Shiv Shankar Prasad Singh vs The State Of Bihar

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1804 OF 2011

SHIV SHANKAR PRASAD SINGH ...Appellant

VERSUS

THE STATE OF BIHAR ...Respondent

WITH CRIMINAL APPEAL NO.1805 OF 2011

J U D G M E N T

R. Subhash Reddy, J.

1. These two criminal appeals, arising out of

Judgment dated 26.09.1997 passed in Special Case

No.18/1982, by Special Judge C.B.I. (North), Patna, as

such they are heard together and being disposed of by

this judgment.

2. In these appeals, the appellants have challenged

the common judgment in criminal appeal nos. 281 and

Signature Not Verified Digitally signed by MADHU BALA Date: 2019.02.28 14:34:49 IST Reason: 1 Crl.A. No.1804 of 2011 etc.

282 of 1997 dated 17.02.2009, passed by the High Court

of Patna.

3. The appellants herein are accused nos. 3 and 1

respectively, in Special Case No. 18 of 1982, before

the Special Judge, C.B.I. (North), Patna. They were

charged for the offences punishable under Sections 409

and 477A read with Section 120B of Indian Penal Code

(IPC) and Section 5(2) read with Section 5(1)(c) and

(d) of Prevention of Corruption Act, 1947 (for short,

‘P.C. Act’). By the judgment dated 26.09.1997, the

Special Judge C.B.I. (North), Patna convicted for

offence under Section 120B read with Section 409 and

477A of IPC and also for the offences under Section

5(1)(d) of the P.C. Act punishable under Section 5(2)

thereof.

4. The appellants herein were inflicted a sentence

to undergo RI for 3 years for committing offence under

Section 409 of the IPC. The appellant in Criminal

Appeal No. 1805 of 2011 is further sentenced to

undergo RI for 3 years for offence under Section 477A

of I.P.C. They were also sentenced to undergo RI for 2

2 Crl.A. No.1804 of 2011 etc.

years plus penalty of Rs.10,000/-each for offence

under Section 5(1)(c) and (d) of P.C. Act.

5. As there is a conviction recorded and sentence

imposed on the appellants, (Shiv Shankar Prasad Singh)

accused No.3 and accused No. 1 (Ramdeo Prasad), they

have preferred criminal appeal Nos.281 of 1997 and

282 of 1997 respectively before the High Court of

Patna. The High Court, while confirming the conviction

recorded against the appellants, has reduced the

sentence. The appellant in criminal appeal

No.1804/2011 was sentenced to undergo RI for 6 months

under Section 120B, read with Section 409 of I.P.C.

and further sentenced to undergo RI for 6 months under

Section 477A of I.P.C. The said appellant is also

sentenced to undergo RI for 6 months and a fine of

Rs.15,000/- under Section 5(1)(d) read with Section

5(2) of the P.C. Act. As far as the appellant in

criminal appeal No.1805/2011 (Ramdeo Prasad) is

concerned, his sentence is reduced and he is sentenced

to undego RI for 6 months under Section 409 IPC. He

is further sentenced to undergo RI for 6 months under

3 Crl.A. No.1804 of 2011 etc.

Section 477A of I.P.C. and he is further sentenced to

undergo RI for 6 months and a fine of Rs.15,000/- is

imposed for offence punishable under Section 5(1)(c)

read with 5(2) of the P.C. Act.

6. The aforesaid two appeals were disposed of

alongwith appeal filed by accused No.4, i.e, (Ram Nath

Sharma @ Ram Nath Prasad Sharma) in criminal appeal

No. 299/1997 and the appeal filed by accused no.2,

i.e, (Ram Uday Singh). It is brought to our notice

that so far as special leave petition filed by ‘Ram

Nath Sharma’ is concerned, the same is dismissed by

this Court in Special Leave to Appeal (Crl.) No.4005

of 2009, by order dated 24.07.2009.

