VIJAYENDRA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by the sole appellant is directed against the judgment dated 4th February, 1989 passed in Special Case No. 11/82 by Smt. Rekha Kumari, Special Judge, CBI (South Bihar), Patna by which he was convicted for the offence under Section 409 of the IPC and sentenced to undergo rigorous imprisonment for one year and also to pay a find of Rs.10,000/- in default to undergo further rigouous imprisonment for six months. The appellant was further convicted under Seciton 477-A of the IPC and sentenced to undergo rigorous imprisonment for one year. The learned Special Judge also convicted the appellant for the offence under Section 5(1) (c), 5 (1) (d) read with Section 5(2) of the Prevention of Corruption Act. But no separate sentence was passed against him under the aforesaid sections. The sentence were ordered to run concurrently.

(2.) The prosecution case, in short, is that in March, 1982 the appellant and one Arvind Singh were posted as A.G. (III) FCI, FSD, Khagaul. According to the prosecution case in the period between 3-3-1982 to 14-3-1982, 23864 bags of DAP fertilizer were unloaded at Danapur. The appellant was deputed to receive this consignment at Danapur Railway Station and Arvind Singh was deputed to, assist him. In between 6-3-1982 to 11-2-1981 new empty bags were supplied to the appellant for replacing/refilling damage and torn bags. However, the appellant took delivery of 23864 bags in all without any remark of any damage in them. But despatched a total of 20.130 bags only to the storage Dept. of Fertilizer Corporation of India (in short the FCI), Khagaul. Thus, a balanced 3734 bags remained at the close of the operations on 14-3-1982. Mahbub Ali, the District Manager FCI was informed about this shortage. He came to Railway siding and found a shortage of 386 bags. It has further been alleged that the appellant produced gate pass No. 42971 dated 15-3-1982 for 225 empty bags purported to bear signature of B. K. Pandey H/T contractor. But Shri Pandey disowned his own signature. The appellant failed to account of 225 serviceable bags out of 500 bags supplied to him. The FIR was lodged by Shri K. N.Gupta, Inspector of Police, SPD (CBI), Patna in which charg-sheet was submitted after investigation. The cognizance of the offence was taken and the appellant was put on trial before the learned Special Judge who convicted him in the manner indicated above. In all there were five accused in this case out of whom only the appellant was convicted. The rest were given benefit of doubt and were acquitted.

(3.) In this appeal the appellant has contended that there was no shortage of bags of fertilizer and only there was a counting mistake 31 PWs were examined in this case but the prosecution failed to establish the charges against the appellant. As will appear from the various exhibits 28017 bags were despatched from Vishakhapatnam a short delivery of 238 bags was made by the Railways for which a claim was lodged. The total number of bags unloaded from wagon was 27784 and these bags were handed over to H/T contractor for transporting the same. Thereafter it was the duty of H/T contractor to properly account for these bags and the appellant cannot be held responsible for any shortage or any kind of damage in transit.