District Dhanbad State of Bihar v. With
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.15 of 1998 =========================================================== Kailash Nath Gupta, son of Late Kannu Sao, resident of village Ajanta Para Hirapur, Dhanbad-826005, District Dhanbad State of Bihar Versus With .... .... Appellant/s .... .... Respondent/s Criminal Appeal (SJ) No. 13 of 1998 =========================================================== K. K. Malhotra, son of Late G.R. Malhotra, resident of D-4, Section-III, Koyla Nagar, P.S. Saraidhela, Dhanbad-826005, District Dhanbad State of Bihar Versus With .... .... Appellant/s .... .... Respondent/s Criminal Appeal (SJ) No. 311 of 1997 =========================================================== Achal Kumar Mandal, son of Achha Lal Mandal, resident of village Babhangawa, Police Station Triveni Ganj, District Supaul, at present reside at Topoban Colony, Saraidhela, Dhanbad .... .... Appellant/s The State of Bihar through C.B.I. Versus .... .... Respondent/s =========================================================== Appearance : (In CR. APP (SJ) No. 15 of 1998) For the Appellant/s : Mr. Jharkhandi Upadhyay, Advocate Miss. Ratna Das, Advcoate For the Respondent/s : Mr. Bipin Kr. Sinha, S.C., C.B.I. (In CR. APP (SJ) No. 13 of 1998) For the Appellant/s : Mr. Gautam Bose, Sr. Advocate Mr. Pradeep Kr. Paul, Advcoate For the Respondent/s : Mr. Bipin Kr. Sinha, S.C., C.B.I. (In CR. APP (SJ) No. 311 of 1997) For the Appellant/s : Mr. Dilip Kumar I, Advocate Mr. Sudhir Kumar, Advocate For the Respondent/s : Mr. Bipin Kr. Sinha, S.C., C.B.I. =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 09-12-2013 1. The Appellants have been convicted under Sections 420/120B I.P.C. and 5(2) of the Prevention of Corruption Act. Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 2 Appellant A.K. Mandal has further been convicted under Sections 420, 468 and 471 I.P.C. Appellant K.K. Malhotra has been convicted under Sections 420 and 468 I.P.C. and 5(1)(D) of the Prevention of Corruption Act 1947. Appellant K.N. Gupta has been convicted under Sections 420, 468 I.P.C. and 5(1)(D) of the Prevention of Corruption Act. The Appellants have been sentenced to R.I. for one year under each count by a judgment dated 11.11.1997 passed by the Special Judge, C.B.I. (South), Patna in Sessions Case No.26 of 1975. 2. The prosecution case is that in various capacities between June, 1974 to December, 1974 the Appellants prepared forged sale orders on the basis of which superior quality of coal was got dispatched by them. The Appellant K.K. Malhotra was the Manager of Bera Colliery, whereas the Appellant A.K. Mandal was previously an employee of P.K. Arya (now dead and the beneficiary in this transaction), whereas Appellant K.N. Gupta was the dispatch clerk of Bera Colliery and under Appellant K.K. Malhotra. 3. During trial the prosecution examined fifty six witnesses in all. Out of whom, P.W.1 Janardan Prasad, who was the Steno of Chairman-cum-M.D. of B.C.C.L., is formal in nature having proved the sanction orders of Appellant K.K. Malhotra Exhibit 1 and sanction
Legal Reasoning
order of K.N. Gupta Exhibit 1/1. P.W.2 Anjani Kumar Shrivastava, P.W.3 R. Lal, P.W.7 Yogendra Jha, P.W.14 P.S. Mukherjee, P.W.19 Ajit Kumar Gupta, P.W.33 N.N.Chatterji, P.W.36 Shyam Lal Sharma, Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 3 P.W.45 Sashidhar Dutta and P.W.54 J.B. Barar have been tendered. 4. P.W.4 Awadh Kumar Jain was the Deputy Chief Sales Manager of B.C.C.L. at the relevant time. He gave the procedure by which coal is allotted and dispatched through wagons. He stated that the B.C.C.L had a list of allotment for each State, for which the wagon quota was also allotted. This was fixed by the Railway Department on the basis of demand at different stages. The Director of Industries and Director, Food and Civil Supply were also involved. Each allottee filed an application in a certain format wherein a number of particulars are entered. The said copies are also sent to the Joint Director, Transportation Coal, Eastern Railway, Calcutta, who further sent the same to the State authority, which tallies the chart available with them. It is only when the grade of coal is checked that the sanction number is given. On the basis of the sanction number each party deposits the purchase order in the B.C.C.L. The B.C.C.L