J.P. Mishra v. Central Bureau Of Investigation Through Superintendent Of Police, (C. B. I.), VIP

name of VSRP Shiledar, V.K. Bhandari and Smt. Dropadi Bai, -3 respectively.

3. Learned trial Court based on material available in the charge sheet framed charges against the appellant for offence under Section 420, 409 (thrice), 467, 468 and 477-A of IPC as also charge under Section 13 1 (c)/ 13 (2) of the Act of 1988. Charges levelled against the appellant was denied by the appellant and he was put to trial. Prosecution examined as many as 9 witnesses and exhibited 31 documents to prove the charges alleged against the appellant. Shashi Laxmi Kant Singh, Postal Assistant was examined as PW1, Vijay Krishna Bhandari, Account Holder of Saving Bank Account No. 378589 as PW2, Vasudev, Account Holder of Saving Bank Account No.378510 as PW3, Badri Prasad Dewangan, Sub Divisional Inspector (Post Office) as PW4, Dinesh Shukla, Assistant Superintendent (Post Office) as PW5, M.K. Jain, Assistant Superintendent (Post Office) as PW6, A. Soni, retired Superintendent (Post Office) as PW7. A.P. Shrivastava, Director, Postal Services as PW8 and N.K. Dubey, Superintendent of Police (CBI) (retired) as PW9 . Statement of appellant was also recorded. Appellant examined 8 defence witnesses in support of his defence. After conclusion of trial, learned Court below held the appellant guilty of commission of offence as alleged against him and punished him for the sentences as mentioned in para-1 of this judgment.

4. Learned counsel for the appellant would submit that allegation against the appellant is of fraudulently and dishonestly withdrawal of amount of Rs.15682/- from three different accounts of Saving Banks Account holders of the Sub-Post Office Sarkanda. The amount deposited by the saving bank account holders of VSRP Shiledar, V.K. Bhandari and Smt. -4 Dropadi were entered into their pass-book but was not entered into their ledger account. Allegation of not entering the amount deposited in the ledger of account holders and allegation of fraudulently and dishonestly withdrawal of the amount from three accounts totaling Rs.15682 is baseless and without any evidence . One of the account holder Dropadi Bai was not examined by prosecution before trial Court as witness. Handwriting report is not produced and no handwriting expert was examined. In absence of submission of handwriting report and examination of handwriting expert, allegation of fraudulent withdrawal of the amount, from the accounts of the savings bank account holders of Sub-Post Office, Sarkanda is not proved. Seizure is not proved by the independent witnesses. The witnesses examined to prove seizure of documents are the employee of the Postal Department. It is further contended that appellant is a Govt. servant and, therefore, for prosecution of a Govt. employee, prior sanction of the competent authority is mandatory. Appellant was working as Sub-Post Master and his appointing authority is Superintendent of Post Office whereas sanction is given by the Director, Postal Services and not by Superintendent of Post Office. In the alternate, it is also submitted that the sanction was granted without application of mind. Appellant is convicted only on the basis of evidence of Badriprasad Dewangan (PW4) and Shashilaxmi Kant Singh (PW1) who in their deposition, stated that they are acquainted with handwriting of appellant and the handwriting in the pass-book of account holders and ledger of the accounts holder kept in the Department are in the signature of appellant. PW1 and PW4 are not the experts, therefore, trial Court erred in relying upon the evidence of PW1 and PW4 to conclude that the handwriting in -5 the relevant documents i.e. Ex.P-1, Ex.P-2, Ex.P-9 and Ex.P-10 and other Ledger Cards are of appellant. In support of her contention, she relied upon decisions of Hon'ble Supreme Court in the case of Ravichandran Vs. State (2010) 11 SCC 120 (para- 14, 16, 17) and State of Maharashtra Vs. Dwarkabai Keshav Rathod (2011) SCC OnLine Bom 2104 (para- 11 and 12). She next contended that there was no entrustment of any property with the appellant. As the entry made in the pass book of the account holder is not proved in accordance with law, it cannot be said that the appellant was entrusted with the amount more so when account holders are not examined. Trial Court has erroneously held the appellant guilty of offence under Section 409 of IPC. In support of her contention she places reliance upon the decision of Hon’ble Supreme Court in the case of N. Raghavender Vs. State of A.P. 2021 SCC OnLine SC

