* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 14th July, 2011
+ CRL.A. 90/1994
G.L. CHAWLA ..... Appellant
Through: Mr. K.K. Sood, Senior Advocate with
Mr. Pankaj Baghla and Mr. Sanchit
Dhawan, Advocates.
Versus
STATE (CBI) ..... Respondent
Through: Mr. Narender Mann, Standing Counsel
for CBI.
AND
+ CRL.A. 98/1994
INDER SINGH ..... Appellant
Through: Mr. Anurag Jain, Advocate.
Versus
STATE (CBI) ..... Respondent
Through: Mr. Narender Mann, Standing Counsel
for CBI.
AND
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 1 of 25
+ CRL.A. 99/1994
M.K. GHOSH ..... Appellant
Through: Mr. S.S. Gandhi, Sr. Advocate with Mr.
Abhishek Rai, Advocate
Versus
STATE (CBI) ..... Respondent
Through: Mr. Narender Mann, Standing Counsel
for CBI.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
1. These appeals arise out of a common impugned judgment dated 4 th
March, 1994 whereby the Appellants were convicted for offences punishable
under Section 120B, read with Section 420 IPC and Section 5 (2) read with
Section 5 (1) (d) of the Prevention of Corruption Act, 1947 (in short the „POC
Act‟) and for substantive offences punishable under Section 420 IPC and
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 2 of 25
under Section 5(2) read with Section 5 (1) (d) of the POC Act and the order
on sentence dated 4th April, 1994 whereby they were directed to undergo
Rigorous Imprisonment for six months and a fine of `50,000/- and in default
of payment of fine to further undergo Simple Imprisonment for six months for
offence punishable under Section 120B read with Section 420 IPC and 5 (2)
read with Section 5 (1) (d) of the POC Act; Rigorous Imprisonment for six
months and a fine of `50,000 each and in default of payment of fine to further
undergo simple imprisonment for six months for offence punishable under
Section 420 IPC and RI for one year and a fine of `1 lakh each and in default
of payment of fine further simple imprisonment for one year for offence
punishable under Section5 (2) read with Section 5 (1) (d) of the POC Act in
Complaint case No. 64/1991.
2. Along with the Appellants one Shri S.K. Gambhir, Assistant Divisional
Engineer was also convicted however, the appeal being Crl. Appeal No. 85/94
filed by him has abated as he expired during the pendency of the appeal.
3. Briefly the prosecution case is that during March, 1974 to August,
1974, Shri M.K. Ghosh-Divisional Engineer (Telephones), Shri S.K.
Gambhir-Assistant Divisional Engineer (Telephone), Shri G.L.Ghawla and
Shri Inder Singh-Technicians were working in the Equipments Installation
Division, Delhi Telephones, New Delhi. While working as above they
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 3 of 25
entered into a criminal conspiracy with the object to commit the offences of
cheating and criminal misconduct by abusing their position as public servants.
In pursuance of the said criminal conspiracy, the said Shri S.K. Gambhir
prepared 13 unauthorized indents (Ex. PA, Ex. PB, Ex. PC, Ex. PD, Ex. PE,
Ex. PF, Ex. PG and Ex. PH-1, Ex. PH-2, Ex. PH-3, Ex. PH-4, Ex. PH-5, and
Ex. PH-6) for the supply of underground cables, quoting the numbers of
certain sanctioned estimates and also recorded certificates thereon to the effect
that the funds were available and that the estimates had been sanctioned by the
competent authority and signed the same as Indenting Officer. There was no
provision of underground telephone cables in those estimates. Further in
pursuance of the aforesaid criminal conspiracy Shri M.K. Ghosh
approved/counter signed all the aforesaid 13 unauthorized indents prepared by
Shri Gambhir.
4. On the basis of the aforesaid 13 authorized indents, underground
telephone cables measuring about 43,000 meters were issued by Ganpat Ram
PW-19 from the circle stores depot at Netaji Nagar and Eastern Courts and the
entries were made in the Store Register (Ex. PW 19/A) maintained by him at
the store.
5. In pursuance of the criminal conspiracy Shri G.L. Chawla and Shri
Inder Singh, made request to Shri Ganpat Ram PW-19, by way of 14
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 4 of 25
requisition slips requesting therein the issue of various lengths of underground
cables falsely showing the issuance and consumption of the said materials in
the Government work at Delhi University Campus and at Lok Sabha. Shri
S.K. Gambhir passed orders for issue of underground cables on the said
requisition slips. The underground cables were issued by PW19 to Shri G.L.
