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Judgment
As these three appeals arise out of the judgment and order dated 28.11.2002 passed by the Special Judge and First Additional Sessions Judge Raipur in Sessions Trial No. 7/1999 convicting the accused/appellants and sentencing them as under, they are being disposed of by this common judgment.
Appellant
Conviction
Sentence
Shyamkant Gupta
U/s. 120-B IPC
RI for 5years with fine of Rs. 5,000/- with default stipulation RI for one year
R.A.Singh & Ramesh Kumar Dewangan
U/s. 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act &
Section 120(B) IPC
RI for 5 years with fine of Rs. 5,000/- with default stipulation of RI for one year
RI for 5 years with fine of Rs.5,000/- with default stipulation of RI for one year
In the present case, at the relevant time, appellant/accused R.A. Singh was the Assistant Regional Manager of Madhya Pradesh State Handloom Weavers Cooperative Society, Raipur and the appellant Shyam Kant Gupta was posted as Assistant Regional Manager and Accused/appellant Ramesh Kumar Dewanangan was posted as Technical Supervisor of District Handloom Weavers Union, Bilaspur. It is alleged that the appellants entered into a criminal conspiracy to put financial loss to the State Government, appellant R.A. Singh has placed an order vide Letter No. {ks-jk-@93&94 fnukad 31-03-94 with the President of Bajrang Handloom Weavers Cooperative Society, Ganiyari, District Bilaspur for supply of 5,000 metres of polyester suiting with size of 54 inches at the rate of Rs. 70/- per meter at the cost of Rs. 3,50,000/- for the use in his region. According to the Madhya Pradesh Government Commerce and Industry Department bearing NO. F/5/7/82/11/84 Bhopal dated 25.07.1984, the purchase of store material was compulsorily to be from Small Scale Industry only.
Accordingly, on receipt of the order, Shyamkant Gupta, Manager of Bajrang Bunkar Cooperative Society, Ganiyari, Bilaspur, purchased 4644 metres of cloth from M.P. handloom dressing manufacturing Company, Raipur at the rate of Rs. 68 per meter vide Bill No. M,P.H.D.M.C. No. 10-11 at the cost of Rs. 3,15,805.60 but the same cloth was purchased by M.P. Handloom Manufacturing Co. Raipur from Sunil dying Limited Bhuneshwar, Bombay and Bheemraj Sintex, Kolhapur at the rate of Rs. 43/- per meter and Rs. 44/- per meter which was certified by Technical Supervisor Ramesh Kumar certifying that it is the product of handloom and thus, these three accused persons namely R.A. Singh, Shyamkant and Ramesh have made criminal conspiracy and misused their power by purchasing at the rate of Rs. 70.00 per meter instead of Rs. 43/- and benefited Rs. 125,392/-themselves. The put the government to loss of the said amount. After enquiry, FIR was lodged against the appellants and on completion of investigation charge sheet was filed and charges were framed against appellants namely R. A. Singh and Ramesh Kumar under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act whereas appellant Shyam Kant Gupta has been charged under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act read with Section 120 B IPC.
In order to establish the guilt of the accused/appellants, prosecution has examined 10 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the charges levelled against them and pleaded their innocence and false implication in the case.
After hearing the parties, the trial Court by judgment impugned, has convicted and sentenced the accused/appellants as mentioned above. Hence the present appeal.
Contention of counsel for the appellants in Cr. A. Nos. 1250/2002 and 1264/2002 is that the prosecution has not produced primary enquiry report which was held initially bearing No. 56/94 along with the charge sheet therefore, prejudice has been caused to the appellants. This has caused a serious infirmity in the case. The prosecution witness PW-6 has stated that no explanation has been given by the prosecution about filing of the alleged report which proves that the prosecution has suppressed the report for the reasons best known to them. This fact also makes the case of the prosecution suspicious and doubtful. He further submits that the prosecution has not seized the polyester clothes and has failed to send them for examination of expert opinion in order to prove their contention that the material seized was polyester cloth manufactured in powerloom and it becomes more necessary when the fact has not been admitted by the defence. It is submitted that the prosecution has failed to examine Simran Chatterjee and other witnesses of bills therefore the prosecution has failed to prove the important bills. It is further submits that the investigating Officer is not an expert to recognize the fact that the clothes are polyester material or the material. PW-3 Poornanand Giri Goswami has admitted the fact that there is no contravention of rule of the State Government and the material was purchased at prescribed rate of government rule. It is contented that Anand Diwan (PW—8) has admitted that the earlier investigating officer Mr. Katlam has not found any offence against the accused therefore PW-9 has been made the Investigating Officer. The Investigating Officer Mr. Rajput has stated that the basis of registration of crime is not known to him. The statement alone demolishes the entire vase of prosecution. In the present case, misappropriation of funds is not established and it is the basis principle of criminal jurisprudence that suspicion however strong cannot take place of proof. The prosecution has failed to establish the case against the appellants beyond reasonable doubt therefore the conviction and sentence imposed on the appellants is not sustainable in the eye of law. Reliance has been placed in the matter of K.R.Purushottam Vs. State of Kerala reported in (2005) SCC 631: (2006) 1 SCC (Cri.) 686:2005 SCC Online SC 1544; in the matter of A.Subair Vs. State of Kerala reported in (2009) 6 SCC 587.