also takes letters of allotment with Bank guarantee or cash deposit. It is only after checking these particulars that the order is passed. One copy of Annexure-C remains with the Joint Director, Transportation of coal, whereas one copy remains with the headquarters of B.C.C.L. and one with the party. The required copy is sent to the concerned colliery and one to the concerned D.S. Railway. It is thereafter that the party accepts the order on the basis of duly checked sanction letters with proper seal and signature. He thus states that a lot of paper work is Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 4 involved in dispatch of coal from various collieries to the party concerned. He identified the signature A.K. Mandal on Annexure-C series which were the application forms. There were 44 in all i.e. Ext- 3 to 3/43. He states that there was a system of Bank guarantee after the B.C.C.L was taken over to prevent any lapse in payment. In the present transaction the requisition for the coal was of grade B quality. He explains the different types of coal. He stated that ROM coal and steam coal was more expansive than slack coal. He further clarified that there was only one grade of soft coal. Annexure-A, which was the State Government sponsored, was sent to the Joint Director, Transportation of coal, Calcutta. In this particular case it was the Haryana State which had sponsored the programme. Annexure-C was prepared on the basis of Annexure-A and there could be no deviation from the same. When confronted with Annexure-A he stated that he was seeing the same, the first time. The colliery could be changed vide Annexure-D which was an application form for the same. Before the coal is loaded some other formalities, such as indent, placement, sheet etc also have to be prepared. If the same is not prepared, the Railway can reject the transportation. The Railway accepts the same on the basis of the specimen signature available with them. In his cross examination he stated that he did not know as to what was the financial loss caused to the B.C.C.L. on account of the 42 orders in question in the present case. Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 5 5. From the evidence of the present witness, I find that apart from him having been proved Ext-A and D and the signatures of Accused A.K. Mandal on Exhibit A series and Exhibit D as also the procedure adopted in course of business, he has not stated any incriminating material against any of the accused persons with regard to the lapses having been committed by them. 6. P.W.5 Khagendra Nath Vishnu, who is Senior Sales Officer in the office of Regional Sales Manager, Coal India Limited, has once again stated with regard to the manner in which sale orders for coal are issued from Calcutta and Dhanbad office. After issuance of sale orders those are entered in the same register. The registers have been marked Exhibit 7/3 to 7/8. 7. P.W.6 Gauri Shankar Prasad was the bill checking Clerk of Bera colliery at the relevant time. He stated that the Appellant K.K. Malhotra was the Manager, whereas the Appellant K.N. Gupta was the bill preparing Clerk. It was he, who checked all the documents. He proved the signatures of Appellant K.N. Gupta on the bill books marked Exhibit 9 to 9/16 and further the signature of Appellant K.K. Malhotra marked Exhibit 9/34 to 9/50. 8. Hence from the evidence of this witness also, I do not find any incriminating material against any of the Appellants. 9. P.W.8 S.K. Mukherjee was the Senior Sales Manager of Jailgaura colliery. He stated that it is only when Bank guarantees are Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 6 furnished that he certifies the sales orders. He stated that Exhibit 5 to 5/2 were sale orders issued from his office upon which he had made signatures marked Exhibit 5/7. He further stated that Annexure-D did not contain his signature nor was document 5/5 signed by him. Sale order No.CSO/Steam/90/19 dated 25.9.1974, CSO/Jha/75 dated 2.4.1974 and CSO/ST/61 dated 26.10.1974 were not signed by him. He, therefore, stated that he had not signed on the sale orders since they did not contain the Bank guarantees. By way of clarification when questioned he stated that he did not know as to whether any financial loss had been caused to the B.C.C.L. in this case. 10. P.W.9 D.P. Gupta was the Mining Engineer, who has proved his signature on sale orders Exhibit 5/8 to 5/16 but the purchase orders Exhibit 6/7 had not been sent from his office. He also, therefore, does not say any incriminating thing against any of the Appellants. 