Parma Nand Verma vs The State of Himachal Pradesh

H.C.P. Tripathi, J.—Appellant Parma Nand aged 33 years was tried by the Special Judge (District Judge) Simla, for offences under Sections 409 and 477A of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, under four cases Nos. 12-S/7 of 1969, 10-S/7 of 1969, 9-S/7 of 1969 and 8-S/7 of 1969. Each of these cases has ended in conviction of the Appellant for offences u/s 409 read with Section 5(2) of the Prevention of Corruption Act and he has been sentenced to undergo one year''s rigorous imprisonment for the offence u/s 5(2) of the Prevention of Corruption Act and to a fine of Rs. 200 and in the alternative to one year''s rigorous imprisonment and to a fine of Rs. 200 for the offence u/s 409 of the Indian Penal Code. In default of payment of fine the Appellant has been directed to undergo one month''s further rigorous imprisonment. Learned Special Judge has directed that the sentence of imprisonment awarded to the Appellant in each of these cases both under the Prevention of Corruption Act and alternatively u/s 409 of the Indian Penal Code shall run concurrently to one another. The Appellant has, however, been acquitted by the learned Judge for the offences u/s 477A of the Indian Penal Code.

Appellant has come up in appeal against his conviction and sentences in each of these cases and his appeals are numbered as Criminal Appeals Nos. 15 of 1971, 18 of 1971, 19 of 1971 and 20 of 1971, respectively. These are connected appeals and they are being disposed of by a single judgment.

In Corruption Case No. 12-S/7 of 1969 the ?various charges against the Appellant related to a sum of Rs. 149.25 which he was alleged to have embezzled as a public servant during the period 8-10-1964 to 14-6-1965 when he was posted as cashier in the office of the Director of Welfare Department, Himachal Pradesh, Simla and to have forged the cash book''s entries for concealing the said embezzlement.

In Corruption Cases Nos. 10 of 1969, 9 of 1969 and 8 of 1969 the various charges against the Appellant were in respect of Rs. 177.45 Rs. 112.80 P. and Rs. 300 respectively, which he was alleged to have embezzled during the aforesaid period in the same capacity and to have forged the cash book for concealing the embezzlement.

As has been stated above the Appellant has already been acquitted of the charges u/s 477A of the Indian Penal Code which related to the alleged forged entries in the cash book and we are not concerned with them. Thus the entire amount which formed the subject-matter of the four cases amounted to Rs. 739.50.

It may be noted here that as all the four items of money which are the subject-matter of the various charges were alleged to have been embezzled by the Appellant during the period of one year only, there was no necessity to have tried the Appellant under four distinct cases inasmuch as three of such charges could have been tried in one case in view of Section 234 of the Code of Criminal Procedure.

The prosecution case in brief against the Appellant is as follows.

Appellant was a Clerk in the office of the Director of Welfare Department, Himachal Pradesh, Simla. He was given the additional duty of cashier in the said office from 10th August, 1964 to 14th June, 1965. In his capacity as a cashier it was his duty to deal with cash and to maintain the cash book.

Shri Parkash Nath Diwan (PW-7), Inspector Local Bodies, audited the accounts of the Welfare Department for the period June, 1964 to 14th June, 1965 and submitted a report (Ex. A-ll) to the Director of the Welfare Department which indicated that the Appellant has not been able to account for a sum of Rs. 2,657.87. It appears, that on the receipt of this report the Appellant was asked to explain and he immediately offered that whatever amount is actually found due after proper adjustment of accounts may be recovered from him.

Shri Sarupa Nand, Deputy Registrar, Co operative Societies, Simla (DW-3) has stated that "in the month of March or April, 1965, Rs. 1,000 or Rs. 1,200 were found to be short in the account maintained by the accused" and in his presence the father of the accused had paid Rs. 1,000 or Rs. 1,200 to the cashier on account of the short fall. Achhroo Ram father of the accused had stated that he had deposited Rs. 1,000 which was found short in the account of the department with Shri Sarupa Nand, Deputy Director of the Welfare Department after borrowing the same from Shri Bhup Ram to whom he mortgaged his land as security for the repayment of the loan. Shri Bhup Ram (DW-2) has corroborated the statement of the father of the Appellant. Appellant was, however, put under suspension in November, 1965 long after the amount of Rs. 1,000 has been deposited by his father.

