Crl.A. No.1804 of 2011 etc.

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

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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

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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

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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,

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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

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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-

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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

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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,

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.

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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

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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

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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

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