11. P.W.11 Sanat Kumar Mandal was the Deputy Controller of Accounts Sales. He stated that he had not given any instructions to S.C. Mitra, Clerk under him to about letter of credit, Bank security deposit of the firm B.K. coal company. He stated that the requirement of Bank guarantee was essential. 12. P.W.12 Kedar Nath was the Senior clerk of B.C.C.L. who stated that while he was posted in the Sales Account Department of B.C.C.L., he received a letter dated 4.2.1975 from the office of the Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 7 Assistant Sales Executive, Sales & Marketing Division, Joilgera marked as Exhibit 10. He gave the note after verifying the register. In cross examination he stated that if there are outstanding dues against any party, the same is realized against the Bank guarantee or cash security etc. He could not say as to whether there were any outstanding dues against these four parties in question. Hence he also does not appear to have given any incriminating material against the present Appellants. He stated that Exhibit 11, which was a reply to the letter dated 4.2.1975, did not contain the signature of J.K. Sinha. 13. P.W.15 B.K. Singh was the Deputy Sales Manager of B.C.C.L., who stated that the sale orders dated 6.7.1974 marked Exhibit 6/5 did not contain his signature and was forged. None of the Sales Officers present in his office had singed on the same. The signatures on Exhibit 3/14 to 3/31 contain his signatures, which were marked Exhibit 5/17 to 5/22. It was the order register of his office. Exhibit 6/7 was in regard to Bera Colliery at page 22. Exhibit 6/5 did not contain any entry. Even though this witness stated this his signatures were forged but who exactly forged the signatures are not known from his evidence. 14. P.W.16 Anant Singh was posted as Clerk in Bera Colliery, where Appellant K.K. Malhotra was posted as Manager. Exhibit 9/17 to 9/50 were bills of Bera Colliery which were in the hand writing and signature of appellant K.N. Gupta. Some of them were checked by Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 8 one Gauri Shankar and singed by Appellant K.K. Malhotra and in his absence signed by M. Prasad. The bill numbers 95 and 97 and some other bills were signed by Appellant K.N. Gupta and K.K. Malhotra. He stated that the indents were sent by Appellant K.N. Gupta on the basis of the sales orders received from the office at Calcutta. Thereafter Railway Wagon is allotted and after loading the carriage papers are prepared. When the copies are received in the colliery Appellant K.N. Gupta used to prepare the bills which the party paid through the Bank drafts. He stated that the sales orders were sent from the Calcutta office to give him which was sent to the Manager, who signed and in turn sent it to the Dealing Assistant for proper action, whereafter it used to send it to the concerned Clerk. He stated that out of the Exhibits 9 series Gauri Shankar Babu had checked some. Exhibits 9/47, 9/31 and 9/48 were not signed by Appellant K.K. Malhotra nor were the bill numbers 217, 199, 206, 244 and 249 signed by him. In the year 1974 the entire procedure of dispatch indent collecting of R.R. indents were removed. After which there was strike in the colliery and was locked out in which the K.K. Malhotra was injured. He stated that he did not know as to whether the parties had deposited the money with the B.C.C.L. 15. From the evidence of this witness, I find that he has proved the signatures of Appellant K.N. Gupta on some bills. He has also stated that they were verified by office and the same was prepared Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 9 only after the sale orders were received from the Calcutta office. He also stated that the bills are handed over after collection of Bank drafts from the party concerned. He stated that Appellant K.N. Gupta used to prepare the indent on the basis of the sale orders from the sale office to Calcutta. 