State of H.P. vs Anil Kumar and Others

Surjit Singh, J.—State has appealed against the judgment, dated 18.2.2009, of learned Special Judge, Hamirpur, whereby Respondents Anil Kumar and others, hereinafter called accused, have been acquitted of charge, under Sections 409, 420, 467, 468, 471, 120-B IPC and Section 13(2) of the Prevention of Corruption Act, 1988.

State filed a report, u/s 173 Cr. P.C. against the Respondents-accused, numbering seven, making the following allegations. Accused-Respondent Anil Kumar was Pardhan of Gram Panchayat, Kotla Chillian, during the years 1998 and 1999, while Respondents-accused Bihari Lal was Vice President of that Panchayat. Respondents Joginder Singh, Satish Kumar and Kishan Chand were the Members of the said Panchayat. Respondent Prem Chand was the Secretary of that Panchayat. Respondent Kashmir Singh was working as Junior Engineer in the office of Block Development Officer, during the relevant period.

For the purpose of executing certain works, grants used to be released in favour of Panchayats. Seven grants were allegedly released in favour of Gram Panchayta, Kotla of which Respondents Anil Kumar, Bihari Lal, Joginder Singh, Satish Kumar, Kishan Chand and Prem Chand were Pardhan, Up Pardhan, Members and Secretary, as aforesaid. They allegedly misappropriated the money released as grant for execution of works, either in full or in part, in respect of seven projects. One of such projects was construction of Mahila Mandal Bhawan, also referred to as Samudaik Bhawan in the evidence of some of the witnesses. Estimate that was submitted with respect to this work was Rs. 79,000/-.

A complaint was made by one of the residents of the area that the money, released in favour of Panchayat for various projects, had been misappropriated either in full or in part. Case was registered at the instance of S.P. Vigilance. During the course of investigation, it was found that misappropriation of funds, released by way of grant-in-aid, had taken place.

On completion of investigation, report u/s 173 Cr. P.C. was filed against the Respondents-accused. They were charged with the aforesaid offences by the trial Court and on their pleading not guilty, were put on trial.

Prosecution, during the course of trial, stuck to the allegation, with respect to one project only, i.e. construction of Mahila Mandal Bhawan or Samudaik Bhawan.

One of the witnesses, examined by the prosecution, was PW-14 P.C. Tomar, the then Block Development Officer, who had released a sum of Rs. 65,000/- in two instalments of Rs. 25,000/- and Rs. 40,000/-, on the basis of references received from the Panchayat. The witness testified that the first instalment of Rs. 25,000/- was released, when he received reference Ext. PW6/D from the Panchayat and accused Kashmir Singh Rana, J.E., working in his office recommended the release of said instalment. Ext. PW6/D is signed by accused-Respondent Anil Kumar and accused-Respondent Prem Chand. They singed the reference in the capacity of Pardhan (in the case of Anil Sharma) and Secretary Panchayat (in the case of Prem Chand). The witness further stated that the second instalment was released, when second reference Ext. P-27, recommended by Respondent-accused Kashmir Singh Rana, was received from accused-Respondents Anil Sharma and Prem Chand. He stated that on receipt of report Ext. DD from accused-Respondent Kasahmir Singh, his Junior Engineer, he visited the spot on 27.8.1999 and found that no construction of Samudaik Bhawan/Mahila Mandal Bhawan, had taken place on the spot and prepared report Ext. PW2/E, to this effect, and also directed Respondent-accused Anil Kumar, Pardhan of Panchayat, to deposit the entire amount of Rs. 65,000/-, released in two instalments, for the project, out of which he deposited a sum of Rs. 25,000/-, immediately and assured to deposit the remaining amount of 45,000/-, at the earliest.

Prosecution also examined PW-6 Ramesh Chand, who took over as Secretary Gram Panchayat from accused Prem Chand, in May, 1999 and also PW-7 Vinod Kumar, who was Pardhan of the Panchayat, at the time when investigation was carried out. Both the witnesses stated that Bhawan/building had been partly constructed in their Panchayat.

Respondents, in their statements, u/s 313 Cr. P.C., denied that they had misappropriated the amount of two instalments or that structure had not been constructed.

Learned trial Court held that testimony of PW-6 Ramsh Chand and PW-7 Vinod Kumar, indicated that building had been partly constructed and the money released stood spent on such construction.

We have heard learned Assistant Advocate General as also learned Counsel, representing the Respondents and gone through the record.

Some of the facts, duly proved on record, stand admitted by Respondent-accused Anil Kumar. The facts are that Respondent-accused Anil Kumar wrote to PW-14 P.C. Tomar, BDO, that Panchayat had passed resolution for release of two instalments, out of sanctioned amount of Rs. 79,000/- for construction of Mahila Mandal Bhawan. First reference that was made by Respondent-accused Anil Kumar is Ext. PW6/D. As per this document, construction work of Samudaik Kendra had been started and Panchayat had passed Resolution for release of first instalment. Accused-Respondent Kashmir Singh Rana, who was working as Junior Engineer in the office of BDO, wrote at the foot of Ext. PW6/D that sanctioned amount was Rs. 79,000/- and amount of first instalment (to be paid) was Rs. 25,000/-. On the basis of this reference, a sum of Rs. 25,000/- was released to Respondent-accused Anil Sharma. These facts are proved by PW-14 P.C. Tomar and are admitted even by Respondent-accused Anil Kumar in statement u/s 313 Cr. P.C.

