Deoki Nandan Prasad, J.
1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 7-1-1992 passed by Shri Ishwari Prasad, Special Judge, C.B.I., Ranchi, in R.C. 1 of 1988 (Tr. No. 33 of 1992) by which the learned Judge convicted the appellant under Section 409 of the Indian Penal Code and Section 13(1)(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') and sentenced him to undergo rigorous imprisonment for three years under Section 409 of the Indian Penal Code and to pay a fine of Rs. 5,000/- and in default to undergo simple imprisonment for one year and further stentenced him to undergo rigorous imprisonment for three years under Section 13(1)(c) of the Act, Both the sentences have been ordered to run concurrently.
2. The case of the prosecution in brief as stated in that on confidential information it was learnt that Shri H.N. Sen, Accounts Officer and Shri Shiv Prakash, Cashier of the National Institute of Foundary and Forge Technology (hereinafter referred to as 'NIFFT) Hatia, Ranchi, during the period 1985-86 were parties to criminal conspiracy to misappropriate a sum of Rs. 85,000/- being as public servant. It is further claimed that on 10-4-1985, Shiv Prakash the cashier after receiving the cheque duly signed by the Accounts Officer Shri H.N. Sen, amounting to Rs. 25,000/- and after encahsing the said amount from the State Bank of India, Hatia Branch, Ranchi, did not enter the amount in the cash book. It is also alleged that Shiv Prakash, the appellant, on 30-8-1985 and 18-10-1985 got two cheques of Rs. 30,000/ - each, duly signed by Sri H.N. Sen, Accounts Officer encashed but after lapse of 196 days and 165 days respectively, entered the said cash in the Cash Book Register i.e. on 14-3-1986 and 31-3-1986. On the basis of the said information, investigation started after institution of the case. After completing investigation, the C.B.I. submitted charge sheet against the sole accused appellant.
3. The appellant Sheo Prakash appeared in the Court below and charges were framed which was read over and explained to which the appellant pleaded not guilty.
4. The witnesses were examined and after hearing both sides, the learned trial Court convicted and sentenced the appellant in the manner as stated above.
5. On being aggrieved by the judgment of conviction and sentence aforesaid, the appellant preferred this appeal on the ground that the learned Court below committed error in convicting the appellant without appreciating the evidence on record properly. It is further stated that there was specific allegation against Shri H.N. Sen, Accounts Officer for misappropriating the amount and the case was registered against him but he was let off without any material and the appellant has been made scape goat without proper and legal evidence. It is further alleged that there is no misappropriation of the amount in the manner as alleged rather the amount of two cheques which had been drawn by the appellant have already been entered in the cash register on 14-31986 and 31-3-1986 whereas there was a system for giving the amount by the cashier to the officer which will be evident from Ext. C. series and there was no misappropriation of any amount by the appellant. The audit report is also clear and no any irregularity or defaulcation was found in the audit report of the said year. Moreover, the double cash chest register could not be verified by the Investigating Officer of the C.B.I. nor he had verified the cash amount kept in the double chest as the said amount was kept in the cash chest. Thus the judgment of conviction and sentence passed by the learned trial Court is fit to be set aside.
6. Learned counsel appearing on behalf of the appellant at. the very outset submitted before me that Sri H. N. Sen was admittedly the Accounts Officer at the relevant time and he was the custodian of the double cash chest. The Investigating Officer (P.W. 6) admitted in his evidence that it was the responsibility of the Accounts Officer to maintain cash and he had not verified the audit report and the cash kept in the chest nor he had seized or sealed the cash chest. It is further argued that Sri, T.S. Sexena, Accounts Officer (P.W. 7) was examined but admittedly he was neither examined by the Investigating Officer during the investigation nor he was cited as a witness in the charge-sheet and, as such, his evidence cannot be taken into account at the belated stage. It is also argued that the appellant had specifically stated in his statement under Section 313 of the Code of Criminal Procedure that he had entered in the double cash chest register of the said amount and he also filed a petition for calling for the said double cash chest register from the NIFFT on 27-4-1991 but the said double cash chest register has never been produced by the prosecution for the reasons best known to it. It is further argued that the sanctioning authority has not applied his mind in according sanction and, as such, the sanction order (Ext. 1.) is illegal and without valid material which cannot be said to be a sanction for lacunching prosecution against the appellant.
7. On the other hand, learned counsel for the prosecution submitted that there is no illegality in the judgment as admittedly there is no entry made in the cash book register in respect of a sum of Rs. 25,000/-. It is also argued that the valid sanction was accorded by the competent authority and, as such, the appeal is fit to be dismissed.