16. P.W.17 Satya Prakash was the Senior Sales Executive of Zeelgaura B.C.C.L. In September 1974 he got a telephonic message that coal was being sold on the basis of forged sale orders from his colliery, upon which he met from Appellant K.K. Malhotra and called for sale orders. He replied that he had a copy of the party and explained how he was sending indents. He stated that it was on the basis of the copy of the party that he was sending in anticipation of the official copy being received by him. He proves eight sale orders Exhibit 6 to 6/7. When he made enquiry from Calcutta he learnt that the sale orders had not been issued from Calcutta office nor had any authority signed on the same. In cross examination he stated that he had given various instructions to the Appellants. Exhibits 6 to 6/7 were not signed in his presence. 17. Surprisingly even after having come to know of the fraud being committed he did not make any complaint any where nor did he issue instructions but stop lifting of the coal or transportation through the Railways since it was not his duty. Hence, I find from his evidence that even though he stated that the Appellant K.K. Malhotra was Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 10 permitting lifting of coal without the original copy having been received by him on the basis of sales orders Exhibit 6 to 6/7 but admits that they were not signed in his presence. 18. P.W.18 Bishnu Dut Pandey stated that he was posted at Bhatdih, Sub area Dhanbad as System Advisor and proves some orders. He stated that all the drafts as against the bills were paid in Barhaura. In his cross examination he stated that there was no transaction due on any of the bills. 19. P.W.20 Purushottam Lal Khetan was the Accountant at Bhagatdih sub area. He stated that between July, 1973 to September, 1975 he was posted as Accountant in Bhagatdih sub colliery. He used to write the sales realization. He proves the statement register marked Exhibit 7/1 between 2.4.1974 to 27.12.1974. He stated that entries with regard to Bera colliery and Dowari colliery were in his signature. The payments have been made through pay order or draft of which he had made the entry against the same marked Exhibit 8/3 to 8/26. The statements have been received from the Manager of the colliery. 20. P.W.21 Bhagwan Sahay was the Accountant of Bera Colliery between May, 1973 to November, 1974. He stated that the orders and the duplicate bills were signed by Appellant K.N.Gupta on some of Exhibit 9 series whereas on some were the signature of the Appellant K.K. Malhotra. He stated that the documents had been checked by Gauri Shankar. He stated that Bera Colliery had been Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 11 nationalized on 31.1.1974. He thus did not state anything relevant against any of the Appellants. 21. P.W.22 Ram Briksh Sharma was posted in Dhanwadih colliery between 1971 to 1974. He proves certain documents, such as the purchase instruction orders Exhibit 6/10 to 6/12 and signatures as Exhibits 5/23 to 5/24. 22. P.W.23 Mithhu Rai was posted in the allotment Section Dhanbad between 1973 to 1974 and then in the posting section where the statement memo in two copies used to be prepared. One copy was sent to Calcutta office and the second remained in the office. On 17.8.1974 the allotment memo was prepared by him and the pilot guard sheet was also prepared by him. It is on the basis of indent and the statement order that allotment memo was prepared. 23. P.W. 24 Gulab Chand Shrivastava stated that he was Indent Checking Clerk in 1971 and explained a procedure of checking the indents and certain entries which either meant do not allow or “restriction” etc. On 11.10.1974 the indent had been received in his office which was received and stamped by the Head Clerk and forwarded. It was marked as Exhibit 15 and 15/1. He stated that the indents were received from the B.C.C.L. He stated that on order No.5/1 priority had been written as per which as soon as it is received in the Section, coal is allotted as per the same. It is only when the proforma of the indents are in order that further action is taken upon Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 12 the same. 24. P.W.25 Randhir Kumar was posted at Jailgaura office on 30.12.1974 as Assistant Finance Officer. The advance register was maintained in his office. The particulars of the party, who deposited the same used to be filled in the register. Later the bill was adjusted according to the advance. From his evidence the only thing that appears is that there was a system of Bank guarantee. 