Jharkhand High Court
Vinod Kumar vs The State Of Jharkhand on 7 July, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No.196 of 2022
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Vinod Kumar, male, aged about 66 years, son of Late Fudena Rai,
resident of Village & P.S. Agresh, District-Rohtas, a former Junior
Engineer, Public Works Department, Government of Jharkhand
.... ..... Accused-Respondent-Petitioner
Versus
1. The State of Jharkhand
2. Shambhu Nath Singh (Shiv Sena District Head) S/o Late Lalta
Prasad Singh resident of Sector Road, P.O & P.S Gumla District,
Gumla. .... .... Informant-Appellant-Opposite Parties
With
Cr. Revision No.227 of 2022
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Rasbihari Prasad Singh, aged about 66 years, Son of-Hardeo
Prasad Singh, the then Assistant Engineer Rural Engineering
Organization Branch, Work Division, Gumla, presently residing at
H. No.5, Rani Kothi, Bhabha Colony, Hanuman Nagar,
Lohianagar, P.O. & P.S.-Kankarbagh, Sampatchak, District-Patna-
800020, Bihar .... .... Petitioner
Versus
The State of Jharkhand .... .... Opposite Party
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioners : Mr. Jitendra Shankar Singh, Advocate
Mrs. Shabina Perween, Advocate
Ms. Sumitra Kumari, Advocate
Mr. Abhijeet Kumar Singh, Advocate
Mr. Shashank Kumar, Advocate
(In both the revisions)
For the O.P./State : Mrs. Priya Shrestha, Spl. P.P.
(In both the revisions)
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C.A.V. on 15.06.2026 Pronounced on 07/07/2026
Per Sujit Narayan Prasad, J.
Prayer
1. Since both the revision petitions arising out of common
order/judgment dated 28.02.2022 passed by District &
Additional Sessions Judge-IV, Gumla in Criminal Appeal No.
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103 of 2013, as such, with the consent of learned counsel for
the parties, these cases are being taken up together and are
being disposed of by this common order/judgment.
2. Both these revisions, preferred under Section 397 read with
Section 401 Cr.P.C., are directed against the common
order/judgment dated 28.02.2022 passed in Criminal Appeal
No.103 of 2013 by the learned District and Addl. Sessions
Judge-IV, Gumla, whereby and whereunder, the learned court
has set aside the judgment/order of acquittal dated 28th June,
2013 passed by the CJM, Gumla, by which, the petitioners
have been acquitted from all the charges arising out of Gumla
P.S. Case No.100 of 2000.
Prosecution case
3. Inasmuch as both the Criminal Revisions involve analogous
issues, it is considered expedient, for the sake of convenience,
to set forth the prosecution case hereinbelow, so as to avoid
repetition.
4. The prosecution case and the factual aspect, in brief, are as
follows: –
(i) The prosecution case is based upon the Complaint Case
No.63/2000 filed by one Sambhunath Singh, the complainant of
the case, wherein, it was alleged that Government scheme was
to be executed in the form of Road Construction from Basia B.T.
to Juratoli in the year 1998-99 with an estimated cost of Rs.
9,92,000/- and second scheme was also to be executed from
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Juratoli to Tapkara river in the year 1998-99 with an estimated
cost of Rs. 9,60,700/- and both the schemes were sanctioned on
24.03.1999, for which, all together total Rs. 16,00,000/- was
released through cheque by Deputy Commissioner Gumla to
Executive Engineer R.E.O. Gumla.
(ii) It was further alleged that on 22.11.1999, a review meeting
was called in Zila Parishad, Gumla under the Chairman, Suresh
Paswan and in that review, the expenditure of Rs. 2,75,000/- as
shown for the “Kalikaran Yojna” from Juratoli to Tapkara road was
found unsatisfactory and the Executive Engineer was further
directed to complete the work by 31.12.1999. In the “Kalikaran
Yojna” from Basia B.T. to Juratoli road, report as to constructions
status of Mitti murram at the expenditure of Rs.3,00,000/- was
submitted by the Executive Engineer to the Deputy
Commissioner Gumla which was alleged to be fake. It was also
alleged in the complaint petition that during April 1999 in the
above scheme an expense towards Guard walls and the Small
Bridge for Rs.2,14,587.17/- were drawn which is false and which
is evident from the progress report under the scheme in the
month of September submitted by the then Executive Engineer.
(iii) All the above fake payments were cleared vide clearance
receipt No. 01 to 22 and 93 to 116 as have been mentioned in
measurement book no. 1230 and 1231.
(iv) It was also alleged that the Royalty deductions under the
Scheme in Pramanak No. 93 to 116 for Rs. 10795/- and in the
Pramanak No. 122 for Rs. 24440/- totaling for an amount of
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Rs.33,225/- was not deposited with the Mining Department
through Challans till date. Also, the Income Tax deducted in
Pramanak No. 1 to 22 for Rs. 3872/- and in Pramanak No. 93 to
105 for Rs. 2975/- total Rs.6847/- were not deposited in the
Income Tax Department.
(v) Similarly, the deducted amount of Rs. 3168/ and Rs. 9882/-
total Rs. 5,130/- of sale tax was also not deposited in the
commercial tax department, despite the fact that the above
deduction of Royalty, income tax, sale tax was done before April
1999. Similarly, it is further alleged that the then Assistant
Engineer Ras Bihari Singh had handed over Rs. 2,00,000/-
through hand receipt no. 40 on 09/04/1999 and Rs.1,90,000/-
through hand receipt no. 41 on 10/04/1999 to one Vinod Kumar,
the then Junior Engineer, Basia section. Hence, total
Rs.3,90,000/- was given to the then Junior Engineer Vinod Kumar
against which no work has been done by him and the same has
been received and misappropriated on the basis of fake
expenditure report/adjustment bills to the concerned department.
(vi) The further case of prosecution is that the total amount
under the above schemes of Rs. 16,00,000/- was received by the
then Assistant Engineer Ras Bihari Singh, Executive engineer
Vidya Sagar Chaudhary and J.E. Vinod Kumar from Deputy
Commissioner, Gumla but the same had not been utilized
properly. It was further alleged that in the meantime, Assistant
Engineer Ras Bihari Singh was transferred from R.E.O, Gumla to
NREP, Lohardaga but he had not given charge to his successor.