8. At the very outset it may be mentioned here that Sri H.N. Sen, the Accounts Officer (NIFFT) was also the named accused in the first information report and there was an allegation that the so-called amount misappropriated was pocketed by Shri H.N. Sen, Accounts Officer and Shiv Prakash, the appellant herein. It is also admitted position that cheque was issued under the signature of Sri H.N. Sen, Accounts Officer. But admittedly no charge sheet has been submitted against Shri H.N. Sen, the Accounts Officer as he was not put for trial.
9. P.W. 2 is a retired Director of NIFFT. He claimed to have retired in the year 1986. He admitted in his cross-examination that there is no financial rules in the NIFFT nor there was any Standing Order as regards maintaining the cash. According to him, if the money was withdrawn from the Bank, it was kept in the double cash chest and there were two keys of the said double cash chest; one was kept with the Accounts Officer and the other was with the Cashier whereas the Accounts Officer was the custodian of the double cash chest. He further stated that the cash was withdrawn with consent of both the Accounts officer and the Cashier. He further deposed in paragraph 9 that whenever the amount was withdrawn from the Bank, entry was made in the double cash register in which both the officers i.e. Accounts Officer and the Cashier put their signature. He further stated in paragraph 11 that in each year, there was an audit and in the year 1986 also, audit was done. He does not remember as to whether there was any irregularity found during the audit in the said year. He also admitted in Paragraph 15 of his cross-examination that he had stated before the C.B.I. that the Cashier will put up his requirement to the Accounts Officer and the Accounts Officer on being satisfied put up note-sheet to the Director for approval. The whole responsibility for withdrawing the amount is upon the Accounts Officer as the record in connection with cash is being maintained by the Accounts Officer and it is his responsibility to maintain the same.
10. P.W. 3, the Regional Manager, State Bank of India is a formal witness who proved the cheques which were withdrawn from the Bank being Ext. 3 series.
11. P.W. 4 is also a Cashier of NIFFT as he has been working as Cashier since 2-2-1987. According to him, there was no entry made in the cash book in respect of a sum of Rs. 25,000/- on 10-4-1985 but he admitted in clear terms that cash is being kept in the chest. He further stated that the C.B.I. (Investigating Officer) did not verify the cash in his presence. He further deposed that he cannot say as to whether at any point of time, cash was verified by the Director or not.
12. P.W. 6 is the Investigating Officer who clearly admitted in his cross-examination that he has neither seen the cash chest nor he had seized the cash chest during the investigation. He had also not seen the double cash register. He further admitted that he has not enquired about the handling of cash and about keeping of key of the chest. He further admitted that he could not verify as to the said amount after being encashed where it was kept. He further admitted in paragraph 6 that there was a charge of misappropriation of amount against both Sri. H.N. Sen, Accounts Officer and Shiv Prakash, the Cashier and the Accounts Officer is responsible for maintaining cash amount. According to him, the appellant Sheo Prakash deposited the amount of two cheques but he has not deposited the amount of one cheque. He further admitted that there was an audit made in the relevant year but he had not seen the said audit report. He also admitted that he had not examined T.S. Sexena, (P.W. 7) during investigation.
13. P.W. 7 T.S. Sexena is claimed to be an Accounts Officer from 1973. According to him, to verify the physical cash balance daily, a system was introduced in September, 1986 i.e. after the occurrence which itself indicates that there was no system for physical verification of the cash balance in the NIFFT. According to him, he cannot say as to from when the double cash register was maintained. He admitted to have taken payment for varying amounts from the appellant on different dates against chit of papers (Ext. C. Series) which are evident that he had received total sum of Rs. 15,000/- on different dates for which Sada Chit of papers was granted in token of the receipt. Admittedly there is no specific provision for receiving such amount on Sada Paper. P.W. 7 further admitted that there was a system to take money from the Cashier and the said money was adjusted after submitting vouchers as well as the entry was made on receipt of the vouchers. It is apparent from Ext. C series that he (P.W. 7) had received a sum of Rs. 15,000/- on different dates by granting a sada chit as being the receipt but no voucher has been produced to show that it was actually adjusted. Ext. Y for identification further indicates that a sum of Rupees 25,000/- was received by one Sri P.N. Chakravorty on 12-11-1986. There is no document coming forward to show that actually the said amount was adjusted or entered in the cash register by producing vouchers. There is also no mention in those sada receipts (Ext. C series and 'Y' for identification) showing about the purpose for taking the said money, but admittedly there was a system for taking money from the Cashier in such a way. According to P.W. 7, audit was being made in each year and it was also done in the year 1986, but there was no report in the audit about shortage of money. According to him, there was a mention about fraud but there was no mention of name of the persons committing fraud. He also admitted that the appellant Sheo Prakash was earlier a Typist as being L.D.C. and the present Cashier Sri Kurban was also not a trained Cashier and he was a Peon earlier.
