Deolal Shaw vs Central Bureau of Investigation

Joymalya Bagchi, J.—Both the appeals are directed against a common judgment and order of conviction and sentence. Hence they are taken up together for hearing and disposed of by a common judgment.

The appeals are directed against the judgment and order dated 29th March, 2010 passed by the learned Judge, Special (C.B.I.) Court of Bichar Bhawan, Calcutta in R.C./Special (C.B.I.) Case No. 97 of 2006 convicting the appellant Deolal Shaw (appellant in CRA No. 259 of 2010) u/s 120B and 465 of the Indian Penal Code read with Section 471 and 420 of the Penal Code and also convicting him for commission of offence u/s 5(1)(d) of the Prevention and Corruption Act, 1947 and sentencing him to suffer simple imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer further simple imprisonment for five months on each count for the offences punishable under Sections 120B, 465 of the Indian Penal Code read with Section 471 and 420 of the Penal Code and u/s 5(2) of the Prevent and Corruption Act, 1947, and convicting the appellant Prasanta Kumar Das (appellant in CRA No. 260 of 2010) for commission of offence u/s 120B, 468 and 109 of the Indian Penal Code read with Section 420 of the said Code and sentencing him to suffer simple imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer further simple imprisonment for five months on each count for the offence punishable under Sections 120B, 468 and 109 of the Indian Penal Code read with Section 420 of the said Code, all the sentences shall run concurrently.

The prosecution case, as alleged, against the appellants is to the effect that the appellant Deolal Shaw, one Kushal Singh, one M.L. Bhattacharjee (since deceased) being employees of the Durgapur Steel Plant in collusion with the appellant Prasanta Kumar Das, proprietor of M/s. North Calcutta Tourist Centre cheated Durgapur Steel Plant Authority fraudulently claiming leave travel concessions by submitting fabricated documents, e.g. money receipts issued by M/s. North Calcutta Tourist Centre relating to a fictitious tour. The appellant Deolal Shaw obtained Rs. 2940/- on 28.06.1979 as advance by submitting an application for travel from Durgapur to Trivandrum and back. He submitted false and fabricated money receipt being No. 731 issued by M/s. North Calcutta Tourist Centre indicating that he alongwith family members undertook journey from Durgapur to Trivandrum and back by bus bearing registration no. WBY 3077 between 30.06.1979 and 16.07.1979. Similarly other accused persons viz. Kushal Singh and M.L. Bhattacharjee had fraudulently obtained leave travel concessions from Durgapur Steel Plant. In the course of investigation, it transpired that appellant Prasanta Kumar Das, proprietor of M/s. North Calcutta Tourist Centre had issued false money receipts in favour of the said accused persons. The bus bearing registration no. WBY 3077 did not travel between Durgapur and Trivandrum during that period but had been hired by Secretary, West Bengal Lawyer''s Democratic Association to carry delegates from Calcutta to Siliguri and on the return journey, the bus had met with an accident on 21.05.1979 on the V.I.P. Road under Lake Town P.S. As a result, the bus was kept in a garage of M/s. Prince Motors for repairs from 23.05.1979 to 14.07.1979. It also transpired that there was no route permit in respect of the said bus for travel from Durgapur to Trivandrum during that period. It was, therefore, clear that the appellant Deolal Shaw and others being employee of Durgapur Steel Plant in collusion with appellant Prasanta Kumar Das, proprietor of M/s. North Calcutta Tourist Centre submitted false and fictitious money receipts and cheated Durgapur Steel Plant authorities of various leave travel concession amounts, particularly to the tune of Rs. 2940/- in respect of appellant Deolal Shaw. In conclusion of investigation, charge-sheet was submitted against the appellant Deolal and other co-accused persons u/s 120B, 465 of the Indian Penal Code read with Section 471, 420 of the said Code and also u/s 5(1)(d) read with Section 5(2) of the Prevention and Corruption Act, 1947 and against appellant Prasanta Kumar Das u/s 120B, 468 and 109 read with Section 420 of the Indian Penal Code. Charges were framed under the aforesaid sections against appellant Deolal and others and appellant Prasanta Kumar Das respectively. In the course of trial Mr. M.L. Bhattacharjee expired and the case abated against him. Kushal Singh absconded and the case was filed against the said accused person. During trial, prosecution examined as many as 21 witnesses and exhibited a number of documents. The defence of the appellants was of innocence and false implication. In order to probabilise their defence the appellant Prasanta Kumar Das, examined himself as D.W. 1. In conclusion of trial the Trial Judge by the judgment and order dated 29th March, 2010 convicted and sentenced the appellant Deolal Shaw (appellant in CRA No. 259 of 2010) and appellant Prasanta Kumar Das (appellant in CRA 260 of 2010), as aforesaid.

