VIJAYENDRA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal has been filed by sole appellant Vijayendra Kumar challenging the judgment and order dated 4-2-1989 passed by SpecialJudge, C.B.I. (South Bihar), Patna in Case No. 11 of 1982 convicting and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for six months under Section 409 of Indian Penal Code (In short "I.P.C.") and rigorous imprisonment for one year under Section 477-A of I.P.C. Both the substantive sentences have, however, been ordered to run concurrently. Appellant has further been convicted under Sections 5(l)(c) and 5(l)(d) read with Section 5(2) of Prevention of Corruption Act (In short "P.C. Act") but no separate sentence for this offence has been imposed.

(2.) The case of prosecution, as disclosed in the first information report recorded by Shri K.N. Gupta, Inspector of Police, S.P.E., C.B.I. Patna, in short, is that information through a Kumar, A G III (Depot), co-accused persons, namely, Shri Arvind Singh A G III (Depot), Shri Mahendra Prasad Yadav, Watchman, Shri Lal Bahadur Ram, Watchman and Shri Ramnath Thakur, Watchman, all employees of Food Corporation of India (In short "F C I") attached to the railway siding (ambulance siding) of F C I at Danapur Station, Eastern Railway during the month of March, 1982 entered into a criminal conspiracy among themselves to obtain undue pecuniary benefits for themselves and for others by abusing their official position as public servants and in furtherance of the said conspiracy, they criminally misappropriated 386 bags of fertilizer worth about Rs. 89,938/- out of the consignment of fertilizer for F C I received at Danapur siding. It was further alleged that appellant, in conspiracy with the other F C I officials named above criminally misappropriated 386 bags of D A P fertilizer and disposed them of dishonestly and with intent to covering up the misappropriation, he brought one truck No. BHQ 2205 on 15-3-1982 with some bundles of empty gunny bags bearing F C I mark to create evidence that shortage occurred in transit handling. He tried to unload the gunny bags which was opposed by other watchmen posted there for patrolling duly and truck driver apprehending some trouble fled away leaving behind the truck and on getting this information, Shri Mahboob Ali (P.W. 16), the then District Manager along with Shri Bhola Nandan Prasad, Sudama Ram (P.W. 18), D.P. Samayar, Kamta Pandey and T. P. Gaur (P.W. 11) reached the ambulance siding on 15-3-1982 at about 11.30 a.m. and found the truck parked near the fertilizer stock with some bundles of empty gunny bags and on verification, they detected shortage of 386 bags of D A,P fertilizer.

(3.) After investigation, charge-sheet against the appellant and against co-accused Arvind Singh A G III, Shri Mahendra Prasad Yadav, Shri Lal Bahadur Ram and Shri Ramnath Thakur, all Watchmen were submitted under Sections 120-B, 409, 477 of I.P.C. and Sections 5(2) read with Sections 5(l)(c) and 5{l)(d) of P.C. Act. Cognizance of the case was taken and charge under Section 120-B read with Section 409 of I.P. C. and Section 5(2) read with Section 5(l)(d) of P. C. Act was framed against the appellants and other co-accused persons. Additional charges under Section 409 of I.P.C. and Sections 5(l)(c) and 5(l)(d) of P.C. Act both punishable under Section 5(2) of P.C. Act were framed against the appellant. Appellant and other co-accused persons denied the charges and they were put on trial and after trial, only appellant was found guilty and was convicted and sentenced, as indicated above. Remaining co-accused persons, namely, Arvind Singh, Lal Bahadur Ram, Mahendra Prasad Yadav and Ramnath Thakur were given benefit of doubt and were acquitted.