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Judgment
Rakesh Saksena, J.—This judgment shall govern the disposal of both the above appeals which have been filed by the appellants against the judgment dated 13th December 2002, passed by Special Judge (Prevention of Corruption Act/First Additional Sessions Judge), Seoni, in Special Criminal Case No. 3/1998, convicting and sentencing the appellants as mentioned hereunder:
Conviction
Sentence
u/s. 420-A IPC
R.I. for 2 years and fine of Rs. 500/-in default R.I. for 3 months.
u/s. 420/120-B IPC
R.I. for 2 years and fine of Rs. 500/-in default R.I. for 3 months.
u/s. 467 IPC
R.I. for 3 years and fine of Rs. 2,000/ - in default R.I. for 6 months.
u/s. 467/120-B IPC
R.I. for 3 years and fine of Rs. 2,000/ - in default R.I. for 6 months.
u/s. 471/120-B IPC
R.I. for 3 years and line of Rs. 2,000/ - in default R.I. for 6 months.
u/s. 468-A IPC
R.I. for 2 years and fine of Rs. 500/ in default R.I. for 3 months.
u/s. 468/120-B IPC
R.I. for 2 years and fine of Rs. 500/ in default R.I. for 3 months.
u/s. 477 IPC
R.I. for 2 years and fine of Rs. 500/-in default R.I. for 3 months.
u/s. 477/120-B IPC
R.I. for 2 years and fine of Rs 500/-in default R.I. for 3 months.
u/s 13(1)(d) read with 13(2) of the Prevention of Corruption Act
R.I. for 2 years and fine of Rs. 500/- in default R.I. for 3 months.
(Substantive sentences to run concurrently) In short, the prosecution case is that a bus having number MKK 8546 was registered in the name of Smt. Sita mange. Her father-in-law Harvanshlal used to take care of the said bus. The bus was booked by a marriage party for carrying Barat from Balaghat to Mandla Gulshan Bedi (PW-4): a transport agent, applied to RTO for grant of temporary permit for that purpose. He deposited Rs. 50/- along with application for grant of permit on 5.3.1993 in RTO Office, Seoni- It is said that on 15.3.1993, he deposited further Rs. 350/- for grant of temporary permit and on the same day he obtained the said permit and sent the same by the hands of Dilip Shastri (DW1) to Balaghat.
Since marriage party made hurry, the vehicle was dispatched from Balaghat without permit with driver Ayub Ali (PW1) and helper Arvind (PW2). On 15.3.1993, near Mandla, the then Transport Inspector Mr. R.S. Tiwari (PW7) alongwith Assistant Security Officer B.B.L. Shrivastava (PW8) and R.S. Pandey (PW5) checked the bus and on finding the bus being plied without permit, seized the same at about 5.00 p.m. vide seizure memo (Ex.P/12), R.S. Tiwari (PW7), finding the contravention of the provisions of Taxation Act, according to law, sent the charge-sheet (Ex.P16) to RTO, Jabalpur for recovery of penalty and tax Rs. 45.000.
It is alleged that Gulshan Bedi (PW4.), on 16.3.1993, went to Jabalpur and after producing the temporary permit issued by RTO Office; Seoni, got the said bus released on 17.3.1993.
On 25.3.1994, Mr. M.T. Beg (PW14), Inspector of Special: Police Establishment, Sagar Division, received information that the officers and employees of RTA issued illegal and forged permits and caused heavy financial loss to State Exchequer in connivance with the bus operators and that in respect of bus number MKK 8546, which was seized by checking staff of R.S. Tiwari (PW7) near Mandla, forged permit was prepared and the bus was got released causing loss of Rs 43,500 to State. Only Rs. 1,410 could be recovered from the bus operator instead of an amount of Rs. 45.000. He registered the case u/s 13(1)(d) and 13(2) of the Prevention of Corruption Act and sent the case for registration to Bhopal, where FIR (Ex.P19) was registered. M.T. Beg (PW14) seized various registers including permit register and a file from Additional RTO Vijay Paliwal, vide seizure memo Ex.P10. In the presence of witness Ajay Kumar (PW10) and Santosh Kumar Jain (PW11), he seized other relevant documents in respect of bus number MKK 8546, vide seizure memo Ex. P11. He also seized a file, vide seizure memo Ex. P12 from the residence of accused Vijay Paliwal.