On 12th December, 1966, the Appellant addressed a letter (Ex. A-15) to the Director in which he prayed that whatever amount was still found standing against him may be realized from his subsistence allowance and thereafter he may be reinstated to save him from starvation. On 27th February, 1967 Appellant again requested the Director of Welfare Department to realise the Government dues from his subsistence allowance and in case any further amount is found due that could be realized on reasonable monthly installments after he has been reinstated. It is thus obvious that the Appellant had surrendered himself at the mercy of the department and had taken steps to pay the amounts found due even by mortgaging his property and long before the criminal cases were registered against him whatever amounts were due had already been realized by the department.

Shri Narbir Singh (PW-14), officiating Director of Welfare Department, Himachal Pradesh, has testified that the entire amount had been realized from the subsistence allowance due to the accused and that "the Director Welfare did not lodge any report with the police against the accused. The accused expressed his willingness to pay all the amounts that had been embezzled by him and for this reason the Director had no intention to lodge a report with the police against the accused."

Shri P.D. Panta (PW-15) Deputy Superintendent of Police, Chamba has stated that while he was investigating a case against Sant Ram, it was discovered that P.N. Verma, accused had embezzled government money and he lodged the first information report (Ex. A-27) against the Appellant on 23rd February, 1968. It was on the basis of this report that a case was registered against the Appellant and investigation followed. It will be noticed that this report was lodged long after the entire amount had been realized from the Appellant.

The prosecution examined Sarvshri Sant Ram, Mangat Ram Rana, Harbans Singh, J.N. Sood, Ram Saran Dass Behl, Om Parkash Gupta, Parkash Nath Diwan, Hari Krishan Chowdhary, Jagdish Chandei Sharma, P.C. Sood, Harish Chander Kapoor, R.C. Gupta, Amar Nath Dhamija, Narbir Singh, P.D. Panta A.N. Vidyarthi, J.N. Bali and Vidya Sagar, PW-1 to PW-18 respectively, in support of its case No. 12-S/ of 1969. Almost the same witnesses have been examined on behalf of the prosecution in other cases as well. In defence as has been stated above, the father of the Appellant, Achhru Ram and Bhup Ram from whom he had borrowed the amount of Rs. 1,000 and Shri Sarupa Nand, Deputy Registrar, Co-operative Societies were examined to prove the payment of Rs. 1,000 to the department by the Appellant''s father in March or April, 1965.

At the trial Appellant pleaded not guilty. He, however, admitted in his statement u/s 342 of the Code of Criminal Procedure that he was posted as a Cashier in the office of the Director of Welfare Department, Himachal Pradesh, Simla from 10th August, 1964 to 14th June, 1965 and in that capacity he was dealing with cash and had also maintained the cash book (Ex. P-3) in which the entries relating to the aforesaid period were in his own hand.

In case No. 12 of 1969 he further admitted that a contingent bill for Rs. 473.55 had been prepared by Harish Chander (PW) and that this bill included the amount of Rs. 149.25 pertaining to the telegram charges bill and that he actually received the amount from the Bank. He, however, expressed ignorance as to whether the aforesaid amount had been paid to the Post and Telegraph Department. He also admitted to have written a letter to the Deputy Director of Welfare Department in which he had specifically mentioned that a sum of Rs. 326.60 due on account of telegram charges should be deducted out of the arrears payable to him. It is thus clear that the accused had admitted the receipt of the amount and also to have made the entry in the cash book showing that the said amount had been paid on 27th February, 1965. The entry is made at page 398 of the cash book which is Ex. A-7.

Shri Vidya Sagar (PW-18) Sub-Post Master, Chaura Maidan, Simla, has testified that the amount of Rs. 149.25 had not been received by the department. It is, therefore, obvious that although the Appellant had obtained the amount from the Bank for payment to the Post Office he had failed to deposit the same on the appointed date. He did it dishonestly as is evident from the fact that he made false entries in the cash book showing the amount to have been paid to the Post and Telegraph Department.

In Case No. 10/69 the Appellant admitted to have received a sum of Rs. 177.45 pertaining to the telegram charges bill but could not say as to whether the amount had been paid to the Post and Telegraph Department. He also admitted to have made the relevant entry in the cash book showing that the amount had been paid to the Post and Telegraph Department on 12th March, 1965. He also admitted to have addressed the two letters dated 12th December, 1966 and 27th February, 1967 (Exs. A-15 and A-16) to the Director of Welfare Department requesting him to realise the said amount from his subsistence allowance. The only plea which he raised was that the cash book was written by him not on his own accord but at the instance of his colleagues Shri O.P. Gupta and B.D. Kaundal in one sitting as they were in possession of the necessary bouchcrs. He denied to have misappropriated the amount. As has been stated earlier the employees of the Post and Telegraph Department examined in the case have stated that the amount had not been paid till that date to the Post Office. There is, therefore, no doubt that this too is a case of temporary embezzlement by the Appellant.

