Dismissed

Sri Girraj Prasad Meena v. Union of India

Karnataka HC16 Dec 2022CRL.A/855/2015

Case brief

AI extract

What is this about?

High Court dismissed the criminal appeal filed by a former FCI employee convicted for cheating and corruption. The appellant argued the money receipt was a loan, but the Court held the prosecution proved the illegal demand beyond reasonable doubt, rejecting the defence.

What did the court decide?

Criminal Appeal dismissed; conviction, sentence, and order run concurrently maintained.

Sri Girraj Prasad Meena Vs Union of India — Corruption | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF DECEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL APPEAL NO.855 OF 2015

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BETWEEN:

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Sri Girraj Prasad Meena, Aged about 38 years, S/o Jagdish Prasad Meena, Manager (Quality Control), Food Corporation of India, Presently serving at The District Office at Shimogga-577201, Permanent Resident of Malawas Village, Shekhpura, Sikray Tahsil, Dausa District, Rajasthan State-303 501.

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…Appellant

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(By Sri Sathyanarayan S. Chalke, Advocate for Sri Mohan Bhat, Advocate)

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AND:

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Union of India Represented by the Investigating Officer, Central Bureau of Investigation (SPE-ACB), Bengaluru - 560014.

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…Respondent

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(By Sri P.Prasanna Kumar, Advocate)

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This Criminal Appeal is filed under Section 374(2) Cr.P.C. praying to set aside the order dated 06.07.2015, passed by the Principal Special Judge for CBI cases & XXI Additional City Civil & Sessions Judge, Bengaluru (CCH-4), in Spl.C.C.No.156/2014

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convicting the appellant/accused for the offences p/u/s 420 of IPC and u/s 13(2) of P.C.Act.

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This Criminal Appeal having been heard & reserved on 25.11.2022 , coming on for pronouncement this day, the Court pronounced the following:

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JUDGMENT

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This appeal is by the accused who has suffered conviction for the offence under section 420 IPC and section 13(1)(d)(ii) read with section 13(2) of Prevention of Corruption Act (‘PC Act’ for short).

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The accused was working as Manager (Quality Control), Food Corporation of India (‘FCI’ for short), Regional Office, Bengaluru, in the year 2012. Vide Order dated 3.3.2012, he was appointed as Member of Independent Consignment Certifying Squad (ICCS). On 1.8.2012, one rake containing rice vide R.R.No.262000638 was dispatched from the depot of FCI at Barnala, Punjab to FCI, Whitefield depot. The rake reached Bengaluru on 10.8.2012. The rake was unloaded

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from the railway wagons. The allegation is that the accused being a Member of Squad contacted one Pankaj Kumar Gupta, Manager of the depot of FCI at Barnala over the phone and informed him that the Railway Transit Loss (RTL) was very high to the extent of 1.3% and he was ready to reduce RTL provided he was paid Rs.15,000/-. Pankaj Kumar Gupta was on leave at that time and after receiving the call from the accused, he gave the mobile telephone number of Varinder Kumar, AG-I, FCI, Barnala and Sri. Kulwant Singh, AG-I, FCI, Barnala to the accused and asked him to contact those two persons. Accused made a call to mobile No.985205130 of Kulwant Singh and demanded for bribe of Rs.15,000/- for reducing the RTL. It is also alleged that when accused made a call to Kulwant Singh, he gave his name as Devinder Singh and they continued to call Varinder Kumar and Kulwant Singh for bribe. Kulwant Singh recorded the conversation in his mobile phone and

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approached his Asst. General Manager Sri. Aseem Chhabra in Chandigarh and appraised him of the matter. Kulwant Singh continued recording of the conversations. Accused sent his account No. 20100280143 at State Bank of India through SMS to the mobile number of Kulwant Singh and asked him to deposit Rs.15,000/to that account. Accordingly Kulwant Singh deposited the bribe amount to the account number of accused. On 16.8.2012 the accused withdrew Rs.15,000/- from his account and thereby accepted the bribe amount. In this regard the General Manager forwarded the complaint of Kulwant Singh to FCI, Head Quarters, New Delhi. Thereafter FIR was registered and then accused came to be charge sheeted.