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Thereafter, the successor Assistant Engineer had assumed
charge of the post of Assistant Engineer, R.E.O Gumla. In this
regard, the complainant had given a letter to Deputy
Commissioner, Gumla and copies of which were also forwarded
to Commissioner and secretary Gramin Vikas Vibhag Bihar
Government Patna, Engineer-in-chief cum Additional
Commissioner-cum- Special secretory Gramin Vikas Vibhag
Patna, Commissioner South Chhota Nagpur Division Ranchi,
DDC Gumla, Executive Engineer, Work Division, Gumla and
Assistant Engineer, Work Division, Gumla vide his personal letter
no.335-38/99 dated 14/09/1999 but no action was taken till date.
(vii) Thereafter, several letters were written to various
authorities regarding the matter but no action was taken so far.
Subsequently, another letter was written to D.C. Gumla, D.D.C,
Gumla with copies to Commissioner and secretary Gramin Vikas
Vibhag Bihar Government Patna, Accountant General, A&E,
Ranchi and Executive Engineer, Work Division, Gumla vide letter
no. 460/1999 dated 11.12.1999 but no action was taken against
the accused persons. Similar letters were also written to the
Authorities vide letter no. 7-9/2000 dated 10.01.2000 and letter
no. 304-8/2000 dated 23.03.2000 but in vain, no action was taken
by the Authorities despite repeated complaint letters. Prima facie,
it appears from the site that no work was done by the accused
persons and they have misappropriated Rs. 16,00,000/- by the
above-named accused persons in the name of constructions of
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the road, rather they had converted the same to their own use in
illegal way.
(viii) After finding merit in the Complaint petition and on the
basis of it, the said complaint petition was sent by the learned
CJM Gumla U/s 156 (3) Cr.P.C. to Gumla P.S. for lodging of F.I.R
and investigation.
(ix) Thereafter, Gumla P.S. case no. 100/2000 was registered
U/s 406, 409, r/w u/s 34 I.P.C. against aforesaid accused persons
(petitioner/revisionist herein namely Vinod Kumar, the then Junior
Engineer, Vidya Sagar Chaudhary, the then Executive Engineer
and Ras Bihari Singh the then Assistant Engineer, all posted in
R.E.O Works Division, Gumla and after completion of
investigation, the I.O. concerned submitted the Chargesheet
against them U/s 406, 409 r/w 34 I.P.C. before the learned CJM
Gumla.
(x) On consideration of Chargesheet and Case Diary so
submitted by the investigating officer, the learned CJM Gumla
took cognizance of the offence U/s 406, 409 r/w 34 I.P.C and on
appearance of the accused persons before the Court of Chief
Judicial Magistrate, Gumla, Police Papers were supplied to them.
(xi) Thereafter, the case record after routing through various
courts was made over to the learned court of CJM, Gumla for trial
and disposal. Thereafter, after hearing on the points of charge,
charges of offences u/s 406, 409 r/w 34 I.P.C were framed on
14.05.2008 and the same was read over and explained to the
accused persons (petitioners/revisionist herein) in Hindi to which
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they pleaded not guilty and claimed to be tried and thereafter the
learned CJM court conducted the trial of the case and finally
disposed of the case by passing the Judgment and order of
acquittal, against which, the State has preferred the Criminal
Appeal being Cr. Appeal No.103 of 2013, which was allowed by
passing the order of conviction against the present
petitioners/revisionist for the offence under Section 409 read with
Section 34 of the IPC and sentenced them to undergo R.I. for the
period of 10 years along with fine of Rs.2,00,000/- each and in
default of payment of fine, they were directed to undergo further
S.I. for 36 months.
(xii) Being aggrieved with the aforesaid order/judgment passed
by learned District and Addl. Sessions Judge-IV, Gumla in Cr.
Appeal No.103 of 2013, the present revision petitions have been
filed.
Submission of the learned counsel for the petitioners
5. It has been contended that the learned appellate court has not
appreciated the fact that the informant (P.W.4) alone had proved
only the signature and writing on all the documents marked as
exhibits but, in his cross-examination, he has stated at
paragraph-31 to 33 that none of the exhibited documents were
either prepared in his presence or the signatures thereon were
put in his presence.
6. It has also been contended that the official document as has
been produced by the O.P. No.2, who has been examined as
P.W.4, has to explain as to how he came in the possession of
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those official documents, though, he is the political leader and he
had nothing to do with the office and taking into consideration
those documents, which has been produced by the complainant
in the case, the order of acquittal passed by the learned CJM has
been converted into conviction by the learned appellate Court.
7. It has been submitted that aforesaid documents were not the
public documents, i.e. the measurement books and the judgment
as has been passed by the learned appellate court was based
upon the document which has been produced by P.W.4, the
complainant.
8. However, this vital aspect has not been duly appreciated by the
learned Appellate Court. Consequently, the order passed by the
learned Appellate Court cannot be sustained in law and is liable
to be quashed and set aside.
9. It has further been contended that nothing has come in course of
investigation, therefore, the petitioners have been acquitted in the
present case by the learned trial Court.
Submission of the learned counsel for the State
10. Learned Spl. P.P. appearing for the State has submitted that the
Ld. trial court could not consider and appreciate properly the
evidences adduced by the prosecution witnesses examined
specially that of the informant.
11. It has been contended that the Ld. trial court could not consider
the position of the government schemes in question at the time of
lodging of the FIR and that of the inspection report submitted
(Ext. 8) as the work done at the worksite at the time of the lodging
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of the FIR was Zero and it was only then (after lodging of the FIR)
that some work was started at the worksite and even at the time
of inspection by the Executive Engineers, the work was not in
consonance with the released total amount which is evident from
the inspection report (Ext. 8) itself which shows a total
expenditure to the tune of Rs. 11,05,544/-out of the total released
amount of Rs. 16,00,000/-.
12. However, the learned Spl. P.P. appearing for the State has
defended the order passed by the learned appellate court but she
is fair enough to admit the fact as has been stated by the learned
counsel for the petitioner/revisionist that documents produced
before the Trial Court by P.W.4 were mere photocopies and,
secondly, they did not constitute public documents.
Analysis
13. Heard learned counsel for the petitioners/revisionists as well as
learned Spl. Public Prosecutor appearing for the State. This Court
has also perused the materials available on record, together with
the order dated 28.06.2013 passed by the learned Trial Court and
the order dated 28.02.2022 passed by the learned Appellate
Court.
14. It is evident from record that prosecution in order to prove its case
has examined four witnesses namely PW-1 Subodh Kumar
Jaiswal; PW-2 Naveen Kumar Jha; PW-3 Sitaram Mandal and
PW-4 Shambhu Nath Singh.
15. For ready reference the relevant part of the testimony of
prosecution witnesses are being referred herein.