7. The prosecution case is based on a complaint

dated 23.12.1981 (Ext.8), on the report of S.P. Singh

(PW5), Deputy Manager (Vigilance and Security),

Regional Office, Food Corporation of India (F.C.I.),

Patna. On the basis of the said complaint, First

Information Report (F.I.R)(Ext.9) was registered. It

was the case of the prosecution that, Ramdeo Prasad,

while functioning as Depot Incharge of F.C.I, Tilrath,

4 Crl.A. No.1804 of 2011 etc.

District of Begusarai, has conspired alongwith the

other accused Ramnath Sharma, AG-III, who was working

as Incharge F.C.I, Railway Siding, Barauni and one

Rama Shankar Prasad Singh, the handling/transporting

contractor at F.S.D F.C.I, Tilrath during March, 1980

and have misappropriated 540 bags of

fertilizers(urea). It is alleged that on 24.03.1980,

two wagons bearing nos. NR17797 and NR61690, each

containing 500 and 540 fertilizer bags respectively,

were placed at Barauni Railway Station for the purpose

of unloading. On the same day, the said fertilizer

bags were unloaded and delivery of such goods was

taken by Ramnath Sharma. It is the further case of

prosecution that Ramdeo Prasad, AG-I was posted as

Depot Incharge, F.S.D, F.C.I, at Tilrath during 1980

and he was the overall Incharge of the Depot and

personally responsible for the safety of all the stock

and also proper maintainence of records of the godown.

It is alleged that Shiv Shankar Prasad Singh was

functioning as AG-III and he was Incharge of receipt

of the consignment in the Depot. It is the case of the

5 Crl.A. No.1804 of 2011 etc.

prosecution that 500 bags and 540 bags of urea which

were loaded from Madras and Cuttack respectively, were

received at Barauni and both wagons were placed in the

Railway siding for giving delivery to FCI staff posted

at Railway Station on 24.03.1980. It is the case of

the prosecution that Ramnath Sharma took delivery of

1040 bags of urea on 25.03.1980 from Railway Station,

Barauni and has put his signature on delivery book in

token of having received the consignment vide page

nos. 12 and 13 of Railway Delivery Book on 24.03.1980

and 25.03.1980.

8. It is further alleged that Ramnath Prasad Sharma

handed over 500 bags of urea to Ram Uday Singh

representative of Rama Shankar Singh on 24.03.1980,

who signed in two gate passes bearing nos. 14791 and

14792, issued by Ramnath Prasad Sharma for

transportation of 500 bags of urea vide truck nos.

BRI-7851 and BHF-3155. It is the case of the

prosecution, as stated in the charge-sheet, that the

abovesaid consignment of 500 bags of urea which is

allegedly transported in two trucks bearing nos. BRI-

6 Crl.A. No.1804 of 2011 etc.

7851 and BHF-3155, with 250 bags of urea each, have

not been taken to the F.C.I. godown at Tilrath.

However, the appellants have falsified the records of

main gate register (Ext.6), Arrival Tally Book, ‘G’-

Form and ‘O’-Form dated 24th/25th of March, 1980. The

said 500 bags were shown to have been received in the

godown by Shiv Shankar Prasad Singh, AG-III, which are

also signed by Ramdeo Prasad and the said documents

were prepared on the basis of Inward Register, F.C.I,

F.S.D, Tilrath in which Shiv Shankar Prasad Singh has

shown the arrival of truck nos. (as mentioned above)

with 250 bags of urea each. It is the further case of

the prosecution that the investigation disclosed that

though the remaining 540 bags of urea received by

Ramnath Sharma, are alleged to have dispatched with

270 bags of urea each in the trucks, but such quantity

was criminally misappropriated by all the accused who

have conspired for such misappropriation.