Appellant Deolal Shaw has assailed the conviction and sentence in CRA No. 259 of 2010 while appellant Prasanta Kumar Das appealed against such conviction and sentence in CRA No. 260 of 2010. The appeals having been heard analogously and are being disposed of by a common judgment and order.

Mr. Paul, learned Counsel appearing on behalf of the appellants submits that the prosecution case relating to forgery has not been proved at all. Money receipts which are claimed to be forged have, in fact, been issued on behalf of M/s. North Calcutta Tourist Centre. Mere false statement in a document does not render such document a forgery as defined u/s 464 of the Indian Penal Code. He further submitted that the best evidence in the instant case had been withheld with regard to the claim of the prosecution that bus bearing registration no. WBY 3077 was not used for travel from Durgapur to Trivandrum and back. He submitted that the First Information Report in Lake Town Police Station relating to the accident of the bus has not been produced. Garage register and other documents of repair of the bus has also not been produced. He also submitted that the investigation in the instant case was conducted by the first informant and as a consequence the investigation was biased and the acquittal ought to be set aside on such score only.

Mr. Ali, learned Counsel appearing on behalf of the Central Bureau Investigation, submitted that the prosecution evidence clearly established that the appellant Deolal Shaw had not travelled from Durgapur to Trivandrum between 30.06.1979 to 16.07.1979 in bus bearing registration no. WBY 3077 as claimed by him. There is cogent evidence on record that the concerned bus had met with an accident on 21.05.1979 and was kept in the garage of M/s. Prince Motors, Calcutta from 23.05.1979 to 14.07.1979. Hence there was question of travel by such bus from Durgapur to Trivandrum. Claim was therefore wholly unfounded and fictitious and the money was drawn manufactured and used by appellant Deolal Shaw in collusion with appellant Prasanta Kumar Das, proprietor of M/s. North Calcutta Tourist Centre to support such false claim. He further submitted that the investigation was conducted in a fair and proper manner and the appellants did not suffer any prejudice whatsoever. Accordingly, he submitted the appellants were justly convicted and prayed for dismissal of the appeal.

Let me examine the evidence of relevant witnesses in the perspective of the arguments advanced before me.

P.W. 1 is an Assistant Manager of the Durgapur Steel Plant. He has deposed that the employees of the plant are entitled to leave travel allowance once in every four years. He explained the procedure in which the employees filed their application form for availing such leave travel allowance. He further deposed that an illiterate employee gets his application forms filled up by office colleagues and thereafter such employee puts his left thumb impression on such application form. The application form is to be submitted to the departmental superior and through him forwarded to the Controlling Officer. The department is to verify the particulars stated in the application and the Controlling Officer passes it for payment in favour of the applicant. Thereafter the application is forwarded to the Finance LTC Section for examination afresh. The claim is then placed before P.W. 1 and if he was satisfied with the particulars, he sanctions the amount directing the Chief Cashier to make payment. The actual payment is then made by the Chief Cashier. The Chief Cashier thereafter verifies the identity of the parson and makes payment as sanctioned. P.W. 1 proved the application filed by Deolal Shaw for advance of LTC amounting to Rs. 2940/-. Signature of Deolal Shaw on such application form was marked as Exhibit-2. As per instruction, the Cash Department made payment to the Deolal Shaw. Thereafter on 28.09.1979 Deolal Shaw submitted final bill along with money receipt issued by M/s. North Calcutta Tourist Center for an amount of Rs. 2970/-. The money receipt appeared to be doubtful and hence instead of accepting the final bill, P.W. 1 forwarded it to the Vigilance Department for necessary action. P.W. 1 identified the final bill along with the money receipts.

P.W. 3, M.N. Kundu was an employee posted as Operative III of Foundry Department. He deposed that on request of appellant Deolal, he had filled up the application form for final payment of LTC amount, as aforesaid. He identified the document and proved his own handwriting. The document was marked as Exhibit-4 and his handwriting was marked as Exhibit 4/1. He also identified copies of the bill which was marked as Exhibit 4/2. He stated that Deolal Shaw signed the application form and put signature on both the copies of the bill in his presence. He also proved money receipt bearing no. 731 dated 31.07.79 issued by M/s. North Calcutta Tourist Center which was marked as Exhibit 4/3.