1232. She submits that in case the offence alleged against the appellant is found to be proved by this Court, then substantive sentence awarded to the appellant in cases be ordered to run concurrently in all cases registered against the appellant as provided under Section 427 of Cr.P.C. . Lastly, she contended that substantive jail sentence awarded to the appellant be reduced as the case against the appellant was registered in the year 1996, as of now about 25 years have already elapsed and age of appellant is about 63 years. In support of his contention, she places reliance upon the decision of Hon'ble Supreme Court in the case of K.P. Singh Vs. State (NCT of Delhi) (2015) 15 SCC 497 and Benson Vs. State of Kerala (2016)10SCC

307. -6

5. Shri Himanshu Pandey, learned counsel for respondent- CBI vehemently opposes the submissions of learned counsel for the appellant and would submit that learned trial Court, upon appreciation of the facts and circumstances of the case, appellant being a public servant, documentary and oral evidence brought on record by the prosecution, has rightly held the appellant guilty for commission of offence under Sections 420, 468, 477-A, 409 of IPC and Section 13 (1) (c) read with Section 13 (2) of the Act of 1988 and sentenced him as mentioned in the impugned judgment. He submits that the appellant being the central Govt. employee and is working as Sub- Post Master in the Post Office, the Post Office also accepts deposit from their customers. Procedure is prescribed for opening of the account, accepting deposit and disbursement of the amount, to be withdrawn by the account holders. Appellant holding the post of Sub Post Master and In-charge of the Sub Post Office was well aware about the procedure to be followed for accepting deposit and for disbursement of the amount when withdrawn by the account holder. The appellant during the relevant period of his posting as Sub Post Master in Sub Post Office- Sarkanda had withdrawn the amount from the account of one Vasudev continuously for three days. The entries have not been made in the pass-book of the account holder. The procedure to accept the deposit and disburse the amount is also very specifically mentioned in the pass- book. Prosecution examined the account holder Vasudev as PW3, who in his statement very categorically stated that he has not withdrawn the amount on 05.05.1994, 6.5.1994 and 7.5.1994. He also contended that the account holder Draupadi and V.K. Bhandari deposited the amount on different dates which were not entered into pass-book nor in any -7 official records like ledger card, daily account to be maintained in the Sub-Post Office and list of transactions. The appellant being the In- charge of the Sub-Post Office was duty bound to accept the amount as also disburse the amount from the savings bank account and, therefore, the roll of the appellant is of Principal and Agent and the amount deposited with the Post Office was under the entrustment of the appellant being the public servant. Referring to provision under Section 405 of the IPC of criminal breach of trust, he submits that the submission made by learned counsel for the appellant that the provision under Sections 405, 409 of IPC would not be attracted is not correct in the facts of the case. He contended that to prove the non-deposit of the amount in the account of V.K. Bhandari, his Pass Book (Ex.P-1), Ledger Card (Ex.P-9) and the List of Transactions (Ex.P-19) were produced to show that though there is an entry made in the pass-book, the relevant corresponding entries were not available in the official record. The slip is also produced as Ex.P-2 to prove that V.K. Bhandari has deposited the amount of Rs.7,000/- on the relevant date. In support of his contention, he placed reliance upon the judgment of Hon'ble Supreme Court in the case of Sadhupati Nageswara Rao Vs. State of Andhra Pradesh (2012) 8 SCC 547 (para-13, 14), Anwar Chand Sab Nanadikar Vs. State of Karnataka (2003) 10 SCC 521 (para-5). Signature and the entries made in the disputed documents was proved by Shashi Laxmi Kant Singh (PW1) and Badri Prasad Dewangan (PW4) who are the employees of the department. The witnesses categorically stated that they are acquainted with handwriting and signature of the appellant, because, in discharge of official duty, appellant used to forward the records to the Head Office which passes -8 through them. He submits that in view of Section 47 of the Indian Evidence Act, the Court can form opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed or was not written or signed by that person, is a relevant fact and that has been proved by Shashi Laxmi Kant Singh (PW1) and Badri Prasad Dewangan (PW4). In view of the provision under Section 47 of the Evidence Act and that the prosecution witnesses Shashi Laxmi Kant Singh (PW1) and Badri Prasad Dewangan (PW4) were examined to prove handwriting, submission of learned counsel for the appellant that in absence of handwriting expert report appellant could not be convicted under Section 468, 420 is not sustainable. He contended that the appellant being the employee of the Post Office and is having the control and command over all the relevant documents, it was his duty to give explanation in his statement recorded under Section 313 of Cr.P.C. as to how entries were made of the withdrawal of the amount from the account of Vasudev and in what circumstances the entries of deposit are not made in the official record. When the prosecution proved the chain of events, under Section 106 of the Evidence Act, it is burden upon the appellant to prove the fact that why he has not made entry in the official record. In support of his contention he placed reliance upon judgment of Hon'ble Supreme Court in the case of Munish Mumbar Vs. State of Haryana (2012) 10 SCC 464 and Sabitri Samantaray Vs. State of Odisha (CRA 988 of 2017) decided on 20th May 2022.

