State of Punjab vs Harmohinder Singh

A.P. Chowdhri, J.

Harmohinder Singh (44) was tried for an offence under Section 409 of the Indian Penal Code by the Judicial Magistrate 1st Class, Patiala, and acquitted by judgment dated October 12, 1985. Aggrieved by acquittal, the State has filed this appeal after obtaining leave under Section 378 of the Code of Criminal Procedure.

Harmohinder Singh (hereinafter referred to as the accused) was serving in the Food and Supplies Department of the Punjab Government. At the material time, he was posted as Inspector Incharge of stocks of wheat, rice etc. kept by the department in various godowns at Samana, District Patiala. These godowns in the official jargon were called Provincial Reserve Centre or simply `PP''. The Food and Supplies Department had entered into an arrangement with the Warehousing Corporation, which has its own chain of godowns all over the State including Samana, an overflow of stocks of foodgrains of the department were kept in the Warehousing Corporation godowns. The only person who was authorise to draw stocks from the Warehousing Corporation was the Inspect Incharge. The prosecution case is that Shri Amar Chand, who was then posted as District Food and Supplies Controller, Patiala, received secret information that the accused had committed embezzlement of more than 1100 quints of wheat in his custody. Shri Amar Chand directed the Additional District Food and Supplies Controller Shri Fazal Masih to go and carry out an inspection and make a report. Shri Fazal Masih (PW1) went to Samanas. He checked the godown PR on May 12, 1978, and sealed them. Again, he visited Samana on May 15, 1978, and found that the record maintained by the accused was not complete and he therefore, asked him to complete the record and that he would be visiting Samana again the following day. On May 16, 1978, the accused produced statement Exhibit PB before Shri Fazal Masih (PW1). The statement Exhibit PB was under signature of the accused and according to the statement there was a stock of 1216 quintals 60 kgs. of wheat lying in the Warehousing Corporation godown (for short, WHC godown). As one bag contains one quintal, the total number of bags according to the statement Exhibit PB, were 1217 bags. On May 18, 1978 the department took delivery of the entire balance stock of wheat from WHC godown. The balance found in stock in the WHC godown belonging of the department was only 23 bags. With regard to 99 bags, it was reported that 20 bags had been stolen for which a separate first information report had been lodged and the matter wa sunder investigation, while the remaining 86 bags had been destroyed for various reasons. By deducting the stock actually received from the WHC godown and the number of bags which had been reportedly stolen or destroyed there was a shortage of 894.50 quintals of wheat. The District Food and Supplies Controller, therefore, got the present case registered against the accused on May 14, 1978. After investigation, the police filed a challan and the accused was tried for the offence, as already stated.

The prosecution examined Shri Fazal Masih (PW1), Amar Chand, who was the District Food and Supplies Controller (PW6), Major Singh Chahal, Manager of the Warehousing Corporation godown (PW5), Pritpal Singh, Assistant Food and Supplies Controller (PW2), Surinderjit Singh, Clerk then serving in the office of the DFSC, to prove the posting of the accused as Inspector in the Food and Supplies Department at Samana (PW4), besides the Investigating Officer. The prosecution also placed on record a large number of documents which were seized by the police during investigation and a large number of which were signed by the accused. During investigation, specimen signatures of the accused were obtained before the Executive Magistrate. The specimen signatures as well as the disputed signatures on various documents seized in connection with this case were compared by the Senior Scientific Officer in the office of the Director, Central Forensic Science Laboratory, Chandigarh.

The plea of the accused in his statement under Section 313 of the Code of Criminal Procedure was one of denial and false implication. He got produced letter dated February 8, 1979 written by Shri Amar Chand, District Food and Supplies Controller to the Director, Food and Supplies, and Joint Secretary to Government, Punjab, in defence.

On an appreciation of the evidence on record, the learned trial Court came the conclusion that the prosecution case had not been proved against the accused and accordingly the accused was acquitted.

Before dealing with the various contentions raised by the learned counsel on either side, it would be necessary to state certain facts about which there is no dispute.