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16. PW-1 Subodh Kumar Jaisawal has deposed in his examination
in chief that he was posted as Officer-in- Charge of Gumla Police
Station on 24- 08-2001 and on that day, he received Investigation
works of this case from the then O/C P.C. Roy and thereafter he
assigned investigation work of this case to subsequent O/c
Shivnath Prasad. In his cross-examination by defense, he stated
that he had not done any investigation in this case.
17. PW-2 Navin Kumar Jha who was Divisional Accounts Officer
deposed that the accused of this case Rasbihari Singh who is at
present Executive Engineer was then posted as Assistant
Engineer and during his tenure only he got transferred to NREP
Lohardagga. During the tenure of Rasbihari Singh, there were
two works, being carried away but he cannot state the whole
details of the works. He further stated that he does not know
whether any advance amount was given to Rasbihari Singh or
not? During his tenure only, a new Assistant Engineer joined and
took the charge but he was not given charge of cashbook by
Rasbihari Singh. He also stated that the Office is inspected in
each financial year by the Officials of Accountant General and if
there is any irregularity found by them, superior officer is
informed. Correspondences related to non-submission of
cashbook was made to Rashbihari Singh and he was directed to
submit it. He was also warned to submit cashbook otherwise
superior officers would be informed accordingly. During his
tenure, charge of cashbook was not given.
In his cross-examination by the defense, he stated that he
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cannot tell whether any work was assigned to Rasbihari Singh or
not. Handing over & taking over of the charge does not amount to
embezzlement. Correspondences were made by the office of
Executive Engineer and he is not related with those
correspondences.
18. PW-3 Sita Ram Mondal in his examination in chief deposed that
He was posted as Head Clerk in Rural Engineering Corporation
from 1981 to 31-07-2007 and was placed in the Office of
Executive Engineer REO, Karya Pramandal, Gumla. He knows
the accused persons Vidya Sagar Choudhary, Rasbihari Singh &
Vinod Kumar. Vidya Sagar Choudhary was posted as Executive
Engineer in the year 1998- 99; Rashbihari Singh was posted as
Assistant Engineer in Gumla Awar Pramandal in the year 1998-
99; Vinod Kumar was posted as Junior Engineer Basia Section of
REO, Gumla Pramandal in the year 1998-99.
He further stated that an estimate of any scheme is prepared
after it gets sanction/approval and its technical approval is
obtained from the Executive Engineer and thereafter getting its
approval from Executive Engineer, the estimate of same is sent to
office of the Deputy Commissioner who issues amount for the
scheme. After receiving Estimate, the technical officers who are
related to the scheme such as Junior Engineer, Assistant
Engineer starts works and submit its progress reports to
Executive Engineer which is sent subsequently to the Deputy
Commissioner to apprise him about the progress of the work.
Estimated amount of the works is released in installments on the
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basis of progress report of the works. The actual amount of
expenditure incurred in the works is submitted by Assistant
Engineer through Account Statements. Account Section also
submits Royalty, Sale Taxes etc along with Account Statements.
He was aware of the current scheme going on. The works of Jura
Toli to Tapkara & Basia BT to Jura Toli were going on in the year
1998-99 but he was not aware of what works were going on and
the progress of the works. He was not aware of total estimated
amount of both the schemes.
At this stage of proceedings, this witness was declared hostile
at the request of the Prosecution and he was permitted to cross-
examine the witness. In his cross-examination by the
prosecution, this witness stated and denied suggestion of the
prosecution that he had given statement to the police wherein he
stated that there were works of roads constructions of 1.86 KM
from Jura Toli to Tapkara & 1.57 KM from Basia BT to Jura Toli.
And the amount of Rs. Eight lacs (800000/-) related to Road
construction of Basia BT to Jura Toli was obtained in Kalicharan
Yojana and it was shown updated expenditure as 4.50 lacs and
was shown complete road construction of grade- 1 of one (1) KM
& it was also shown supply of other items whereas the amount of
Rs. Eight lacs (800000/-) related to Road construction of Jura Toli
to Tapkara was obtained in Kalicharan Yojana and it was shown
updated expenditure as 4.50 lacs and was further shown as
Grade-I supply being done and Morrum works has been shown
complete. Progress report of the work is sent through him and no
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file in this regard is used. He further denied suggestion of the
prosecution that since the accused persons are officials of their
department that is why he is concealing true facts and he has full
information about the scheme.
In his cross-examination by the defense, he stated that the
parent department of Assistant Engineer Ras Bihari Singh,
Executive Engineer Vidya Sagar Chaudhary and J.E. Vinod
Kumar is Road Construction Department and their department is
not REO. All these three accused persons were not posted in his
Department (REO) at the time of his retirement. In the campus of
REO, there were numerous quarters. But he cannot tell whether
Shambhunath Singh used to stay in one of the quarters during
1998-99 or not. He has come to depose before the court on being
served notice.
19. PW-4 Shambhunath Singh, is complainant and informant of
this case who in his depositions has stated that He knows
Vidya Sagar Chaudhary, Rasbihari Singh, and Vinod Kumar. In
Basia Block, during the year 1998-99, construction of concrete
roads from Basia to Juratoli & from Juratoli to Tapkara were
about to be constructed after getting its approval. The
estimated cost of road construction of Basia to Jura Toli for the
distance of 1.87 KM was Nine Lacs Ninety-Two Thousand
(992000/-) and estimated cost of road construction of Jura Toli
to Tapkara for the distance of 1.5 KM was Nine Lacs Sixty-Two
Thousand Seven Hundred (9,62,700/-). In both of the schemes,
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the Deputy Commissioner, Gumla had released eight lacs
(8lacs) each totaling to Rs. Sixteen Lacs (16 lacs). Both the
schemes were to be completed by 30-04-1999 as per
conditions of the administrative approval. As per the estimate,
Grade-I, Grade-II and Priming were to be done and murram of
6-inch thickness in the total length of the road was to be laid
and one foot of soil was to be put on both sides of the road. A
Guard wall & Pulia (Culvert) were also to be built. For the
execution of the works, the then Deputy Commissioner, Gumla
gave Sixteen Lacs of rupees to Executive Engineer, REO,
Gumla.