On investigation, Inspector Prakash Agnihotri (PW12) found that accused Khem Chand Koshti, Assistant Grade-III and Nishikant, UDC Grade-I forged the receipts of deposits of money and manipulated the register of temporary permits. They also fabricated the note-sheets and conspired with ARTO Vijay Paliwal for fabricating a false temporary permit for causing loss of around Rs. 45,000 to State.
The sanction (Ex.P5) for the prosecution was obtained from Additional Secretary Shri T.P. Sharma and charge-sheet was filed before the Special Court, Seoni, on 8.1.1998.
On charges being framed against the three accused persons, they abjured the guilt and pleaded that no offence was committed by them. According to them, the disputed temporary permit was issued on 15.3.1993 at about 1.00 p.m. after following the procedure prescribed under law. It was handed over to agent Gulshan Bedi, but if the bus operator plied the bus without permit, it was not their fault.
Learned Special Judge, after trial and upon appreciation of the evidence adduced in the case, held the accused persons guilty of the-charges leveled against them and convicted and sentenced them as mentioned above.
Aggrieved by the impugned judgment of conviction and sentence passed by the learned Special Judge, appellants have filed these appeals.
During the pendency of appeals, accused Nishikant Deshmukh died. As such his appeal stood abated.
We have heard the learned counsel for the parties and perused the evidence and the material on record.
Learned counsel for the appellants submitted that the prosecution case rested mainly on the evidence of M.T. Beg. (PW 14), Lokayukta Inspector, who proved the record of the RTO Office from which the learned Special Judge inferred that there were manipulations in the record and that the impugned temporary permit was prepared after the time of the office was over or on 16.3.1993. According to him. almost all the prosecution witnesses, whatever stated before the Court, clearly indicated that the said temporary permit was prepared by the RTO Office, Seoni, on 15.3.1993 before 1.30 p.m. The over-writing and the wrong mentioning of some numbers on the receipt of the permit were merely clerical mistakes, which did not go to conclusively prove any dishonest intention on the part of the appellants. Apart from that whatever was recorded in the permit or in the receipt, was written by accused Nishikant Deshmukh, UDC, who was working as a Dealing Assistant in the office. He submitted that the permit was prepared in accordance with the practice obtaining in the department and Vijay Kumar Paliwal, Additional RTO, signed the permit as placed before him by the subordinate staff as a matter of routine. In such circumstances, no culpability could be attached to the action of appellants, who had done nothing with a criminal intent. He placed reliance on Sudhdeo Jha Utpal Vs. The State of Bihar, ; Major S.K. KALE Vs. State of Maharashtra, and Hanuman Govind Nargundkar and Anr. v. State of M.P., Hanumant Vs. The State of Madhya Pradesh,
Per contra, Shri Aditya Adhikari, learned counsel for the respondent, submitted that the procedure followed by appellants in granting the temporary permit was not bona fide. Had it been a bona fide act of appellants, it was not possible that so many errors would have occurred. In most of the entries of the register of delivery of permits, no date and time of delivery of permit was recorded. If the impugned temporary permit was handed over to concerned party within purported time, it would have naturally been sent to Mandla where the vehicle was checked and seized, whereas the permit was sent to Jabalpur for releasing the vehicle on 17.3.1993. This clearly indicated that the temporary permit was fabricated subsequently and was made ante timed. Counsel submitted that some of the witnesses were though examined as prosecution witnesses, but in fact they were also the part of the same machinery by which the permit was prepared and obtained after the time of checking of the bus in question.
