CR.A/500/2003 of STATE Vs SURESH KUMAR on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 500 of 2003

Reserved on: 27.12.2011

Decided on: 29.12.2011

State of Himachal Pradesh

Versus

Shri Suresh Kumar, son of Sh. A.R. Katoch,resident of Patrar, Rajgarh Road Kotlanala,District Solan, Himachal Pradesh.

…Appellant.

...Respondent.

Criminal Appeal under Section 378 of the Code of Criminal Procedure.

Coram

The Hon’ble Mr. Justice Deepak Gupta, J.

The Hon’ble Mr. Justice V.K. Ahuja, J.

Whether approved for reporting?[1] No.

For the appellant:Mr. Ramesh Thakur, Assistant Advocate General.

For the respondent:

Mr. Anoop Chitkara, Advocate.

Deepak Gupta, J.

This appeal by the State is directed against the judgment dated 07.07.2003, passed by the learned Special Judge, Solan, in case No. 7-S/7 of 2000, whereby he acquitted the accused of having committed offences punishable under Sections 409, 420, 467, 468, 471, 120-B of the Indian Penal Code and Section 13 (2) of the Prevention of Corruption Act.

1Whether the reporters of local papers may be allowed to see the Judgment? Yes.

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2. The prosecution story in brief is that the respondent-accused, Suresh Kumar Katoch, was posted as Assistant Development Officer (ADO) Horticulture Block at Dharampur, District Solan, in the year 1990. According to the prosecution version, it was the duty of the ADO to procure new plants and make them available to the villagers through the Village Extension Officers. These plants were to be purchased by the ADO from the Government Nurseries and in case, the plants were not available in the Government Nurseries, then through registered private nurseries. Admittedly, there was 50% subsidy on these plants, i.e. the Government used to bear half the cost of the plants and the growers had to pay only the remaining half of the cost.

3. Further case of the prosecution is that PW-1, Shri Prem Singh Thakur, the then Deputy Director, Horticulture, sent letter, Ex. PA, to the accused and other Assistant Development Officers in District Solan to send their demand of winter season fruit plants for the year 1989-90. The accused, Suresh Kumar, also sent his demand through letter, Ex. PB, for 2500 grafted almond plants. It is also not disputed that finally, vide letter, Ex. PW-46/A sent by the District Horticulture Officer, 5500 almond plants were allotted to the accused. There is also no dispute that such plants were not available in the Government Nurseries. According to the prosecution, the accused, Suresh Kumar, purported to have purchased 2500 almond plants from M/s. Naresh Nursery, Bhaguri in Tehsil Kasauli on 02.01.1990 and another 3,000 almond plants on 06.01.1990. Thereafter, 300 more almond plants were -: 3 :- purchased and thus, the accused claimed to have purchased 5800 plants from M/s. Naresh Nursery. This nursery was owned by the second accused, Sukh Dev, who died during the pendency of the trial.

4. In a nutshell, the case of the prosecution is that, in fact, no almond plants had been planted by Shri Sukh Dev, proprietor of M/s. Naresh Nursery and no almond plants were purchased by accused, Suresh Kumar, and totally false bills were procured showing the purchase of 5800 plants. It is further the case of the prosecution that the forgeries were made in the various documents showing the distribution of plants to the villagers and signatures of the villagers were forged on these documents. According to the prosecution, the accused pocketed the subsidy amount, forged the list of distribution and there are interpolations in the documents also. On the basis of such material, the accused was made to face trial. The prosecution examined as many as 48 witnesses in support of its case. The accused has not denied many of the allegations. According to him, he was directed by the higher officials to purchase 5500 plants, but when he found that the villagers wanted more plants, he purchased 300 more plants. According to him, he had actually purchased 5800 plants and had distributed the same in the presence of the Village Extension Officers.

5. As pointed out above, the case of the prosecution is that no plants were purchased by the accused from M/s. Naresh Nursery. However, this version of the prosecution is not supported -: 4 :- by the most important witnesses, i.e., the Village Extension Officers.

