Kailash Agrawal, son of Satyanarayan Agrawal v. The State

along with the Contractor had first submitted the bills, accepted payment based on the work slip issued for Item No.24 and later on again, work slip was prepared under signature of appellant, submitted for payment and again accepted the payment for the same work mentioning as Item No.21, but prosecution could not able to prove the charges that the bills -3 submitted by the appellant under Item No.21 are the bills again submitted by him for the work which he has already done under Item No.24 and accepted payment. Prosecution examined as many as 15 witnesses and most of the witnesses have stated that for the purpose of work which is subject matter of the FIR, department maintains two registers i.e. (i) Work Done Register and (ii) Casual Labourer Register. Bills submitted by the appellant under Item No. 24 is with respect to casual labourers supplied by Contractor on the demand of department whereas the bills submitted under Item No.21 is with respect to the work done under the contract i.e. bundling, loading, unloading, transporting of gunny bags through bullock cart.

Both bills have been submitted on different heads. M.R.C. Parnikar (PW10) who is said to have conducted an inquiry, stated that he has not checked the work done register during course of inquiry but has checked the daily register. Learned counsel for the appellant further submitted that it is the daily register only which was produced by the prosecution before the Court. Witness further admitted that daily register is not the mandatory record to be maintained by the department and each and every work done by the Contractor is not being entered in the daily register. As per FCI Manual, submitted before the Court as Ex.P-38 does not mention about maintaining daily diary. It only mentions of maintaining work done register and casual labourer register. In support of his contention, he referred to the evidence of K.P. Ramchandran (PW4), A.D. Manikpuri (PW7), M.R.C. Parnikar (PW10), Hariprakash Tahalyani (PW14) and K.K. S. Pillai (PW15) . He further contended that appellant was not named in FIR, nor he was beneficiary in the said transaction and there is no direct involvement but for his signature appearing in the work slip.

Investigating Officer and -4 complainants were not examined before the trial Court. There are as many as 19 sheds within the campus of FCI Mandir Hasaud Depot, out of which, one shed is for dead stock and the dead stock mentioned in the work slip or other documents is referring to the shed and not the work. Finding recorded by learned trial Court that the work slip is prepared by the appellant is perverse. There is no direct evidence in this regard but the witness examined by the prosecution, are employees of the department, made statement before the Court that the work slip are being prepared by two of the employees namely R.S. Jadhav and G.D. Mahadik (co-accused). Court further discussed the involvement of appellant in commission of crime in para-69 and 74 of its judgment. Learned trial Court has not recorded specific finding showing connivance of the appellant with other co-accused nor there is any evidence or finding recorded by trial Court that appellant was aware of preparation of forged work slip, if any.

In absence of any finding of knowledge of preparation of forged work slip or any proof of appellant having connivance with other co-accused who are employees of the department, appellant could not be convicted under Section 120-B of IPC and consequently for other offences also. He contended that appellant is not a Govt. employee and, therefore, learned trial Court erred in convicting the appellant for offence defined under Section 5( 1) (d) read with Section 5 (2) of the Act of 1947.

Learned counsel for the respondent -CBI opposing the submissions of learned counsel for the appellant would submit that judgment of conviction passed against the appellant is based on appreciation of evidence available on record . Learned trial Court after evaluating -5 documentary and oral evidence available on record arrived at conclusion that the appellant submitted bills for the work done under Item No.24, accepted the payment against work slip issued as Ex.P-35 B-2, Ex.P-4, Ex.P-10, Ex.P-15 etc. and has again submitted work slip for the same work under Ex.P-7, Ex.P 7-A , Ex.P-12, Ex.P-13 and Ex.P-17 mentioning Item No.21, in connivance with the other co-accused some of those are officials of FCI at Mandir hasaud. He submits that the witnesses examined on behalf of appellants, namely Seetaram Ramji Jadhav, in his evidence admitted the nature of work in Item No.21 within the dead stock shed of bundling, re-bundling and staking.

