PARIMAL KUMAR DE Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH the appeals have been heard analogously as they arise out of the Common judgment dated 22 -2 -89 passed by Smt. Rekha Kumari, the then Special Judge, CBI, Patna, in Special Case No. 12 of 1982 whereby and whereunder both the accused -appellants have been convicted under Sections 409/477 of the Indian Penal Code read with Sections 5 (1) (c), 5 (1) (d) and 5 (2) of the Prevention of Corruption Act and the accused -appellant Kirtan Rout has been convicted with the rope of Section 120. -B of the Indian Penal Code and on the said Sections of the penal provisions and accused -appellant P.K. De has been sentenced to under go R.I. for one year for each of the offences as mentioned above and to pay a fine of Rs. 2 lacs for the offence committed under Section 409 of the Indian Penal Code, in default, to undergo R.I. for one year more. The accused -appellant Kirtan Rout has been sentenced to R.I. for one year in each of the offences committed and also pay a fine of Rs. 2,000/ -. In default to undergo R.I. for two months more. The sentences were directed to run concurrently. The appellant P.K. De during the pendency of the appeal died on 25 -3 -1989 and his wife Smt. Neharika De filed petition under Section 394 of the Criminal Procedure Code for leave of the Court to continue the appeal in respect of imposition of fine alone as the sentences of imprisonment had already been abated in respect of her husband P.K. De due to his death. The said petition was allowed by grant of leave vide order dated 6 -71998.

(2.) THE admitted position remains that both the appellants P.K. De and Kirtan Rout were the employees of Indian Oil Company. At the relevant time P.K. De was Installation Manager in the Indian Oil Company, Sipara, Patna, and he remained in that capacity from July 1976 till February 1979. The accused -appellant Kirtan Rout had joined at Indian Oil Company, Sipara, as an assistant in the year 1975 and remained in the said capacity till 1981. During that period of the employment of the accused -appellants in the Indian Oil Company at Sipara petroleum productes, namely Motor Spirit (Petrol), Diesel (HSD) and Kerosene Oil (SKO) were being sent through pipeline division Sipara at Patna from the oil refineries for the purpose of distribution to the different petroleum dealers of Patna, Ara, Sasaram, Aurangabad, etc. through the contractors tank lorries. The head office of the Indian Oil Company at Bombay used to fix the permissible loss of each petroleum product on account of evaporation, operation technicalities basing on climates and atmosphere, etc. of the places of distribution. The regional office of the I.O.C. in Calcutta had fixed the permissible loss allowed for Patna installation for each year and the said permissible loss had been mentioned in details in para -3 of the impugned order. It is the case of the prosecution that during the period from July 1976 to February 1979 based on the performance of selected months, abnormal loss could be detected much beyond the permissible limits. Even after giving and allowing condonable limit for each product the loss could be found in heavy quantities regarding H.S.D. and Petrol Installation Stand at Sipara. The loss was calculated on the basis of rate for each product inclusive of applicable duties and thus it was charged that the accused -appellants committed criminal breach of trust regarding petroleum products valued at Rs. 6,96,284.41 paise. According to the prosecution, the loss could be detected as there was interpolation in the gauge book. AC 2A register maintained in the installation office under the direct control of the Installation Manager P.K.De. The loss was found in the audit report and eye -brows were raised by the auditors when the statements were sent by the installation office to the regional office at Calcutta. Some explanations were given by the regional office and no steps were taken against such huge loss which should have been construed as embezzlement by the accused -appellants. The gauge book and AC 2A register were manipulated by P.K. De in collusion with Kirtan Rout the other accused -appellant. On an information form reliable source, the CBI conducted investigation and a charge -sheet was submitted against both the accused -appellants. The charge stood for commission of criminal breach of trust in respect of the petroleum products valuing Rs 6,96,284.41 paise in the capacity of their public servant posted and functioned as Installation Manager and Assistant respectively in the Indian Oil Corporation, Sipara, Patna. It was further charged that with wilful intention and to defraud the records were falsely prepared and as such they were further charged under Sections 5 (1) (d) and 5 (1) (c) read with Sectin 5 (2) of the Prevention of Corruption Act for embezzling the petroleum products abusing their official position and obtaining pecuniary advantage to the extent of the said sum of rupees. There was also charge for criminal conspiracy between the two accused -appellants as contemplated under Section 120 -B oT the Indian Penal Code.

(3.) THE accused -persons when charges being prepared and explained pleaded not guilty. Their case is that they have been falsely implicated at the instance of R.K. Srivastava PW -9 and Investigating Officer of the case. It is the further case of P.K. De that there was no mis -appropriation of stock and the loss which has occurred in the stock is the natural phenomena of P.O.L. products. The accused -appellant Kirtan Rout took the plea that he had no concern with field work or operation of the P.O.L. stock. He was simply entrusted with the table work and whatever he had done in maintaining the register and others he had done so at the guidance and direction of the Installation Manager P.K. De.