We have gone through the entire evidence on record. The main witness in the case from the side of prosecution is M.T. Beg (PW14), Inspector of Special Police Establishment, Jabalpur. According to him on 25.3.1994, through some reliable sources he got information that. ARTO of Seoni, in connivance with other employees and transporters was issuing forged ante dated permits and was causing financial loss to State. This was being done for obtaining financial benefit for himself and the bus operators. He came to know that bus number MKK 8546 seized by RTI R.S. Tiwari on 15.3.1993, the charge-sheet of which was filed before RTO, Jabalpur, was got released on 17.3.1993 by producing ante-timed temporary permit purported to be issued on 15.3.1993. The release of that bus incurred loss of Rs. 45,000 to State. After verification, he registered offence and sent the same for registration of the case to Lokayukta Office, Bhopal. In the course of investigation, he seized all the concerned papers and records including the receipts and the copy of temporary permit. According to him, he did not know that when an enquiry was made by the department in respect of the same case, no offence was found to have been committed and only a case, which deserved an enquiry was found. However, from the note appended by the Court below in the statement of this witness, it is revealed that record of the office of Transport Secretary, Madhya Pradesh State, Bhopal, was summoned by the accused persons and on perusal of the said record. It was found that in note-sheet dated 9.3.2000 it was advised by the department that only a departmental enquiry should be held because the act of accused persons was not found commit-ted with a criminal intent. M.T. Beg (PW14) admitted that the bus, which was seized on 15.3.1993, was released by RTO, Jabalpur on 17.3.1993 and he did not find any document indicating that RTO recommended any action against the accused persons. According to him, in the record seized by him, there were over-writings in the permit register, and the numbers of receipt recorded in the permit register were different than the actual receipts numbers by which the permit fees was deposited. He, however, admitted that he did not find any overwriting or manipulation in the relevant cash book and the receipt book. He further admitted that receipt seized by him pertained to the date 15.3.1993 and in the subsidy register also the transaction was recorded on 15.3.1993. With a view to prevent any complaint about the misuse of money, it was though provided by the Taxation Act that all the payments above the amount of Rs. 250, were to be made to department through Bank Challan, but he found from the subsidy register that several times the amounts exceeding Rs. 250 were received against the cash receipts. He proved the register Article A1 in which at Serial No. 1214 there was overwriting in respect of serial number as well as the date in respect of bus number MKK 8546 receipt No. 2681/73 for Rs. 50 and receipt No. 2819/48 for Rs. 350 was recorded. The time limit of permit was from 15.3.1993 to 17.3.1.993. According to him, the number of receipt recorded in the copy of permit (Ex.D1) was different than the number of receipt recorded in the Register (Article A1). However, on perusal of the entry in Article A1 register in respect of bus number MKK 8546, it is revealed that in Column No. 6 in respect to deposition of fees of Rs. 350 receipt No. 2819/48 was recorded and the same number was found on the receipt (Ex.P27) dated 15.3.1993. It is, however, true that the number of permit, recorded in Article Al register, had been shown as 1214, but, the number recorded on the temporary permit (Ex.D1) was 1014.
Learned counsel for the appellants, referring to the entries of register (Article A1), pointed out that in the relevant entry of the permit; date of issuing permit had been mentioned as 15.3.1993. Though, on perusal of the register, we find that on most of the entries no date of issuance of permit had been mentioned, but in the entries before the bus number MKK 8546, the date of issue of permit had been mentioned.
According to learned Special Judge, the wrong number recorded on the permit was intentional and because no reasonable explanation in respect to it was given by the accused persons, it could be inferred that record was fabricated by them.
Learned counsel for the appellants argued that according to evidence of RTO Aziz Qureshi (PW9), who narrated the procedure followed for issuing temporary permit, the permit passed through the hands of Dealing Assistant twice. Therefore, it could be presumed that it was the duty of dealing assistant to check the number recorded in the register as well as, on the permit. If it was a mistake on the part of Dealing Assistant Nishikant Deshmukh, the appellants could not be held liable, who performed their official duty in routine manner. Learned counsel accepted that the number recorded on the permit was not correct, as it related to some other bus but, this in fact, was a clerical mistake without any criminal intent on the part of the appellants. He further contended that similarly by mistake, instead of receipt number 48/2819, through which the amount of Rs. 350 was deposited, receipt number 48/2079 was incorrectly recorded, which pertained to the registration of vehicle of one Komal Chand Jain on 26.3.1992.
