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TMI Blog1976 (3) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... lant under Section 5(2) of the Prevention of Corruption Act but maintained his conviction and sentence under Section 477A, Penal Code. 4. Hence this appeal by special leave. 5. The charge under Section 477-A framed against the appellant by the trial Judge, runs as under: That you in furtherance of the aforesaid conspiracy on the same day and place, being public servant employed in the Railway Department, wilfully and with intent to defraud on 11-1-67 falsified the entries in the Marking-Cum-Loading Register maintained by you as Goods Loading Clerk at GMRI scale in outward Goods Shed. New Delhi, by falsely showing therein that 32 bales of cloth belonging to M/s. Birla Cotton Spg. Wvg. Mills Ltd., Delhi, had reached Outward Goods Shed, New Delhi on 10-1 -1967, when in fact these had reached on 11-1-67 and by making corresponding endorsements on forwarding notes, prepared by Naresh Chand, accused. And thereby you facilitated the issue of invoices and R/Rs and the booking and loading of 32 bales of cloth and you thereby committed an offence punishable under Section 477-A of the Indian Penal Code and within my cognizance. 6. The prosecution case was that booking of goods b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is heavy multifarious duties in connection with the loading of goods he was, as usual, helped by Mukand Lal Marker. The appellant could not complete the entries in his Marking-cum-Loading Register as he was pre-occupied with loading. On January 11, 1967, when at 10 A. M., as usual the appellant came to the goods shed to complete the entries, he was told by Mukand Lal that the bales in question and other consignment had reached the goods shed on January 10, 1967 in the evening. The appellant had no reason to doubt that information. The appellant added: Because of this I made the entries of the forwarding notes in my register and noted the same serials on the forwarding notes which had already been marked on the bales. I am innocent. I will produce defence. 9. In short, the appellant's case is that he acted innocently and had no 'intent to defraud'. 10 . Mr. Frank Anthony, learned Counsel for the appellant has canvassed two main contentions. The first is that in making the wrong entries in the Marking-cum-Loading Register and the endorsements on the forwarding notes, the appellant could not, in the circumstances of this case be said to have the mens rea requisite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Dr. Vimla v. Delhi Administration 1963CriLJ434 and Tara Chand v. State AIR 1960 Mad 370 . 11. The second contention raised by the Counsel is that the prosecution has not led any evidence to substantiate the factum and the time of the receipt of these cloth bales at the Goods Shed. It is stressed that the best evidence with regard to this vital fact could be given by Chiranji Lal, the truck driver, who is said to have brought these goods from the Mills to the Goods-Shed, Mohan Lal, the Gate Clerk of the Goods Shed, and Mukand Lal, the Marker of the goods. According to the Counsel these material witnesses had been withheld by the prosecution for an oblique motive and consequently an adverse inference should be drawn that if produced, they would have demolished the prosecution case by revealing that, in fact these goods were received in the Goods Shed sometime before the appellant came on duty on the 11th, notwithstanding the fictitious entries with regard to the exit of these goods from the Birla Mills, shown in the Excise Gate Passes. In this connection, reference has been made to this Court's decisions in Sahaj Ram's case AIR1973SC618 : Habeeb Mohd. v. State of Hyde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere then working, false showing their receipt as 10-1-1967 to facilitate the booking of these goods. What have you to say to this ? 15. The appellant replied: No. I shall give detailed answer below. 16. This detailed answer was given by him in reply to Question No. 20. We have reproduced its substance earlier in this judgment. The defence taken therein is that when on the 11th January at 10 A.M. , the appellant came on duty to the Goods Shed, he was told by the Marker (Mukand Lal) that the bales lying there had been received on the 10th January in the evening. Believing the information given by the Marker to be true, the appellant made these entries (Q1, Q2, and Q3) in the Register. Thus, if these goods were actually received on the 10th January, the entries Q1, Q2 and Q3 could not be said to be false. If they were actually received on the 11th, these entries would not be true, even if they were induced by some representation made by the Marker with regard to their receipt. Such representation, if any, made by the Marker would be relevant with regard to the third ingredient only. 17. The existence of the third ingredient has been the subject of serious controversy. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spector, PW 12. Great emphasis has been laid on the fact that in these Gate Passes, the time of clearance of the goods from the Mills is noted as 15.30 (p.m.) on January 11, 1967. 21. In reply. Mr. Anthony maintains that everything appearing in these Gate Passes cannot be accepted as gospel Truth. Counsel takes strong exception to what he says, the manner in which the entry as to time was smuggled into the case. In this connection, Mr. Anthony has emphasised that in his examination-in-chief. PW-12 did not say a word that these packages were in fact allowed to go out of the gate of the Mills at 3.30 p.m. on January 11, 1967, that he did not refer even obliquely, to the time noted on these Gate-Passes; that this fact on which a whole argument is now sought to be built up by the prosecution for the first time in this Court, was never put to the accused during his examination under Section 342, Cr.P.C., that even the Gate Passes Exhs. PW-12/E-1 to 34 were never specifically put to him and thus no opportunity whatever was given to him to explain this circumstance. This omission, says the Counsel has greatly prejudiced the appellant in his defence, and coupled with the non-production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that the goods could not have reached the Goods Shed before 10 a.m. on the 11th. In view of Section 342, therefore, it was incumbent on the trial Court to put this circumstance clearly and distinctly to the accused during his examination. The failure to do so amounts to a grave irregularity. The gravity of this irregularity was accentuated by another lapse on the part of the prosecution. That lapse was the failure to produce three crucial witnesses, namely, Chiranjilal, the truck driver, Mukand Lal, the Marker, and Om Parkash, the Railway Gate Clerk with his record. It may be noted that these witnesses were cited by the prosecution in the calendar of witnesses and were required to appear along with the records maintained by them. But subsequently, without good reason, they were given up. They were the persons who could give the best and direct evidence with regard to the receipt of these goods in the Goods Shed. The non-production of this evidence has certainly prejudiced the fair trial of the appellant. 24. Mr. H.R. Khanna points out that the question of the appellant being prejudiced owing to the failure of the prosecution to put this circumstance to him in examination u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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