9. To prove the guilt of the appellants herein, the

prosecution has examined 21 witnesses. PW-1

(Mr. Shankar Choudhary), a typist, was examined to

7 Crl.A. No.1804 of 2011 etc.

prove sanction order under Ext.-1. PW-2 (S.B. Lal),

who is an Assistant Manager (Contract), was examined

to prove appointment of handling/transporting

contractor for F.S.D at Tilrath. PW-4, Brijdeo Ram,

who was working as AG-III posted at F.S.D, F.C.I,

Tilrath between 1979-1980 was examined to prove ‘O’-

Form (Ext.-4), of F.S.D, F.C.I, Tilrath dated

25.03.1980 to 24.12.1981. PW-5, Sudersan Prasad Singh

was the Deputy Manager (Vigilance and Security) of

F.C.I, in January 1982, was examined to prove the

complaint under Ext.-8. PW-6, J.P. Verma was posted as

Inspector of C.B.I, Patna, in the month of October

1982, was examined to prove institution of F.I.R

(Ext.-9) on the basis of complaint filed under(Ext.-

8). PW-7, one Md. Ibrahim, Head Goods Clerk was

examined to prove the entries in the wagon maintenance

Register. PW-9, Ram Baran Mahto, is the driver of

vehicle truck bearing no. BHF-3155. PW-10, Rajendra

Mahto, Khalasi of Truck No. BHF.-3155 was also

examined. PW-11, Dulal Biswas, Assistant Manager,

Accounts, FCI was examined. PW-12, Triloki Ram,

8 Crl.A. No.1804 of 2011 etc.

Assistant Manager, Audit Regional Office, FCI, Patna

who has submitted a report (Ext.-12) was examined. PW-

13, M.K. Pathak, Assistant Manager, FCI, who conducted

the physical verification of the goods was examined.

PW-14, Manmohan Singh, is the owner of truck bearing

No. BHF-3155. PW-15, Pratul Kumar Singh, is the owner

of Truck bearing no. BRI-7851. PW-16, is Ram Narayan

Singh, was Head Watchman of marketing FCI. PW-17, is

Ram Sagar Paswan, who was working as AG-III, FCI,

Tilrath. PW-18, Rama Rai, is driver of the truck

bearing No. BRI-7851. PW-19, is J.K Samuel, who was

the Deputy Government Examiner of Questioned documents

during the relevant time. PW-20, is Ramphal Yadav, who

was employed as AG-II, Tilrath Depot between December

1978 to December 1980 and PW-21, K.N.Sinha, is the

Investigating Officer, who has investigated the

offence on behalf of the prosecution .

10. On behalf of the defence, one Mr. Anand Mohan

Sahay, was examined as DW-1, who is retired as

Assistant Depot Manager of FCI.

9 Crl.A. No.1804 of 2011 etc.

11. We have heard Mr. Santosh Mishra and Ms.

Aparajita Singh, learned counsels for the appellants

and Mr. Ashok Kumar Shrivastava and Mr. P.K. Dey,

learned counsel appearing for the CBI.

12. In these appeals, it is contended by the learned

counsel for the appellants that the High Court failed

to appreciate the entire material on record,

deposition of all witnesses, who were employees of

FCI, who have deposed that 500 bags of urea reached

the godown on 24th/25th of March, 1980, which is

further supported by an Audit Report.

13. It is contended that though, the prosecution has

mainly relied on the evidence of PW-9, PW-10 and

PW-14, truck driver, Khalasi(cleaner) and owner

respectively of truck bearing no.BHF-3155, PW-15 and

PW-18, the owner and the driver respectively of truck

bearing no. BRI-7851, in arriving at the conclusion

that 500 bags were not delivered at Tilrath godown,

but on a fair perusal of the evidence of the said

witnesses, there were several inconsistencies and

contradictions. It is submitted that in view of such

10 Crl.A. No.1804 of 2011 etc.

inconsistencies, in deposition of the witnesses

referred above, the Trial Court as well as the High

Court has committed an error in relying on the

testimony of such witnesses. It is further the case of

the appellants that the prosecution has failed to show

that there was misappropriation of 1040 bags. On the

contrary, the documentary and oral evidence on record

suggests that there was complaint of misappropriation

of 540 bags only.

14. In view of such allegation, the question of mode

of transportation of 500 bags does not remain

important and the Trial Court as well as the High

Court should not have relied on the evidence of the

witnesses, related to transportation of 500 bags. It

is submitted that the FIR was lodged with regard to

only 540 bags but not with regard to 1040 bags of

urea, as alleged by the prosecution.

15. By referring to the document under Ex.24, it is

contended that the said document clearly reveals the

delivery of 500 bags of urea in Tilrath godown on

25.03.1980. Further, by referring to the depositions

11 Crl.A. No.1804 of 2011 etc.

of PW-4 and PW-20, it is stated that such witnesses

were involved in the preparation of documents after

weighing, counting and stacking of the bags, were

competent witnesses, who have deposed the factum of

receipt of 500 bags on 24th/25th of March, 1980. It is

the case of the appellants that the Trial Court and

the High Court ought not to have discarded the

evidence of PW-4 and PW-20 in coming to the conclusion

that the appellants are guilty for offences alleged.