Similarly, with respect to the second instalment, letter Ext. P-27 was written by Respondent-accused Anil Kumar, in his capacity as Pardhan of Panchayat, to the BDO. As per this letter, construction work of Samudaik Bhawan had been completed upto roof level and request was made for releasing the remaining amount for plastering the walls and fitting doors and windows. At the foot of this reference also, Respondent-accused Kashmir Singh Rana, Junior Engineer, wrote that a sum of Rs. 40,000/-, was payable, on account of second instalment out of the sanctioned amount of Rs. 79,000/-. He also wrote that a sum of Rs. 25,000/- already stood released, by way of first instalment.

Aforesaid facts are also proved by PW-14 P.C. Tomar and admitted by Respondent-accused Anil Kumar, in his statement, u/s 313 Cr. P.C.

In addition to the proof of aforesaid facts, it is also proved by PW-14 P.C. Tomar that the amount of two instalments had been paid to Respondent Anil Kumar, by way of cheques. Respondent-accused Anil Sharma admitted these facts also, in his statement, u/s 313 Cr. P.C.

Now the question arises whether any amount of money had been spent on the construction of the building by the time PW-14 P.C. Tomar, BDO, visited the spot on receipt of report Ext. DD, submitted by Respondent-accused Kashmir Singh Rana, JE, that no construction, on the spot, had taken place.

PW-14 P.C. Tomar testified that when he visited the spot on 27.8.1999, on getting report Ext. DD, from Kashmir Singh Rana, no building was found to have been constructed in village Kotla and that he required the Pardhan of Panchayat, namely accused Aanil Kumar, to deposit the entire released amount of Rs. 65,000/-, out of which he deposited a sum of Rs. 25,000/- on the spot and assured to deposit the remaining amount of Rs. 40,000/-, at the earliest.

Accused-Respondent Anil Kumar admitted, in his statement, u/s 313 Cr. P.C., that he had refunded a sum of Rs. 25,000/- to BDO, namely PW-14 P.C. Tomar, on 27.8.1999. However, his plea is that building had been constructed at a different site in village Kotla instead of the marked site in village Kotla Chunanan. He seeks support from prosecution evidence in support of this plea.

PW-6 Ramesh Chand, present Secretary of Gram Panchayat and PW-7 Vinod Kumar, who succeeded Respondent-accused Anil Kumar as Pardhan of Gram Panchayat, stated that a building had been constructed upto roof level, when inspection was carried out.

Plea taken by Respondent-accused Anil Kumar even though supported by PW-6 Ramesh Chand and PW-7 Vinod Kumar, in their cross-examination, is proved to be false by accused-Respondent Anil Kumar''s own writings Exts. PW6/D and P-27, which he submitted to the BDO for release of two instalments. In both these writings, it is mentioned that construction of Samudaik Kendra was in progress in village Kotla Chillion and not in village Kotla.. These writings knock the bottom bout of Anil Kumar''s defence plea.

Above stated position apart, if money had been spent on the construction of building upto roof level, as claimed by Respondent-accused Anil Kumar, where was the need for him to have refunded an amount of Rs. 25,000/- on the very day of inspection by PW-14 P.C. Tomar and assuring to return the remaining amount of Rs. 40,000/-, at the earliest.

Above discussed evidence proves to the hilt that accused-Respondent Anil Kumar misappropriated a sum of Rs. 25,000/-, temporarily, and the remaining amount of Rs. 40,000/-permanently, out of the released amount of Rs. 65,000/- and, therefore, he is guilty of offence, u/s 409 IPC.

There is no evidence in support of the charge of forgery, because no document is shown to have been forged. However, charge, u/s 420 IPC stands proved, because Respondent-accused Anil Kumar misrepresented in the aforesaid writings Ext. PW6/D and P-27 that the construction of building was in progress, which was a blatant lie to his knowledge.

As regards Respondents-accused Bihari Lal, Joginder Singh, Satish Kumar and Kishan Chand, there is no evidence, indicating that they were party to the making of misrepresentation to the BDO for release of two instalments, aggregating to Rs. 65,000/- or to the misappropriation of the aforesaid amount of money.

As regard Respondent-accused Prem Chand, the then Secretary of Gram Panchayat, appeal against him has already been recorded to have been abated, vide order dated 9.11.2009, because of his death.

So far as accused-Respondent Kashmir Singh is concerned, he is not guilty of any offence, because there is absolutely no evidence, indicating that he recommended the release of two instalments. Endorsements made by him on Ext. PW6/D and P-26 are not to the effect that construction, in question, was in progress. Also, there is no recommendation, in the aforesaid writings, for the release of the amount of first and second instalments. He only indicated the amounts of the two instalments.

For the foregoing reasons, appeal is partly accepted. Acquittal of Respondent-accused Anil Kumar for offences under Sections 409 and 420 IPC is set aside and he is held guilty of the said offences. As regards other offences, order of acquittal is maintained. Appeal of the State against other Respondents is dismissed. Accused-Respondent Anil Kumar be produced on 19.9.2011, in person, for being heard on the question of quantum of sentence.