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At the conclusion of trial, in order to hold the accused guilty of the offences, the trial court has assigned the following reasons.

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3.1. The trial court has not relied on the conversation recorded in CDs marked MO1 to MO7 as they were not supported by a certificate as required under Section 65(B) of the Evidence Act. The trial court did not refer to the evidence of PW24 for this reason.

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3.2. Referring to the evidence given by the material witnesses, the trial court accepted the evidence of PW15 in particular. And the trial court further held that the evidence of PW15 found corroboration from the testimonies of PW13, PW16, PW17, PW19 and PW20. There was ample evidence that PW15 transferred Rs.15,000/- from his bank account to the bank account of the accused. The demand for money was in connection with reducing the percentage of RTL.

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The evidence on record would show that the RTL was 0.37% i.e., below the admitted range, yet accused made a misrepresentation to PW13 and

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PW15 that the percentage of RTL was 1.5%. He

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did so only to induce PW15 for parting with money. Accused did not deny to have received Rs.15,000/-, but his defence was that it was a loan that he obtained and that he repaid it. But PW10 clearly stated that he never advanced loan. In this view it has been held that defence has failed. The act of accused would clearly constitute an offence under Section 420 of IPC as also an offence under Section 13(1)(d)(ii) read with Section 13(2) of Prevention of Corruption Act as he was a public servant.

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I have heard the arguments of Sri. Sathyanarayan S Chalke for the appellant-accused and Sri. P.Prasanna Kumar for the respondent.

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Though Sri Sathyanarayan S Chalke, learned counsel for the appellant argued at length, the gist of his argument was that PW12, PW13, PW15, PW19 knew that the RTL was 0.37%. The

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unloading statement was forwarded to Barnala on 11.08.2012 itself. This being the state of affairs, it is impossible to believe that at a later date the accused would have asked for illegal gratification of Rs.15,000/- for reducing the RTL. In this view the defence that accused borrowed money from PW15 becomes probable. The very fact that the accused repaid the money shows that he had borrowed money and he did not obtain illegal gratification nor induce PW15 to part with money so as to say that offence under Section 420 of IPC was constituted. Therefore it was his argument that in view of preponderance of probability in the defence, the accused ought to have been acquitted and consequently this appeal deserves to be allowed.

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Sri P.Prasanna Kumar, learned counsel for the respondent argued that PW13, PW15 and PW20 supported the prosecution case about

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demand made by the accused for Rs.15,000/-. Actual demand was for Rs.20,000/-, but what was paid was Rs.15,000/-. There is no reason to disbelieve the testimonies of the witnesses. The very fact that the accused sent his account number to PW15 and asked him to transfer the money shows that the accused tried to extract money from PW15 giving a false information that the RTL rate was high even though it was within permitted limit. The defence theory about loan has no probability of acceptance. Therefore the trial court has rightly rejected the defence to hold the accused guilty of the offences. He submitted that what the accused has pointed out is just a suspicion which does not take the place of proof as has been held by the Supreme Court in the case of Sujit Biswas vs. State of Assam [(2013) 12 SCC 406] . He relied on the judgment of the Supreme Court in the case of State of Karnataka vs. J. Jayalalitha and Others , [2017 (6) SCC

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263] and argued that in cases pertaining to offences under the Prevention of Corruption Act, public interest is involved and therefore social object is to be borne in mind while deciding the cases.

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I have perused the records and considered the points of arguments. Before examining the findings of the trial court, reference may be made to the evidence given by prime witnesses. PW.1 was working in the Regional Office of FCI in the year 2009. His deposition is that he furnished the details of the service rendered by the accused to CBI by writing a letter as per Ex.P.1. He has also deposed that, in the capacity of Manager, Quality Control, accused was to look after the preservation of the stock, attend

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Independent Certification (Squad) and conduct investigation regarding transit loss and storage loss and such other assignments. In the cross-

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examination it was elicited from him that

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attending independent certification and conducting investigation about transit loss were not his automatic duties as a Manager, Quality Control and only on special order he was supposed to attend such duties.