20. He further stated in his examination in chief dated 09-11-2009
that, Scheme Part-2 which is related to Jura Toli to Tapkara in
which Guardwall and Culvert were to be constructed has never
been constructed. The estimated cost of Guardwall was
1,53,000/- and combined estimate for both was sixteen lacs (16
lacs) which was released by the Deputy Commissioner, Gumla in
favour of Executive Engineer, out of total amount of sixteen lacs,
twelve lacs eighty thousand (12,80,000/-) amount had been
subsequently given to the then Assistant Engineer in five
installments during the period 09-04- 1999 to 05-09-1999 by the
Executive Engineer through Hand Receipts. The then Assistant
Engineer Rashbihari Prasad Singh further gave the amount to the
then Junior Engineer an amount of two lacs (2lacs) and one lacs
(1 lacs) totaling to Rs. Three Lacs Ninety Thousand (3,90,000/-)
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vide Hand Receipt No. 40 dated 09-04-1999 & Hand Receipt No.
41 dated 10-04-1999 respectively. Out of the given amount, an
amount of Three Lacs Twenty Thousand (3,20,000/-) was kept by
the then Executive Engineer and the said amount did not give it
to his subordinate Assistant Engineer for getting the works done.
All the three accused persons namely Vidya Sagar Choudhary,
Rashbihari Prasad Singh and Vinod Kumar without getting the
work of road constructions had shown consuming the items in the
work and had shown the work done and had not deposited
Royalty Sales Tax and Income Tax to the concerned department
thereby caused loss to revenue. The work was shown in the
Measurement Book (MB) but no work was actually done at the
site.
In his further examination-in-chief dated 15-04-2010 by the
prosecution, it is stated by him that at the request of Investigation
Officer during the course of investigation, a Technical Team
consisting of Two Executive Engineers was constituted by the
then Deputy Commissioner to check the works done at the
ground who in their report has confirmed Gaban (embezzlement).
Thereafter, Sanction for prosecution was obtained by the Deputy
Commissioner from the Department of Justice, Government of
Jharkhand. During the course of investigation copies of Royalty
Income Tax and Challan were given by the accused persons to
the Investigation Officer. It was further stated by this witness that
the Royalty which was deposited by the Challan is of the
Financial Year 1998-1999. Royalty was deposited by accused
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Rashbihari Singh in the capacity of Assistant Engineer, REO. The
accused persons got the first installment on 01-04-1999 whereas
Royalty is supposed to be deducted and deposited after the
consumption of items in proportion and it was deposited by the
Junior Engineer. The Assistant Engineer did not give the full
amount of Rupees Twelve Lacs Eighty Thousand to the Junior
Engineer.
In his further examination-in-chief dated 20-12-2010 by the
defense, it is stated by him that all the four Divisions’ Cash are
maintained in Division REO. The First Cashbook is of the period
01-11-1998 to 28-02-2001 which is prepared in the handwriting of
Virendra Kumar Sinha and it also bears signatures of Virendra
Kumar Sinha & Executive Engineer. The register contains 97
pages wherein each of the pages were signed by the Virendra
Kumar Sinha and Executive Engineer Vidyasagar. The same is
identified by him and is exhibited and marked as Ext. 1 (with
objection).
The other Register is of the period 01-12-1998 to 21-10-2000 is
maintained which is also signed by Virendra Kumar Sinha and
Executive Engineer Vidya Sagar Choudhary. The register
contains 97 pages wherein each of the pages were signed by the
Virendra Kumar Sinha and Executive Engineer Vidyasagar
Choudhary. The same is identified by him and is exhibited and
marked as Ext. 2 (with objection).
The third cash register consisting of pages 1 to 33 is of period
from 01-09-2000 to 31-03-2001 and was maintained in the
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handwriting and signature of cashier Virendra Kumar Sinha. It
also bears signature of Executive Engineer Vidyasagar
Choudhary. The same is identified by him and is exhibited and
marked as Ext. 3.
The fourth cash register consisting of pages 1 to 67 is of period
from 01-04-2001 to 30-04-2001 and was maintained in the
handwriting and signature of cashier Virendra Kumar Sinha. It
also bears signature of Executive Engineer Dudhnath Singh. The
same is identified by him and is exhibited and marked as Ext. 4.
(with objection).
The measurement book is of 1231 number and is related to
construction of road from Juratoli to Tapkara Nadi and was
maintained in the handwriting and signature of Junior Engineer
Vinod Kumar. It also bears handwriting & signature of Executive
Engineer Vidya Sagar Choudhary. The same is identified by him
and is exhibited and marked as Ext. 5. It also bears handwriting &
signature of Assistant Engineer Rash Bihari. The same is
identified by him and is exhibited and marked as Ext. 6. (with
objection).
The measurement book is of 1230 number and is consisting
of pages 1-95 and is related to construction of road from Basia B.
T. to Juratoli and was maintained in the handwriting and signature
of Junior Engineer Vinod Kumar. It also bears handwriting &
signature of Assistant Engineer Rashbihari. The same is identified
by him and is exhibited and marked as Ext. 7. (with objection).
During the course of investigation, a Joint Examination
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Team after completing the technical examination of both the
schemes submitted its report which bears signatures of Executive
Engineer Mritunjay Prasad Singh Jalim and Executive Engineer
Krishnanand Choubey. In its report, it is reported that works of
Eleven Lacs was done whereas Sixteen Lacs was released for
both the schemes. He further identified handwriting & signature of
Mritunjay Singh. The same is exhibited & marked as Ext.8. (with
objection).
21. In his cross-examination18-02-2011 by the defense, it is stated by
him that the estimate of Basia Block situated Juratoli to Tapkara
road was prepared in the handwriting and signature of Junior
Engineer Vinod Kumar. It also bears signatures of Executive
Engineer Vidya Sagar Choudhary & Assistant Engineer Rash
Bihari Singh. The same is identified by him and is exhibited and
Marked as Ext. 9. He also identified the signatures of Executive
Engineer Vidya Sagar Choudhary & Assistant Engineer Rash
Bihari Singh in the estimates related to Guard Wall which is
exhibited and marked as Ext. 10 & Ext. 10/1 respectively.
Further the estimate of Basia BT to Juratoli road was
prepared in the handwriting and signature of Junior Engineer
Vinod Kumar. It also bears signatures of Executive Engineer
Vidya Sagar Choudhary & Assistant Engineer Rash Bihari Singh.
It also bears signature of Executive Engineer of NREP. The same
is identified by him and is exhibited and Marked as Ext. 11. (with
Objection). He again states that administrative approval was
recommended. He identifies the challans meant for Royalty which
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were of the year 1998-99 and which bears signatures of
Rashbihari Singh. The same are exhibited and marked as Ext.
12, Ext.12/1, Ext.12/2. Income Tax was submitted by Rashbihari
for the year 1998-99 which is identified by him and is exhibited
and marked as Ext. 13. The case has been registered on the
basis of Complaint Petition contents of which has been typed by
typist D. Prasad and has been signed by him and one Lohra Nag.