6. I have heard learned counsel for the respective parties and perused the records of the Court below. -9

7. So far as submission of learned counsel for the appellant with regard to sanction not granted by competent authority and in alternate sanction granted by the authority is without application of mind is concerned, sanction for prosecution was granted vide Ex.P30 by Director, Postal Services. Director Postal Services A.P. Shrivastava was examined as PW8. In his evidence, he stated that appointment of the appellant (Sub-Post Master) is by the Senior Superintendent of Post Office. Said post has been re-designated as Superintendent, Post Office. Director, Postal Service is a higher post than that of Superintendent, Post Office. Authority who granted sanction for prosecution is higher authority than that of the Appointing Authority and therefore if the sanction is granted by the higher officer than that of the Appointing Authority, the sanction is valid. Hon’ble Supreme Court in case of Mahesh Prasad vs The State Of Uttar Pradesh (AIR 1955 SC 70) and in case of H. N. Rishbud And Inder Singh vs The State Of Delhi (1955 CRLJ 2080 SC) has held that the competent authority to remove must be either the very authority who appointed or any other authority directly superior to the appointing authority in the same department. In view of the fact that the Director, Postal Services is holding superior post than that of Superintendent, Post Office, sanction given by the Director, Postal Services is proper and in accordance with law. The alternate submission of learned counsel for the petitioner that the authority granted sanction is without application of mind is concerned, AP Shrivastava (PW8) in his evidence has made categorical statement that before granting sanction, he perused the case diary and report, therefore, it cannot -10 be said that sanction was granted without application of mind.

8. Next submission of learned counsel for appellant that, allegation of commission of offence under Sections 420, 468, 477-A, 409 of IPC is not proved by cogent evidence is concerned, prosecution placed on record pass-book of A/c No.378589 of Vijay Krishan Bhandari as Ex.P-1. Perusal of pass-book would show the deposit of Rs.7,000/-on

30.4.1994, having the round seal on the said date of the Post Office Sarkanda and initial against the entry made therein. Ex.P2 and Ex.P3 and Ex.P-4 are the withdrawal slips for withdrawing the amount from saving account No.378510 on 05.05.1994, 06.04.1994 and

07.05.1994, pass book of the account bearing No.378540 is produced and marked as Ex.P-6 recorded in the name of Vasudev Seetaram Pant Shilleder. In the pass book (Ex.P-6) entry of withdrawals on 05.05.1994, 06.04.1994 and 07.05.1994 is not available. As per the normal procedure of working at the time of deposit and withdrawal, account holder is required to produce the pass-book before the official of Post Office on each transaction. In the ledger card of V.K. Bhabndari, Account No.378589 deposit of Rs.7,000/- on 30.04.1994 is not mentioned though entry is in passbook. In the transaction sheet prepared by Post Office on

30.04.1994 (Ex.P-19) deposit of Rs.7,000/- is not shown in account No.378589 but it is shown in the A/c No.380385. Account No.380385 is in the name of appellant. Likewise deposit of Rs.5,000/- from Dropadi is not entered in the records of the Post Office in the name of Dropadi Bai. The deposit is of 21.04.1994. As admitted by the -11 appellant, he worked as Sub-Post Master at Sub Post Office Sarkanda till 13.05.1994. Vasudev, saving bank account holder bearing No.378510 was examined before trial Court as PW3. He denied the withdrawal of the amount on 05.05.1194, 6.5.1994,