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PW2 was the Manager (Depot) of FCI, Whitefield till 26.11.2013. He has deposed about the procedure of unloading the rake and has also stated that after unloading the rake, email or fax was to be sent to the consignor about summary of the rake, quantity unloaded and loss noticed in a particular rake. His further deposition is that Ex.P.10 pertains to details of rake number 262000638. Ex.P.10(c) is the unloading statement and he noticed that there was a transit loss of 0.37%. Accused was also a signatory to Ex.P.10(c). Then he has stated that on 19.7.2013, he was asked to come over to CBI Office for the

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enquiry with regard to audio files pertaining to the accused. In the cross-examination it was elicited from him that the transit loss up to 0.43% was admissible, and that the Area Manager could regularise the RTL up to 0.50%. He further stated that if the RTL was 0.51% to 1%, the General Manager of the region could regularize the same. Then he stated that Members of ICCS cannot regularise if the RTL is more than 0.43%. It is further elicited from him that he informed the loading office on 11.8.2012 that the RTL was 0.37% pertaining to rake in question.

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PW3 was a Member of District Squad. He has also given procedure of unloading the rake from the wagon. He was also a signatory to Ex.P.10(c). He stated that the accused and one O.Ashokan were the Members of ICCS and that he did not notice unusual transit loss pertaining to rake No.262000638.

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PW4 was General Manager of Karnataka

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region. In the capacity of GM he was to look after

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loading and unloading and he had the responsibility of overall supervision of the Karnataka region. His deposition in particular is that he received complaint from Kulwant Singh about illegal gratification received by the accused for adjusting the transit loss. He also received the CD containing the conversation in regard to demand for Rs.15,000/-. Therefore he made a complaint to CBI as per Ex.P.15. He has also stated that preliminary investigation disclosed that Manager (Quality Control) was involved in demanding illegal gratification and the RTL limit with respect to the rake received on 10.8.2012 was within the permissible limit. He reiterated in the cross-examination that he heard the voice of the accused demanding for illegal gratification of Rs.15,000/-.

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PW5, O.Ashokan, was working as

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Manager (Quality Control) in the Whitefield depot of FCI. His evidence is that he was present at the time of unloading of the rake and signed the unloading statement. He identified the voice of the accused when CD was played.

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PW6 was Chief Manager of State Bank of India, Barnala Branch. He has given evidence with regard to transaction of transfer of Rs.15,000/from the account of Kulwant Singh to the bank account of the accused.

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PW7 was the Manager of SBI, Vijinapura Branch, Bengaluru and he stated that there was credit of Rs.15,000/- to the account of the accused through internet transfer and the total balance available in the bank account of the accused as on 16.8.2012 was Rs.36,572.92.

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PW8 has stated that he worked as Nodal Officer of Vodafone company. Accused was having

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a SIM card issued by Vodafone company and as

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per the call details, in between 10.8.2012 and 24.8.2012 accused made 37 calls from his

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telephone to the telephone of Kulwant Singh.

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PW10 gave evidence that he never

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advanced loan to the accused. He stated that he knew Kulwant Singh as they worked together for two or three years at Barnala. In the crossexamination, he stated that accused demanded for loan of Rs.15,000/- or Rs.20,000/- in the year 2012. Accused gave his bank account, but he did not give any loan to the accused as he had no money. A specific question was put to him that Kulwant Singh asked him to pay Rs.15,000/- to the accused towards loan on his behalf and to this question he answered that he would not remember it.

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PW11 was working as AG-I, FSD, FCI, Sangrur in the year 2012. Referring to Ex.P.35, a

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register containing office orders, he stated that as per the order found in Ex.P.35(a), Kulwant Singh was deputed to supervise the loading of rice rake and Varinder Kumar was deputed for claiming of the rice rake.

