BISHESHWAR PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THESE two appeals have been heard together as they arise out of the common judgment and this judgment shall govern both of them.

(2.) THE appellants have preferred these appeals against the judgment and order dated 17th April, 1989, passed by Sri Rameshwar Tiwary, Special Judge, ' C.B.I. North, Bihar Patna, in Special Case no. 41/81/ R.C. no. 38/81, whereby and whereunder he has convicted both the appellants under section 409 IPC and sentenced to undergo rigorous imprisonment for one year each and to pay fine of Rs. 20,000/ -, and in default to payment of fine further imprisonment for four month R.I. The amount of fine, if deposited was directed to be paid in favour of the Food | Corporation of India (F.C.I.), as price of 240 bags of wheat. Both the appellants have further been convicted under section 5(2) of the Prevention of Corruption Act and each of them has been sentenced to undergo R.I. for six months. However, the sentences were ordered to run concurrently.

(3.) THE case of the prosecution in brief is that vide Railway Receipt no. 07/068260, dated 18.9.79, four wagons each loaded with 240 bags of wheat of F.C.I, originally booked for other destination reached Bhagaipur Railway Station and from Bhagaipur Rly. Station all the four wagons were rebooked with original seal intact to Barahat Railway station, by the Assistant Manager, F.C.I. The consignment was consigned to the Assistant Depot Superintendent, A.R.D.C, Barahat. On 21.9.79 three wagons arrived at Barahat Railway station and as ordered by accused Bisheshwar Pandey, the entire wheat of three wagons were taken by Sri U.C.Singh, Assistant on the strength of indemnity bond, executed by accused Bisheshwar Pandey. Further, 240 bags of wheat unloaded from wagon no. SR 39533 were received at Barahat Depot on 21.2.79, which was transported by the Transport contractor of F.C.I. The fourth wagon bearing no. ER 6228, containing 240. bags of wheat reached Barahat Railway station on 2.10.79 and accused appellant Ganga Sagar Ojha unloaded the said wagon on the same date and took delivery of 240 bags of wheat on the strength of indemnity bond, executed by Bisheshwar Pandey on the same date. The consignment of 240 bags of wheat was removed from the Railway premises on the same date i.e. on 2.10.79, but the same did not reach the Depot of F.C.I., Barahat. It is further case of the prosecution that accused appellant Bisheshwar Pandey had already got Railway receipt no. 07/068260, dated 18.9.79, prior to the arrival of the fourth wagon, but yet he managed to get delivery of the fourth wagon through Ganga Sagar Ojha on the strength of indemnity bond and in the monthly stock statement of wheat for the month of September, 1979, submitted on 4.10.79, to the District Office of the F.C.I., Bhagaipur, accused appellant Bisheshwar Pandey dishonestly suppressed the fact and the actual number of bags booked under the Railway receipt mentioned above, by showing receipt of 720 bags as full consignment booked under the Railway receipt in question, without making any remark regarding short receipt, although the consignment under the Rail - way receipt in question had 960 bags of wheat. Again in the monthly stock statement for the month of October, 1979, stock of wheat was shown by the accused appellant Bisheshwar Pandey as 'NIL ', although 240 bags had been received on 2.10.79. Appellant Bisheshwar Pandey on 6.10.79, surrendered the original Railway receipt in question along with the credit note no. 971518, dated 6.10.79 for Rs. 835/ - towards payment of full freight charge for 960 bags of wheat and on 11.2.80 appellant Bisheshwar Pandey falsely showed to have preferred claim with the Railways for non -receipt of wagon no. ER 6228, containing 240 bags of wheat. It is also the case of the prosecution that on 14.8.80, appellant Ganga Sagar Ojha unauthorisedly scored through his signature dated 2.10.79 in the Railway delivery book at Barahat and put another signature with date as 20.9.79 against wagon no. 6228 and later on he tried to tamper with entries of delivery of 240 bags of wheat recorded in the delivery book. The District Manager FCI Bhagaipur got verified by special physical verification,on 1.9.80 and 2.9.80, through the Assistant Manager, Regional Office Patna, of Barahat FCI depot and shortage of 240 bags of wheat were detected. The verification party also found huge shortage of wheat prior to the aforesaid period and it was noted by the inspection party that no stock of 240 bags received through the aforesaid wagon on 2.10.79 was found in the relevant register of the Depot. Thereafter the District Manager of the F.C.I. Bhagalpur after getting information about the above shortage, lodged the F.I.R. against the accused persons, on the basis of which Barahat P.S.Case no. 10(8)80 under section 409 IPC was registered. The Regional Manager, FCI, Patna being not satisfied with the investigation of the case by the local police lodged a written information on 14.8.80 with the Superintendent of Police, C.B.I. Patna, on the basis of which the present case was instituted and investigated. After investigation, it was found that both the appellants in pursuance of criminal conspiracy criminally misappropriated 240 bags of wheat valued at Rs. 33,600/ - approximately by falsifying the records of the depot and obtained undue pecuniary advantage for themselves and abused their position as a public servant. After the investigation, chargesheet was submitted against both the appellants as mentioned above. After cognizance trial proceeded in the Court below.