State of Punjab vs Kashmira Singh

N.K. Kapoor, J.

This judgment shall dispose of Criminal Appeal Nos. 531DBA of 1985 to 535DBA of 1985 filed by the State against the judgment dated July 17, 1985, passed by the Additional Chief Judicial Magistrate, Rupnagar.

The facts of the prosecution case are as under :

Kashmira Singh, accused, remained Sarpach of Village Gaggon from 1972 to 1978. The allegations against him are that during his tenure as Sarpanch of the village he purchased 220 rafts worth Rs. 350/ on November 20, 1977, for school building, but actually 150 rafts were used and 70 were misappropriated. He also purchased 20 iron girders of Rs. 1032 32 on February 3, 1987, and used 8 girders and misappropriated the amount of 12 iron girders. The amount shown in the muster roll as having been spent during the construction of the school building, has actually been misappropriated by the accused. It is further alleged that the amount of Rs. 94.91 and Rs. 87.50 shown as spent for the purchase of material for white wash was actually misappropriated by him. The same is the allegation with respect to a sum of Rs. 30/ shown as spent for the purchase of Kahi and Tasla. The allegations of misappropriation of the amount of 45 bags of cement amount of Rs. 16/ and Rs. 40/ shown as spent on the repairs of chairs and caning etc., amount of Rs. 517.34 shown as spent on the construction and payment in the village street, amount of Rs. 40/ shown as spent for the carriage and sawing of the rafts, amount of Rs. 550.57 received from the Block Education Officer for school building, amount of Rs. 50/ shown as spent on the purchase of sweets etc., have also been levelled against Kashmira Singh, accused. Further that iron rods weighing one quintal, 97 kilograms and 500 grams shown to, have been purchased, have not been used in the construction of the school building and the amount of the same has actually been misappropriated by the accused. Also, that 97 empty cement bags were with the accused, which he misappropriated.

It was further alleged that Panchayat funds record and Stock Registers were inspected and audited by the Local Funds Accounts Punjab, and thereafter the matter was reported to the Director, Panchayats, Punjab, regarding misappropriation of the amount of articles belonging to the Panchayat by exSarpanch Kashmira Singh, accused. Since no action was taken by the superior authorities, a complaint was filed by Budh Singh son of Pakhar Singh resident of Village Gaggon, Police Station Chamkaur Sahib, Tehil and district Rupnagar. The learned Magistrate who had been dealing with this complaint, forwarded the same under section 156(3) of the Code of Criminal Procedure to the S.H.O. Police Station, Chamkaur Sahib on May 28, 1981, for registration of a case against the accused and its investigation. Consequently, First Information Report No. 41 dated June 7, 1981, was registered against Kashmira Singh, accused under section 409 of the Indian Penal Code. Thereafter, the matter was investigated by the police. During the investigation record of Panchayat was taken into possession vide memo Exhibit P.A. After completion of the investigation, the challan against the accused was put in Court.

Projection, in support of its case, examined Madho Singh (P.W. 1), Bachan Singh (P.W. 2), Assa Singh (P.W. 3), Sant Ram (P.W. 4), Sarwan Singh (P.W. 5), Ranjit Singh (P.W. 6), Karnail Singh (P.W. 7), Budh Singh, complainant (P.W. 8), Hazura Singh (P.W. 9), K.P. Sood (P.W.10), Shiv Dyal Singh (P.W. 11), Mangal Singh (P.W. 12) and Assistant Sub Inspector Waryam Singh (P.W. 13). After the examination, prosecution closed its case.

Statement of the accused was thereafter recorded under Section 313 of the Code of Criminal Procedure in which he pleaded innocence and contended that he was falsely involved in this case due to enmity and party faction in the village. He also examined Mehar Singh (DW. 1), Tarkok Singh (D.W. 2), Sucha Singh (D.W.3), Joginder Singh (D.W.4), Sawan Singh (D.W. 5) and Sukhjit Singh (D.W. 6) in his defence.

In the instant case the complaint (Exhibit P.B.) was filed in the Court on September 13, 1980, and the same was adjourned for evidence of the complainant to September, 19, 1980 and thereafter to October 16, 1980. On October 16, 1980, statement of Mangal Singh (P.W.1) was recorded. Thereafter the cases was adjourned to various dated including March 12, 1981, April 4, 1981, May 7, 1981, and finally to May 28, 1981, but no evidence could be produced by Budh Singh complainant. The Additional Chief Judicial Magistrate on May 21, 1981, forward the complaint to S.H.O. Police Station Chamkaur Sahib for registration of the case and investigation under section 156(3) of the Code of Criminal Procedure. The course adopted by the Additional Chief Judicial Magistrate being contrary to the provisions of the Code of Criminal Procedure was wholly unjustified. This course runs counter to the decision of the apex Court in Tula Ram and others v. Kishore Singh, AIR 1977 Supreme Court 2401, wherein it was observed as under :

"A Magistrate case order investigation under section 156(3) of the Code of Criminal Procedure only at the precognizance stage, that is to say, before taking cognizance under section 190, 200 and 204 and where a Magistrate decides to take cognizance under thee provisions of Chapter 14 he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to Section 202, he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code."

The counsel for the State has not been able to state anything against the statutory provisions and the judicial pronouncement, referred to above, in this regard. The appeal is liable to be rejected on this ground alone.

Otherwise also, the charge levelled against the accused is not proved. As per evidence on record, the main basis for imputing misappropriation to the accused is the Audit Report (Exhibit P.C.) dated May 7, 1980. Para 10 of the Audit Report reads as under:

"As stated by the present Sarpach and the Panchayat Secretary, the following expenditure was fictitiously debited in the cash book and was misappropriated by the exSarpanch Shri Kashmira Singh.

xx, xx, xx, xx

xx, xx, xx, xx"

A bare perusal of the above mentioned paragraph clearly reveals that the alleged misappropriation referred to in the Audit Report and specifically in this paragraph is on the basis of the statement made by the present Sarpach and the Secretary Panchayat. It has also come in evidence that no attempt was made by any of the authorities to verify the statements of the present Sarpanch and the Secretary of the Panchayat with the existing record of the Panchayat. Moreover, even in this Audit Report all that is said is that the matter was brought to the notice of the Director of Panchayats, Punjab, for immediate enquiry. This being the position, no inference suggesting misappropriation of funds against the accused could be drawn on the basis of such a report. It has further come in evidence that the amount spent by the accused during his tenure as Sarpanch of the village was against the duly passed resolutions and the credit and debit entries in the books of accounts do not reveal anything against the accused. There is nothing on record to suggest that the receipts were in any manner false. In fact, these clearly shows that various item were regularly purchased and entered in the record of the Panchayat. Thus, the allegations levelled against the accused on the basis of the said Audit Report are not proved. Even the statement of Mangal Singh (P.W. 12), who had been produced as an expert witness with a view to evaluate the material used for construction of the building, does not inspire Andy confidence. In his deposition, he has stated that report (Exhibit P1) was prepared by him at the instance of Budh Singh, complainant. His statement, as such, cannot be relied upon.

Thus, as observed above, the proceedings conducted after May 28, 1981, i.e. when the Additional Chief Judicial Magistrate sent the complaint to the S.H.O. Police Station, Chamkaur Sahib for registration of a case and its investigation, are illegal. Even on merits, the evidence on record is insufficient to hold the accused guilty for the offence charged.

Consequently, we find no merit in these appeal and the same are accordingly hereby dismissed.

Appeals dismissed.