P.W. 14 was the head assistant of the cash section of Durgapur Steel Plant. He was shown the request for advance of leave travel concession filed by appellant Deolal Shaw. He stated that he verified the same and noted the identity card of appellant, Deolal Shaw. He proved such note in his handwriting (Exhibit 2/3). He stated that the appellant Deolal Shaw received payment in respect of the said amount from him personally on 28.06.1979. He proved the signature of Deolal Shaw as acknowledgment of such receipt. He stated that a day book was maintained in the cash section and all the transactions in course of a day were noted in that book. He proved the relevant entry in the concerned day book (Exhibit 11) showing that an amount of Rs. 2940/- was paid to appellant Deolal Shaw. In cross-examination he stated that the name of the recipient was noted in the day book.

From the evidence of these witnesses it is clear that appellant Deolal Shaw had submitted requisition for an advance of Rs. 2,970/- for the leave travel concession. Such requisition was cleared by P.W. 1 and payment was made in respect thereof by P.W. 14 on 28.06.1979. It also appears that thereafter a final bill was submitted to P.W. 1 by the appellant which was written by P.W. 3 and signed by him enclosing money receipts issued by M/s. North Calcutta Tourist Centre for clearance. P.W. 1 was suspicious of such document and sent it for vigilance enquiry. On such suspicion arising due to the nature of money receipt submitted by appellant Deolal Shaw and other employees namely Kushal Singh (since absconded) and M.L. Bhattacharyya (since deceased), first information report was drawn up being Crime No. 38/81 dated 29th August, 1981 under Sections 120B/420/465/467/468 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the P.C. Act, 1947 against the unknown officials of Durgapur Steel Plant, Prasanta Kumar Das Proprietor of M/s. North Calcutta Tourist Centre. Such first information report was drawn up at the behest of P.W. 20 who also investigated the case. In course of investigation, it was revealed that no tour had been conducted through M/s. North Calcutta Tourist Centre by bus no. W.B.-Y 3077 from Durgapur to Trivandrum and back between 30.06.1979 and 16.7.1979.

This aspect of the prosecution case is proved through the evidence of P.W.s 10, 15 and 18. P.W. 10 has deposed that he is the owner of bus no. W.B.-Y 3077. He stated that the bus is let out on hire for conducting tour by different persons. He also holds permit for functioning as tour agent. The bus is registered in the name of his firm M/s. Sovana Sons. He further stated that on 21st May, 1979 the bus met with an accident while returning to Calcutta from Siliguri. The bus was carrying a tourist party consisting of lawyers who had gone to Siliguri to attend a lawyers'' conference. The accident took place at Lake Town and a case was registered at Lake Town Police station. The bus was seriously damaged as it collided with a vehicle owned by Calcutta Corporation. The bus was kept in the garage of M/s. Prince Motors within two/three days of the accident and repairing went on for two months. He paid the repairing charges to M/s. Prince Motors. The bus was insured with Oriental Insurance, Calcutta. He claimed damages from the Insurance Company for the accident and for that communication was made with the Insurance Company. Letter written to the Insurance Company has been proved as Exhibit 10. He deposed that he knew M/s. North Calcutta Tourist Centre. He further stated that he had no business transaction with the concern and the bus no. W.B. Y 3077 was never placed at the disposal of the said tourist centre for business purpose. He further stated in cross-examination the bus had gone to Trivandrum. But he never went to Trivandrum. He also stated was never examined by the C.B.I.

P.W. 15 is the driver of the said bus. He corroborated the evidence of P.W. 10.

P.W. 18 is the proprietor of M/s. Prince Motors where it is claimed that the said bus was kept for repairing. He deposed that the said bus was kept in his garage for repairs from 22nd May, 1979. He issued an estimate which was proved as Exhibit 15. The vehicle was repaired and the Insurance Company was intimated. He raised a bill for charges and realised the same from the owner of the vehicle. He proved the bill being Exhibit 16. In cross-examination, he stated that he maintained the garage register. Garage register for the year 1979 has been produced before the Sales Tax Officer and is lying there.

