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. 9/-85, decided on 11-3-1987, whereby the appellant has been convicted under Section 409/467/471 of the Penal Code and Section 5(1)(c) of the Prevention of Corruption Act and sentenced to six months rigorous imprisonment and to a fine of Rs. 100/- in each of the offences and for failure to pay the fine, to further undergo simple imprisonment for 15 days. The substantive sentences, as aforesaid, have been ordered to run concurrently. The appellant feels aggrieved by this judgment, hence this appeal.
2. The facts, in briefs, 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. 436/- out of the total amount of Rs. 4000/- entrusted to him in relation to the construction of new Kuhal, Sunpur, in between the period commencing from October 28, 1965 to March 20, 1966, by forging muster-rolls, Cash Book, which were valuable security, and showed false payments to the labourers engaged in the construction of the said Kuhal. The appellant on the relevant date, time and place, fraudulently used aforesaid documents knowing fully well that they were forged by him, as genuine and, as such, being the Pradhan of Gram Panchayat, so a public servant entrusted dominion over the property, i.e., Rs. 4000/- released to the said Panchayat by the Panchayat Samiti Officer, dishonestly and fraudulently misappropriated an amount of Rs. 436/- out of it and converted the same to his, own use and thereby committed the offences indicated above.
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 development 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 for the misappropriation of the amount in question. A case was registered with the police, Anti Corruption Unit, Dharamshala Branch, 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 the Panchayat, extracts of cash books and the specimen signatures of the witnesses as well as the appellant for comparison and it was found that the appellant was responsible for number of entries, issuance of receipts and signatures on such documents. The investigation was followed by a challan in the Court of Special Judge under Section 409, 467 and 471 of the Penal Code and Section 5(1)(c) of the Prevention of Corruption Act. The appellant denied the same and claimed to be tried.
5. The appellant in his examination under Section 313 of the Code of Criminal Procedure admitted that he had remained President of the Gram Panchayat continuously from 1960 to 1972. He also admits the maintenance of the Panchayat accounts including muster-rolls, Cash Book and other documents as well as the receipt of Rs. 4000/ – in two instalments on 26-3-1965 and 21-4-1965 from Panchayat Samiti Officer vide receipts Ex. P.W. 1/A-58 and Ex. P.W.1/ A-59, respectively, in relation to the construction of new Kuhal, Sunpur, undertaken by the aforesaid Panchayat. He has also admitted that the said work was supervised by him by engaging labourers and that the account books”, namely, muster-roll (Ex. P.1) and Cash Book (Ex.P.2) were also maintained by him. He also admitted that the payments to the labourers so engaged were disbursed by him from time to time and entries in the abovesaid muster-roll and Cash Book etc. were made by him in his own hand and that he had kept the entire account of the aforesaid Kuhal but he refutes that the said ‘ record had been forged or that such forged documents were used by him knowingly or intentionally to show the payments made to the labourers as genuine and further stated that he did not misappropriate the alleged amount of Rs. 4361- in his capacity as public servant which amount was actually paid to the labourers engaged for the work. Lastly, he states in his examination under Section 313 of the Code of Criminal Procedure as under:
“The proceedings book and cash book were maintained by the Secretary of the Panchayat and I used to sign the same whenever asked by the Secretary. Certain payments to the labourers were made by the Mate Sh. Duni Chand who is a brother of Chuha P.W. Payments to all the labourers who worked were made, but it is possible sometimes due to omission in taking the thumb impressions of the persons concerned. The mate or myself may have thumb marked them without any intention on my part to defraud anybody.”
6. The prosecution has produced number of witnesses to prove this case. It is relevant to see as to what the material witnesses have deposed as to the allegations set-up by the prosecution.
7. Shri Tirlok Nath Mehta (P.W. 13) states that he worked as the Secretary of the Panchayat, Pantehar, with effect from October 1968 to January, 1976. He testifies the signatures of the appellant on receipt No. 36 (Ex. PW 1/A-58) and Cash Book (Ex. P. 2) at Ex. P.W. 1 / A-62 and all other related documents. He further states that he used to make entries in the Cash Book at the instance of the appellant. In cross-examination he states that none from the said village ever complained to him about the non-execution of the construction work undertaken by the Panchayat during the time of the appellant, that is, water spring, Kuhal or well.
8. Shri Chuha Ram (P.W. 2) worked as a labourer in the execution of the Kuhal. He does not remember the exact number of days for which he worked. He states that he was paid only Rs. 10/- by the Mate and he did not know as to what amount was due to him as he did not remember the number of days. He further states that no amount was due to him. Then again said, that the Panchayat could not pay him anything as he has yet to realise the balance amount of Rs. 100/- approximately and he never thumb marked or signed any receipt in token of any amount. In cross-examination he states that he did not remember whether he worked for 6, 8 or 12 days. His daily wages were Rs. 2/- and Duni Chand was the Mate. He denies the payment of any of the amounts shown against his name in the records. However, he had admitted the receipt of Rs. 5/-in his statement under Section 161 of the Code of Criminal Procedure. Finally, he states that he did not complain or make any complaint about the non-payment of his wages.