The same has been identified by him and is exhibited and
marked as Ext. 14 & Ext. 14/1 respectively. All the contents of the
Complaint petition have been stated by him in his depositions. He
again states that the typing had been done by one K.P. Prasad.
He identifies the accused persons Rashbihari Singh & Vinod
Kumar present in the Court and further claims that he can identify
others also.
He does not get any education of accounts and engineering
but he knows about it. He has got his name registered as
Contractor 22 years ago. He has also worked as contractor in
irrigation department. He does not do anything like that now-a-
days but he works as Farmer.
In his further cross-examination dated 25-05-2011, he stated
that he did not attach any copy of correspondence to the
Complaint Petition nor did present it before the Court. He did not
make any correspondence with any of the Officials. He had not
gone to the places of occurrences along with IO. But had gone to
the places of occurrences before fling of this Complaint Petition
but he is unable to remember the date when he had gone to the
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places of occurrences. He did not have mention this fact in the
Complaint Petition that he himself went to the place of
occurrence. He cannot tell the date when the technical sanction
was given to these two schemes. He is unable to remember the
works which were undertaken under District Planning nor he is
able to remember what works were being undertaken in REO
Department. He has seen estimates of both the schemes. He
cannot tell rates of estimates. He cannot also tell the rates of
estimates of any schemes.
22. In his further cross-examination dated 05-07-2011, he stated that
he cannot tell what were the items included in the amount of Rs.
Nine Lacs and Ninety-Two Thousand. He had seen the
documents related to the schemes. He denied suggestion of the
defense that there was no scheme for which an amount of Rs.
Nine Lacs and Sixty-Two Thousand was not earmarked. He has
stated so after seeing the estimate. He further denied suggestion
of the defense that no such estimate was prepared. He knows
about both the schemes and a departmental inquiry has also
been initiated against the accused persons. He also denied
suggestion of the defense that no such incidence has happened.
He cannot state what are the amount of Royalty & sales tax in
both the schemes. He knows about income tax. He denied
suggestion of the defense that accused persons have deposited
the sales tax, income tax. Both the schemes were given to REO
under District Planning. He cannot state the estimates of other
schemes. He had perused the files related to these schemes in
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the Office at the direction of DC, DDC. He denied suggestion of
the defense that he did not have doubt about it. He also denied
suggestion of the defense that no action was taken on his
complaint. He cannot tell when the Technical Team was
constituted. He also denied suggestion of the defense that no
work had got done by these two officials. He knows on which of
the items Royalty and income tax are levied. It is levied on
notional consumption and deposited on the head which was
subsequently deposited by the concerned department. he denied
suggestion of the defense that the Royalty which would be
deposited has been deposited under both the schemes. He had
given an application to IO to seize the documents. He was not
shown documents at the time of fling of Complaint Petition. All the
documents exhibited as Ext. 1 to Ext.14 has been shown to him
after fling of the Complaint Petition.
In his further cross-examination dated 20-10-2011, he stated
that he has not gone to the place of occurrence along with
Investigation Officer nor he has gone to the place of occurrence
along with departmental Technical Team meant for examination.
Ext.1 & Ext.2 has neither been written in his presence nor it
has been signed in his presence. There was no irregularity found
in the cashbook. He again states that he identifies signatures
made in the cashbook but he does not know contents of it.
23. In his further cross-examination dated 11-11-2011, he stated that
He has not seen the files before fling of case nor he has made
any application to DC & DDC to obtain permission to peruse it.
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He did not receive any complaint as to non-completion of the
works. He himself had gone to place of occurrence and had seen
the status of the work and after seeing the status of the works
filed a complaint to District Administration. He had not given copy
of the Complaint to the Investigation Officer. The Executive
Engineer had kept an amount of Rupees Three Lacs Twenty
thousand related to these two schemes but he cannot tell where
he had kept these rupees. He denied suggestion of the defense
that he has made a false allegation of keeping Rupees Three
Lacs Twenty Thousand against Executive Engineer. He had seen
the Measurement Book in the Court but he cannot tell whether all
entry made in the MB is correct or not.
He had made enquiry in the income tax department, sales
tax department and Mining Department to obtain information
related to these two schemes but had not obtained any written
information in this regard from the concerned department. He
denied suggestion of the defense that he is deposing falsely.
None of the documents of Ext. 1 to Ext. 14 has been prepared or
signed in his presence.
He denied suggestion of the defense that Deputy Commissioner
or Officials of the Department has not found any allegation of
embezzlement against accused persons and he has brought a
false case against the accused persons due to his personal
vendetta. He lastly denied suggestion of the defense that there is
any wrong entry in Ext. 1 to Ext. 14 and accused persons has got
the work done as per specifications of the schemes.
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24. The prosecution has also adduced list of documents and articles
in evidence, which are as follows:
Ext. 1 Signature of B.K. Singh the then Executive Engineer in the cash
book from 1.11.1998 to 28.02.2000;
Ext. 2 Handwriting of B.K.Sinha and the then Executive Engineer
Vidhyasagar Choudhary in the cashbook from 1.12.1998 to 31.10.2000;
Ext. 3 Handwriting of Sri B.K. Sinha Cashier and Signature of Executive
Engineer Vidhyasagar Choudhary in cashbook from 01.09.2000 to
31.03.2001;
Ext. 4 Signature of B.K.Sinha and Executive Engineer Dudhnath Singh
in cashbook from 01.04.2001 to 30.11.2001;
Ext. 5 Handwriting of Vinod Kumar J.E, signatures of Rashbihari Singh,
AE and Vidhya Sagar Choudhary in M.B No. 1231;
Ext. 6 Handwriting of Vinod Kumar J.E, signatures of Rashbihari Singh,
AE and Vidhya Sagar Choudhary in M.B No. 1231;
Ext. 7 Handwriting of Vinod Kumar J.E, signatures of Rashbihari Singh,
AE and Vidhya Sagar Choudhary in M.B No. 1230;
Ext. 8 Joint Enquiry Report of both the schemes bearing signatures of
its members Mritunjay Prasad Singh Jalim, Executive Engineers &
Krishnand Choubey, Executive Engineers;
Ext. 9 Handwriting of Vinod Kumar J.E and signature of Rashbihari Pd.
Singh A.E and Vidyasagar Choudhary on estimate of Juratoli to Torpa;
Ext.