Money receipts issued by M/s. North Calcutta Tourist Centre accompanying the final bill have been exhibited in the instant case. It appears that they have been written by appellant Prasanta Kumar Das as transpiring from the evidence of P.W. 17, the handwriting expert, as aforesaid. It is, therefore, clear that appellant Deolal Shaw in collusion with the appellant Prasanta Kumar Das, proprietor of M/s. North Calcutta Tourist Centre had prepared false money receipts with regard to his purported travel by bus bearing no. WB Y 3077 from Trivandrum to Durgapur and back between 30.6.1979 and 16.7.1979. On the basis of such false bills Deolal Shaw cheated Durgapur Steel Plant of a sum of Rs. 2,970/- on account of fictitious claim of leave travel concession for such travel. Prasanta Kumar Das knowingly aided and abetted Deolal Shaw in such act of cheating by preparing false bills to justify his fictitious claim of travel, as aforesaid. The prosecution case is that the appellant Prasanta Kumar Das as proprietor of M/s. North Calcutta Tourist Centre had knowingly prepared the money receipts containing false acknowledgement of receipt of monies from Deolal Shaw for a tour. Merely because false claim is made in a document the same does not become a ''false document'' as defined u/s 464 of the Indian Penal Code. Incorporation or inclusion of a false statement in document would not ipso facto make the document fake. For a document to be false, it has to tell a lie about itself. (J. Th Zwert & Ors. Vs. Indranil Mukherjee, (1990) 1 CHN 62). It is nobody''s case that the appellants had manufactured the money receipt claiming the same to have been executed by someone else. The appellant Prasanta Kumar Das is admittedly the owner of M/s. North Calcutta Tourist Centre. The money receipts have been admittedly issued on behalf of his concerned, M/s. North Calcutta Tourist Centre and were duly signed by Prasanta Kumar Das as its proprietor. Therefore, the document does not tell a lie about itself. The document contains false statement that money was received by the tourist centre in respect of a tour programme which never materialised.

P.W. 17 is the hand writing expert who has inter alia, proved that the money receipt was written and signed by the appellant Prasanta Kumar Das. P.W. 19 has proved the sanction granted in the instant case for prosecution of the appellant Deolal Shaw.

From the aforesaid evidence of P.W.s 14, 15 and 18 it is clear that the bus was never hired by M/s. North Calcutta Tourist Centre and did not carry a tour party from Durgapur to Tribendrum between 30.6.1979 and 16.7.1979. On the other hand, during such period the vehicle was kept in the garage of P.W. 18 for repairs after having met with an accident on 21.5.1979 at Lake Town. It is true that the first information report in respect of the accident has not been produced in Court. However, the correspondence in connection with the claim lodged by P.W. 10 relating to the said accident upon the Insurance Company has been exhibited in the instant case. The bill raised by P.W. 15 with regard to repairs effected in the garage have also been exhibited. P.W. 15 has also explained that his garage register was deposited with the Sales Tax Authority.

Hence, I am unable to accept the submission of the learned counsel for the appellants that no contemporaneous documents were exhibited to substantiate the prosecution as proved by P.W.s 10, 15 and 18 that the vehicle has met with an accident on 21st May, 1979 and was not used for carrying tour party from Durgapur to Tribendrum between 30.6.1979 and 16.7.1979.

For the aforesaid reasons, I am of the opinion that prosecution has not been able to prove its case of forgery against the appellant as the money receipt cannot be said to be a false document as defined u/s 464 of the Indian Penal Code.

Finally, coming to the argument of the learned counsel for the appellants that the investigation in the instant case was biased as it was conducted by the informant himself, I am of the opinion that factual matrix of the case does not disclose any bias in the course of investigation. In the instant case as the first information report was lodged by CBI on the basis of source information. The informant is in no way personally interested in the subject matter of the case. He had merely recorded the first information report on source information and thereafter undertaken investigation. P.W.s 10, 15 and 18 also cannot be said to be the persons who have any bias or enmity against the appellant. There is clear, cogent and convincing evidence on record that leave travel concession was obtained by appellant Deolal Shaw on the basis of fraudulent dishonest representation which was aided and abetted by appellant Prasanta Kumar Das who issued money receipts on behalf of his travel concern relating to a fictitious tour to justify such fraudulent claim.

Hence, I am of the view that the investigation conducted by the informant cannot be said to be biased, prejudiced or in any way conducted unfairly so as to fatally affect the conviction recorded in the instant case.

In view of the aforesaid discussion, I uphold the conviction of appellant Deolal Shaw for commission of the offence u/s 120B and u/s 420 of the Indian Penal Code and u/s 5(1)(d) read with Section 5(2) of the P.C. Act, 1947. I acquit appellant Deolal Shaw of the charge u/s 465 read with Section 471 of the Indian Penal Code. The sentences imposed upon appellant Deolal Shaw by the trial court on the aforesaid Courts are also upheld.

I convict the appellant Prasanta Kumar Das for commission of the offence punishable u/s 109 read with Section 420 of the Indian Penal Code. I acquit him of the charge under Sections 120B/465 of the Indian Penal Code. It is submitted that appellant Prasanta Kumar Das is suffering from various ailments and is virtually bed ridden. I reduce the sentence imposed upon appellant Prasanta Kumar Das and direct him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for two months for commission of the offence u/s 109 read with Section 420 of the Indian Penal Code.

The appeals are allowed to the aforesaid extent.

The appellants are directed to surrender before the trial Court within a month and to serve out their respective sentences in accordance with law.

Copy of the judgment be sent down to the learned Court below at an early date.

Photostat certified copy of the order, if applied for, be given to the parties on priority basis.