Sh. Liansanga Vs The State of Mizoram

[2.] This is an appeal filed by the appellant against the Judgment & Order dated 07.12.2022and also against the Sentence Order dated 08.12.2022 passed by the Special Court, Prevention of Corruption Act (P.C Act), Aizawl in S.R (PCA) No. 2(A) of 2016 by which, the appellant has been convicted u/s 409/477A IPC and also u/s 13(2) r/w Section 13(1)(c)(d) of the P.C Act and accordingly, sentenced to 2 (two) years imprisonment with fine of Rs. 5 lakhs with a default clause separately u/s 409 and 477A IPC. Similar sentence was imposed u/s 13(2) r/w Section 13(1)(c)&(d) of the P.C Act. All the sentences except the fine has been directed to run concurrently.

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[3.] At the outset, Mr. A. Bora, learned Senior Counsel submits that the although the trial was conducted against all the four (4) accused persons together but surprisingly, after the evidence of the prosecution and the defence was closed, the Trial Court split the case into 2 (two) cases. A seperate case in respect of the instant appellant was renumbered as SR (PCA) No. 2(A) of 2016 while the case against all the other three (3) accused persons remained with the original number i.e., S.R (PCA) No. 2 of 2016. The learned Senior Counsel submits that the procedure adopted by the learned Trial Court is unheard of since there are no provisions in law for undertaking such an exercise.

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[4.] The learned Senior Counsel further submits that out of the 45 named prosecution witnesses, the learned Trial Court has relied upon the evidence of only three (3) prosecution witnesses namely, PW-8, PW-28 and PW-58. He submits that although the Trial Court is not bound to accept the evidence of all the prosecution witnesses to determine conviction but a duty is cast upon the Trial Court to consider all the evidence led by the parties during the trial. Therefore, in view of the procedure adopted by the Trial Court to pick and choose the evidence of the prosecution witnesses to convict the appellant while ignoring most of the evidence, the impugned Judgment & Order is only vitiated and should be set aside.

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[5.] Referring to the evidence of PW-8, the learned Senior Counsel submits that the said witness in his cross-examination stated that the delay in Erection

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Testing & Commissioning (ETC) of Kau-Tlabung Project was due to the Contractor. He stated that he knew that none of the officials including the accused persons were not responsible for the delay. In fact, all the concerned Officers including the accused persons made all efforts to complete the project as per schedule.

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[6.] The learned Senior Counsel further refers to the deposition of PW-28, who stated that since there was delay in the commissioning of the project, the Government suffered a loss of Rs. 2,38,00,000/- approximately per year for the

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two (2) projects. However, in his cross-examination, he stated that such conclusion was based on his presumption. He also stated that all the expenditures incurred for the TuipangLui and Kau-Tlabung Small Hydel Project were approved by the concerned authorities and there was no irregularity in the expenditure. The learned Senior Counsel submits that there are no incriminating evidences from the evidence led by PW-8 and PW-28 so as to convict the appellant under the charged Sections of IPC and the P.C Act.

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[7.] The learned Senior Counsel submits that PW-58 is the Case I/O and it was he who had exhibited most of the documents. He submits that mere marking of documents as exhibits in the trial is not sufficient for proving such documents. The prosecution has a duty to prove the contents of the documents as per the laid down procedure which in the instant case had not been done. The Investigating Officer had rendered his opinion and findings in the form of the charge-sheet and that alone is not sufficient for convicting the appellant. Therefore, in view of the action of the Trial Court in splitting the case at the very last moment and at the verge of delivery of the Judgment & Order and in view of having discarded all the other evidences led by the prosecution and defence witnesses except for the 3 (three) witnesses as stated earlier, the impugned Judgment & Order convicting the appellant and sentencing him to prison cannot be sustained and should be set aside.

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[8.] Summing up his arguments, Mr. A. Bora, learned Senior Counsel submits

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that the impugned Judgment & Order of conviction and sentence cannot be sustained in view of breaking up of the case into two (2) at the end of the trial and also, in view of the learned Trial Court having relied upon the evidence of three (3) prosecution witnesses by adopting pick and choose policy and lastly, for convicting the appellant on account of presumptive loss, which otherwise has not been proved even remotely. The learned Senior Counsel in support of his submissions has relied upon the following authorities:-

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(1) Mitthulal & Anr. Vs. The State of Madhya Pradesh (1975) 3 SCC 529

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(2) Nathi Lal & Ors.Vs. State of Uttar Pradesh &Anr. 1990 (Supp) SCC 145

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(3) State of Haryana Vs. Ram Singh (2002) 2 SCC 426

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(4) Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Anr. (2003) 8 SCC

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745

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(5) R. Sai Bharath Vs. J. Jayalalitha & Ors. (2004) 2 SCC 9

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(6) Kaliya Vs. State of Madhya Pradesh (2013) 10 SCC 758

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(7) Reena Hazarika Vs. State of Assam (2019) 13 SCC 289

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(8) Rajesh Yadav & Anr. Vs. State of Uttar Pradesh (2022) 12 SCC 200 and

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(9) Dablu Kujur Vs. State of Jharkhand (2024) 6 SCC 758.