10 Signature of Vidyasagar Choudhary E.E on the estimate of
Guardwall. Ext. 10/1 Signature of Rashbihari Singh A.E on estimate of
Guardwall.
Ext. 11 Handwriting and signature on estimate of Basia B.T to Juratoli;
Ext. 12 Signature of Rasbihari Singh on royalty slip of year 1998-1999;
Ext. 12/1 Signature of Rasbihari Singh on royalty slip of year 1998-
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1999; Ext. 12/2 Signature of Rasbihari Singh on royalty slip of year
1998- 1999;
Ext.13- Signature of Rasbihari Singh in the cashbook receipt for the year
1998 to 1999;
Ext. 14 Signature of Shambunath singh on complaint petition;
Ext. 14/1 Signature of Lohra Nag on complaint petition.
25. The learned Trial Court concluded the trial after hearing
arguments of both the parties and on consideration of materials
on record passed judgment thereby acquitted the accused
persons(petitioners/revisionist) namely Vinod Kumar,
Vidhyasagar Choudhary and Rashbihari Prasad Singh charged
u/s 409, 406 r/w 34 of the IPC by giving benefit of doubt.
26. Thereafter, appeal against the said order of acquittal has been
preferred before the Court concerned wherein the learned
Appellate Court while reversing the order of Acquittal has
convicted the accused persons (petitioner/revisionist herein) by
observing that the accused persons were having dishonest
intention and they had misappropriated the amount and their
dishonest intention has been proved by a number of
circumstances viz, entries made in MBs, estimates of the
schemes, report of joint inspection team, depositions of witnesses
and documentary evidences etc. from which a reasonable
inference can be drawn that the accused persons herein were
involved in the commission of the misappropriation of the
government amount.
27. Against the said order of conviction present revision applications
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have been filed.
28. Before adverting into merit of the instant revision application, it
would be apt herein to discuss herein the core of revisional
jurisdiction under Section 397 Cr.P.C. read with Section 401
Cr.P.C.
29. The object of the provisions of revision is to set right a patent
defect or an error of jurisdiction or law. There has to be a well-
founded error and it may not be appropriate for the court to
scrutinize the orders which upon the face of them bear a token of
careful consideration and appear to be in accordance with law.
Revisional Jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive classes but
merely indicative. Each case would have to be determined on its
own merits. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and cannot be
exercised in a routine manner. Reference in this regard be made
to the judgment rendered by the Hon’ble Apex Court in the case
of Amit Kapoor Vs. Ramesh Chander, (2012) 9 SCC 460. The
relevant paragraphs of the aforesaid judgment are being quoted
as under:
“12. Section 397 of the Code vests the court with the power to
call for and examine the records of an inferior court for the
purposes of satisfying itself as to the legality and regularity of
any proceedings or order made in a case. The object of this
2026:JHHC:20000-DBprovision is to set right a patent defect or an error of jurisdiction
or law. There has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders, which upon the
face of it bears a token of careful consideration and appear to
be in accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under challenge
are grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive classes, but
are merely indicative. Each case would have to be determined
on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction
of the higher court is a very limited one and cannot be exercised
in a routine manner. One of the inbuilt restrictions is that it
should not be against an interim or interlocutory order. The
Court has to keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie. Where the
Court is dealing with the question as to whether the charge has
been framed properly and in accordance with law in a given
case, it may be reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within the
categories aforestated. Even framing of charge is a much
advanced stage in the proceedings under the CrPC.
20. The jurisdiction of the court under Section 397 can be
exercised so as to examine the correctness, legality or propriety
of an order passed by the trial court or the inferior court, as the
case may be. Though the section does not specifically use the
expression “prevent abuse of process of any court or otherwise
to secure the ends of justice”, the jurisdiction under Section 397
is a very limited one. The legality, propriety or correctness of an
order passed by a court is the very foundation of exercise of
jurisdiction under Section 397 but ultimately it also requires
justice to be done. The jurisdiction could be exercised where
there is palpable error, non-compliance with the provisions of
law, the decision is completely erroneous or where the judicial
discretion is exercised arbitrarily. On the other hand, Section
2026:JHHC:20000-DB482 is based upon the maxim quando lex aliquid alicui concedit,
concedere videtur id sine quo res ipsa esse non potest i.e.
when the law gives anything to anyone, it also gives all those
things without which the thing itself would be unavoidable. The
section confers very wide power on the Court to do justice and
to ensure that the process of the court is not permitted to be
abused.”
30. Relying upon its earlier decision in the case of Amit Kapoor Vs.
Ramesh Chander (supra) the Hon’ble Supreme Court, in the
case of Vinay Tyagi Vs. Irshad Ali, (2013) 5 SCC 762, has ruled
that normally, revisional jurisdiction should be exercised on a
question of law. However, when factual appreciation is involved,
then it must find place in the class of cases resulting in a
perverse finding. Basically, the power is required to be exercised
so that justice is done and there is no abuse of power by the
court. Merely an apprehension or suspicion of the same would
not be a sufficient ground for interference in such cases.
31. Thus, from the aforesaid settled position of law, it is evident that
while the appellate jurisdiction is co-extensive with the original
court’s jurisdiction as appreciation and re-appreciation of
evidence is concerned, the revisional court has simply to confine
to the legality and propriety of the findings and as to whether the
court acted within its jurisdiction. Sections 397 to 401 CrPC
confer only limited power on revisional court to the extent of
satisfying the legality, propriety or regularity of the proceedings or
orders of the lower court and not to act like appellate court for
other purposes including the recording of new findings of fact on
fresh appraisal of evidence. Reference in this regard be made to
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judgment rendered by the Hon’ble Apex Court in the case of
Munna Devi vs. State of Rajasthan, AIR 2002 SC 107. The
relevant paragraph of the aforesaid order is being quoted as
under:
“3.—–The revision power under the Code of Criminal
Procedure cannot be exercised in a routine and casual manner.
While exercising such powers the High Court has no authority
to appreciate the evidence in the manner as the trial and the
appellate courts are required to do. Revisional powers could be
exercised only when it is shown that there is a legal bar against
the continuance of the criminal proceedings or the framing of
charge or the facts as stated in the first information report even
if they are taken at the face value and accepted in their entirety
do not constitute the offence for which the accused has been
charged. This Court in Kanti Bhadra Shah v. State of
W.B. [(2000) 1 SCC 722 : 2000 SCC (Cri) 303] has held that
there is no legal requirement for the trial court to write a
reasoned or lengthy order for framing the charges.”
32. In the backdrop of the aforesaid settled position of law this Court
is now adverting to the contention of the learned counsel for the
parties.