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PW12 gave evidence that when he was working in depot No.1 at Barnala, Kulwant Singh was working in depot No.2. His evidence is that Kulwant Singh intimated him that there was shortage in the rice rake sent by him and one person i.e., G.P.Meena from Whitefield depot was demanding money to overcome RTL. He further told that G.P.Meena demanded Rs.20,000/- from him. Then PW.12 has further stated that after learning the same from Kulwant Singh, he spoke to that person over the phone and at that time the said person told that there was shortage in the rice rake to the extent of 1.3% and he demanded Rs.20,000/- in order to set right the shortage. He

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stated further that he did not enquire the name of the person when he spoke to him over the phone. His further evidence is that Kulwant Singh complained of the said fact to DGM, Chandigarh and sometime later the CBI Officer summoned him for enquiry and at that time Kulwant Singh and Iqbal Singh also came to CBI Office along with him. The accused also came at that time for enquiry.

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PW.13 Varinder Kumar has stated that during 2012 he was working as Assistant, Grade I in depot No.2 at Barnala. On 10.8.2012, he received phone call from Whitefield and the person who called him told that there was RTL to the extent of 1.3%. Then he deposed that Kulwant Singh contacted the said person at Whitefield over the phone and at that time there was demand for Rs.15,000/- for reducing the percentage of RTL and then Kulwant Singh intimated the said fact to

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his higher officer at Chandigarh. In the crossexamination he stated that Pankaj Gupta was on leave on 10.8.2012 and then stated that since 10.8.2012 was a holiday, Kulwant Singh had not come to depot and that he did not give the chit on which he had noted the mobile number to Kulwant Singh. He further stated that Kulwant Singh did not inform him the name of the person with whom he talked over the phone, but stated further that on 11.8.2012, he heard the conversation recorded by Kulwant Singh. There were two voices in the recording. Further answers elicited from this witness are that except the Area Manager or the General Manager, the excess RTL could not be regularized by any other authority, that if the RTL was 1.3%, joint verification committee with the loading and unloading office was to be constituted, that only Pankaj Gupta intimated that RTL was 1.3% and only from Kulwant Singh, he came to know about demand for Rs.15,000/- for setting

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right the RTL and that he did not know personally. He also stated that Kulwant Singh talked over the phone in his presence to Aseem Chhabra at Chandigarh. Then he stated that Kulwant Singh withdrew Rs.15,000/from his account and deposited it to the account of Giriraj Prasad Meena i.e., accused. He refuted the suggestion that Kulwant Singh had not recorded anything in his mobile phone and did not hear any conversation.

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The evidence of PW14 is that he participated as a witness at the time of transcription of the conversation between Kulwant Singh and the accused found in a CD. He was also a witness to the collection of voice samples of the accused and Kulwant Singh. Entire proceeding was recorded as per Ex.P.37.

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PW15 - Kulwant Singh is a prime witness. He stated that on 1.8.2012 gross quantity of rice loaded into the wagons for dispatch to Whitefield

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depot was 35960 quintals from 72745 bags. The net weight was 35476 quintals, 24 kgs. and 575 grams. Depot Manager Pankaj Gupta received a call from Bengaluru to the effect that the percentage of RTL was high and he intimated the same to Varinder Kumar. PW15 stated further that Varinder Kumar informed him about the high percentage of RTL and a demand made by a person at Whitefield for Rs.20,000/- for reducing the percentage of RTL. His further evidence is that after learning the same, he intimated that matter to DGM Aseem Chabbra. He also stated that Varinder Kumar gave the telephone number of that person who called him from Bengaluru and that person was none other than Giriraj Prasad Meena, the accused. He has stated further that accused gave him bank account number to which money was to be sent and in that connection he received at least ten calls. He recorded telephone calls in his mobile telephone, got the conversation

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transferred to a CD and then sent it to Regional Office. He also transferred money to the bank account of the accused and in this regard he stated that he transferred money after Aseem Chabra directed him to transfer. After transferring the money he informed it to Aseem Chabra. His evidence further discloses that the accused had also informed Balwant Singh that RTL was high and demanded for money and therefore Balwant Singh also joined him in lodging the complaint. He has stated that the conversations were transferred to CD at a mobile telephone shop in Barnala and he identified the conversation between accused and Varinder Kumar when CDs were played.