Counsel for the appellant Shyam Kant Gupta in Cr.A. No. 1238/2002 submits that the appellant is not a public servant and there is no evidence to suggest that the appellant was involved in the conspiracy with the co-accused persons for causing pecuniary loss to the State Government. There is no positive evidence to show that the appellant has gained benefit in the entire transaction. The order placed by the Bajrang Bunkar Sahkari Samiti has not mentioned that the cloth which is to be supplied should be manufactured through handloom but the learned trial court did not appreciate this fact and convicted the appellant for the conspiracy. It is submitted that earlier name of the appellant was incorporated as witness which shows that the appellant was not involved in the conspiracy and he has discharged his duty as President, Bajrang Bunkar Sahkari Samiti in a bonafide manner therefore the conviction and sentence of the appellant is not maintainable. Reliance has been placed in the matter of Sukhdeo Jha Uipal Vs. State of Bihar reported in AIR 1957 SC 466; Rangbahadur Sinde Vs. state of Maharasatra reported in (2000) 3 Scc 454; L. Chandraiah Vs. State of A.P. and Another reported in (2003) 12 SCC 670; Ramsewak Vs. State of M.P. reported in (2004) 11 SCC 259; C.K.Jaffer Shariff Vs. State Through CBI reported in (2013) 1 SCC 205 and B.Jayaraj Vs. State of A.P. reported in (2014) 13 SCC 55.
On the other hand supporting the impugned judgment it has been argued by the State counsel that the conviction of the accused/appellants is strictly in accordance with law and there is no infirmity in the same.
Heard counsel for the parties and perused the material on record.
Before the trial court, it was not the dispute that at the relevant time, appellant/accused R.A.Singh and Ramesh Kumar Dewnangan was posted in M.P. Handloom Weavers Cooperative Society, Raipur and appellant Shyam Kant Gupta was the President of Bajrang Bunkar Cooperative Society Ganiyari. As per the FIR the enquiry was conducted and in preliminary enquiry, prima facie charges of misappropriation was found against the appellants therefore the matter was reported to the Special Police and FIR was lodged against the appellant but in the whole charge sheet enquiry report was not enclosed by the prosecution. Witness Poornanand Giri Goswami (PW-
3) is the original Officer In charge of the M.P.Handloom Weavers society, Raipur. He has admitted in para 3 that “ अभियुक्त समस्त प्रक्रियाओं का पालन करने के बाद ही कपडा खरीदा गया है। ” He has also admitted in para 8 that “यह सही है कि 1994.95 में पोलिस्टर खरीदी के लिये हस्त करघा संचानालय द्वारा खरीदी दर 70/- रु. प्रति मीटर तय की गयी थी ?, तथा प्र.डी.-4 उसी दर अनुसार खरीदा गया है। शासन द्वारा निर्धारित दर से उसका विक्रय किया गया इसमें नियम का कोई उल्लंघन नहीं हुआ।”
Salik Ram (PW-7) has admitted this fact in para 2 “देहाती नालिशी की छाया प्रति प्र.पी.-7 सी, नंबरी नालिषी की छाया प्रति प्र.पी.-8 सी मार्क किया गया। अपराध कायमी के पश्चात मूल नालिशी रायपुर संभाग को अग्रिम विवेचना हेतु भेज दिया। Anand Diwan (PW-8) has admitted in para 5 that यह सही है कि मेरे द्वारा जो प्रथम सूचना रिपोर्ट लिखा गया उसमें आरोपियो ं की सूची मे रमेश देवांगन का नाम नहीं है।” In para 12 he has admitted this fact that “इस प्रकरण में 1,25,393.40 पैसे अनुचित लाभ प्राप्त करने का आरोप है। किंतु मैंने इस लाभ को आरोपीगण के चल-अचल सम्पत्ति जटत कर प्रमाणित नहीं किया है। “ In para 14 he has admitted that “ संबंधित अभियुक्तों के विभाग की ओर से 22.10.94 के पत्र के साथ किसी प्रकार की कोई षिकायत नहीं है यह कहना सही है। ” In para 16 he has admitted that “चूंकि कतलम ने अभियुक्तों के खिलाफ कोई अपराध नही पाया इसलिए मुझे विवेचना अधिकारी बनया गया है। ” N.S.Rajput (PW-9) has admitted in para 17 that “;यह सही है कि मैंने जांच में यह पाया था कि शासन के हाथ करघा उद्योग से संबंधित वस्तुएं खरीदने के लिए राज्य हाथ करघा बुनकर सहकारी समिति मर्यादित के वस्त क्रय करना था। यह कहना भी सही है कि राज्य हाथ करघा बुनकर सहकारी समिति पंजीकृत बुनकर समिति से ही माल खरीदकर शासन को सौंपने के लिये अधिकृत था।”