9. Shri Sohlu Ram (P.W. 3) also worked as a labourer and states that he was paid Rs. 10/- by the appellant. He further states that he did not know as to what was due to him. Only papers can show and that he never thumb marked anywhere in token of any payment. He further states that their presence used to be marked in the muster-roll and he did not remember if he was paid Rs. 14/- as wages in the month of August, 1965 as shown at Serial No. 5 of Ex. P. 1. He only remembered having received Rs. 10/- but then says that he did not know or remember as to when these Rs. 10/- were paid to him. However, he denies having received Rs. 47/- as wages for September, 1965 as shown at Serial No. 7 of Ex.P. 1. Further he states that he did not remember having received Rs. 18/- for the month of November, 1965 as shown at page 20. Serial No. 6 of Ex.P. 1. He also does not remember as to whether for the month of January, 1966 he received Rs. 10/-, as shown at page 24, Serial No. 17 of Ex.P. 1. To a Court question, he states that he had received Rs. 10/- and nothing else.
10. Shri Johdu Ram (P.W. 6) has also worked as a. Mason at the Sunpur Kuhal. He states that he was not paid his wages for the said work and he never thumb marked any muster-rolls. In cross-examination he states that he did not remember in what year or month he had worked at the aforesaid Kuhal nor he could say in which season he had worked. He did not know if any receipt of any amount was forged by the appellant or any other person. He did not report the matter to any person with regard to non-payment of his wages. He denies the suggestion that he had received the wages for the work he had done for the said Kuhal. He states that he did not state to the police that the appellant had falsely shown a payment of Rs. 27/- to him in the muster-roll which was found mentioned in his statement under Section 161 of the Code of Criminal Procedure.
11. Shri Prabhu Ram (P.W. 7) also worked on this Kuhal. He states that his wages were not paid and the rate of the same was Rs. 1.25 or Rs. 2/- and he never thumb marked in token of having received the wages. He also states that he did not report the matter to anyone about the non-payment of his wages.
12. Shri Bishnu (P.W. 8) is also a labourer. He states that the work was being supervised by Shri Mallu and he never thumb marked any muster-roll in token of any receipt. He admits that Shri Duni Chand, Chuha, Sita Ram etc. had worked with him. He further states that he did not report anywhere alleging non-payment of his wages. He did not state to the police that payment of Rs. 20/- against his name had been shown, which fact finds mention in his statement under Section 161 of the Code of Criminal Procedure.
13. Shri Rumi Ram (P.W. 17) also worked as labourer during the construction of this Kuhal. He states that he was paid Rs. 10/-as his wages. He worked for four months and in each month he worked for a few days. His remaining amount of wages was not paid which was still due. He did not know the correct amount. In cross-examination he states that he could not give the names of the persons with whom he had worked and on which dates nor he could remember the year and the month. He did not remember the total number of the days he had worked with the Panchayat. He further states that he did not report to any authority or made any representation that he was not paid his dues.
14. Shri Dharam Chand Premi (DW 1) states that he remained member of the Block Samiti Baijnath from 1972 and continued to remain as such till the Samiti was dissolved sometime in 1980. He states that the Panchayat had formed a Committee for the verification of the works which were assigned to Gram Panchayat, Pantehar, and he was member of that Committee and they had conducted inquiries regarding the work executed by the said Panchayat. He states that the Committee verified the work executed and these verifications find mention in the proceedings maintained by the Committee. Before the Committee, no one complained about the appellant regarding any defalcation etc. and no one complained that he was not paid his wages by the appellant.
15. Shri Mast Ram (DW 2) has also worked in the Panchayat at this Project. He states that he was paid his wages and other labourers who worked with him were also paid their dues. He further states that no one had complained to him that their wages were not paid or their wages had been misappropriated by the appellant.
16. Perusal of the statements of the witnesses indicate that their versions are conflicting, vague, general and unbelievable. The witnesses who were really important in this case have not given the correct account of the dispute. They are not clear as to for how many days they had actually worked and what was paid to them. It is absolutely unbelievable that they did not complain to anyone about the non-payment of their wages by the appellant. The only reasonable inference which can be drawn in the circum-stances of this case is that they were paid their wages by the appellant and nothing was due to them.
17. It appears that the appellant had paid wages of all persons who worked with the Panchayat but did not complete the Panchayat record. Therefore, in order to complete; the same, certain insertions were made. The act of the appellant, though looks foolish, cannot be considered to be dishonest and fraudulent. His intention was to complete the record and with that end in view, the record appears to have been completed by someone and the appellant went on signing and thumb marking the same without knowing the; contents and the implications thereof. It was done without criminal intention as required4 under Section 467 and 471 of the Penal code and the justification given by the appellant does not appear without substance. In view of these conclusions, it renders unnecessary the examination of the statements of other] witnesses. The appellant is an old man of 75 years who remained Pradhan of Gram Panchayat from 1960 to 1972 continuously, would not have swindled away a petty amount. The fact situation of this case and the evidence oh the record do not, in my opinion, attract the aforesaid penal provisions and, therefore, he cannot be held to be liable for the offences the prosecution has alleged against him.
18. In view of my examination of this matter, the findings arrived at by the Special Judge are not correct. The evidence on record has not been correctly appreciated and analysed before drawing the conclusions against the appellant. I, therefore, proceed to set aside the same.
19. The result is, there is merit in this appeal and the same is accordingly allowed; the conviction of the appellant under Section 409, 467 and 471 of the Penal Code and Section 5(1)(c) of the Prevention of Corruption Act is set-aside. The bail bond and surety bond, if any, executed by the appellant at any stage of this case are hereby cancelled. Fine, if paid by the appellant, be refunded to him.