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20.1. PW15 has also referred to another conversation between accused and one Ramsingh Komal and stated that Ramsingh Komal handed over the phone to him and then the accused told him that other two rakes were sent to Whitefield

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and RTL was found to be high in those rakes. He demanded for Rs.15,000/- for reducing the RTL rate. In this regard PW15 stated that he told the accused at that time that he would give 50% of the amount and the balance at a later stage, but the accused wanted the entire money to be paid. This conversation also took place from the phone of Varinder Kumar. At the end of examination-inchief, PW15 stated that a year after he gave Rs.15,000/- to the accused, the latter sent back the said amount to his bank account although he had not requested the accused to return the money.

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20.2. In the cross-examination he denied the suggestions that Ashok Kumar Meena asked him to deposit Rs.15,000/- in the account of the accused. He was then questioned that on 11.8.2012 itself he came to know that RTL was 0.37%, but the amount was deposited on 13.8.2012. PW15 gave

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an answer that RTL was set right to 0.37%, and denied suggestion that there was no demand.

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The evidence given by PW19 is that on

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13.8.2012 he came to know from one Arunachalam about a telephone call that he received from Kulwant Singh to inform him that a person from Karnataka was demanding bribe for reducing the RTL. Coming to know this, PW19 discussed the matter with General Manager and they decided to obtain complete details from Kulwant Singh. After sometime Kulwant Singh called him over the phone and told him that he was getting calls from Devinder Singh from Karnataka region that he should pay bribe to him for reducing the RTL in respect of a rake which was dispatched from Barnala to Whitefield, Bengaluru. His evidence also discloses that Kulwant Singh informed him about receiving the account number from the person who had made a call to him. On the next

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day morning Kulwant Singh came to his office, met

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the General Manager and gave him a written complaint along with a CD which contained the voice recordings. He came to know at that time that Kulwant Singh had deposited an amount of Rs.15,000/- to the account of Sri Giriraj Prasad Meena. Then on 14.8.2012 Kulwant Singh lodged written complaint along with CD and then he was informed that he could forward the CD to the headquarters at New Delhi. In the crossexamination he was suggested that the conversations were recorded by Kulwant Singh in his mobile phone at his (PW19) instance, but the suggestion was denied by him.

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PW20 was working as Depot Manager, FCI, Barnala. His evidence is that on 10.8.2012, he received a phone from mobile bearing No.9620841922. The person who telephoned him told that in the four rakes unloaded at Whitefield,

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the RTL was found to be above 1% and he could reduce it to below 0.5%. He stated that on 10.8.2012 he was on leave and could not confirm anything with regard to the said rake and therefore gave the mobile number of Sri.Varinder Kumar who was in charge of depot on that day to the caller from Bengaluru and also informed the same to Sri. Varinder Kumar. He reported back to duty on 16.8.2012 and at that time Varinder Kumar told him that when he contacted that person over the phone, there was a demand from him for bribe to reduce RTL. In the crossexamination, specific questions were put to him to ascertain that on 11.8.2012 itself Barnala depot had received unloading statement in which RTL was mentioned as 0.37%. To this question he answered that if the unloading statement was received on 11.8.2012 itself, there was a chance that Barnala depot would have come to know about the RTL as 0.37% on that day itself.

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PW.21 was the Nodal Officer of Aircel,

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Karnataka Region and gave evidence that on the request of CBI Officer, he furnished the call details of the mobile bearing SIM No.9815205130. PW22 was the Sub-divisional Engineer at BSNL. CBI Officer asked him to furnish some documents pertaining to mobile telephone number 9417542964 belonging to Varinder Kumar.

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PW.24 was the Senior Scientific Officer, CFSL, New Delhi, and he deposed that on the request of Superintendent of Police, CBI, he subjected the conversation contained in a CD to voice identification test. A CD marked Q.1 contained the questioned voices and he compared the same. The specimen voices are marked S1 to S3 (MO2 to MO4). On comparing and identifying the questioned voice, he gave opinion that the questioned voice in the CD marked Q1 tallied with specimen voice in S2 which was that of Giriraj

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Prasad Meena. His opinion is Ex.P.59. The questions put to him in cross examination relate to the procedure to be followed by him while scientifically examining the questioned voices. At last a suggestion was given that the questioned voice was not that of the accused, but he denied the suggestion.

