Judgment:
ORDER
R.R. Prasad, J.
1. Heard learned Counsel appearing for the appellant and learned Counsel appearing for the CBI on the matter of ball.
2. Learned Counsel appearing for the appellant submitted that the appellant having been convicted for the offences under Section 120-B read with Sections 409, 420, 467, 468, 471/465 and 477-A of the Indian Penal Code as also under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act was awarded maximum sentence for four years and six months for one of the offences after holding that he had nexus with other Fodder Scam accused, namely, Sushil Kumar Jha and also with the kingpin of the scam, namely, Shyam Bihari Sinha who got him posted at Chaibasa for facilitating the other accused to have smooth withdrawal of the Government money from the Treasury of which the appellant never made any inspection and received a Laptop from Mahendra Kumar Kundan another accused of the Fodder Scam and thereby facilitated other accused to withdraw not less than Rs. 39 crore fraudulently but none of the alleged act go to establish the factum of conspiracy as not a single act which can be said to be manifestation of agreement has been brought on the record to prove the factum of conspiracy, rather dereliction/negligence of the duty has been considered to be the part of the conspiracy though that act can be said to be misconduct but certainly it will not attract criminal liability.
3. It was further argued that this appellant is said to have come in association with other Fodder Seam accused, namely, Sushil Kumar Jha but that association, as per the witness (PW 94), was at the time when the appellant was D.C. at Ranchi in the year 1983 and, therefore, that link even if it existed has nothing to do with the alleged offence which is said to have been committed in between 1.4.1993 to 31.3.1994. Similarly, it is said that the appellant was also in association with S.B. Sinha, main perpetrator of the Scam but that version has come from the mouth of the approver and the said fact never gets corroborated by any other evidence and moreover, it has simply been said that Mr. Sinha was instrumental in getting the appellant posted as D.C., Chaibasa but that fact alone never goes to show the culpability of the appellant in absence of any other act of the appellant showing it to have been done in furtherance of the conspiracy.
4. It was further submitted that since excess withdrawal was made from the Treasury, the appellant (the then D.C. Chaibasa) has been imputed with the allegation of conspiracy but in course of evidence, it has been brought on the record to show that none of the D.C, who was posted at Chaibasa had any knowledge of excess withdrawal of the amount from the Treasury and so far allegation of receiving Laptop from the Fodder Scam accused is concerned, it never goes to establish any guilt in absence of any evidence that it was received in order to do favour to the person* from whom Lapton has allegedly been received and thereby the appellant can never be said to have been committed offence under Section 13(2) of the Prevention of Corruption Act. Moreover, accusation of installing Laptop at the residence of D.C. Chaibasa can never be said to have been established by the prosecution as the evidence led in this regard is so contradictory that it can hardly be accepted.
5. Learned Counsel further submitted that apart from merit of the case, it would be significant to highlight that the appellant has been suffering from paralysis of colon since last six years which causes recurrent infectious and needs constant treatment and that part, he had already suffered a heart attack and is also a patient of acute diabetese and is also having obstructive sleep apenia and need to use CPAP machine to sleep without air way obstruction and hence, the appellant be admitted to ball.
6. As against that, learned Counsel appearing for the CBI submits that materials collected during investigation which were adduced in the evidence go to show that the appellant had close-knit with other accused of the Fodder Scam and even with S.B. Sinha and the appellant facilitated the other accused to have excess withdrawal from the Treasury by receiving a Laptop and. therefore, the appellant has rightly been convicted and sentenced by the Court below.
7. Regard being had to the facts and circumstances of the case and also the medical condition of the appellant, the above named appellant is directed, during the pendency of this appeal, to be enlarged on ball on furnishing bail bond of Rs. 20,000/- (Rupees twenty thousand) with two sureties of the like amount each to the satisfaction of Special Judge IV, CBI (AHD Scam), Ranchi in R.C. No. 51(A) of 1996.