25. P.W.26 Rama Prasad Das Ghosh was posted as a Clerk in the B.C.C.L., who stated that the orders used to be entered in the register, whereafter processed and sent to the relevant Officer. The sale order register Exhibit 7/4 to 7/6 used to be written by someone else in which the name of the party was entered. Exhibit 6 to 6/7, which were the sale orders, were not processed by him and the some wordings were also not in his hand writing. At that relevant point in time the Controlling Officer was one Mr. Vishnu, but the orders as Exhibit 6 to 6/4 were not signed by him. The rests of the sale orders also did not contain the signature of any of the Officers. On Exhibit 5/8 and 5/9 some certifying words were written in his writing. He conceded in the cross examination that there were other persons who were preparing the sale orders and he did not remember as to how many Officers apart from Mr. Vishnu were there. This would naturally raise the relevant question as to how he had certified that the signature was not that of anyone in authority if not of Vishnu is not Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 13 known. 26. P.W.27 Yogesh Chandra Gupta was the Proprietor of Rubber Stamp Company and he stated that Appellant A.K. Mandal had prepared some seals in favour of V.K. Coal Company and Bharat Cooking coal limited. The occurrence had allegedly taken place 8-10 years back. He stated that before the B.C.C.L. was taken over he had prepared the stamp of V.K. coal company. 27. P.W.28 Sajit Kumar Chakravarti was the Joint Director Transportation coal. He stated that in Annexure 3 Exhibit 3/34 was prepared in three copies. He stated that no comparison between Annexure 3 was made with Annexure A at the time of its preparation. 28. P.W.29 Chandra Kishore Bandhopadhyaya stated that between the years 1972 to 1975 he was in the Programme Section Joint Director, Transportation Railway Board, Calcutta as Senior Clerk. He stated that the procedure by which the wagon was used to be sanctioned on the basis of the sponsored programme. He stated that vide Exhibit 3/48 the wagon had been sanctioned by him in which the middle man was the consignee of Haryana. Between July to December one wagon every month had been sanctioned to it. On verification it appears that in the sanction grade II steam coal was sanctioned. In grade II, IIIB had been written which was not there at the time of his signature. Lime industries were given steam coal and not slack coal. Exhibit 3/49 was not sanctioned from his office. Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 14 Neither his signature nor the signature of any other Officer of his Department was contained therein. In cross examination he admits that there were 30-32 more clerks in his office and when priority class was directed it was not changed. The same was decided only by the Director of Industries. Vide Exhibit 3/48 the delivery was to be made at Jagadari, Haryana since the consignee was Haryana lime company. He further stated in cross examination that Annexure A was submitted by the party and he had not suspected anything at the time when he saw the Annexure A. He also further stated that once B.C.C.L. cancelled or any Officer as directed, the movement of coal could be stopped. 29. P.W.30 Devanshu Kumar Mitra was posted in the Joint Director Transportation Calcutta as Clerk, who stated about three copies of Annexure C and also that the recommendation of sponsored programme could not be changed. 30. P.W.31 Suratchandra Naskar was also posted in the Joint Director Transportation Calcutta as Clerk, who has merely proved about the wagon sanction. He stated that only steam coal used to come to ENS and they could not change it to slack coal. 31. P.W.32 Alok Kumar Mukherjee was posted as Clerk in the Account Section of B.C.C.L. and merely stated that no Bank guarantee had been furnished. 32. P.W.35 Shakti Kumar Banerjee was the Head Clerk in the Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 15 programme Section, who stated with regard to the procedure by which the coal was allotted. 