstantial or direct there is no scope to entangle Kirtan Rout with the embezzlement. Thus I find that the conviction arrived at against accused-Appellant Kirtan Rout is not proper and justified in the facts and circumstances of the case and at least he is entitled to get a benefit of doubt. Thus the appeal filed by Kirtan Rout i.e. Criminal Appeal No. 80 of 1989 is hereby allowed and Kirtan Rout is acquited on benefit of doubt and he is relieved of his bail bonds after setting aside sentences and convictions imposed on him.

As regards other accused-Appellant P.K. De the sentences imposed on him has already been abated and an appeal has been preferred only in respect of the fine imposed. Even on that score also the factual aspect of the case is required to be considered. Mainly, by the learned Counsel appearing for and on behalf of the accused-Appellant P.K. De the judgment of the court below had been attacked on the following grounds; (i) That keeping of extra petroleum products which is left out after filling up the tankers are kept in barrels is an admitted procedure as adduced by the previous installation manager and also subordinate officers so the defence case is a plausible and a probable one, (ii) That for the same offence the accused-Appellant cannot be convicted twice because in the tax case there was already a compromise for using unstamped rods for embezzling the measurement of petroleum products and the fine amount had already been paid by the accused-Appellant, (iii) That the audit objection raised by the Central auditors had also been satisfied on the explanation and notes being given by regional office and when no case has been filed by the department there was no scope of investigation and enquiry on the basis of any information secretly being given by P.W.9 who was already in inimical terms with the accused-Appellant.

On the first point it is true that there was procedure of keeping small quantity residuary petroleum products in barrels after filling up of the tanks but such huge amount, namely, 34 kilolitres of petroleum products could not be kept in barrels by any stretch of imagination. Moreover, on enquiry it could be found that at the relevant time there was no empty barrels at the installation centre at Sipara so the defence case of manufacturing of some are only an afterthought for escaping of the legal punishment. Regarding the second submission the question of double jeopardy does not arise. Different modes were adopted by P.K. De for the purpose of embezzlement. He used unstamped dip rods for defrauding the measurement while supplying to the contractors and when detected he had no other alternative but to go on in compromise and paying the fine amount rather this payment of fine amount shows the admission on the part of Sri P.K. De regarding the embezzlement by defrauding measurements. The present case is not under the Excise Act rather the same had been brought in evidence by the prosecution side to show the modus operandi of embezzlement being made by P.K. De. The charges in the present case are not same or similar to the charge made against him under the Excise Act. Thus question of double jeopardy does not arise. Rather from that case it could be drawn of recording admission from the side of P.K. De about his one type of modus operandi in making the embezzlement. Regarding third point, the auditor has stated that it was their duty to point out as to what they found during the course of audit and then it remained with the departmental authorities to take steps. But it appears that in the present case regional office of the l.O.C. at Calcutta for some reasons or others tried to shield P.K. De by not filing any criminal case against him. But once a crime is committed the same shall come out in natural course and the same can be found in the present case when C.B.I. found on proper investigation. That whatever auditors have found were nothing but criminal breach of trust and embezzlement of the petroleum products by misusing the official position of P.K. De for making undue gains. In the facts and circumstances of the case, the Appellant P.K. De vis-a-vis his wife Neharika De has got no case on merit. Regarding the fine amount it has been urged that P.K. De is dead and the fine amount shall be realised as of land revenue from Neharika De or the heirs of P.K. De and their livelihood or property would definitely be at stake. But when offence has been committed and huge gain had been made illegally by P.K. De, there is no scope on merit to minimise the fine amount but considering the fact that the offender is dead and his heirs are in sufferance, the fine amount only on compassionate ground is minimised from Rs. 2 lacs to Rs. 1 lac only. Thus the appeal preferred by Parimal Kumar De in Criminal Appeal No. 85 of 1989 is hereby rejected with a modification in the fine amount by reducing the same from Rs. 2 lacs to Rs. 1 lac only. The judgment of conviction of accused Appellant P.K. De is hereby upheld and confirmed. Regarding sentence the imprisonment imposed had already been abated due to death of P.K. De and the fine amount imposed is reduces as mentioned above.