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[9.] Ms. Vanneihsiami, learned Addl. Public Prosecutor on the other hand

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submits that after the original contract agreement was signed between the parties, the appellant made certain modifications to the contract agreement beyond the recommendation made by the Advisory Board. In view of the modification of the original contract agreement after the same was accepted by the competent authority, the project work could not be completed as per the schedule which resulted in incurring a great loss to the State Government. The appellant in view of the post held by him at the relevant time was responsible for the loss sustained. As such, he has been rightly convicted by the learned Trial Court. She submits that while payment of all the amount due was made to the contractor on 12.04.1997, the work could be completed only on 17.12.2004. She therefore submits that under the circumstance, no interference with the impugned Judgment & Order is called for and the appeal should be dismissed. [10.] I have heard the submissions made by the learned counsels for the rival parties and I have also perused the materials available on record. Charge was framed against the appellant u/s 120-B/420/409/477A/34 IPC and also u/s 13(1)(c)(d)/13(2) of the PC Act. As pointed out by the learned Senior Counsel, the learned Trial Court has split up the case into two (2) i.e., SR(PCA) No. 2(A)/2016 in respect of the present appellant and S.R(PCA) No. 2/2016 in respect of the other 3 (three) accused persons. The learned Trial Court has also formulated 3 (three ) points for determination as follows:-

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“Point No. 1

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Whether or not the accused Mr. Liansanga during the year of 1994 to 1998 being the Chief Engineer, P&E Department, Govt. of Mizoram committed criminal breach of trust and also committed cheating by modifying crucial terms and conditions in the Original Tender Documents and Agreement of Tuipanglui and KauTlabung Small Hydel Projects in Clauses 13.2 A, B & C and Clause 13.3 A&B under common intention and criminal conspiracy with the contractor Viz. Eastern Overseas Corporation, Bombay, Maharashtra which is liable to punish u/s 409/420 r/w 34/120B of IPC.

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AND

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Point No. 2

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Whether or not the accused Mr. Liansanga during the year of 1994 to 1998 being the Chief Engineer, P&E Department, Govt. of Mizoram committed falsification of accounts Viz. Modification of the crucial terms and conditions in the Original Tender Documents and Agreement of Tuipanglui and KauTlabung Small Hydel Projects in Clauses 13.1, 13.2 and Clause 13.3 under common intention and criminal conspiracy with the contractor Viz. Eastern Overseas Corporation, Bombay, Maharashtra which is liable to punish u/s 477A r/w 34/120B of IPC.

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AND

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Point No. 3

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Whether or not the accused Mr. Liansanga during the year of 1994 to 1998 being the Chief Engineer, P&E Department, Govt. of Mizoram by abusing his official position dishonestly or fraudulently misappropriates and obtains pecuniary advantage contractual agreement and amount by modifying the crucial terms and conditions in the Original Tender Documents and Agreement of Tuipanglui and KauTlabung Small Hydel Projects in Clauses 13.1, 13.2 and Clause 13.3 under common intention and criminal conspiracy with

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the contractor Viz. Eastern Overseas Corporation, Bombay, Maharashtra which is liable to punish u/s 13 (2) r/w 13 (1) (c) (d) PC Act, 1988 r/w 34/120B of IPC.”

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[11.] The prosecution in order to prove the charge against the appellant as well as the other accused persons had examined as many as 40 prosecution witnesses while the defence examined 5 (five) defense witnesses including the appellant. However, the learned Trial Court as rightly pointed out by the learned Senior Counsel by taking into consideration the evidence of only 3 (three) prosecution witnesses namely, PW-8, PW-28 and PW-58 vide the impugned Judgment & Order has convicted the appellant u/s 409/477A IPC and also u/s 13(2) r/w Section 13(1)(c)(d) of the PC Act and sentenced him undergo imprisonment for 2 (two) years with a fine of Rs. 5 lakhs separately under the 2 (two) IPC Sections and also again separately under the PC Act. However, the sentence has been directed to run concurrently except the fine. Section 409 pertains to criminal breach of trust by a public servant, or by banker, merchant or agent on the property entrusted or with any dominion over property in his capacity of a public servant etc. The prosecution has to prove that the accused public servant or a banker etc., was entrusted with the property of which he is duty bound to account for and that he committed criminal breach of trust. To bring home the accusation of criminal breach of trust, the prosecution has to

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conjointly prove entrustment and whether the accused was actuated by dishonest intention or not misappropriated it or converted it to his own use to the detriment of a person who entrusted it. Section 477A IPC is in respect of falsification of accounts. Under the PC Act, Section 13(2) is in respect of a public servant committing criminal misconduct and provides a certain term of imprisonment. Section 13(1)(c)(d) of the PC Act also is in respect of criminal misconduct by a public servant of dishonestly or fraudulently misappropriating or converted for his own use the property entrusted to him or under his control or allows other person to do so. The learned Trial Court in order to convict the appellant under the aforesaid sections of law as stated earlier, took into account only the evidence of PW- 8, PW – 28 and PW – 58 out of the 40 prosecution witnesses and five (5) defence witnesses.