According to Shri S.C. Datt, learned senior counsel for the appellants, the wrong entries were made by the Dealing Assistant accused Nishikant Deshmukh, who has already died. There was no evidence on record to indicate that the appellants, who were Additional RTO and the Clerk, who prepared the initial note-sheet, conspired with accused Nishikarit. Apart from that, Nishikant Deshmukh, in his statement u/s 313 of the Code of Criminal Procedure, stated that recording of the incorrect number of receipt 2079 might be due to mistake, as handwriting of the cashier on the receipt was not legible. He stated that the permit in respect of bus number MKK 8546 was issued at about 1.00 p.m. on 15.3.1993. Due to heavy work, public interference and hurry, his mind could have been disturbed, due to which, this clerical mistake might have occurred. The temporary permit issued in record of the said bus was valid and was prepared according to the practice prevalent in the department, The requisite fees was deposited and the date of issue of permit and time was correctly recorded on the permit; No loss of any revenue to State was caused and the Transport Department had also found the impugned permit issued correctly.
In the case of Sudhdeo Jha Utpal (supra) accused was a General Manager of a Limited Company owning a large number of buses and trucks plying between the important towns of State of Bihar. It was alleged that he entered into a conspiracy with the Director and Manager for the purpose of cheating the Government by procuring petrol coupons during the year 1947-48, when petrol rationing was in operation in the State, it was said that in the application for coupons for petrol, the number of trucks and buses, which were not in road-worthy condition and for which taxes had not been paid, were included as being in running condition and on that misrepresentation, the rationing authorities were induced to part with the petrol coupons which they would not have done if they were apprised of the real state of circumstances. The accused were acquitted for the offence of conspiracy, but were convicted under Sections 420 and 193 of the Indian Penal Code It was contended on behalf of accused that he did not consciously make a false representation but in accordance with the practice obtaining in his office, signed the application placed before him by the subordinate staff as a matter of routine. In such circumstances, it was urged that no culpability should be attached to the action of accused because he had not done anything with a criminal intent and it was not shown that he acted fraudulently or dishonestly. In these circumstances, the Apex Court held that in cases of this kind the burden of proof is never shifted to the accused and if a reasonable explanation is given by the accused, the Jury will have to take that into consideration and if the Jury think that the explanation may reasonably be true though they are not convinced about the truth, they should acquit the accused. It was further observed that taking into consideration the fact of ordinary run of official business in concerns in which the accused was the General Manager, the prosecution has not been able to prove that he appended his signature to the applications knowingly and having reason to believe that the contents contained therein were false. It was the duty of the prosecution to prove affirmatively, that the accused knew that the representations made were false and in the absence of the circumstances from which it could be gathered that any such knowledge can be imputed to the accused, it was a case in which the benefit of reasonable doubt should be given to the accused.