33. It has been contended by the learned Counsel for the petitioners/
revisionist that the official document as has been produced by
the O.P. No.2, who has been examined as P.W.4, has to explain
as to how he came in the possession of those official documents,
though, he is the political leader and he had nothing to do with
the office of the Government and taking into consideration those
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documents, which has been produced by the complainant in the
case, the order of acquittal passed by the learned CJM has been
converted into conviction by the learned appellate Court.
34. It has been submitted that aforesaid documents were not the
public documents, i.e. the measurement books and the judgment
as has been passed by the learned appellate court was based
upon the document which has been produced by P.W.4, the
complainant. It has further been contended that nothing has
come in course of investigation, therefore, the petitioners have
been acquitted in the present case by the learned trial Court, but
ignoring the said facts the learned appellate Court has passed
the order of conviction which is not sustainable in the eye of law.
35. Learned Special Public Prosecutor appearing on behalf of the State
has submitted that the learned trial court failed to properly consider
and appreciate the evidences adduced by the prosecution
witnesses, particularly the testimony of the informant, which was
material to the adjudication of the case.
36. It has further been contended that the learned trial court did not take
into account the position of the government schemes in question as
prevailing at the time of lodging of the First Information Report, nor
did it properly appreciate the inspection report (Ext. 8). The
submission is that, at the time of lodging of the FIR, no work had
been executed at the worksite, and only subsequent thereto some
work was commenced. Even at the stage of inspection by the
Executive Engineers, the work executed was not commensurate
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with the total amount released, which is evident from the inspection
report (Ext. 8) itself, showing expenditure of Rs. 11,05,544/- against
the released sum of Rs. 16,00,000/-.
37. However, while defending the order passed by the learned appellate
court, the learned Special Public Prosecutor has fairly conceded the
contention advanced by the learned counsel for the
petitioner/revisionist that the documents produced before the trial
court by P.W.4 were mere photocopies and, further, that such
documents did not constitute public documents within the meaning
of law.
38. In the backdrop of the aforesaid factual aspect and settled
position of law the question of determination before this Court
is:
“Whether the learned Appellate Court has rightfully
appreciated the evidences on record and, upon such
appreciation, has correctly arrived at the conclusion in
convicting the accused persons/petitioners/revisionist for
the charges framed against them?”
39. The principal thrust of the contention advanced by the learned
counsel for the petitioners is that the documents relied upon by the
learned Appellate Court is not the character of public documents
within the meaning of law and the said documents are merely
xeroxing copy of the original document. It is urged that,
notwithstanding the fact that such documents were marked as
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exhibits, mere marking of a document as an exhibit does not, ipso
facto, amount to proof of its contents, and the evidentiary value of
the same cannot be elevated in the absence of proper foundational
proof.
40. It needs to refer herein that if the document which is sought to be
proved is itself inadmissible in evidence, then merely because a
document has been marked as ‘an exhibit’, an objection as to its
admissibility is not excluded and is available to be raised even at a
later stage or even in appeal or revision. In the first case,
acquiescence would be no bar to raise the objection in a superior
Court.
41. It is imperative to acknowledge that the admissibility of photocopies
as evidence is contingent upon several factors, including the
authenticity of the original document, the circumstances surrounding
its creation, and the photocopy’s accuracy as a representation of the
original document. Before deciding whether to use the photocopy in
the resolution of the relevant matter, the court will carefully examine
the photocopy’s authenticity and dependability.
42. The circumstances under which secondary evidence pertaining to
documents is acceptable are outlined in Section 65 of the Evidence
Act. It is possible to refer to Section 63(2), which permits the
admission of a document as secondary evidence, provided that its
accuracy is verified. This includes copies created by mechanical
processes such as Photostats. Verifying the accuracy of a photostat
copy is crucial when presenting it in court. A photostat copy of a
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document cannot be accepted as secondary evidence if it is
presented without evidence of its accuracy, without a comparison
with the original, or without verification that it is a true reproduction.
Put more simply, a photostat copy’s admissibility depends on the
other party’s acknowledgment or proof of its authenticity. Thus, a
photostat copy of a document may only be introduced into evidence
in situations where it is claimed and proven that the original
document was once there but has since been lost, destroyed, or is
in the possession of the other party and they refuse to produce it,
among other situations listed in Section 65 of Evidence Act. In case
of a conflict between secondary evidence and primary evidence, it is
settled law that the primary evidence will prevail.
43. Thus, mere marking of a document cannot be said to be the proof of
said document. The document has to be proved in accordance with
law and the same has to be appreciated in order to ascertain the
genuineness of the document with other materials available on
record. In that context, both the parties would get ample opportunity
to counter those documents as well to submit their arguments with
reference to the evidence already recorded by the court. Normally,
any party who wants to prove the content of the document is
required to lead evidence by production of the original document
before the court through its author. Under Section 61, the original
document can be presented before the Court through the author,
who created the document and it can be proved.
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44. The legal position is not in dispute that mere production and
marking of a document as exhibit by the court cannot be held to be
a due proof of its contents. Its execution has to be proved by
admissible evidence, that is, by the evidence of those persons who
can see also. Reference in this regard be made to the judgment
rendered by the Hon’ble Apex Court in the case of Alamelu vs.
State represented by Inspector of Police, 2011 (2) SCC 385:
AIR 2011 SC 715.
45. The recitals in the document do not become a part of the evidence.
They are assertions by a person who is alive and who might have
been brought before the Court if either of the parties to the suit had
so desired. This distinction is frequently overlooked and when a
document has been admitted in evidence as evidence of a
transaction the parties are often apt to refer to the recitals therein
as relevant evidence.
46. Section 62 of Evidence Act deals with Primary evidence.
Explanation 2 says that where a number of documents are made
by one uniform process, each is primary evidence of the contents
of the rest. Under Explanation 2, all the documents must be taken
at a time under one uniform process in which case, each of such
documents is primary evidence of the contents of the rest. Printing,
cyclostyle, lithography are some mechanisms which are recognized
under law through which documents can be obtained under a
uniform process. Thus, documents prepared under the uniform
process of either printing or cyclostyle or lithography cannot be
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mere copies in strict legal sense of the term, in fact, they are all
counterpart originals and each of such documents is primary
evidence of its contents under Sections 45 and 47 of the Evidence
Act.
47. Secondary evidence of the contents of private documents is
admissible only if the original document is not in existence or not
available. Therefore, it is usually necessary to account for the
absence of the original and for this purpose, proof of primary
evidence is not available may be required.