Chawla on the Requisition slips Ex. PW14/DA-10 to Ex. PW14/DA-14 and
Shri Inder Singh on the Requisition slips Ex. PW14/DA-1 to Ex. PW14/DA-
14. The cables were received and acknowledged on the said requisition slips
by Shri G.L. Chawla and Shri Inder Singh.
6. The aforesaid cables were not used at Delhi University Campus, Lok
Sabha or in any other Government work. Thereafter, the underground
telephone cables so issued on the basis of 13 unauthorized indents were
otherwise disposed of/not accounted for, by the above said convicts, obtaining
pecuniary advantage for themselves by misappropriating the same.
7. When there illegal activities came to the notice of the higher authorities,
M.K. Ghosh, S.K. Gambhir and Inder Singh in order to cover up their acts of
misconduct and cheating, arranged the labourers of the Cables Division, who
were already at work at Raj Ghat and got laid about 1000 meters of
underground cables in the Delhi University Campus, where it was not at all
required. When they were hurriedly getting laid the cables at Delhi University
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 5 of 25
area in order to show the consumption of the cables issued to them, the
Deputy General Manager along with some officials of the Vigilance Section
of the Delhi Telephones Department raided the area and detected the fraud.
8. These appeals are required to be considered as per the law laid down by
the Hon‟ble Supreme Court in State through Superintendent of Police,
CBI/SIT v. Nalini and Ors. others, 1999 (5) SCC 235 as regards the criminal
conspiracy to commit an offence, wherein the Hon‟ble Supreme Court
summarized the broad principles governing the law of conspiracy.
“591. Some of the broad principles governing the law of
conspiracy may be summarized though, as the name implies, a
summary cannot be exhaustive of the principles.
1. Under Section 120A IPC offence of criminal conspiracy is
committed when two or more persons agree to do or cause to
be done an illegal act or legal act by illegal means. When it is
legal act by illegal means overt act is necessary. Offence of
criminal conspiracy is exception to the general law where
intent alone does not constitute crime. It is intention to commit
crime and joining hands with persons having the same
intention. Not only the intention but there has to be agreement
to carry out the object of the intention, which is an offence.
The question for consideration in a case is did all the accused
had the intention and did they agree that the crime be
committed. It would not be enough for the offence of
conspiracy when some of the accused merely entertained a
wish, howsoever, horrendous it may be, that offence be
committed.
2. Acts subsequent to the achieving of object of conspiracy
may tend to prove that a particular accused was party to the
conspiracy. Once the object of conspiracy has been achieved,
any subsequent act, which may be unlawful, would not makeCrl. Appeal Nos. 90, 98 and 99 of 1994 Page 6 of 25
the accused a part of the conspiracy like giving shelter to an
absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely
possible to establish a conspiracy by direct evidence. Usually,
both the existence of the conspiracy and its objects have to be
inferred from the circumstances and the conduct of the
accused.
4. Conspirators may, for example, be enrolled in a chain – A
enrolling B, B enrolling C, and so on; and all will be members
of a single conspiracy if they so intend and agree, even though
each member knows only the person who enrolled him and the
person whom he enrolls. There may be a kind of umbrella-
spoke enrollment, where a single person at the center doing the
enrolling and all the other members being unknown to each
other, though they know that there are to be other members.
These are theories and in practice it may be difficult to tell
whether the conspiracy in a particular case falls into which
category. It may, however, even overlap. But then there has to
be present mutual interest. Persons may be members of single
conspiracy even though each is ignorant of the identity of
many others who may have diverse role to play. It is not a part
of the crime of conspiracy that all the conspirators need to
agree to play the same or an active role.
5. When two or more persons agree to commit a crime of
conspiracy, then regardless of making or considering any plans
for its commission, and despite the fact that no step is taken by
any such person to carry out their common purpose, a crime is
committed by each and every one who joins in the agreement.
There has thus to be two conspirators and there may be more
than that. To prove the charge of conspiracy it is not necessary
that intended crime was committed or not. If committed it may
further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the
common purpose at the same time. They may join with other
conspirators at any time before the consummation of the
intended objective, and all are equally responsible. What part
each conspirator is to play may not be known to everyone orCrl. Appeal Nos. 90, 98 and 99 of 1994 Page 7 of 25
the fact as to when a conspirator joined the conspiracy and
when he left.