33. P.W.37 Shyam Kumar Agrawal was Assistant in the Industries Department, who merely stated the manner in which the statements were maintained in regard to allotment of coal. 34. P.W.39 Gurudut Thathwal stated that he was Senior Sales Executive in B.C.C.L. between 1973 to 1974 and that Bank guarantee had to be furnished by a party as against the value of the coal having been lifted He proves the Exhibit 3/49, 3/52 of Annexure C and Exhibits 3/53 and 3/54 which were passed by him. The words Bera colliery was penned through and then Gonadih was written. When he had signed then slack Grade II was written but after that steam grade IIIB was over-written. He further clarified that restrictions was passed on availability of coal. There was no circular for such restriction. He also stated that if the R.R. is in respect of slack and the consumer wants steam coal it can be supplied to it. The coal, which is not under B.C.C.L., would not be covered under the scheme of requirement of Bank guarantee. 35. P.W.40 Jogendra Kumar Arun was posted in the Sales Office, B.C.C.L. as Sales Assistant and he proves the signature of Appellant A.K. Mandal. On Annexure C Exhibit 27 to 27/42 and its carbon process. He further proves the bill book Exhibit 29. 36. P.W.41 Anil Kumar Sinha stated about the manner in which Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 16 P.K. Arya used to manage coal. 37. P.W.43 C.P. Bhatiyar has merely stated with regard to the requirement of the quality of coal and that no slack coal is used in that area. 38. P.W.46 Prem Prakash Arya was the Proprietor, who merely stated about having deposit security of Rs.20,000/- but that he gave no guarantee to V.K. coal company and Sadanand Arya company. 39. P.W.50 Sumitra Kumari was posted as Judicial Magistrate, Patna, who recorded the statement of Appellant A.K. Mandal under Section 164 Cr.P.C. 40. P.W.53 D.D. Goel had compared the signatures and was of the view that all the alterations were in another pen which matched the writing of Appellant A.K. Mandal. However, it could not be noted as to whether the alterations were made simultaneously or at a later point in time. 41. P.W.55 Gulshan Kumar is the Investigating Officer. He has stated that the Appellant A.K. Mandal had expressed his voluntariness to give statement before the Magistrate, upon which his statement was recorded before the Judicial Magistrate. 42. P.W.56 N.N. Singh was the next Investigating Officer, who has proved the various documents as also that specimen signatures of the Appellants were taken. 43. Thus, it appears that the main case of the prosecution was Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 17 that firstly the firm of P.K. Arya (now dead) had influenced the officials of the B.C.C.L. through his ex-employee and Appellant A.K. Mandal and procured grade IIIB coal instead of slack grade II. However, the prosecution has no where positively stated that this change of grade of coal had in any manner caused any loss to the B.C.C.L. In absence of such clinching evidence neither the ingredients of Section 420 I.P.C. nor 5(1)(D) of the Prevention of Corruption Act is made out. 44. The basic ingredients of Section 415 I.P.C. would be satisfied only the delivery of another grade of coal would have caused any harm to any person which has not been brought on record. In view of such, evidently no offence under Section 415 I.P.C. is made out against any of the accused. They are acquitted of the said charges. 45. Under Section 5(1)(d) of the Prevention of Corruption Act, the requirement is that a Government Officer by abusing his position/possession obtains for himself or another person any valuable things or pecuniary advantages. The prosecution evidence regarding the advantage to the accused persons not having been proved the Appellants are also acquitted of the charges under Section 5(1)(i) of the Prevention of Corruption Act. There is no evidence that the Appellant K.N. Gupta or K.K. Malhotra had committed any forgery in the official records. Hence they are acquitted of the said charges as well. Patna High Court CR. APP (SJ) No.15 of 1998 dt.09-12-2013 18 46. Since there is positive evidence with regard to Appellant A.K. Mandal of having forged the records and he had given statement recorded under Section 164 Cr.P.C. admitting the said act, his conviction under the said Section is maintained. However, his sentence of one year is reduced to one already undergone by him during trial i.e. a period of one month. 47. Thus these appeals are partly allowed with the aforesaid modification in sentence of Appellant Achal Kumar Mandal. NAFR/Narendra/- (Anjana Prakash, J)