Shri Bhupendra Singh, learned counsel for the appellant would submit that according to Manual produced as Ex.P-38 and admitted by the prosecution witnesses, the employee has to maintain two registers i.e. Work Done Register and Casual Labourer Register. Appellant was issued work slip towards the casual labourers supplied by the Contractor as per the contract agreement under Item No. 24 and further the work slip issued in favour of the Contractor under Item No.21 was for the work done, as mentioned in the agreement entered between the parties. He contended that Ex.P-35 2B and other relevant work slip, mentions the supply of causal labourers, dead stock for whole day, -7 which means that the Contractor supplied casual labourers to FCI to work at dead stock shed. There is no specification of any work other than the supply of casual labourers mentioned in those work slip i.e. Ex.P-35 2B. The work slip available on record as Ex.P-7 and others is the work slip under Item No.21 which is with regard to the work specified under the contract to be done by the Contractor for which rate is already fixed i.e. under the rate contract.

At this stage, learned counsel for the respondent submits that learned trial Court recorded in para-39 of the judgment that the Investigating Officer N.L. Khadse died in a road accident. Because of the prior death of Investigating Officer, he was not examined before the trial Court.

Learned counsel for the appellant would submit that before submission of inquiry report before the Court, the then Investigating Officer Late N.L. Khadse died and after him one R.S.Shukla, DSP, was appointed as Investigating Officer, who under his signature, submitted final report before the trial Court and this Investigating Officer was also not examined.

I have heard learned counsel for the parties and perused the record of -9 the trial Court.

Perusal of the first charge framed against the appellant would show that the appellant in between 14.07.1977 to 17.10.1981 at FCI depot Mandir Hasaud, Raipur by deceiving FCI Raipur fraudulently and dishonestly induced the department for payment of Rs.8423.80 on the basis of false work slip prepared for Item No.21 and thereby committed an offence punishable under Section 420 of IPC and the second charge is that appellant in between 14.7.1977 to 17.10.1981 at FCI Depot Mandir Hasaud, Raipur, entered into criminal conspiracy with Rawla Jadhav and J.D. Mahadik to illegally and fraudulently get the amount of Rs.8423.80 for the work which was not done by him as detailed in the charge sheet and thereby committed an offence under Section 468 of IPC, Section 5 (1) (d) of the Prevention of Corruption Act and offence punishable under Section 120-B/468 of IPC and Section 5 (2) of the Prevention of Corruption Act.

To prove the charges against the appellant, prosecution exhibited documents from Ex.P-1 to Ex.P-100, produced daily diary as Article “A” and examined as many as 15 witnesses namely S.S.C. Madan (PW1), D.S. Ranade (PW2), B.M. Tejpal (PW3), K.P. Ramchandran (PW4), R.P. Shukla (PW5), G.S. Nayak (PW6), A.D. Manikuri (PW7), Praveen Kumar (PW8), K.K. Krishnan (PW9), M.R.C. Panikar (PW10), K. Ramaswami (PW11), K.L. Arora (PW12), M.G. Agrawal (PW13), Hariprakash Tahalyani (PW14) and K.K.S. Pillai (PW15). Statement of appellant along with others accused persons were also recorded by the trial Court. S.S.C Madan examined as PW1, was working as Zonal Manager with FCI during the year 1984, who gave sanction for -10 prosecution of one Rawla Jadhav, Assistant Manager in the department. K.P. Ramchandran (PW4) (Assistant Manager, Accounts), in his evidence, stated that during the period 1977 to 1981, he was working in Mandir Hasaud FCI Depot, Shri Sabarmal Agrawal was HNT Contractor. All the bills submitted by the Contractor were being certified by the Assistant Manager and thereafter it is being sent to the higher office i.e. District Food Corporation of India Office- Kampa. In his evidence, he further stated about procedure of submitting and passing of bills which passes through several tables and entries were also made in different register. The work slip (Ex.P-7) is relating to Item No.21 which was signed by G.D. Mahadik. Ex.P-4 payment of work under Item No.21 has been made. This witness also stated the payment towards the bills submitted has been made. Payments have been made at 208% above the rate. The Tender issued by the FCI dated 8.5.1978 is marked as Ex.P-101 proved by Tulsiram (PW2). Period of contract, as mentioned in internal page No.15 under Clause -IX, is two years from 15.6.1978. Part-II of the tender deals with the other services in which Item No.21 deals with “bundling, loading, unloading, transporting of empty gunnies” and 24 deals with “supply of casual labourers” which are the two different heads in the facts of the case. The name of work as appearing in document Ex.P-101 is “appointment of loading/un-loading/handling and transport contractors” at Food Corporation Godowns and Railheads. The rates for each of the work is fixed.

