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| HC setS-aside conviction in corruption case against store-keeper | | | Early Times Report
JAMMU, May 13: Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court while deciding an appeal in corruption case, set-aside the conviction and sentence awarded by the Anticorruption Court, acquitted the Nizam Din who was then store-keeper.
The present appeal is directed against judgment dated 28.01.2005 passed by the learned 1st Additional Sessions Judge, Jammu (Special Judge Anti Corruption, Rajouri,Poonch and Doda District) ('the trial Court') whereby the appellant has been convicted of offences under Sections 467/409 RPC and Section 5(2) of J&K P.C Act and sentenced to undergone simple imprisonment for a period of four years and to pay a fine of Rs. 5000/- in proof of offence under Section 467 RPC, simple imprisonment of four years and to pay a fine of Rs. 5000/- in proof of offence under Section 409 RPC and simple imprisonment for a period of three years and to pay a fine of Rs.5000 in proof of offence under Section 5(2) of J&K P.C Act.
It appears that an FIR No. 21/1987 for commission of offences under Sections 409/467/120-B RPC and Section 5(2) of J&K P.C. Act was registered with Police Station, Vigilance Organization, Jammu on the basis of a letter dated 10.01.1987 issued by the Directorate of Food and Supplies, Jammu (EXPW-NL) alleging therein that audit of Food and Supplies store, Ramban has revealed certain irregularities relating to misappropriation of food grains/sugar. It was alleged that the appellant (accused No.1) who was working as a Store Keeper, Ramban Food Store, took over the charge of stock of 2378 quintals of wheat from his predecessor on 07.30.1985 and he in connivance with other accused misappropriated the food grains/sugar by showing fictitious issue of food grains/sugar. Thus, an amount of Rs.183897.80 has been misappropriated by the appellant in connivance with other accused by manipulation of the record. It was alleged that 695.60 quintals of wheat, 6.13 quintals of rice (PR106), 90.95 quintals of Atta and 24.12 quintals of sugar were shown to have been issued to various Sales Depots, though the same were not actually issued. Thus, misappropriation amounting to Rs.1,83,897.80 being the cost of aforesaid food grains/sugar was committed by the appellant in conspiracy with the carriage contractors/co-accused. The auditors also found that the appellant had not made available the accounts of Rattna rice weighing 4597.80 quintals, cost of which, was worked out to Rs.14,39,685 and he had also not accounted for the empty bags.
During investigation of the case, accounts allegedly suppressed by the appellant were later discovered and ultimately, it was concluded that the appellant in connivance with other accused had misappropriated only an amount of Rs.3,22,119.36 being the cost of 1020.40 quintals of wheat, 44.15 quintals of sugar, 75quintals of rice, 109.33 quintals of flour, 89.24 quintals of Rattna rice and 1173 empty bags.
Accordingly, the charge-sheet alleging commission of offences under sections 409/467/120-B RPC and 5(2) of P.C.Act was filed before the trial Court. On 28.06.1993, accused Mohan Lal and Sudershan Chakker were discharged by the learned trial Court, whereas the other accused including the appellant were charged for offences under sections 409/467/120-B RPC and Section 5(2) P.C Act.
Justice Sanjay Dhar after hearing Advocate Koushal Parihar for the appellant whereas Sr. AAG Monika Kohli for the UT, observed that From the forgoing analysis of law on the subject, it is clear that each material circumstance appearing in the evidence against an accused has to be put to him specifically, distinctly and separately and if it is not done, it amounts to serious irregularity vitiating the trial, provided it is shown that the accused was prejudiced. It is also clear that non examination of an accused under section 342 J&K Cr. P. C. (313 Central Cr. P. C.) is an irregularity which may in normal circumstances be cured by remanding the case to the trial court for recording fresh statement of the accused, but if there is a long passage of time from the date of incident, the defect becomes incurable. Adverting to the present case, as already stated, the trial Court has placed reliance upon the statement of PW Manzoor Ali without giving the appellant an opportunity to explain the incriminating circumstances appearing therein. This has caused a grave prejudice to the appellant. Thus, a grave irregularity has been committed by the trial Court by relying upon the statement of PW Manzoor Ali.
In view of the foregoing discussion, it is clear that the trial Court has landed itself into grave illegality by recording the conviction against the appellant on the basis of opinion of the handwriting expert despite being alive to the legal position that unless it is proved that admitted signatures pertain to a particular person, the opinion of handwriting expert on the basis of those admitted signatures cannot be relied upon. The trial Court, while applying the said legal position in the case of other transactions, which were subject matter of the challan, has, without any cogent reason, taken a different view and placed reliance upon the alleged admitted signatures of the appellant without actual proof of the fact that those signatures pertain to him. Thus, the very basis of the impugned judgment passed by the trial Court is flawed.
Apart from the above, the trial Court has committed a grave irregularity by placing reliance upon the statement of PW Manzoor Ali without seeking explanation from the appellant as regards the incriminating circumstances appearing therein. This irregularity has become incurable due to lapse oftime.
Thus, the impugned judgment of conviction and sentence passed by the trial Court against the appellant cannot be sustained and,as such, the same is liable to be set aside. Accordingly, the appeal is allowed and the impugned judgment passed by the trial Court is set aside. The appellant is acquitted of the charges, Court ordered.
—JNF |
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