As per dehati nalishi and FIR some enquiry was conducted in this matter and prima facie appellant R.A. Singh and Ramesh Dewanangn were found guilty in the enquiry report but it was not filed along with the charge sheet. The original Manager Poornanand Giri Goswami (PW-3) has admitted this fact that at the relevant time, rate was fixed by the Government as Rs. 70/- and according to Ex.D-4 cloth was purchased at the rate of 70/- per meter. He has also admitted that appellant R.A. Singh has followed the procedure and thereafter he purchased the clothes.
In the matter of B.Jairaj Vs. State of A.P. reported in (2014) 13 SCC 55, the Apex Court has held that “in so far as offence under Sections 13(1)(d) (I) and (ii) is concerned as in the absence of proof of demand for illegal gratification, he use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.”
In K.R.Purushottam Vs. State of Kerala reported in (2005) 12 SCC 631, it ha been held by the Apex Court as under :
“21. To attract the provisions of Section 13 (10(d) of the Prevention of Corruption Act, a public servant should obtain himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his postiion as a public servant. Therefore, for convicting a person under the proivisions of Section 13(1)(d) of the Prevention of Corruption Act, 1988, there must been vidence on record that the accused has obtained for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant obtains for himself, or for any person, any valuable thing, or pecuniary advantage without any public interest.”
Looking to the above principles, this Court finds that in the present case there is no evidence on record to prove the fact that the accused/appellants obtained for themselves or for any valuable thing or pecuniary advantage by corrupt or illegal means.
As per FIR, some order was placed for supplying the clothes by appellant/accused R.A. Singh, who was the Manager at the relevant time in M.P. Hand loom Weavers Society. Appellant Shyam Kant Gupta supplied the clothes to the said society. Appellant Shyam Kant Gupta at the relevant time was President of Banjrang Bunkar Samiti. It is alleged that he purchased the clothes at the rate of 43/- and 44/- and supplied the same to the appellants R.A. Singh and Ramesh Kumar Dewangan at higher price of Rs. 68/- and 70/- per meter, but it is also an admitted fact that Shyam Kant Gupta is not a public servant. The prosecution has failed to prove that in this transaction the public servants R.A. Singh and Ramesh Kumar Dewangan were involved. Even the Investigating Officer has admitted the fact that previous Investigating Officer did not find any offence against the appellants, and hence, he was removed from the investigation and thereafter the enquiry was conducted by Anand Diwan (PW-8). He has also admitted the fact that enquiry report was not attached with the FIR and also no preliminary enquiry report was filed by the prosecution with charge-sheet. So, in this case the prosecution has proved its case beyond reasonable doubt.
In view of the aforesaid discussion, the appeals are allowed. Impugned judgment convicting and sentencing the accused/appellants as mentioned above is set aside. They are acquitted of the charges levelled against them. Accused/appellants are reported to be on bail. Their bail bonds stand discharged.