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It is not necessary to refer to the evidence of other witnesses as transfer of money from the account of PW15 to the account of the accused is not disputed. PW29 is the investigating officer who has deposed about investigation conducted by her.

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Referring to the evidence of the prime witnesses, it may be stated that the trial court has rightly come to conclusion that the accused did demand for a sum of Rs.15,000/- for reducing the percentage of RTL. Actually the RTL noticed was 0.37%, which was within the permitted range. It

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was a misrepresentation made by the accused that the RTL was 1.3% and stating so he demanded money from PW15. The evidence clearly discloses that accused first contacted PW20, Pankaj Gupta. Since he was on leave, he informed the same to PW13 Varinder Kumar, who in turn asked PW15 Kulwant Singh. The evidence of PW15 finds corroboration from the testimonies of PW12, PW13, PW19 and PW20. These witnesses have not been discredited in the cross examination. The defence version about loan sought by the accused has also not been proved. PW10 has made it clear that he never advanced loan to accused. Though accused gave his account number, he said that he had no money. The evidence also discloses transfer of Rs.15,000/- from PW15 to the bank account of the accused. The accused does not dispute to have received money and in fact he repaid it. This repayment does not absolve the accused of the criminal liability. Though the

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conversations recorded in the CD cannot be considered as has been rightly held by the trial court, the oral evidence given by the witnesses can be very much acted upon. The evidence shows that accused was a stranger to PW15 and other material witnesses and therefore, if the accused would come forward with the defence that he requested for loan, it cannot be accepted.

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It is true that while cross examining PW20, a question was put to him that the unloading statement as per Ex.P.10 was dispatched to Barnala on 11.08.2012 itself indicating therein that the RTL was 0.37%. The very purpose of putting this question was quite obvious in the sense that if the unloading statement had been forwarded on 11.08.2012 and the officials at Barnala Depot came to know that the RTL was 0.37%, they would not have easily believed if the accused said that RTL was 1.3%.

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But there remains a fact that accused received money through his bank account and the question thus put to PW20 would only give rise to suspicion, and it does not take the nature of truth. It is in this context, the judgment of the Supreme Court in Sujit Biswas can be referred here. It is held:

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13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that may be’ proved, and something that will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be’ and must be’ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be’ true and must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the

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basic and golden rule must be applied. In such cases, while keeping in mind the distance between may be’ true and must be’ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar v. State of M.P., State v. Mahender Singh Dahiya and Ramesh Harijan v. State of U.P.).

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The evidence clearly shows that the act of the accused being a public servant amounted to dishonestly inducing PW15 to transfer money to

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his account. Thus the offences under Section 420

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of IPC and Section 13(1)(d)(ii) read with Section 13(2) of Prevention of Corruption Act are constituted and the prosecution is able to prove its case beyond reasonable doubt. I do not find any good ground to interfere with well reasoned judgment of the trial court.

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Examined whether the sentence imposed by the trial court is proper, it is found that accused is sentenced to rigorous imprisonment for 3 years and fine of Rs.5,000/- with default imprisonment for 6 months for the offence under Section 420 of IPC and rigorous imprisonment for 3 years and fine of Rs.10,000/- with default imprisonment for a period of 6 months for the offence under Section 13(1)(d)(ii) read with Section 13(2) of Prevention of Corruption Act. Sentence of imprisonment was ordered to be run concurrently with benefit of set-off under Section

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428 of Cr.P.C. I do not think that there can be interference with the sentence imposed by the trial court as it is found to be proportionate to the gravity of offences which has larger impact on the society.

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From the foregoing discussion I come to conclusion that the appeal should fail and therefore appeal is dismissed .

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Sd/JUDGE

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Sd/KMV

Sri Girraj Prasad Meena v. Union of India

Case brief

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Sri Girraj Prasad Meena v. Union of India

Case brief

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