07.05.1994 of Rs.1500/-, Rs1400/- and Rs.1900/- respectively vide Ex.P- 2 to Ex.P-4. In his cross-examination, he denied the signature in withdrawal slips in specific terms. Badri Prasad Dewangan, the Inspector who conducted inquiry is examined as PW4. In his evidence, he stated that in inquiry he found irregularities committed by the appellant in deposit and withdrawal of the amount of account holder from their saving bank account. They inquired based on the direction issued by the Superintendent Post Office Bilaspur and submitted the report. In para-7 of his deposition he stated that he deals with all personal files which is received in the staff branch of all Sub-Post offices. He is acquainted with the writing and signature of the appellant. He identified the handwriting and signature in the pass book and other relevant documents exhibited before the Court to be of the appellant.

9. From the evidence of PW4 it is apparent that the amount deposited by V.K. Bhandari of Rs.7,000/- on 30.04.1994 is not shown to be deposited in account of account holder having A/c No.378589 (V.K. Bhandari), in other records maintained and prepared at the branch level. Withdrawal of the amount from account of Vasudev bearing A/c No.378510 is made but entries of withdrawal is not in pass-book. Withdrawal slips Ex.P-2 to Ex.P-4 has been stated to be in -12 handwriting and signature of appellant. Withdrawal from the account of Vasudev is on three consecutive dates. PW6 MK Jain, Additional Superintendent, Postal Service stated about the procedure for opening of account, accepting deposit and making payment at the time of withdrawal of amount by account holders. He also stated that the employees of the Post Office i.e. Sub Post Master has to verify the entries made in the pay-in slip, amount, signature and after accepting slip and amount he also, has to make corresponding entries in the pass-book and entry in the ledger and similar process is to be followed at the time of withdrawal of payment of the amount and the entries to be made in the ledger account as well as in the pass book. Perusal of the entries made in the pass-book (Ex.P-1) and withdrawal form in Ex. P-2 to Ex.P-4, Pay-in slip, pass-book of Vasudev (Ex.P6), it is appearing that entry made in the pass-book (Ex.P-1) of Rs.7,000/- is not entered in the ledger card, daily account of A/c No.378589 and there is no entry of withdrawal of amount in pass-book of Vasudev bearing A/c No.378510. From the aforementioned evidence available on record in A/c No.378589, the prosecution has proved that there are irregularities in deposit and withdrawal of the amount from A/c No. 378589 and 378510.

10.For determining the question as to who had committed the financial irregularities with the account holder of savings accounts, evidence of PW4 is important. To prove handwriting in pass-book and the withdrawal slips as also daily account, prosecution examined PW4 and PW1. True it is that the handwriting expert is not examined -13 before the trial Court. Section 47 of the Evidence Act talks about the opinion as to handwriting when relevant. Section 47 of the Evidence Act is extracted below for ready reference: “47. Opinion as to handwriting, when relevant.—When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation.—A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.”

11. The aforementioned provision envisages that for forming opinion by the Court as to the person who has written or signed the document, opinion of any person acquainted with the handwriting of that person by whom it -14 is supposed to be written or signed was or was not written or signed by that person is relevant. Under Explanation, it has been clarified that the opinion of the person who has seen that person write or has received the documents purporting to be written by that person, in ordinary course of business, can be said to be acquainted. In the case at hand, two witnesses working in the department where the appellant was working and the files forwarded by him along with the documents under his signature is being processed through the table of these witnesses. In the aforementioned facts of the case and specific provision under the Indian Evidence Act, I am of the view that, prosecution has proved the fact that the handwriting in the pass-book (Ex.P1 and Ex.P-6) are in writing of the appellant which also bears his signatures. For the foregoing discussion, submission of learned counsel for the appellant that learned trial Court committed error in arriving at finding that prosecution proved that the documents Ex.P-1 and Ex.P-2 to Ex.P-14 are in the handwriting of appellant and signatures therein is not sustainable and is repelled.