14. There is no doubt that a sum of Rs. 60,000/- was drawn by two different cheques which were found entered in the cash book though the said entry was made after 196 days and 165 days and this fact has also been admitted by the Investigating Officer (P.W. 6). It may be mentioned here that an application was filed before the learned trial Court to call for double cash chest register as it is stated that the said amount of Rs. 25,000/- and Rs. 60,000/- drawn by the cheques have duly been entered in the said double cash chest register as well as the amounts are being kept in the double chest but from the persual of the letter (Ext. A) of P.W. 7 it appears that the said register is not available and it was not produced before the Court for verification. Admittedly the double cash chest register was maintained in the NIFFT. It has been mentioned in the letter (Ext. A) that double cash chest register got discontinued much earlier than 1985-86. It was reintroduced from 1-10-1986 but admittedly the said double cash chest register has never been produced before the Court below.
15. The appellant Sheo Prakash was examined under Section 313 of the Code of Criminal Procedure and he specifically stated that he had entered the amount in question in double cash register. He also stated that the money withdrawn by him during the period in question was kept in the double chest whereas the Investigating Officer (P.W. 6) admitted that he had not verified the cash chest nor he had seen the double cash register during the investigation. He also admitted that Accounts Officer was responsible for keeping and maintaining the money but admittedly the Accounts Officer has been let off in the instant case though he was named in the first information report with specific allegation. It is pertinent to quote the charge sheet as regards to the allegation against Shri H.N. Sen not sent up for trial. It has been mentioned that the charge against him either of conspiracy or misappropriation is not established due to insufficient evidence. Further some gross negligence on the part of Shri H. N. Sen is established for which he is being dealt with departmentally by initiating departmental action for major penalty. Nothing could be brought on the record to show as to what penalty was imposed against the Accounts Officer for such gross neglience.
16. P.W. 2 was admittedly the Director of the NIFFT at the relevant time. He also admitted that there was no Financial Rules nor there was any Standing Order for maintaining cash but at the same time he stated that the money withdrawn from the Bank was kept in the double cash chest and the Accounts Officer was the custodian of the double cash chest. There was also double cash chest register and whenever the amount was withdrawn, it was entered in the double cash register on which both the Accounts Officer and the Cashier put their signature. According to him, it is the whole responsibility of the Accounts officer for maintaining record in respect of cash. There is no reason as to why the Accounts Officer Shri H.N. Sen has not even been examined in the instant case from the side of the prosecution to substantiate the allegation. Non production of the double cash chest register also draws adverse inference when the appellant/accused has claimed to have entered the said amount in the said register and also kept the said money in the double chest which has never been verified by the Investigating Officer. There should have been physical verification of the double chest. According to P.W. 6 (the Investigating Officer), he had never examined the document produced by the P.W. 7, T.S. Sexena. Sri P.N. Chakravorty has also not been examined in the case to controvert about the receipt of Rupees 25,000/- on 12-11-1986 (Ext. Y for identification).
17. P.W. 2 who was admittedly the Director at the relevant point of time, specifically stated in his evidence that the Accounts officer was the custodian of the double cash chest and the amount was taken out with the consent of both Accounts Officer and the Cashier, the appellant. There was also double cash register kept in the double cash chest which admittedly has never been brought on the record by the prosecution though the accused made a prayer to call for the said register but it was not produced for the reasons best known to the prosecution. It is also an admitted position that audit was held in the said department every year and there was no defaulcation found in the audit report. It further appears from the evidence of the Investigating Officer (P.W. 6) that he had never verified the double cash chest nor he had verified double cash register during investigation, when the accused/appellant emphatically stated that the amount in question was kept lying in the double cash chest. It is also clear that there was an entry made in respect of two cheques worth Rupees 30,000/- each, though after some days. Non-verification of the double chest and the double chest register makes the whole prosecution case doubtful and suspicious for which the accused/appellant is entitled for the benefit of doubts.
18. Having regard to the above facts and circumstances coupled with the evidence, it is evident that the prosecution has miserably failed to bring home the charge levelled against the accused/appellant beyond all reasonable doubts.
19. In the result, I find that the learned Court below committed error in convicting the accused/appellant (Sheo Prakash) by the impugned judgment which is fit to be set aside. Hence, I find merit in the appeal which is accordingly allowed. The impugned judgment of conviction and sentence passed against the accused/appellant is, hereby, set aside and the accused/appellant is acquitted giving benefit of doubts. He is already on bail and as such he is discharged from the liability of his bail bonds.