Learned counsel for the appellant had raised ground that entire case against the appellant is that he submitted work summary and bills based on the work slip issued to him. The manner and procedure of -11 maintaining records of the work done or the casual labourers is being maintained by the FCI in the Work Done Register and Casual Labourer Register. Both the registers were not seized and exhibited before the trial Court. From the entries made in those registers only, it could be ascertained whether the appellant has prepared work summary for the same work of which he had already withdrawn/accepted the payment. The dead stock is a separate shed where the goods not usable are being stored. There are as many as 18 sheds out of which one is the dead stock shed. For each shed, one shed In-charge is deputed by the FCI. It is his duty to enter the number of casual labourers supplied and work done by the Contractor.

From the aforementioned evidence of prosecution witnesses, it is apparent that the witnesses in categorical terms made statement that in FCI, the Work Done Register and Casual Labourer Register are being maintained as per FCI Manual and there is no provision under the FCI Manual to maintain daily diary. One of the witness in his evidence stated that the daily diary is prepared by the Godown In-charge for his memory. Learned trial Court has also taken note, that there is no mention in FCI Manual of preparing of daily diary. Therefore, the authentic register/record for entering the entries of the work done Item-wise is Work Done Register and further, separate register is maintained as Casual Labourer Register for keeping the record of the labourers supplied. Person/Shed In-charge who prepared the daily diary Article “A” was not examined before trial Court and the witness M.R.C. Paanikar (PW10) stated that he cannot say that daily diary inspected by him is one and the same as shown to him in the Court (para-14). In absence of examination of the Shed In-charge before the Court, it cannot be proved that the daily diary seized and marked as Article “A” and Article “B” is the same daily diary maintained by the Shed In-charge, 'dead stock'. Entire case is based on entries made in daily diary, it is not the record maintained as per Manual but for convenience of the shed In-charge. -14 The daily diary is not a record to maintain mandatorily as per norms of Manual and therefore, it cannot be treated as authentic record. One of the important lacuna of the case is that the Shed In-charge who stated to have prepared daily diary and made entries was not examined, and therefore the appellant was deprived of his right to cross-examine the material witness.

Learned trial Court in para-66 of the judgment, has recorded finding that appellant and co-accused Late Satyanarayan Agrawal have produced bill (Ex.P-4) with regard to “dead stock” and earlier also, bills Ex.P-41, Ex.P-42, Ex.P-40, Ex.P-26 and Ex.P-43 and work slips No.7503, 7512 were produced with regard to “dead stock” and for the same work, the work slip No.252 (Ex.P-7) and work slip No.8442 (Ex.P- 7B), work slip No.8432 (Ex.P-7A), work slip No.8441 (Ex.P-12) and work slip No.8431 (Ex.P-17) were produced. Trial Court further recorded in para-67 of the judgment that it is proved by the prosecution that the bills submitted mentioning the work under Item No.24, was again submitted mentioning Item No.21 for the same work. Taking into consideration the judgment of Hon'ble Supreme Court in case of Bakhshish Singh Dhaliwal vs The State Of Punjab (AIR 1967 SC 752) and Sunil Kumar Paul Vs. State of West Bengal (AIR 1965 SC 706), finding has been recorded that the appellant committed the offence of cheating. Learned trial Court further considered in para-69 of its judgment that the Assistant Manager (Depot) has to verify before certifying and forwarding the bills from the work slip and work done register and it is clear from the evidence of witnesses Seetaram Ramji Jadhav and Rawla Jadhav that it is also to be seen whether the work for which the work slip is -15 issued is entered into the Work Done Register or not but no such inquiry was done. As discussed above, to prove that the appellant based on the work slip issued by the official of the department has prepared summary and submitted for payment and accepted amount for one and the same work twice, it is for the prosecution to prove beyond all reasonable doubt that the appellant claimed twice for one and the same work and withdrawn amount twice. Perusal of the document as referred to above in para -66 of the judgment of the trial Court would show that work slips issued under Item No.24 only mentioned about the deployment of casual labourers. There is no specification of the work done.