7. A charge of conspiracy may prejudice the accused because
it is forced them into a joint trial and the court may consider
the entire mass of evidence against every accused. Prosecution
has to produce evidence not only to show that each of the
accused has knowledge of object of conspiracy but also of the
agreement. In the charge of conspiracy court has to guard itself
against the danger of unfairness to the accused. Introduction of
evidence against some may result in the conviction of all,
which is to be avoided. By means of evidence in conspiracy,
which is otherwise inadmissible in the trial of any other
substantive offence prosecution tries to implicate the accused
not only in the conspiracy itself but also in the substantive
crime of the alleged conspirators. There is always difficulty in
tracing the precise contribution of each member of the
conspiracy but then there has to be cogent and convincing
evidence against each one of the accused charged with the
offence of conspiracy. As observed by Judge Learned Hand
that “this distinction is important today when many
prosecutors seek to sweep within the dragnet of conspiracy all
those who have been associated in any degree whatever with
the main offenders”.
8. As stated above it is the unlawful agreement and not its
accomplishment, which is the gist or essence of the crime of
conspiracy. Offence of criminal conspiracy is complete even
though there is no agreement as to the means by which the
purpose is to be accomplished. It is the unlawful agreement,
which is the graham of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need not be formal
or express, but may be inherent in and inferred from the
circumstances, especially declarations, acts, and conduct of the
conspirators. The agreement need not be entered into by all the
parties to it at the same time, but may be reached by successive
actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in
crime, and that there is in each conspiracy a joint or mutual
agency for the prosecution of a common plan. Thus, if two or
more persons enter into a conspiracy, any act done by any ofCrl. Appeal Nos. 90, 98 and 99 of 1994 Page 8 of 25
them pursuant to the agreement is in contemplation of law, the
act of each of them and they are jointly responsible therefore.
This means that everything said, written or done by any of the
conspirators in execution or furtherance of the common
purpose is deemed to have been said, done, or written by each
of them. And this joint responsibility extends not only to what
is done by any of the conspirators pursuant to the original
agreement but also to collateral acts incident to and growing
out of the original purpose. A conspirator is not responsible,
however, for acts done by a co-conspirator after termination of
the conspiracy. The joinder of a conspiracy by a new member
does not create a new conspiracy nor does it change the status
of the other conspirators, and the mere fact that conspirators
individually or in groups perform different tasks to a common
end does not split up a conspiracy into several different
conspiracies.
10. A man may join a conspiracy by word or by deed.
However, criminal responsibility for a conspiracy requires
more than a merely passive attitude towards an existing
conspiracy. One who commits an overt act with knowledge of
the conspiracy is guilty. And one who tacitly consents to the
object of a conspiracy and goes along with other conspirators,
actually standing by while the others put the conspiracy into
effect, is guilty though he intends to take no active part in the
crime.”
M.K. GHOSH:
9. Learned counsel for the Appellant challenging the conviction contends
that the Appellant has no role in the entire episode and he is not a conspirator
to the crime. Each department/division does its own work. The plans are
prepared by the planning department where after the estimates are sent to the
different divisions for execution, which may be sent to a sub-division. Each
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 9 of 25
sub division is headed by Assistant Divisional Engineer and in this case the
Assistant Divisional Engineer was S.K. Gambhir. S.K. Gambhir was the
person who was given the Hollerith Number (HC) a code number of the
person who is competent to counter sign. Unless this HC number holder signs
and gives his HC number on the indent, the central store will not release the
material. Both the Eastern Court and the Lok Sabha Annexe stores were
under S.K. Gambhir, the Assistant Divisional Engineer and thus the sub-
divisional in charge. He prepared the estimates and had the necessary
approvals from the planning department. Since the Appellant M.K. Ghosh
was the HC holder number he only counter signed the 13 indents were
delivered from central store from where the material was sent to the sub-
divisional store. Thus the allegedly misappropriated underground cables never
went out of the stores and they were only transferred from the central store to
the sub-divisional store but remained in the government custody and hence no
case for misappropriation is made out. There is no allegation against the
Appellant that he prepared the requisition slips to draw the cables from the
sub-division stores at the Parliament Annexe which was under the charge of
S.K. Gambhir. There is no evidence on record that the Appellant had any role
either in requisitioning the material from the sub-division store or
unauthorizedly laying thousand meter cable in the Delhi University nor was
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 10 of 25
the delivery of the cables taken by the Appellant. Moreover, no witness stated
that the Appellant was present when cables were being laid at the Delhi
University. The Appellant was only a counter signing authority and he only
counter signed the indent. S.K. Gambhir who was the indenting officer
prepared the indents after obtaining all the sanctions and signing the same.