In this case, we are concerned with shortage in wheat stock. The stock of wheat was kept at Samana in two types of godowns belonging to the Food and Supplies Department called Provincial Reserve Centres or simply PR, and (2) godowns belonging to the Warehousing Corporation. Whereas the wheat stocks under the charge of the accused were kept in both the above types of godowns, we are concerned in this case only with the shortage which was found in the WHC godown. It is nobody''s case that there was excessive stocks in the other godowns and, therefore, overall there was no shortage. Shri Fazal Masih asked the accused to complete the record and the accused submitted the statement Exhibit PB showing a balance of 1216.50 quintals of wheat in the WHC godowns. The balance quantity of stock of wheat was withdrawn from the WHC godown on May 18, 1978. The delivery was effected by Major Singh Chahal, Manager of the WHC godown and the actual balance found was 223 bags, which was duly received by the department. With regard to 99 bags the Warehousing Corporation offered an explanation. Counting those 99 bags also, as having been received by the department, only 32 bags were accounted for. Deducting the said quantity from the balance quantity as reported by the accused himself, there was a shortage of 894.50 quitals of wheat. The accused had not been able to account for the said shortage. We have, therefore, to focused our attention on the stock of wheat kept by the Food and Supplies Department in the WHC goods at Samana.

There is no dispute that the accused was Inspector Incharge of wheat stocks of the department at Samana during the relevant period. This is clear from the following evidence on record :

(1) Posting order Exhibit PW4/A dated May 9, 1977.

(2) Statement of Shri Fazal Masih (PW1).

(3) Statement of Pritpal Singh AFSC (PW2).

(4) Statement of Major Singh Chahal (PW5).

(5) Statement of Amar Chand, DFSC (PW6).

In reply to question No. 1 in the statement under Section 313 of the Code Criminal Procedure, the accused admitted that he was posted as Inspector Incharge of PR Samana vide order Exhibit PW4/4 and he took charge of the godowns on January 31, 1978, vide charge report Exhibit P19.

The accused was given time to prepare a statement with regard to the balance of the stock of wheat belonging to the department placed in the WHC godown. The writing submitted by the accused Exhibit PB on May 16, 1978, showed a balance of 1216.50 quintals of wheat. The writing Exhibit PB was duly countersigned by the accused, Shri Fazal Masih (PW1) and Pritapl Singh, another senior officer of the department, at that time. The signatures of the accused appearing on the writing Exhibit PB were denied by the accused, but the prosecution has proved those signatures Q10 on the basis of the report of the Senior Scientific Officer of the Forensic Science Laboratory, Chandigarh. Though the accused has challenged the authenticity of the Writing Exhibit PB on the ground that it was obtained under duress, the facts and circumstances of the case clearly show that there was no question of any duress. On May 15, 1978, Shri Fazal Masih sealed the various godowns and finding that the record supposed to the maintained by the assumed was not upto date, asked him to complete the record, which the accused did voluntarily and in his own handwriting and submitted the statement Exhibit PB. The remaining stock of wheat deposited with the WHC godowns was withdrawn. On May 18, 1978 only 223 bags were found. An explanation was offered with regard to other 99 bags and with the withdrawal of the aforesaid 322 bags, there was `nil'' balance as far as WHC godown was concerned. This fact was not only proved but it was admitted by the accused having signed the statement Exhibit P15. Major Singh Chahal (PW5) stated that the Food and Supplies Department had deposited in all 19100 quintals of wheat in the WHC godown at Samana; the accused had issued under his signature delivery orders Exhibits PW5/24 and had received delivery of various quantities of wheat from the said godown. These delivery orders where signed by the accused in the presence of Major Singh Chahal, Manager of the WHC godown. On May 18, 1978, he delivered the balance stock of wheat lying in the WHC godown and prepared the statement Exhibit P15 which was duly countersigned by the DFSC, Additional DFSC, Assistant DFSC and the Harmohinder Singh himself.

Further evidence available on record in order to prove the balance reported by the accused to be lying with Warehousing Corporation comprises godown cards Exhibits P1 to P5, stock reports Exhibits P6 to P13, charge list Exhibit P1 and the stock register in form PR6 for the year 197778 Exhibit P20. These documents were duly seized during investigation of the case. These are signed by the accused.

The contention of the learned counsel for the appellant is that the trial Court has failed to appreciate the facts and the evidence on record and even though the prosecution had led evidence to prove the charge with mathematical precision the trial Court had wrongly held that the case of the prosecution was not proved against the accused. After a careful examination of the evidence on record and on hearing learned counsel for both the sides, we find merit in the contention of the learned counsel for the appellant.

The first contention raised by the learned counsel for the accused is that at no stage was physical verification of the stock of wheat carried out and in the absence of a physical verification it could not be said that there existed any shortage.