In Corruption Case No. 9-S/7 of 1969 the Appellant admitted that a contingent bill for Rs. 473.55 had been prepared by Harish Chander (PW) and this bill included the amount of Rs. 112.80 pertaining to the bill of the Hindustan Times Ltd., New Delhi, and he further admitted to have actually received the amount from the Bank, when he was asked that this amount had not been paid to the Hindustan Times Ltd., he avoided the question by stating that he had no knowledge. He, however, admitted to have made the entry in the cash book Ex. P-3 showing the amount to have been paid to the Hindustan Times Ltd., New Delhi, on 21-1-1965.

Shri J.L. Gupta (PW-10) Accountant and Collection Manager of the Hindustan Times Limited, New Delhi, was examined as prosecution witness. He has stated that the bill (Ex. PW-9/A) for Rs. 112.80 was issued by his office under his signatures against the Director of Welfare Department, Himachal Pradesh, and that the payment of this bill was received in his office sometime in August, 1970. It is thus obvious that the aforesaid amount was not paid on the date shown in the cash book by the Appellant and thus he committed temporary embezzlement of this amount.

In Corruption Case No. 8-S/7 of 1969 the Appellant admitted that on 17th October, 1964, he was entrusted with the sum of Rs. 300 for payment to Kumari Tara Bai and Ranjit Kumar (PWs.) on account of stipends and that he duly entered the receipt of this amount in the cash book of his office which is Ex. P-3 of the connected Case No. 12-S/7 of 1969 and of which entry Ex. PW-9/A is a true copy. He also admitted having made an entry on 20th October, 1964, in the above cash book showing disbursement of Rs. 150 to Kumari Tara Bai and Rs. 150 to Ranjit Kumar in his own hand. When questioned that the payment of the aforesaid amount of Rs. 300 had not been made to Kumari Tara Bai and Ranjit Kumar, the accused could not deny this fact and simply stated that he did not remember. He further admitted to have submitted an application to the Deputy Director of Welfare Department in which he had specifically mentioned that a sum of Rs. 300 on account of stipends to Ranjit Kumar and Kumari Tara Bai was due from him along with other amounts and that the same may be deducted out of the subsistence allowance due to him. He, however, denied to have misappropriated the amount, There was no receipt from Ranjit Kumar or Kumari Tara Bai evidencing the receipt of the amount. Ranjit Kumar was examined as prosecution witness and he stated that he had never received that amount Kumari Tara Bai was not produced in evidence. It is clear from the statement of the accused coupled with the fact that there is no receipt from her that the aforesaid amount was not paid to her. Thus, there is no doubt that the Appellant had committed embezzlement of this amount as well.

In the premises herein before mclioned it is apparent that the various amounts in respect of which charges u/s 409 of the Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act were framed against the Appellant in the aforesaid four cases were embezzled by the Appellant as has been established by the oral and documentary evidence produce in the case and also by the statement of the Appellant himself.

Learned Counsel for the Appellant has argued that the investigation in the case has not been conducted in accordance with law and the sanction necessary for the prosecution of the Appellant for the offence u/s 5(2) of the Prevention of Corruption Act is also wholly invalid and as such the entire proceeding against him stands vitiated.

Learned Counsel has further urged that the prosecution has failed to make out its case against the Appellant even on merits. It has been urged further that in case the offence u/s 409 is made out against the Appellant a substantial sentence of imprisonment is not justified on the facts and circumstances of the case.

The relevant part of Section 5A(1) of Act 2 of 1947 (The Prevention of Corruption Act) reads:

5A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank,--

(a) ....

(b) ....

(c) ....

(d) elsewhere, of a Deputy Superintendent of Police shall investigate any offence punishable u/s 161; Section 165 or Section 165A of the Indian Penal Code or u/s 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefore without a warrant....

In terms of this Section the investigation by a Deputy Superintendent of Police is the rule and investigation by an officer of a lower rank is an exception. An offence u/s 5(2) of the Prevention of Corruption Act is a serious offence entailing a maximum sentence of seven years'' rigorous imprisonment. It is for this reason that the section places restriction on the powers of investigation by police officers below a certain rank. It is expected that when the offence is investigated by a high ranking police officer, it will be efficient and above board.