The work slips issued under Item No.21 mentions the details of the work specifically. Even if it is considered that the work slip produced under Item No.24 and 21 is of the same date and period, then also, in view of the contract given to Late Sabarmal Agrawal (Contractor) under the tender (Ex.P-101), the Contractor has to discharge the work under the different items. Work Done Register is not produced as evidence, which is essential and offical register wherein the entire work done by the Contractor is being entered by the official of FCI. The consideration of learned trial Court in para-71 of its judgment of some recovery from the Contractor, in absence of specific evidence to be brought on record that the recovery is on account of submission of claim by the Contractor through appellant, is against withdrawal of amount twice for one and the same work, is not sustainable. The evidence of the official only shows some recovery of excess payment. In the evidence, it has come that amount for work claims 208% above. The law enunciated in the judgment relied upon by learned trial Court will apply to the facts of case -16 only when the prosecution proves beyond reasonable doubt that the appellant claimed twice by preparing the work slips summary and bills in connivance with the official of the FCI. It is settled law that in criminal cases, to prove the charges levelled against any of the accused person, it is for the prosecution to prove the charges beyond all reasonable doubt. Suspicion, howsoever grave, cannot take place of the proof.

Hon'ble Supreme Court in the case of Datar Singh Vs. The State of Punjab (1975)4 SCC 272, held thus:-

3. It is often difficult for Courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve, the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime, of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution closes to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole super-structure built on such insecure foundations collapses, proof of -17 some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case.

In the case of Varkey Joseph Vs. State of Kerala 1993 Supp (3) SCC 745, Hon'ble Supreme Court held as under :

12. Suspicion is not the substitute for proof. There is a long distance between ,may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under section 302 I.P.C.

If in the light of aforementioned decisions of Hon'ble Supreme Court, facts of the case at hand is tested, would show that case of the -18 prosecution is based on submission of work slips and bills for one and the same work for which the Contractor withdrawn the amount and the appellant being representative of the Contractor had submitted the work slips and bills as also withdrawn amount twice. Upon audit objection, an inquiry was conducted by MRC Panikar (PW10). In his evince, he stated that daily diary is prepared and maintained by an employee who is Shed In-charge. Daily diary is prepared for memory and convenience of Shed In-charge and is not an offcial record. He verified the diary of Shed -Dead Stock but did not find the entry for which the work slip is submitted by the appellant and prepared report. The Inquiry Report is not part of the record as admitted by witnesses. He also admitted that he gave statement/evidence based on daily diary and work slip available in Court record.. He also made statement that he cannot say that daily diary inspected by him is one and the same which is shown to him in Court.

In aforementioned facts and evidence, I am of the view that prosecution failed to prove the charge that the appellant prepared the work slip for one and the same work and withdrawn the amount twice , more so in view of entries made in the disputed work slips under Item No.24 and Item No.21. This Court is of the view that prosecution failed to prove charges levelled against the appellant beyond reasonable doubt.

For the foregoing reasons, finding recorded by learned trial Court convicting the appellant for offence under Sections 420, 468-120-B of IPC, Section 5 (1) (d) / 5 (2) of the Act of 1947 read with Section 120-B of IPC are not sustainable. Accordingly, the judgment and conviction are set aside.

Appeal is allowed. Appellant is acquitted from the charges levelled against him. Appellant is on bail, his bail bonds are discharged. (Parth Prateem Sahu) Sd/-/-/-- Judge Praveen