JUDGMENT
Bhawani Singh, J.
1. By this appeal, the appellant, Shri Jat Ram (75), challenges the judgment of Special Judge, Kangra Division in C.C. No. 7/85, decided on 11-3-1987, whereby the appellant has been convicted Under Sections 409/467/471 of the Penal Code and Section 5(1)(c) of the Prevention of Corruption Act and sentenced to three months rigorous imprisonment and to a fine of Rs. 100 and in default of payment thereof, further simple imprisonment for 15 days Under Section 409 of the Penal Code. Similar sentences have been awarded under the remaining provisions referred to above. The sentences have been ordered to run concurrently. The appellant feels aggrieved by this judgment. Hence this appeal.
2. The facts, in brief, are that the appellant remained Pradhan of Gram
Panchayat, Pantehar, in Development Block, Baijnath, from 1960 to 1972. In that capacity, it is alleged, that the appellant used to handle the cash and records of the Panchayat and received and disbursed payment for and on behalf of the Panchayat. He also maintained accounts of the Panchayat. The prosecution case is that the appellant embezzled an amount of Rs. 184-50 out of the total amount of Rs. 1424/- entrusted to him in relation to the construction of new Kuhal, Sunpur, and for the construction of the road from village Pantehar to the Block Development Office, Baijnath, between the period commencing from 12-2-1967 to 6-2-1968 by forging the muster-rolls, cash book and the receipts which were valuable securities and showed false payment to the labourers engaged in the construction of the aforesaid developmental works. The appellant fraudulently used the aforesaid documents, knowing fully well that they were forged by him, as genuine and, therefore, he being a public servant as such and in that capacity entrusted dominion over the property, dishonestly and fraudulently misappropriated an amount of Rs. 184.50 out of it and converted the same to his own use and thus committed the aforesaid offences.
3. The accounts of the Panchayat were audited by the District Audit Officer (Panchayats) and in December 1978, under the orders of the Director, Panchayats, Himachal Pradesh, one Shri Sita Ram (P. W. 10) conducted an inquiry in relation to the expenditure incurred on the developmental works in the Panchayat. By his report (Ex. PX/1), he found that the appellant had committed misappropriation of funds, forgery and use of the muster-rolls and cash book belonging to the Panchayat as genuine documents to adjust the amounts entrusted to him by the Panchayat Samiti Office. A case was registered with the police, Anti Corruption Unit Branch, Dharamshala, on the basis of the said audit report.
4. Investigation commenced and the police took the entire record, including the muster-rolls, cash books, resolutions of Panchayat, extracts of cash books and the specimen signatures of various witnesses as well as the appellant for comparison and it was found that the impressions on the documents tallied with those of the appellant and not the labourers who had actually worked with the Panchayat on those works in question. As a result of investigation, a challan Under Sections 409/467/471 of the Penal Code and Section 5(1)(c) of the Prevention of Corruption Act was filed and the appellant was charged under these Sections when he claimed to be tried.
5. The appellant in his examination Under Section 313 of the Cr. P.C. admitted that he had remained President of the Gram Panchayat continuously from 1960 to 1972. It has also been admitted that he received an amount of Rs. 1424/- in three instalments of Rs. 462,462 and 500 on 16-3-1966, 1-8-1966 and 9-6-1967 respectively from the Panchayat Samiti office against proper receipts in relation to the construction work of new Kuhal, Sunpur, and road construction. It is also admitted that the work was undertaken by engaging labourers and the same was supervised by the appellant. It appears from the evidence that the appellant has not clearly admitted the custody of Panchayat records, its maintenance, maintenance of muster-rolls and the supervision work. The trend of the evidence appears to be that the record used to be kept and maintained by the secretary and the construction work was also being supervised by a Committee constituted by the Panchayat for the purpose. So far as the muster-rolls are concerned, there is evidence that the same was being done by Mates.
6. Here, the question is as to whether the appellant has misappropriated the sum of Rs. 184.50 paise as alleged by the prosecution and for doing so, whether the accused forged the record within the meaning of Section 467 of the Penal Code and then used the same as genuine and thereby committed an offence Under Section 471 of the Penal Code and being a public servant was, therefore, liable Under Section 409 of the Penal Code.
7. The prosecution has produced number of witnesses to prove its case. The basis of the prosecution case is the non-payment of the wages of certain labourers who were engaged by the Panchayat. It is alleged that the appellant either did not make any payments to many of these labourers or paid them less but in both the cases prepared records indicating thereby that they were paid fully to the extent indicated in the record. It is also alleged that the record prepared has been signed by the appellant himself. In order to appreciate as to whether the prosecution has been able to substantiate its allegations or not, material aspect of the prosecution evidence needs examination.