In this case the investigation was started by Shri P.D. Panta, Deputy Superintendent of Police who had lodged the first information report and had seized some documents from the office of the Welfare Department. He has also recorded the statements of some of the witnesses. On 28th March, 1968, however, Shri P.D. Panta made an application (Ex. A-26) to the Chief Judicial Magistrate, Simla, requesting that Inspector Joginder Nath Bali of Anti-Corruption be permitted to conduct further investigation in the case. The Chief Judicial Magistrate accorded the sanction on the same date. Shri Panta asked permission on the ground that the investigation in the above case extends to various out stations in the Himachal Pradesh and in the adjoining States of Punjab and Delhi and that he was busy at the headquarters in connection with the work of more important nature and so was not available for the case. None of these reasons, to my mind, appear to be relevant for giving permission. The investigation of the case neither extended to Punjab nor to Delhi, as is evident from the fact that no witnesses from Punjab or Delhi have been examined. The accused had been an employee at Simla. All the papers relevant for the prosecution were available at Simla. What was the work of more important nature at Simla which was preventing Shri Panta from conducting the investigation is neither obvious on the record nor in his statement. That being so, in my opinion, the Chief Judicial Magistrate granted the permission for investigation by Inspector Joginder Nath Bali in a mechanical manner. Unless it was proved that there were certain relevant considerations or reasons for the Deputy Superintendent of Police not to proceed with the investigation, the Magistrate should have refused to grant permission for the investigation of the case by a subordinate officer. It must, therefore, be held that the investigation of the offence u/s 5(2) of the Prevention of Corruption Act has not been carried by a competent officer.

The relevant part of Section 6(1), of Act 2 of 1947 (the Prevention of Corruption Act) reads:

6.(1) No court shall take cognizance of an offence punishable u/s 161 (or Section 164) or Section 165 of the Indian Penal Code, or under Sub-section (2) or Sub-section (3) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction;

(a) ....

(b) in the case of...person who is employed in connection with the affairs of (a State) and is not removable from his office save by or with the sanction of the State Government, of the State Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

In this case, the requisite sanction Ex. A-30 for the prosecution of the Appellant for the offence u/s 5(2) of the Act was accorded by Shri K.N. Vidyarthi who was the then Director of Welfare Department on 30th May, 1968. Shri Vidyarthi (PW-16) has stated that he looked into the file which was sent to him by the Superintendent of Police, Anti-Corruption praying for the grant of sanction and was convinced that a prima facie case was made out against the Appellant. Accordingly he accorded the sanction. In cross-examination Shri Vidyarthi stated that he was the Director of Welfare Department from 12th November, 1968 to 8th August, 1969, which shows that he became the Head of the Department long after the period during which the various amounts are said to have been embezzled by the Appellant. His knowledge of the case, therefore, depended on the file sent by the police. In Ex. A-30 the Appellant was mentioned to have embezzled a sum of Rs. 4,560.12 which consisted of seven items. Only three of such items, namely, Rs. 149.25 Rs. 177.45 and Rs. 300 are the subject-matter of charges framed against the Appellant. The Appellant was prosecuted under four different cases. It was, therefore, incumbent on the police to have produced the files relating to those four cases before the sanctioning authority. That was not done. In fact a single file showing the Appellant to have embezzled a sum of Rs. 4,569.12 was sent to Shri Vidyarthi and it does not appear from the sanction order that he was conscious of the fact that all the amounts alleged to have been embezzled by the Appellant had been paid by him long before the case was registered or that only a sum of Rs. 738.70 was going to be the subject-matter of various charges against the Appellant. There is force in the contention of the learned Counsel for the Appellant that if Shri Vidyarthi had come to know that no amount was actually due from the Appellant, he might have refused to give sanction for his ''prosecution.

In AIR 1948 82 (Privy Council) it was held that:

It is plainly desirable that the facts should be referred to on the face of the sanction,... But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted....

Relying on the aforesaid decision of the Privy Council the Supreme Court held in the case of Madan Mohan Singh Vs. State of Uttar Pradesh, that:

The burden of proving that the requisite sanction has been obtained rests on the prosecution, and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts might be proved by extraneous evidence. In the present case the facts constituting the offence do not appear on the face of the letter Ex. P-10. It was consequently incumbent upon the prosecution to prove by other evidence that the material facts constituting the offence were placed before the sanctioning authority. This they did not attempt to do.