12.In the aforementioned facts and circumstances of the case as also considering evidence of Badri Prasad Dewangan (PW4) who was acquainted with the handwriting and signature of appellant, in the opinion of this Court learned trial Court has not committed any error in relying upon the evidence of PW4 to conclude that handwriting in pass- book, withdrawal slip, daily account is of appellant.

13. The appellant in his statement recorded under Section 313 of Cr.P.C. has admitted that the then Sub Post Master committed irregularities. He has not offered any explanation about the irregularity in the deposits of -15 the amount in the accounts of V.K. Bhandari, Dropadi and withdrawal from the account of Vasudev (PW3). Hon'ble Supreme Court in the case of Munish Mubar (supra) has discussed the consequence of non- offering of the explanation of the accused under Section 313 of Cr.P.C. and held thus:- “31. The issue of non-examination of independent witnesses and reliance upon the deposition of police officials as “panch witnesses” was considered at length by this Court in State, Govt. of NCT of Delhi v. Sunil & Anr., (2001) 1 SCC 652, wherein this Court held as under: “20….But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust………At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross- examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted -16 upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” It is obligatory on the part of the accused, while being examined under Section 313Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation, even in a case of circumstantial evidence, so as to decide, whether or not, the chain of circumstances is complete. The aforesaid judgment has been approved and followed inMusheer Khan v. State of Madhya Pradesh, (2010) 2 SCC 748. (See also:The Transport Commissioner, A.P., Hyderabad & Anr. v. S. Sardar Ali & Ors., AIR 1983 SC 1225).

32.In view of the aforesaid discussion, it is evident that in spite of the fact that in case there is no independent witness of recoveries and panch witnesses are only police personnel, it may not affect the merits of the case. In the instant case, the defence did not ask this issue in the cross-examination to Inspector Shamsher Singh (PW.21) as why the independent person was not made the panch witness. More so, it was the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.PC., as under what circumstances his car had been parked at the Delhi Airport and it remained there for 3 hours on the date of occurrence. More so, the call records of his telephone make it evident that he was present in the vicinity of the place of occurrence and under what -17 circumstances recovery of incriminating material had been made on his voluntary disclosure statement. Merely making a bald statement that he was innocent and recoveries had been planted and the call records were false and fabricated documents, is not enough as none of the said allegations made by the appellant could be established.”

14.Submission of learned counsel for the appellant of extending the benefit of Section 427 of Cr.P.C. directing the punishment imposed against appellant in subsequent cases registered against him to run concurrently is not acceptable. Offence committed by the appellant is on different dates and with different account holders and is not arising out of one transaction. Hence, judgment relied upon by learned counsel for the appellant in the case V.K. Bansal Vs. State of Haryana and Anr. (2013) 7 SCC 211 is on different facts.

15.Decision in case of Ravichandran (supra) is distinguishable on facts. In that case the witness not worked in the same section. The another decision relied upon by learned counsel in case of N. Raghavender (supra) is also on different facts. In that case, letters written for pre- mature disbursement of FDRs and to deposit in the account of Academy was produced before Court. In the case at hand, the appellant being a Sub-Post Master in Postal Department, accepted the deposit from the account holder and not accounted in Govt. account maintained by the Post Office. In the Govt. account, it is not shown as deposit of the account holder. The account holder gave the amount under entrustment -18 to the appellant -Sub Post Master who is duty bound to accept money from the account holder, for deposit in his account which was not done, the appellant further withdrawn the amount from the accounts of customers.

16.So far as the last submission of learned counsel for the appellant of reduction of punishment considering the period since 1996, the appellant is facing mental trauma and agony of criminal trial, his age as of now is 63 years and the minimum sentence prescribed under Section 13 (1) (c) read with Section 13 (2) of the Act of 1988 substantive jail sentence awarded to the appellant for commission of each offence i.e. Sections 420, 468, 477-A, 409, 409, 409 of IPC and Section 13 (1) (c) read with Section 13 (2) of the Act of 1988 is reduced to one year RI for each offence. The substantive jail sentence imposed under all Sections to run concurrently. The fine imposed by learned trial Court for each of the offence and default sentence are not disturbed.

17. The appeal is accordingly partly allowed. Sd/-/ (Parth Prateem Sahu) Judge Praveen