SHIV SHANKAR PRASAD SINGHversusTHE STATE OF BIHAR

1078                SUPREME[2019]
                            COURT   REPORTS
                                  3 S.C.R. 1078             [2019] 3 S.C.R.


 A                     SHIV SHANKAR PRASAD SINGH
                                         v.
                             THE STATE OF BIHAR
                        (Criminal Appeal No. 1804 of 2011)
 B                             FEBRUARY 28, 2019
                      [ABHAY MANOHAR SAPRE AND
                           R. SUBHASH REDDY, JJ.]
             Penal Code, 1860 – ss.409, 477A r/w. s.120B – Prevention of
       Corruption Act, 1947 – s.5(2) r/w. s.5(1)(c) and (d) – Prosecution
 C
       case was that appellant-accused persons conspired and
       misappropriated the bags of fertilizers and made false entries in
       the records – On the basis of the complaint, FIR was registered –
       Appellants-accused Nos.3 & 1 were convicted by Special Judge,
       CBI for offence u/s.120B r/w. ss.409 & 477A of IPC and also for
 D     the offences u/s.5(1)(d) of the P.C. Act punishable u/s.5(2) thereof
       – High Court confirmed the conviction – On appeal, held:
       Considering the totality of oral and documentary evidence on
       record, the prosecution proved the guilt of the accused beyond the
       reasonable doubt – Apart from the allegation of misappropriation
       with original intent there is specific case of the prosecution that all
 E
       the accused had conspired – Thus, appellants to serve the remaining
       sentence.
             Dismissing the appeals, the Court
             HELD: 1. At the outset, it is to be noted that the initial
 F     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 the falsification of accounts.
       Out of 1040 bags of urea, 500 bags were shown to have loaded in
 G     the trucks bearing nos.BRI-7851 and BHF-3155 with 250 bags
       each for delivering the same at Food Corporation of India (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 appellant-accused no.3
 H
                                        1078
 SHIV SHANKAR PRASAD SINGH v. THE STATE OF BIHAR                        1079


of 2011 is that he was responsible for making entries in the            A
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
appellant-accused no.1 is responsible. Merely because
                                                                        B
misappropriation of 540 bags of urea is mentioned in the initial
complaint, one cannot ignore the chargesheet which was filed
after investigation which revealed misappropriation of entire
quantity 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      C
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
                                                                        D
delivered. [Para 19][1085-G-H; 1086-A-D]
       2. Considering the totality of oral and documentary evidence
on record, 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       E
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 filed by the other accused,     F
is already dismissed by this Court. [Para 22][1087-D-F]
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1804 of 2011.
      From the Judgment and Order dated 17.02.2009 of the High Court
of Judicature at Patna in Crl. Appeal No. 281 of 1997 (SJ).             G
                                With
      Criminal Appeal No. 1805 of 2011.
     Santosh Mishra, Manish Kumar, Ms. Sharmila Upadhyay,
Ms. Aparajita Singh, T. Mahipal, Advs. for the Appellant.               H
1080                SUPREME COURT REPORTS                      [2019] 3 S.C.R.


 A           P. K. Dey, A. K. Srivastava, Arvind Kumar Sharma, Ashok Kumar
       Srivastava, Advs. for the Respondent.
             The Judgment of the Court was delivered by
             R. SUBHASH REDDY, J.
 B            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
 C     judgment in criminal appeal nos. 281 and 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
 D     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)
 E     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.
 F     They were also sentenced to undergo RI for 2 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
 G     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
 H
 SHIV SHANKAR PRASAD SINGH v. THE STATE OF BIHAR                                1081
             [R. SUBHASH REDDY, J.]

sentenced to undergo RI for 6 months and a fine of Rs.15,000/- under            A
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 Section 477A of I.P.C. and he is further sentenced to
                                                                                B
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         C
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           D
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, District of Begusarai,
has conspired alongwith the other accused Ramnath Sharma, AG-III,               E
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        F
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         G
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 prosecution that 500 bags and 540 bags of urea which were
loaded from Madras and Cuttack respectively, were received at Barauni
                                                                                H
1082                 SUPREME COURT REPORTS                      [2019] 3 S.C.R.


 A     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.
 B
              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
 C     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-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
 D     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
 E     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.
 F            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 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
 G     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
 H
 SHIV SHANKAR PRASAD SINGH v. THE STATE OF BIHAR                             1083
             [R. SUBHASH REDDY, J.]

1982, was examined to prove institution of F.I.R (Ext.-9) on the basis of    A
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,
                                                                             B
FCI was examined. PW-12, Triloki Ram, 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           C
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
                                                                             D
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.
                                                                             E
      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   F
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,                      G
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
                                                                             H
1084                 SUPREME COURT REPORTS                       [2019] 3 S.C.R.


 A     is submitted that in view of such 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
 B
       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
 C     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 of
 D     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
 E     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)
 F     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
 G     in the evidence 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.
 H
 SHIV SHANKAR PRASAD SINGH v. THE STATE OF BIHAR                                 1085
             [R. SUBHASH REDDY, J.]

        17. On the other hand, learned counsel appearing for the State, by       A
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
                                                                                 B
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 pass/register
which was to be maintained by the appellant, i.e, Shiv Shankar Prasad            C
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
                                                                                 D
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           E
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 erroneous, so as to interfere with the same. Learned
counsel submitted that the appeals lack merit and deserve to be dismissed.
                                                                                 F
      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      G
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
                                                                                 H
1086                 SUPREME COURT REPORTS                     [2019] 3 S.C.R.


 A     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 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
 B
       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
 C     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
 D
       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.
               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
 E     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
 F     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
 G     Paswan is concerned, same is not relied on by the prosecution and he
       was declared hostile.
              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
 H
 SHIV SHANKAR PRASAD SINGH v. THE STATE OF BIHAR                                1087
             [R. SUBHASH REDDY, J.]

noted that such document under Ext.24 is a document which is prepared           A
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
                                                                                B
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       C
is no reason to 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         D
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     E
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 stage of Special Leave Petition, by order dated 24.07.2009.       F
       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           G
necessary steps against the accused.

Ankit Gyan                                                 Appeals dismissed.



                                                                                H