8. Shri Puran Chand (P.W. 5) is one of the labourers. He states that he did not know as to how many days he had worked on Baijnath-Pantehar Road and the appellant was the Pradhan of the Gram Panchayat at that time. He did not remember for how many days he had actually worked. He states that an amount of Rs. 32.50 paise was paid by the appellant to his brother and not to him for the work done on the aforesaid road and that he never made any complaint to anybody regarding this non-payment.
9. Shri Bhana alias Bhawani Ram (P.W. 6) states that he had transported sand and ‘Bajri’ to Sunpur at the instance of the appellant. He had transported about 50 loads of mules at the rate of Rs. 2.50 paise and that he received Rs. 50/- on that account from the appellant. In his cross-examination he states that he had not stated to the police that he had not transported sand or Bajri to the extent of 50 horses for the construction of Pantehar road and that he did not receive an amount of Rs. 50/- on that basis. He further states that he did not complain to any authority with regard to any balance amount towards the supply of sand and grit.
10. Shri Fita Ram (P.W. 7) also worked as labourer on Sunpur Kuhal Scheme. He states that he worked for 11 days and the appellant had given him Rs. 5/- as expenses and 15 seers (Kutcha) of wheat in lieu of that. In cross-examination, he states that he worked for 11 days at the rate of Rs. 2/- per day and that he did not pay for the wheat given to him by the appellant. He could neither deny nor admit whether the appellant had given the wheat in lieu of the said amount. He denies the suggestion that the rate of wheat in those days was Rs. 17/- or Rs. 18/- per Kutcha mound but states that it was Rs. 8/ – or Rs. 9/ -per kutcha mound. Lastly, he states that he did not report for the non-payment of his wages to anybody.
11. Shri Tirlok Nath Mehta (P.W. 11) states that during his tenure, the cash was handled by the appellant and he (witness) used to make entries in the cash book at the instance of the appellant.
12. The perusal of the statements of the recipients of the amounts in question indicate that their versions are thoroughly vague, general and unbelievable. They are not at all definite as to for how many days they had actually worked on the Scheme in question and at what rate and to how much amount was due to them from the appellant. Further, their versions cannot be believed as their conduct is absolutely unnatural. In case some amount was actually due to them, they would have raised hue and cry and proceeded against the appellant by initiation of timely complaints to higher authorities. Failure on their part indicates that they had been paid the amounts due to them by the appellant and nothing was due to them so as to enable them to make any complaint against the nonpayment of their dues by the appellant. Having come to this conclusion, it is difficult to conclude that the appellant had swindled away the amount in question.
13. Now, coming to the entries in the record, it appears that the appellant, an illiterate person, thumb marked the documents without knowing the implications thereof. It also appears that the record was prepared by the Secretary of the Panchayat and the appellant was asked to thumb mark the same without any criminal intention. The appellant may have acted foolishly in just doing what he was asked to do but his act appears to be devoid of essential ingredients of Section 467 of the Penal Code. When once it is concluded that the payments received by the appellant were duly disbursed in accordance with the requirements and the scheme, the allegation of the fabrication of the record and use thereof falls to the ground.
14. In explanation of the appellant, as given in his statement under Section 313 of the Criminal P.C. is also quite convincing. Further, the appellant has in a very straightforward manner said that some of the record pertaining to the receipts etc. was destroyed in the fire and the same had to be prepared afresh. He further stated that the payments to the labourers etc. were made in accordance with the work done. He further states that it may be possible that the Secretary may have got his thumb impressions on receipts in token of the payments. Besides, Shri Dharam Chand Prami (DW 1) also states that the Panchayat had formed a Committee for the verification of works. According to him, it was the job of this Committee to execute the work in accordance with their requirements. He further states that no one complained about the appellant regarding any defalcation of amounts etc. or that the wages had not been paid by the appellant.
15. Shri Mast Ram (DW 2) is a labourer who had worked in these schemes. He states that he as well as all other labourers were paid by the appellant and no one complained to him about the non-payment of wages and misappropriation of the amount by the appellant. Attendance used to be marked by the appellant as well as by one Mate Lachhi Rani. Similarly, Himat (DW 3) states that he received his wages from the appellant for the days he worked with the appellant and he thumb marked the muster-rolls in lieu of his wages from the appellant.
16. In the above circumstances, it is difficult to say whether the opinion given by the Experts is exact. Evidence is quite conflicting and disarray and the prosecution has not been able to establish the charges against the appellant beyond all reasonable doubt.
17. The result is, there is merit in this appeal and the same is accordingly allowed; the conviction of the appellant under Sections 409; 467, 471 of the Penal Code and Section 5(1)(c) of the Prevention of Corruption Act is set aside. The bail bonds and surety bonds, if any, executed by the appellant at any stage of this case are hereby cancelled. Fine, if any, paid by the appellant be refunded to him.