PW6 in his cross-examination has admitted that there is no statutory
restriction and even the Additional General Manager may allow DE
installation to take up laying of underground cables. PW6 has given instance
of another officer doing the same. Neither any case for misappropriation is
made out nor an offence punishable under the POC act is made out against the
Appellant as the prosecution has not been able to show that the Appellant sold
the cables outside. At best an offence under section 5 (1) (d) of the POC Act
can be said to be made out. However, no presumption under section 4 of the
said Act is available and thus the prosecution has to prove the said offence by
leading positive evidence beyond reasonable doubt against the Appellant.
10. Learned counsel for CBI states that the Appellant M.K. Ghosh was part
of the conspiracy and was in active connivance to misappropriate 43 thousand
meters of underground telephone cables. Thus, a case of cheating and
misconduct by abusing this position as a public servant is clearly proved by
the prosecution. Learned counsel for the CBI relies on the following
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 11 of 25
circumstances against him:
i. Shri M.K. Ghsoh is a technical person from the Telegraphs Engineering
Services and was the Divisional Engineer (Telephones) in the Equipments
Installation Division, Delhi Telephones, New Delhi. Being a technical person
he would know the nature of the cables and that the indents pertain to the
underground cables.
ii. It was within the knowledge of Shri M.K. Ghosh that the Officers-in-
charge of the Equipment installation were not required to deal with
underground cable because the work of laying cables is the responsibility of
the D.E.T (Cable Construction and Maintenance).
iii. That the indents clearly indicate that those were for the under ground
cables. That Shri M.K. Ghosh having knowing that the cable sought to be
issued were underground cables and not required by the installation division,
intentionally countersigned/forwarded all the 13 unauthorised indents
prepared by Shri S.K. Gambhir and thereby facilitated the issuance of the
underground Telephones Cables from the store depot.
iv. That Hollerith Code No. 0459 was allotted to him, which is like a Bank
Account and stores can be drawn by the holder of the Hollerith Code Number.
That despite knowing that the stores can be issued only to the holder of the
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 12 of 25
Hollerith Code, allowed S.K. Gambhir to initiate the unauthorized indents and
forwarded the same.
v. Shri M.K. Ghosh was the head of the department and did not verify the
authenticity of the indents, the sanctioned estimates and the certificates to the
indents and instead countersigned/forwarded the same. He did not verify that
there was no provision of underground telephone cables in the sanctioned
estimates. He did not verify that the certificates to the indents that funds were
available and that the estimates had been sanctioned by the competent
authority. PW5 Amrit Lal has stated that one copy of the estimate in sent to
the office of the Divisional Engineer.
vi. That Shri M.K. Ghosh was the in charge of the entire division and the
work of this division was only installation of instruments inside the telephone
exchanges and not laying cable. The entire NCR Delhi Faridabad Ghaziabad
was under M.K. Ghosh and S.K. Gambhir was Assistant Divisional Engineer
below him.
vii. That when the misappropriation came to the knowledge of the higher
authorities he actively assisted other convicts to cover up the Criminal
misconduct and actively participated by arranging the labourers from Raj
Ghat for laying cables at Delhi University area. It is also important that there
were no sanctioned estimates in respect of laying cables in Delhi University
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 13 of 25
area.
viii. That no written orders were either produced by Shri M.K. Ghosh or Mr.
S.K. Gambhir, directing them to lay underground cables, nor any such orders
were available on record in the Delhi Telephones. That no written order
directing them to lay underground cables either produced or found in Delhi
Telephone.
ix. Initially Mr. Ghosh denied his signatures on the indents. He even
denied the knowledge about these cables transaction and movement of cables
contrary to the rules.
x. That Shri Inder Singh informed PW4 and PW6 that the cables were
being laid there according to the instruction of Mr. M.K. Ghosh. He did not
initiate any action against his subordinate for having misappropriated the
underground cables.
11. Thus from a perusal of the evidence it is clear that the Appellant was
party to the conspiracy. The Appellant was division-in-charge, Telephone
Equipments Division. PW4 C. Krishnamurti has clearly stated that Mr. M.K.