6. PW-5, Shri Dharam Singh, was the Village Extension Officer in Garkhal circle at the relevant time and according to him, he had received the plants mentioned in documents, Ex. PZ/H and PZ/J and these plants were sold to various farmers of Garkhal circle. He, in his cross-examination, has clearly admitted that accused, Suresh Kumar, had unloaded 1100 plants of almond, i.e. 11 bundles consisting 100 plants each, in the office of Durga Dutt, Village Development Coordinator. The said Durga Dutt has not been examined by the prosecution. It would be pertinent to mention that this witness has clearly stated that the cuttings in Ex. PH were in his hand and bear his signatures. At this stage, it would be pertinent to mention that PW-5, Shri Dharam Singh, was initially sought to be arraigned as an accused in the same case, but it appears that no prosecution sanction was given to prosecute him.

7. PW-6, Shri Basant Singh, was the Village Extension Officer of Goyla circle. His version is also that he received the plants from accused, Suresh Kumar, as mentioned in document, Ex. PZ/K and the total number of the plants was 1020 pieces.

8. PW-7, Shri Pawan Kumar, was the Village Extension Officer at Barotiwala. His version is that the accused handed over to him all the plants mentioned in documents Ex. PZ/M and PZ/N, which he further sold and gave the money to the accused. He affirmed that he had distributed 50 plants. The documents, Ex. PZ/

M and PZ/N have also been verified by Shri Jaithu Ram, Pradhan of the Gram Panchayat.

9. PW-8, Shri Balbir Singh, was the Village Extension Officer, Kuthar. He has admitted that he received all the fruit plants vide Ex. PZ/O & PZ/P and he sold them and thereafter, accounted for the same.

10. PW-41, Shri Purshottam Dass, was the Village Extension Officer, Parwanoo at the relevant time. According to him, he was supplied 250 plants, which were distributed by the accused, which he distributed to the villagers and prepared the list. He also admits that the list, Ex. PZ/A and PZ/B were prepared by him in his own hand. He, however, states that the total number of plants in list, Ex. PZ/A, was 90 and not 490 and the figure '4' has been added later in the document, Ex. PZ/A. Similarly, he states that there is tampering in document, Ex. PZ/C.

11. From the aforesaid material, it is apparent that the procedure being followed was that the Assistant Development Officer used to hand over the plants to the Village Extension Officers, who in turn, used to supply them to the villagers. All these Village Extension Officers, i.e., PWs 5, 6, 7, 8, and 41 have admitted that it was they who used to distribute the plants and it was they who prepared the list. No Assistant Development Officer would know the name of each and every villager and when the lists were prepared by the Village Extension Officers, forgery could not have been committed by the accused.

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12. The version of these witnesses totally belies the prosecution story that no plants were purchased by accused, Suresh Kumar, from M/s. Naresh Nursery. PWs 5, 6, 7 and 8 have not only admitted the supply of the plants, but have even admitted the number of plants and have stated that the cuttings and corrections in the lists are in their own hands.

13. As far as PW-41 is concerned, he also admits that the accused, Suresh Kumar, had supplied as many as 250 plants to him. However, according to him, in the list, Ex. PZ/A, in the column of almond, the figure '4' has been interpolated changing the figure '90' to '490'. However, this statement of his appears to be totally false, because the total figure at the bottom whether it was 90 or 490, is a sum total of 21 entries. There is no interpolation as far as the entries are concerned and when we total up all these entries, the total is 490, which clearly indicates that there is no forgery or interpolation. Similarly, in Ex. PZ/C, the total figure of 199 at the end is a sum total of 9 earlier entries and when we total up all the entries, in which there is no overwriting or interpolation, the total is 199. It appears that when re-totaling was done, the corrections may have been made, but there is no forgery or interpolation, because these totals correctly depict the sum total of the entries.

14. Another important aspect is that if there was any illegal activity being committed, the same could not have been committed by the accused alone and he could not have succeeded unless all the Village Extension Officers were conniving with him or had entered into an illegal conspiracy with him. We are saying this because it is the version of the Village Extension Officers that it was they who distributed the plants and prepared the lists. The State chose not to grant prosecution sanction to prosecute the Village Extension Officers.

15. In view of the above discussion, we are totally in agreement with the learned trial Court that the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the appeal is dismissed. Bail bonds discharged.

(Deepak Gupta)Judge

(V.K. Ahuja) Judge

December 29, 2011(rajni)