It is submitted that the evidence of PW-4 and PW-20

was not relied on surmises and conjectures, without

appreciating such evidence which is not challenged by

the prosecution. It is stated that even as per the

documentary evidence adduced by the prosecution,

arrival tally book (‘D’ Form), daily receipt register

(‘G’ Form) and Godown stock register (‘O’ Form) were

maintained by different officers based on the entry

made by Shiv Shankar Singh in the main gate register.

16. Learned counsels, by taking us to the oral and

documentary evidence on record, have submitted that

though there is no consistency in the evidence

12 Crl.A. No.1804 of 2011 etc.

recorded by the prosecution and the prosecution has

failed to establish the offence alleged against the

appellants, the Trial Court has erroneously convicted

them for the offences alleged, same is also confirmed

by the High Court without appreciating the evidence on

record in proper perspective.

17. On the other hand, learned counsel appearing for

the State, by referring to oral and documentary

evidence on record, has submitted that the evidence

adduced by the prosecution is consistent and the

prosecution has proved the guilt of the appellants

beyond reasonable doubt. It is submitted that though

initially a complaint was lodged, based upon which,

the F.I.R. was registered alleging that out of 1040

bags of fertilizer, there was misappropriation of only

540 bags of fertilizer, but after the investigation,

it revealed that entire 1040 bags of fertilizer were

misappropriated, of which, false entries were made to

the extent of 500 bags in the records of the F.C.I.

godown at Tilrath, so as to show as if 500 bags of

urea were arrived. In this regard, the gate

13 Crl.A. No.1804 of 2011 etc.

pass/register which was to be maintained by the

appellant, i.e, Shiv Shankar Prasad Singh, he has

falsified the entries with regard to receipt of such

500 bags of fertilizer. Equally, the appellant,

namely, Ramdeo Prasad has also falsified the entries

which are maintained by him and the ‘G’-Form and

godown stock register in ‘O’-Form, were tampered and

false entries were made to show that such 500 bags of

fertilizer were arrived and unloaded. It is submitted

from the oral and documentary evidence on record that

the prosecution has proved beyond reasonable doubt,

the conspiracy of all the accused who have committed

criminal breach of trust by falsification of accounts.

It is submitted, in view of such overwhelming

evidence, the Trial Court has rightly convicted and

the High Court has rightly confirmed the conviction

against the appellants and there are no grounds to

interfere with such concurrent findings recorded by

the courts below. It is also submitted that having

regard to the evidence on record, it cannot be said

that the findings recorded are either perverse or

14 Crl.A. No.1804 of 2011 etc.

erroneous, so as to interfere with the same. Learned

counsel submitted that the appeals lack merit and

deserve to be dismissed.

18. Having heard the learned counsel for the

parties, we have perused the impugned judgments and

the oral and documentary evidence on record.

19. At the outset, it is to be noted that the

initial complaint was lodged alleging misappropriation

of only 540 bags of urea but investigation revealed

that entire 1040 bags of urea was misappropriated. It

is the specific allegation of the prosecution that the

appellants and other accused have conspired with

criminal intent and indulged in falsification of

accounts. Out of 1040 bags of urea, 500 bags were

shown to have loaded in the trucks bearing nos.BRI-

7851 and BHF-3155 with 250 bags each for delivering

the same at F.C.I. godown at Tilrath but it was found

that there was no actual delivery of such fertiliser

bags and the F.C.I. records were falsified. The

specific case of the prosecution against Shiv Shankar

Prasad Singh, the appellant in Criminal Appeal No.1804

15 Crl.A. No.1804 of 2011 etc.

of 2011 is that he was responsible for making entries

in the register at the gate and he has made false

entries of arrival of such 500 bags of urea though

such fertiliser was not actually delivered. Similarly

and correspondingly, in the further registers in ‘O’

Form and ‘G’ Form, false entries were made for which

Ramdeo Prasad is responsible. Merely because

misappropriation of 540 bags of urea is mentioned in

the initial complaint, we cannot ignore the

chargesheet which was filed after investigation which

revealed misappropriation of entire qualtity of 1040

bags of urea. Same is clear from the deposition of

the investigating officer who was examined as P.W.21.