It is true that in the case in hand trial Court has convicted the appellants u/s 120B of the Indian Penal Code alongwith the offences under Sections 420, 467, 468, 471 and 477B of the Indian Penal Code, but, in our opinion, the trial Court committed error in holding that all the three accused persons acted under any conspiracy. In our opinion, it was the duty of the prosecution to prove the fact of conspiracy affirmatively. It is true that it might be difficult to produce any direct or positive evidence to prove the conspiracy, but then the prosecution was required to establish that the circumstances existed in the present case on the basis of which it could be inferred with certainty that the appellants hatched conspiracy with accused Nishikant Deshmukh. It is also important to note that the bus operator or the agent, who applied for obtaining the temporary permit, was not made accused in the case. Gulshan Bedi (PW4), the RTO agent, who obtained the permit for the bus of Smt. Sita Mange, stated that he had obtained the temporary permit for the bus number MKK 8546 on 15.3.1993 from ARTO, Seoni. About one and a half month before 15.3.1993 he had deposited the fees of Rs. 50 for submitting an application for grant of temporary permit alongwith an agreement between the parties. On 15.3.1993, he deposited Rs. 350 for tax in the RTO Office, Seoni. The permit was handed over to him at about 1.00 p.m. and he had sent the said permit to Balaghat from where the marriage party was to be dispatched by the said bus. When he came to know that the bus was seized, he went to Jabalpur and got the bus released on 17.3.1993 after producing the permit. According to him, his application for grant of temporary permit (Ex.D2) was received by Dealing Clerk and Cashier on 15.3.1993 and on the same day he had deposited Rs. 350 and thereafter the permit, was issued. The evidence of this witness finds support from the evidence of Dilip Shastri (DW1), a transporter, who deposed that on 15th March 1993 Gulshan Bedi had given him some papers at RTO Office, Seoni at about 1.30 p.m. and asked him to handover the said permit to Seth Harvanshlal. This permit was in respect of bus number MKK 8546. According to him, he had handed over those papers to Seth Harvanshlal at Balaghat at about 5.00 p.m. Arvind (PW2), the helper of the bus deposed that when at about 5.00 p.m. his bus was checked by the police at Mandla, driver of the bus had, told to police people that there was a permit and somebody was bringing it, but the bus was seized. However, later on, bus was released. Similarly, Subhash Chandra Mange (PW3), husband of Smt. Sita Mange, bus operator, stated that his bus was taking a marriage party on 15.3.1993. His RTO work was being looked after by Gulshan. The permit of the bus was prepared at about 1.00 p.m. on 15.3.1993. At about 1.15 p.m., his father Harvanshlal had informed him on telephone that permit of the vehicle was ready. All these witnesses were examined by the prosecution and they were not declared hostile, since what they stated before the Court was the prosecution case. Their evidence stood corroborated by the evidence of Brajendra Narayan Sharma (DW3), who was posted as LDC in RTO Office, Seoul, between the year 1987-1997. According to him, on 15.3.1993, when he was in the office, Gulshan Bedi submitted an, application for grant of a permit in respect of bus number MKK 8546. This permit was from 15.3.1993 to 17.3.1993 for plying the bus between Balaghat to Thema. He had endorsed his note on it at about 12.30 p.m. After depositing the fees and tax, this application was received from him. Since Gulshan Bedi pressurized him to proceed hurriedly, there had been some altercation between him and Gulshan Bedi. Yet another witness Avinash Gangadhar Helkar (DW4), who happened to be UDC/Accountant in the RTO Office. Seoni, stated that on 15.3.1993 he was posted as Accountant in ARTO Office, Seoni. Whatever tax and fees was deposited in the office, he used to record it in the "Rokad Panji". It was the duty of the cashier to enter the cash deposited in the brochure by 1.30 p.m. and to produce before him for being tallied with the receipt book. He himself wrote the cash book. The amount received, as per cash book, was deposited in the State Bank of India on the next working day through a Challan. He stated that on 15.3.1993, the receipt book No. 2818 was completed, therefore, he had opened new receipt book No. 2819. On the same day he had issued receipt No. 48 in respect of vehicle number MKK 8546 for Rs. 350 as tax. The whole cash received on that date was deposited in the office before 1.30 p.m.. He also proved the entry in the cash book (Ex.D24) of whole of the amount received on 15.3.1993. According to him, this entry was made on 15.3.1993 itself and whole amount received on 15.3.1993 was deposited in the Bank on 16.3.1993.
Aziz Qureshi (PW9) was posted as RTO at Jabalpur. According to him, along with the application for grant of permit the marriage card is to be annexed. This application is filed before the concerning clerk, who prepares a note-sheet, then after the order for preparing permit, Dealing Assistant deals with the file and thereafter permit is typed, File is then placed before, the RTO, after whose signature again file is placed before the Dealing Assistant, who records, the permit number and hands over the permit to the concerned person. According to him, in normal course this procedure can be completed within hall an hour. This witness also deposed that all the cash received by 1.30 pm is deposited in the Bank on the next day by Challan.