Ghosh was working in the installation Division & that division was not
concerned with the installation/use of underground cables. PW5 in his cross-
examination has stated that he was the Divisional Engineer, Cable
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 14 of 25
Construction and he was aware of the works being executed under his control
and there was no such work as mentioned in the indent shown to him which
required underground cables. PW7 V.K. Kutar has stated that all the named
works given in any of the indent did not relate to the cable construction North
Division. He has further stated that the Installation Division does not carry
out the work of laying underground cables. This fact has been also stated by
PW9 B.L. Sethi that the officer who deal with the installation do not deal with
laying on underground cables. Thus there is overwhelming evidence on
record which shows that the Appellant who was the head of the equipments,
Installation Division as Divisional Engineer was not in-charge or responsible
for laying down underground cables. The Appellant again washes away his
hands by contending that he merely counter signed the indent prepared by
Shri S.K. Gambhir. While counter signing it is the responsibility of the
concerned authority i.e. Shri M.K. Ghosh on the present case to check the
legality of the document being signed. PW5 has stated that a copy of the
estimate was sent to the Divisional Engineer. Thus he had all the opportunity
to verify the same. He was duty bound to verify the estimates before signing.
PW5 stated that he had signed nine indents PE to PG and PH-1 to PH-6. He
has stated that the underground cables intended in these indents did not relate
to the estimates of this work as estimate pertained to the equipment
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 15 of 25
installation. He further states that proof of copies of the estimates are
prepared and one of the copies is also sent to the division concerned. Thus,
the Appellant was aware of the fact that the estimate pertained to the
equipments installation whereas he was signing on indents relating to
underground cables. PW3 Rangarajan has further stated that the Divisional
Engineer can counter sign, modify or reject the indents. Thus, it is the
Divisional Engineer who has to act and apply its own mind even if
subordinates have prepared incorrect documents. PW3 in his testimony has
stated that the estimates Exhibit PW3/A was signed and approved by him and
in the said estimates there was no requirement of underground cables
installation. PW8 S Roy has stated that estimates forwarded vide forwarding
note Exhibit PW8/A contains no requirement of any underground cables.
Thus, none of the estimates provided were for the underground cables
however, indents were prepared by S.K. Gambhir regarding underground
cables which were duly approved by M.K. Ghosh on the basis of which the
material were withdrawn from the central store illegally amounting to
misconduct and abuse of position by corrupt means. It has been further
proved by the testimony of PW1, PW2, PW3, PW5 that no work was done as
claimed in the indents PA to PC, PD to PF, PG and Exhibit PH1 to PH6.
Though 43 thousand meters underground cables were withdrawn from the
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 16 of 25
central stores however, the same were not laid. Moreover, the conduct of the
Appellant that when misappropriation came to the knowledge of the senior
officer, the Appellant actively assisted other convicts to cover up the illegal
acts and got started laying cables at Delhi University by arranging labourers
from Raj Ghat is also relevant. The evidence of PW16, PW17 and PW4 in
this regard is material which implicates the Appellant. Further PW4 has
stated that on verification they found out that there was no estimate in respect
of laying cables in the university area. PW27 A A Khan has further stated
that no written orders were produced by M.K. Ghosh or S.K. Gambhir
directing them to lay underground cables nor any such order was available on
record in the Delhi Telephones.
12. Thus, I find that the prosecution has proved the case beyond reasonable
doubt for offences charged against the Appellant.
INDER SINGH:
13. Learned counsel for the Appellant contends that the Appellant was
neither the Indenting Officer nor had any administrative authority. He was
only working as a subordinate to S.K. Gambir and was doing the duties as
directed by him. It is stated that the prosecution has proved two
circumstances against the Appellant firstly, that the Appellant along with G.L.