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[12.] PW-8 in his examination-in-chief stated that he was promoted to the post of Executive Engineer in the month of October, 1994 and thereafter was posted as Executive Engineer, Hydro Electric Investigation, Lunglei and took the charge of the Division on 18.10.1994 from Engineer K. Guite. That the income of P&E Department would have been from generation of power with the commissioning of small Hydel Projects mentioned in his deposition. However, due to delay in Erection Testing & Commissioning (ETC), it became loss to the P&E Department. In his cross-examination, he stated that as far as he knows, the delay in ETC

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was due to the contractor. He knows that none of the officials including the accused persons are not responsible for the delay in ETC. It may be stated herein that according to PW- 8, since the delay in ETC was due to the contractor, the later part of the cross-examination stating that none of the officials including the accused persons were not responsible for the delay appears to be a typographical error. This again is confirmed from the fact that at Serial No. 3 of the cross-examination, PW-8 was recorded to have said that all the concerned officers including the accused person took all the efforts to complete the project as per schedule. Further, as far as he knew, actions were taken against the contractor for delaying the ETC.

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[13.] PW-28 in his examination-in-chief stated that he took over the charge of Chief Engineer, P&E Department on 02.12.2002 and he held meetings with officers and staff of the department concerned with the implementation of the projects to sort out problems which caused delay in the project commissioning. Ultimately, Tuipanglui SHP was commissioned in December, 2004 and KauTlabung SHP was commissioned in May, 2005. Since there was a delay of commission, the Government’s loss wasapproximatelyRs. 2,38,00,000/- per year for the 2 (two) projects. PW-28 however at Serial No. 7 of his cross-examination by the appellant’s counsel stated that all expenditure incurred for Tuipanglui and KauTlabung small Hydel Projects were all approved by the concerned authorities

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and there was no irregularities in the expenditure. At paragraph No. 8, he also states that the calculation he has mentioned in paragraph No. 8 of the examination-in-chief (Government’s loss of Rs. 2,38,00,000/- approximately per year) was based on his presumption.

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[14.] PW-58 is the case I/O, who stated that he was endorsed with the investigation and make the seizures which included cash books, office files of the P&E Department, prosecution sanctions, expenditure statement of KauTlabung HEP, details of payment to EOC etc., amongst others. However, besides accepting these documents, the same was not proved in accordance with law. The Apex Court in KaliyaVs. State of Madhya Pradesh (supra) in the given facts and circumstances of that case held that mere admission of documents does not account to proof. Likewise, mere making of exhibit in a document does not dispense that it is proof which is otherwise required to be done in accordance with law.

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[15.] As already stated in the preceding paragraphs, there are as many as 40 prosecution witnesses examined by the prosecution and five (5) witnesses examined by the defense. Although the learned Trial Court is not bound to accept all or any of the evidence led by the parties concerned but it would be incumbent on its part to consider all the evidence before arriving at a conclusion. In other words, the court is not bound to accept the evidence of all

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the prosecution witnesses but certainly has the bounden duty to consider the same and accept or reject the evidence for reasons to be assigned. In so far as the splitting up of the case is concerned, I am of the considered view that if the same set of witnesses are considered and relied upon by the learned Trial Court, no prejudice can be said to have been caused to the parties.

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[16.] The Trial Court has only relied upon selective evidence led by the prosecution as already discussed herein above to pass the impugned Judgment and Order which in the considered view of this Court cannot be the basis of conviction. The impugned Judgment and Order of conviction and the Order imposing the Sentence are therefore found to be not sustainable and are accordingly set aside.The matter is thus remanded back for fresh consideration from the stage of considering the evidence and hearing the parties.

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[17.] As the parties are represented before this Court they are directed to appear before the learned Trial Court on 23.06.2025 whereafter, the learned Trial Court shall proceed with the matter as directed herein above and in accordance with law and bring the case to its logical conclusion as expeditiously as possible without being influenced by any observations made in this order. It is also provided herein that the appellant is allowed to remain on bail till the disposal of the case as directed herein above on the same terms and conditions that was stipulated by the Trial Court.

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[18.] The Registry shall send back the lower court records immediately.

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JUDGE

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Comparing Assistant

Sh. Liansanga v. The State of Mizoram

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Sh. Liansanga v. The State of Mizoram

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