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2004 Supreme(J&K) 359
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hakim Imtiyaz Hussain, J.
Krishan Ji Braroo - Appellant
Versus
State Of J&K - Respondent
Cr. Appeal No. 3/1997
Decided On : 23 December, 2004
Advocate For Appellant: Z.A. Qureshi
Advocate For Respondent: M.A. Rathore
The main legal point established in the judgment is that the accused's fraudulent actions in preparing and presenting the bill, along with the lack of explanation for the remaining amount, constituted misappropriation of government funds.
Headnote:
Prevention of Corruption Act - Misappropriation of Government Funds - 5(2) of P.C. Act 2006, 409, 420, 467, 477-A and 120-B RPC
Fact of the Case:
The accused, a cashier in the Sheep Husbandry Department, was charged with misappropriating an amount of Rs. 8000/- from the treasury by fraudulently preparing and presenting a bill for Rs. 9253/-, while only accounting for Rs. 1253/- in the relevant account book. The accused denied the misappropriation and claimed to have acted under the instructions of superior officers.
Finding of the Court:
The trial court found the accused guilty of offences punishable under sections 420, 409, 467, 477-A RPC and 5(2) of P.C. Act. The court convicted the accused and sentenced him to two years rigorous imprisonment and a fine of Rs. 1000/- for each offence. The court considered the accused's long pendency and reduced the sentence to 6 months for each offence, to be served concurrently.
Issues: The main issues were whether the accused misappropriated the funds and whether the prosecution evidence was sufficient to establish the accused's guilt.
Ratio Decidendi: The court found that the accused's fraudulent preparation and presentation of the bill, along with the lack of explanation for the remaining amount, established the misappropriation. The court also relied on the accused's admission of withdrawing the money from the treasury and the evidence of interpolation in the bill to establish the accused's guilt.
Final Decision: The court dismissed the appeal and ordered the accused to appear before the trial court to undergo the modified sentence.
2. Vigilance Organization Kashmir (VOK) in (FIR 1/81) filed a challan before the court on 9.5.1981 against Abdul Majid Kakroo Accounts Officer, Mehraj-ud-din Sr. Accountant, Krishanji Braroo cashier Sheep Husbandary Department, Gh. Qadir Treasury Officer, Gayas-ud-din Superintendent and Ashok Kumar auditor Sadder Treasury, Srinagar for offences under sections 5(2) of Prevention of Corruption Act 2006, 409,420,467,109,477-A and 120-B RPC.
3. The prosecution case before the court was that the above mentioned accused persons by misuse of their official position and by employing the corrupt means entered into a criminal conspiracy and fraudulently and dishonestly withdrew from Sadder Treasury, Srinagar an amount of Rs. 8000/- in the year 1976 and misappropriated it. It was alleged that in furtherance of the conspiracy these accused persons committed the following omissions and commissions: --
A/ A bill for Rs. 9253/- was prepared by Krishanji Braroo, initialed by Mehraj-ud-din Sr. Accountant and signed by Ab. Majid Kakroo Accounts Officer Sheep Husbandary Department. The bill was drawn from Sadder Treasury, Srinagar by Krishanji Braroo cashier on 5.7.1976 after erasing and inserting entries in the bill and the drawal register;
B/ Out of the amount of Rs. 9253/- so drawn by the said persons from the treasury only an amount of Rs. 1253/- was accounted for in the relevant account book.
C/ The balance amount of Rs. 8000/- was misappropriated by the aforesaid accused persons in furtherance of the criminal conspiracy.
4. The court at the preliminary stage discharged accused Abdul Majid Kakroo Accounts Officer and Mehraj-ud-din Sr. Accounts Officer by means of order dated 26.12.1984 on the ground that there was no material on record even to prima-facie raise suspicion of involvement of these two accused persons either in the criminal conspiracy or in the misappropriation of amount by misuse of official position.
5. The remaining accused persons namely Krishanji Braroo, Gh. Qadir, Gays-ud-din and Ashok Kumar were charge sheeted under sections 5(2) of P.C. Act,2006,409,420,467,476,477-A,109 & 120-B RPC. The charge was read over and explained to the accused but they pleaded not guilty.
6. The prosecution examined 9 out of 10 listed witnesses namely B.N.Raina, Mohd. Shafi Sheikh, Chaman Lal Mattas, Sheikh Munir Akhter, M.L.Koul, A.N.Dhar, R.L.Dhar, Ab. Hamid and P.N.Gunjoo and also placed on file the original bill against which the amount was allegedly drawn from the treasury and also other documents like seizure memos and report of the chemical examiner.
7. The statements of the accused under section 342 Cr.P.C were recorded on 11.7.1995. The accused denied to have committed any offence and examined one witness namely Farooq Ahmed Hakim in defence.
8. After considering the evidence on record and hearing the parties the Court found that there was no evidence on record against the accused 2 to 4, they were accordingly acquitted from the charge. The Court observed as under: --
"So far as the accused No. 2,3 and 4 are concerned they belong to treasury and are involved in the case by dint of Section 120-B RPC. For involvement of a person for having entered into a criminal conspiracy, it has to be proved that there has been agreement, meeting of minds of the accused to do an illegal act. The agreement is gist of the offence, it is settled position of law that the conspiracy is often hatched up is secrecy and cannot be proved by direct evidence. It has to be inferred from the acts statements and the conduct of the parties to the conspiracy. In order to constitute a general conspiracy there must be common design and a common intention arised as to whether there are circumstances, grounds or whether it can be inferred that the treasury employees ha