Chawla prepared requisition slips Exhibit PW14/DA-1 to Exhibit PW14/DA-
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 17 of 25
14 and secondly, that he was found present at the Delhi University where the
underground cables were being laid when PW4 Shri C Krishnamurti visited
the site. Even as per the prosecution case the Appellant joined the conspiracy
at a later stage and thus, in fact, as per the evidence on record the acts alleged
against the Appellant may at best be a cover up exercise. He has estimated
that these records were prepared later on to regularize the same. The
Appellant in his statement under Section 313 Cr.P.C. stated that he had signed
the requisition slips on the dictate of his senior officer. Such an act cannot be
termed as a criminal conspiracy as there is no meeting of mind. The second
circumstance against the appellant of being present at the site is not
incriminating in nature. PW4 has stated that the cables were being laid at the
instance of M.K. Ghosh. So at the first available opportunity the Appellant
has proved his innocence. The prosecution has led no evidence that the
Appellant misappropriated the cables or that he obtained pecuniary gains for
himself. The mere presence of the Appellant at the spot cannot bring him
within the purview of criminal conspiracy. As per the testimony of PW16 he
had thus, actually seen that the work was done and in view of this overseeing
of the work it could not be said that the Appellant misconducted. No material
has been recovered from the possession of the Appellant. Even the testimony
of PW6, PW16 and PW17 does not implicate the Appellant. PW19 Ganpat
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 18 of 25
Ram in his testimony has admitted that in July-August new books of accounts
are prepared however, he made entries in the new books of account in spite of
the old books of accounts and thus, Ganpat Ram was actively involved with
Shri Gambhir however, he has been cited as a witness. The defence of the
Appellant is probable and hence he is entitled to the benefit of doubt. The
evidence of PW19 is highly doubtful, suspicious and not reliable and in view
of this testimony the defence of the Appellant is probable. Even though the
testimony of hostile witness can be looked into however, the same should
inspire confidence. The Trial Court itself has observed that PW19 is not a
reliable witness.
14. Learned counsel for the CBI on the other hand states that the goods
were got released from the store by Inder Singh on the basis of the requisition
slips from PW19. If he had not played active role and issued the requisition
slips, the goods would not have been released from the store. His role is not
only of conspiracy but he has also been convicted substantively for offence of
cheating and criminal misconduct. If he had not participated in the conspiracy
the offence would not have been committed. He got issued material from the
store on the basis of four requisition slips Ex.PW14/DA-1 to Ex.PW14/DA-
10. The requisition slips were forwarded by S.K. Gambhir and the material
was accepted by Inder Singh from the store. PW19 Ganpat Ram has proved
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 19 of 25
the entry in the store register Ex. PW19/A regarding issue of the material to
him. He failed to account for the material got issued to him from the store.
Shri Inder Singh was an experienced employee and has been withdrawing the
material from the stores in regular course. He understands his responsibility
of issuing the requisition slips and acceptance of the material from the store in
charge. Being a seasoned technical person he would know the consequences
of issuing the requisition slips. When the misappropriation came to the
knowledge of the higher authorities he actively assisted other convicts to
cover up the illegal acts, and actively participated in arranging the labourers
from Raj Ghat for laying cables at Delhi University area and he was also
found supervising the work at Delhi University. The underground cable
measuring about 8000 meters was recovered from Delhi University in the
presence of Inder Singh, PW-4, PW6, PW16 and PW17.
15. On a perusal of the testimony of the witnesses and the law laid down in
the State vs. Nalini (supra) it is clear that a case of conspiracy is proved.
Their Lordships held that people may join even at a later stage of the
conspiracy for a limited purpose and thus may not even be aware of the entire
conspiracy, none the less they are conspirators and liable for offence
committed by each of the conspirator.
16. Even though no role has been assigned to the Appellant at the time of
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 20 of 25
preparing of the indent and the release of the material from the central store to
the stores at Parliament Annexe, Sub-Division, however, the Appellant has
actively participated in preparing the requisition slips on the basis of which
materials were withdrawn from the sub-division store and have not been
accounted for and thus they are misappropriated. When the entire incident
came to light and inspection was carried out by PW4, the Appellant was
getting the underground cables laid from the workers brought from the Raj
Ghat thus, it could not be said that the Appellant had no role in the conspiracy
or that he was not an active participant.
17. Thus I find no illegality in the impugned judgment convicting the
Appellant.
G.L. CHAWLA:
18. Learned counsel for the Appellant contends that the prime accused in
this case, that is, Ganpat Ram has not been made an accused and convicted .
He has been cited as a witness and the Appellant is sought to be convicted on
the testimony of such a witness. The role of the Appellant at best is of
preparing four requisition slips after the date of alleged conspiracy. There is
no finding of the Trial Court that the delivery of the articles on the basis of
requisition slips from the stores at Parliament Annexe was taken by the
Appellant. The charge framed against the Appellant is wholly defective.