It is clear from the evidence on record, that so far

as 500 bags of urea are concerned though they were

loaded in the two trucks bearing nos.BRI-7851 and BHF-

3155 but they were not taken to the F.C.I. godown at

Tilrath and false entries were made in the main gate

register and other registers which are being

maintained in ‘O’ Form and ‘G’ Form to show as if such

quantity of fertiliser was delivered.

16 Crl.A. No.1804 of 2011 etc.

20. It is not in dispute that the appellant, Shiv

Shankar Singh was functioning as AG-III during the

relevant time and he was incharge of receipt of

consignment at the Depot. Further evidence also makes

it clear that the appellant Shiv Shankar Prasad Singh

has shown arrival of trucks bearing BRI-7851 and BHF-

3155 on 25.03.1980 with 250 bags of urea each. It is

also clear from the evidence on record that the

physical verification was carried out between

06.10.1982 and 06.11.1982 and just prior to that,

chart (Ext.24) was brought into existence on

01.10.1982, indicating that 500 bags of urea were

delivered in two trucks. It is the case of the

prosecution that the document which is prepared under

Ext.24 (the chart) is not a document which is required

to be maintained in the official course of business

and same is got prepared only to show that the stock

of fertiliser is arrived at, though actually it was

not brought. So far as deposition of PW-17, i.e, of

Ram Sagar Paswan is concerned, same is not relied on

by the prosecution and he was declared hostile.

17 Crl.A. No.1804 of 2011 etc.

21. Learned counsel for the appellants has made much

emphasis on the evidence of PW-4 and PW-20, who have

spoken about the delivery of 500 bags of urea on

25.03.1980 on the basis of Ext.24, but it is to be

noted that such document under Ext.24 is a document

which is prepared much after filing of the FIR. The

incident has occurred in the month of March 1980 and

the document under Ext.24 was brought into existence

only on 01.10.1982. The said evidence if considered

alongwith the other oral and documentary evidence on

record, it falsifies the case of the appellants. It

is also clear from the evidence on record that one of

the trucks was, in fact, used for transporting 250

bags of urea on 25.03.1980, but instead of delivering

the said bags at FSD FCI, Tilrath, the truck was

diverted and such commodity of fertiliser was

delivered at Manjhaul which is a different place. It

is also clear from the evidence on record, another

truck bearing no.BRI-7851 which is allegedly used in

carrying 250 bags of urea was never employed at all

for carrying fertiliser. There is no reason to

18 Crl.A. No.1804 of 2011 etc.

discard such positive evidence on record which

clinchingly proved the guilt of the accused. The

trial court as well as the appellate court has rightly

relied upon deposition of owners, driver and khalasi

of the vehicles in question.

22. Considering the totality of oral and documentary

evidence on record, we are of the view that the

prosecution has proved the guilt of the accused beyond

reasonable doubt. Having regard to evidence on record,

it cannot be said that findings recorded by the trial

court, as affirmed by the appellate court, are either

perverse or erroneous so as to interfere with the

same. Apart from the allegation of misappropriation

with criminal intent there is specific case of the

prosecution that all the accused have conspired and

are punishable for offence under Section 120B of the

I.P.C. It is further to be noted that Special Leave

Petition being SLP(Crl.) No.4005 of 2009 filed by the

other accused, i.e, Ram Nath Sharma @ Ram Nath Prasad

Sharma is already dismissed by this Court, at the

19 Crl.A. No.1804 of 2011 etc.

stage of Special Leave Petition, by order dated

24.07.2009.

23. For the aforesaid reasons, we do not find any

merit in these appeals, same are accordingly

dismissed. Consequently, the bail bonds of the

appellants stand cancelled. The appellants shall

surrender to serve the remaining sentence, within a

period of four weeks from today. Failing such

surrender within the time, it is open to the

respondents to take necessary steps against the

accused.

..................... J.

[Abhay Manohar Sapre]

..................... J.

[R. Subhash Reddy]

NEW DELHI, FEBRUARY 28, 2019

20