Sanjay Soni (PW15), who was posted as ARTO at Seoni from 25th April 2001, deposed that in the present case the application for grant of temporary permit was received on 15.3.1993. The application form fee Rs. 50 was deposited on 5.2.1993 through receipt No. 73/2681 and the tax Rs. 350 was deposited on 15.3.1993 vide receipt No. 48/2819. Receipt (Ex.P/27) was issued by accused K.C. Koshti. According to him, no money was deposited in the office after 1.30 p.m. Temporary permit application (Ex.P25) in respect of vehicle MKK 8546 was received in the office and the permit was issued according to law for a period between 15.3.1993 to 17.3.1993. In para-9 of his statement, he categorically stated that the permit was issued according to rules after depositing the tax and there appeared no financial irregularity or any mala fide. He admitted that if at the time of checking the permit was not found with the driver, it could be produced before the competent authority subsequently and the vehicle might be released.
Learned counsel for the appellants argued that in view of the above fact situation, which emerged out from the record, it is apparent that the prosecution evidence instead of incriminating the appellants, probabilized the defence put by them. The prosecution witnesses, who were not declared hostile, themselves stated that the impugned temporary permit was prepared and handed over to Gulshan Bedi at about 1.00 p.m. on 15.3.1993 and that all the taxes were paid and the permit was issued according to law. Therefore; it was apparent that the court below acted on the basis of conjecture or suspicion that the permit was fabricated after the office hours on 15.3.1993 or 16.3.1993.
In Hanuman Govind, Nargundkar and another (supra), Supreme Court observed that in dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take place of legal proof. In such cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In the case in hand, though it has been established that there was overwriting In the entry about the number of the permit in register (Article A1) and that there was incorrect recording of the number of receipt under which the money was deposited for issue of permit, but when we look at the explanation furnished by accused Nishikant, it appears that it might merely be the clerical and inadvertent mistakes under the pressure of work. In our opinion; there appeared no circumstances, which could indicate unerringly that the appellants acted in connivance or conspiracy with Nishtkant, who prepared the permit. It appeared quite natural and probable that due to rush of work if application/permit was placed for signatures before the authority in routine, it might be signed by the authority without entertaining any suspicion of any foul play. Merely by the production of documents, in our opinion it could not be held established that the accused persons acted with criminal intent. Even if gross negligence on their part was proved, it could not be held that they acted dishonestly.
In the case of Major S.K. Kale (supra), Apex Court held that it was for the prosecution to prove affirmatively that the appellant by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person, whereas, in the case in hand, there is absolutely no evidence on record to show that the impugned temporary permit was fabricated and/or was issued after working hours of 15.3.1993. In view of the explanation furnished by accused Nishikant, even if there appeared some amount of carelessness or negligence on his part, it does not appear plausible to doubt his bona fides. The possibility cannot be ruled out that in routine manner while acting quickly or hurriedly he committed mistake in recording the numbers of permit and receipt.
After bestowing our anxious consideration to the submission made by the learned counsel for the appellants and having gone through the record, we find that the evidence adduced by the prosecution itself created doubt about the accusation made by it, and that the explanation furnished by accused Nishikant may reasonably be true. It has been held by the Apex Court that if the court thinks that the explanation furnished by accused may reasonably be true, though it may not convince about the truth, yet the court should acquit the accused. Similar is the situation here. Though we are not fully convinced about the truth of the explanation furnished by accused Nishikant and the fact that there was no connivance or conspiracy existing between him and the appellants, yet we feel it safe to give benefit of doubt to appellants. In view of the foregoing discussion, we are of the opinion that the prosecution has failed to prove beyond doubt the charges leveled against the accused/appellants. As such, the finding of their conviction and sentence recorded by the trial court deserves to be set aside. Accordingly, both the appeals (Cr.A.No. 1956/2002 and Cr.A.No. 1957/2002) are allowed. Conviction and sentence of the appellants on all the counts is set aside. They are acquitted. Their bail bonds and surety bonds stand discharged.