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 21 of 25
Section 420 IPC has no link with Section 5 (1) (d) and Section 5 (2) of the
POC Act. The charge goes even beyond the prosecution case and the sanction
granted. The sanction for the prosecution granted is wholly defective. The
sanction order is para materia the request by the CBI and thus there is no
application of mind of the sanctioning authority.
19. The questions put to the Appellant are his defence and not the
prosecution case. The defence of the Appellant being that these two persons,
that is, Inder Singh, and G.L. Chalwa on the pointing out of Ganpat Ram,
were requisitioned by the officer and since register of PW19 was incomplete
they helped him in completing the same. In the statement under Section 313
Cr.P.C. the prosecution case has to be put up and not the defence of the
Appellant. The question No. 65 put to the Appellant in his statement under
Section 313 Cr.P.C. clearly escipates him. There is no finding by the learned
Trial Court that the Appellant was a party of the conspiracy and the said
finding has to be viewed in the light of Questions 52 and 65 put to the
Appellant as there was nothing incriminating against the Appellant nothing
was put to him in Section 313 Cr.P.C.
20. Learned counsel for the CBI states that the goods were released from
the store by G.L. Chawla on the basis of requisition slip. If he had not played
active role and issued the requisitions slips, the goods would not have been
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 22 of 25
released from the store. His role is not only of conspiracy but he has also
been convicted substantively for offence of cheating and Criminal
Misconduct. He got issued material from the store on the basis of four
requisition slips Ex. PW14/DA-10 to Ex.PW14/DA-14. The requisition slips
were forwarded by S.K. Gambhir and the material was accepted by G.L.
Chawla. PW19 Ganpat Ram has deposed and proved the entry in the store
register Ex. PW19/A regarding issue of the material to him. He failed to
account for the material got issued to him from the store. G.L. Chawla was an
experienced employee and had been withdrawing the material from the stores
in regular course. He had knowledge of his responsibility of issuing the
requisition slips and acceptance of the material from the store incharge.
21. The role of the Appellant G.L. Chawla is para materia that of Inder
Singh. He was a party to the conspiracy and facilitated the withdrawal of the
material from the stores at Sub-Division, Parliament Annexe on the basis of
requisition slips prepared. He further oversaw the laying down of the cables
at the Delhi University. PW17 Babu Ram has deposed that he and PW16
went to University area and met Inder Singh and G.L. Chawla at the gate of
University. The accused persons told them that a cable was to be laid in a
particular area. Thus, the presence of accused G.L. Chawla at the spot is
proved. As already discussed above, joining of person in a conspiracy at a
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 23 of 25
later stage does not absolve him from the crime committed. He did receive
the material through PW19 Ganpat Ram. Therefore, it is clear that the
accused is trying to take cover under the garb of innocence and ignorance
whereas evidence against him is clear that he received the material from stores
against the requisition slips in question Ex.PW14/DA-1 to Ex.PW14/DA-14.
22. On a perusal of the sanction order Ex. PW15/D and the testimony of
PW15 Shri A.C. Sharma who has deposed that he had perused the sanction
file which contained the report of CBI, advice of Central Vigilance
Commission, comments of Post and Telegraph Department, noting of various
officers etc., it is evident that while granting the sanction the officer Shri
Hardam Lal also had gone through all the documents before him and applied
his mind before granting the sanction. Therefore, there is no merit in the
contention that sanction order suffers from non-application of mind.
23. As regards the contention that under Section 313 Cr.P.C. no question
has been put to him and the questions put were the defence evidence and not
the prosecution case. Section 313 Cr.P.C. explicitly provides that it is the
incriminating evidence which comes during the trial that has to be put to the
accused. The said incriminating evidence may be by way of either
prosecution evidence or even in the form of confession of the accused. The
purpose of Section 313 Cr.P.C. is to provide opportunity to accused to explain
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 24 of 25
circumstances appearing against him. Hence an incriminating circumstance
which is in the form of confession of the accused is also to be put to him while
recording his statement under Section 313 Cr.P.C. In the present case, from a
perusal of the statement of accused persons it is clear that all the incriminating
circumstances against them were put to them and they had a fair opportunity
to explain the same. Hence no prejudice is caused to accused persons.
24. Appeals are accordingly dismissed. The bail bond and the surety bonds
are cancelled. The Appellants be taken into custody to undergo the remaining
sentence.
(MUKTA GUPTA)
JUDGE
JULY 14, 2011
vn
Crl. Appeal Nos. 90, 98 and 99 of 1994 Page 25 of 25