In this case the letter of sanction (Ex. P-30) does not show that the facts relating to the amounts of Rs. 149.25 Rs. 177.45 Rs. 300 and Rs. 112.80 were specifically placed before he sanctioning authority. Shri K.N. Vidyarthi who accorded the sanction has stated that on going through the file sent by the Superintendent of Police, Anti-Corruption he came to the conclusion that a prima facie case is made out against Shri Parma Nand. He also stated that he was not aware of the fact that the amount that had been embezzled by the Appellant had been realized from him. It is thus obvious from his statement that he was not possessed of all the relevant facts and he made up his mind on the basis of the file sent by the Superintendent of Police showing an embezzlement of more than a sum of Rs. 4,000. His opinion that a prima facie case has been made out against the Appellant had no other basis except the aforesaid file. In fact the letter of sanction shows that he had given sanction for the prosecution of the case not only for offence u/s 5(2) of the Prevention of Corruption Act but also for offences under Sections 409 and 477 of the Indian Penal Code. No such sanction is necessary for prosecution of offences under Sections 409 and 477A of the Indian Penal Code. This fact also indicates that the sanction was accorded in a mechanical manner without giving proper thoughts to the relevant considerations. All the files relating to the offences charged against the Appellant were not put up before him. It may be noticed here that Shri Vidyarthi had become the Director of Welfare Department long after the period during which the amount which were the subject-matter of the charges were alleged to have been embezzled. It must, therefore, be held that the sanction in this case being wholly invalid could not confer the jurisdiction to the Court for the trial of the Appellant for offence u/s 5(2) of the Act.

I, however, do not agree with the contention of the learned Counsel that on account of the defect in the sanction the trial of the Appellant for offence u/s 409 of the Indian Penal Code is also vitiated. No such sanction is needed for the prosecution of an offence u/s 409 I.P.C. Nothing has been brought on the record to indicate that on account of joint trial for both the offences a prejudice has been caused to the Appellant. I am, therefore, satisfied that the prosecution and conviction of the Appellant for the offences u/s 409 I.P.C. are valid and based on reasonable appreciation of evidence.

But in view of the defective investigation and invalid sanction the conviction and sentence of the Appellant u/s 5(2) of the Prevention of Corruption Act is unsustainable and is, accordingly, set aside.

Then there remains the question as to what sentence should be awarded to the Appellant u/s 409 I.P.C.

Appellant is a poor young man of about 33 years of age. The day the temporary embezzlement was detected he made a clear breast of every thing and offered that whatever amount was due may be realized from him. At one stage a sum of Rs. 1,000 alone was considered by the department as due from him. His father mortgaged his land and paid that amount on 6-5-1965 long before the Appellant was placed under suspension.

Admittedly every pie has been realized from the Appellant and his father. The department was satisfied after realizing the amount with the explanation of the Appellant for non-payment of the various sums at the appointed dates. This is evident from the statement of Shri Narbir Singh, officiating Director of the Welfare Department, who says that the accused expressed his willingness to pay all the amounts that had been embezzled by him and for this reason the Director had no intention to lodge a report against him with the police. In fact no such report was lodged by the department against the Appellant and it was only an irony of fate that while investigating a charge against another employee of the department, the Deputy Superintendent of Police, Anti-Corruption, came to notice from the record that the Appellant had failed to account for certain amounts long after the entire amount had already been realized by the Welfare Department. Even at his trial in 1969, the Appellant had admitted all the facts alleged against him. He has been under suspension for a long period and his conviction for the offence will entail his dismissal.

That it is a hard case was realized not only by the Director of Welfare Department who had not initiated the criminal proceedings but also by the learned Special Judge who after convicting and sentencing the Appellant to one year''s rigorous imprisonment irregularly allowed him to remain on bail.

In view of the above circumstances, I am of opinion that a substantive sentence of imprisonment is not called for in this case.

In the result these appeals are allowed in part. The conviction and sentences of the Appellant for the offences u/s 5(2) of the Prevention of Corruption Act are set aside. But his conviction under each of the four cases for an offence u/s 409 of the Indian Penal Code is maintained but the sentence of imprisonment is reduced to imprisonment till the rising of the Court in each of these four cases. The sentence of imprisonment in the four cases shall, however, run concurrently. The sentence of a fine of Rs. 200 in each of the four cases, as recorded by the learned Special Judge are maintained. In default of payment of fine the Appellant shall undergo one month''s rigorous imprisonment in each of the four cases, as directed by the trial Court. Appellant must deposit the fine within a period of one month.