For the reasons already mentioned, we have to focus attention on the stock placed in WHC godown. The accused himself stated on the basis of the record prepared in his own hand that the balance left with the Warehousing Corporation should be 1216.50 quintals. The entire balance stock was withdrawn from the WHC godown. Including 99 odd bags for which the Warehousing Corporation offered an explanation, the total balance stock found was 322 bags. The accused was unable to render any explanation with regard to the difference of 1216 quintals and 32 i.e. 894.50 quintals of wheat. In the peculiar facts of the case, it will be seen that as the entire balance quantity of the stock of wheat was withdrawn from the WHC godown, it necessarily amounts to a physical verification. It may be added that the balance found in the WHC godown was not disputed by the accused who also signed the statement Exhibit P15 proved by the Manager of the WHC godown in this behalf.

The next contention raised on behalf of the accused is that at the time of the charge, there existed a shortage and the predecessor of the accused namely, Harkesh Singh had been suspended and later on dismissed from service for embezzlement. We have carefully perused the charge list Exhibited P19 dated January 31. Whatever case may have existed against the predecessor of the accused the charge list Exhibit P19 does not mention any such shortage. The accused took charge of the quantity of wheat as detailed in the charge list Exhibit P19 under his own signatures.

Learned counsel for the accused referred to an endorsement on the charge list Exhibit P19 made by Ashwani Kumar, SubInspector and according to the endorsement one of the keys was delivered to Ashwani Kumar as well. The argument of the learned counsel is that unless responsibility was fixed on the accused as distinguished from joint liability of the accused with the said Ashwani Kumar, the accused could not be found guilty. We do not find any merit in this contention, for the simple reason that Ashwani Kumar was an official working under the accused and the accused at no stage made any report of any irregularity committed by Ashwani Kumar. What is even more important is to underline the fact that if was only the accused who was empowered to order delivery from the WHC godown. No other subordinate official was entitled to withdraw any quantity. Ashwani Kumar was never, therefore, in a position to withdraw any quantity of stocks from the WHC godown.

The next contention of the learned counsel for the accused is that according to the audit report, seven persons were found responsible for the shortage. In fact, this aspect of the case was brought to the notice of the SP/SSP by none other than the District Food and Supplies Controller, but on account of pressure from higher quarters the accused alone has been picked up for criminal action. No heed was given in so far as the others found responsible were concerned. This argument is on the face of it quite attractive, but it does not hold ground. The audit related to all PR Centres. For the reasons already stated, what we are concerned in this case, is the wheat stocks of the department in the WHC godown. The audit was for the period 1.4.1977 to 31.5.1978. The period which is relevant for the present case, on the other hand, is 31.1.1978 when the accused took charge vide charge list Exhibit P19 till 18.5.1978 when delivery of the balance stock was taken from the WHC godown. Most importantly, the persons prima facie found responsible by the audit party included the accused as well. It is not that persons other than the accused were held responsible as a result of that special audit.

For a conviction under Section 409, the prosecution has to prove : (1) the factum of entrustment and, (2) the factum of misappropriation of the entrusted articles. Both these ingredients can be proved both by direct evidence as well as circumstantial evidence. The first ingredient in this case is proved by these facts : (a) The accused took charge of the stocks of wheat at Samana. (b) Inter alia, the stocks were stored in WHC gown there. (c) Only the accused was authorised to withdraw any stocks from the WHC godwon. (d) According to the accused, the WHC godown should have had a balance of 1216.50 quintals on May 18, 1978. (e) What was actually found in the WHC godown were 223 quintals and the WHC godown offered an explanation with reference to 99 bags as having been stolen/destroyed. These facts taken together prove beyond any doubt entrustment. The accused is unable to account for the remaining 894.50 bags. This fact proves the second ingredient of the offence. It may be added that this is not a case in which the prosecution may be simply relying on entries in the books of account. There is evidence on record that the department was keeping its wheat stocks in WHC godown and the accused withdrew under his signature various quantities by issuing delivery orders.

For the reasons discussed above, we find that the case against the accused stands proved beyond reasonable doubt. His acquittal by the trial Court has resulted in total miscarriage of justice. We, therefore, allow the appeal, set aside the acquittal and convict the accused under Section 409 of the Indian Penal Code.

The embezzlement took place during the period January, 1978 to May, 1978, more than 13 years back. As a result of conviction, the accused is likely lose his job. For these reasons, we think that it would meet the ends of justice to sentence the accused to imprisonment till rising of the Court and a fine of Rs. 3,000/. In default, he shall undergo rigorous imprisonment for six months. We order accordingly.

JUDGMENT accordingly.