48. In the decision reported in 2010 AIR SCW 6362 – M.Chandra vs.
M. Thangamuthu, it has been held by the Hon’ble Apex Court that:
“It is true that a party who wishes to rely upon the
contents of a document must adduce primary
evidence of the contents, and only in the
exceptional cases will secondary evidence be
admissible. However, if secondary evidence is
admissible, it may be adduced in any form in
which lit may be available, whether by production
of a copy, duplicate copy of a copy, by oral
evidence of the contents or in another form. The
secondary evidence must be authenticated by
foundational evidence that the alleged copy is in
fact a true copy of the original. It should be
emphasized that the exceptions to the rule
requiring primary evidence are designed to
provide relief in a case where party is genuinely
unable to produce the original through no fault of
that party”.
49. The photocopies which are exhibited were not public documents.
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Therefore Section 65 (e) does not apply. Though the seal and
signature of the manager on those photocopies mention it as
‘certified copy’, in fact it does not fall within the meaning of certified
copy as referred under Section 65(e) or 65(f), nor such certificate
found on the exhibits satisfies the mandate of Section 4 of Banker’s
Book Evidence Act
50. In the case of H.Siddiqui vs. A. Ramalingam, AIR 2011 S C 1492
it has been observed by the Hon’ble Apex Court that:
“In a case where original documents are not
produced at any time, nor, any factual
foundation has been led for giving secondary
evidence, it is not permissible for the Court to
allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the
contents of a document is inadmissible, until
the non-production of the original is
accounted for, so as to bring it within one or
other of the cases provided for in S. 65. The
secondary evidence must be authenticated
by foundational evidence that the alleged
copy is in fact a true copy of the original.
Mere admission of a document in evidence
does not amount to its proof. Therefore, the
documentary evidence is required to be
proved in accordance with law. The Court has
an obligation to decide the question of
admissibility of a document in secondary
evidence before making endorsement
thereon. Where the respondent had merely
admitted his signature on the photocopy of
2026:JHHC:20000-DBthe power of attorney and did not admit the
contents thereof and the trial Court without
examining whether contents thereof had
probative value decreed the suit for specific
performance, the approach of trial Court was
held to be improper.”
51. In the backdrop of the aforesaid settled position of law this Court is
now adverting to factual aspects of the present case.
52. This Court has carefully examined the order impugned, whereby
the order of acquittal passed by the learned trial court has been
reversed, and the petitioners/revisionists have been convicted for
the charges framed against them.
53. It is evident from order impugned that the learned appellate court
heavily relied upon the deposition of complainant and found the
corroboration of the same from the Ext. 5, Ext. 6 & Ext. 7 which are
measurement Books No. 1231 & 1230.Further the learned court
has observed that from perusal of the Cash Registeres exhibited as
Ext.1, Ext.2, Ext.3 and Ext.4, it is found that the entries made in the
cash registers did not match with the corresponding works as
shown in the MB. No. 1230 & MB. No. 1231.
54. In order to verify the aforesaid reasoning, we have gone through
the record of the case wherefrom it is evident that except PW.4
who is the complainant, none of the witnesses examined by the
prosecution have stated anything incriminating against the
petitioners.
55. PW-1 Subodh Kumar Jaisawal, Officer-in- Charge of Gumla
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Police station has stated that he had not done any investigation in
this case.
56. P.W.2 Navin Kumar Jha, Divisional Accounts Officer in REO
office, Gumla has stated that during the tenure of Rasbihari Singh,
there were two works, being carried away but he cannot state the
whole details of the works. He further stated that he does not know
whether any advance amount was given to Rasbihari Singh or not?
During his tenure only, a new Assistant Engineer joined and took
the charge but he was not given charge of cashbook by Rasbihari
Singh. He also stated that the Office is inspected in each financial
year by the Officials of Accountant General and if there is any
irregularity found by them, superior officer is informed. Thus, from
the deposition of this witness, it is evident that he has not stated
any substantial aspect about the case, further from his cross-
examination it is evident that he has no idea about the work which
has been assigned to the Rasbihari Singh,
57. PW-3 Sita Ram Mondal has been declared hostile by the
prosecution. However, he has specifically stated that the works of
Jura Toli to Tapkara & Basia BT to Jura Toli were going on in the
year 1998-99 but he was not aware of what works were going on
and the progress of the works. He was not aware of total estimated
amount of both the schemes. In his cross-examination by the
prosecution, this witness stated and denied suggestion of the
prosecution that he had given statement to the police wherein he
stated that there were works of roads constructions of 1.86 KM
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from Jura Toli to Tapkara & 1.57 KM from Basia BT to Jura Toli. He
further denied suggestion of the prosecution that since the accused
persons are officials of their department that is why he is
concealing true facts and he has full information about the scheme.
58. Thus, upon a careful consideration of the testimonies of P.W.1,
P.W.2 and P.W.3, it becomes evident that nothing substantial or
incriminating has been deposed by these witnesses against the
revisionists, and their evidence does not advance the prosecution
case in any material respect.
59. Even P.W.4 the complainant himself accepted and produced the
deposit challan of Royalty and taxes for the year 1998- 99 i.e.
exhibited as Ext. 12 to 12/2 and Ext.3. It is also pertinent to
mention here that the alleged complaint petition of complainant
vide his own Patrank No. 335-38/1999 dated 14/09/1999, Patrank
460/99 dated 11/12/1999, Patrank 07-09/2000 dated 10/01/2000
and Patrank 104-08/2000 dated 23/03/2000 stated about the
embezzlement but the same has not been produced by
complainant either along with his complaint petition and the same
has also not been produced during the course of his examination-
in-chief or during the course of his cross examination.
60. These facts deposed by P.W.4 during his cross examination at para
12 wherein it is stated by him that he had not annexed any
correspondences made in this regard with the Complaint Petition
and during the course of investigation also nor any correspondence
was made by the officials. Nothing has been adduced by the
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Complainant before the Court. It is worthwhile to mention here that
technical assessment has been conducted by the joint team after
lapse of approximately 5 years and for which the alleged charges
cannot be made against the revisionists in any manner at the such
belated stage. Further, the statement of P.W.4 has also not been
corroborated by any oral testimony of witnesses.
61. On the basis of above discussion, it is clear that the ingredients of
the offences U/s 406/409/34 I.P.C were not attracted in any manner
and the prosecution has miserably failed to establish the
prosecution case beyond all reasonable doubt and for which the
learned Chief Judicial Magistrate after appreciating the evidences
led on behalf of the prosecution has rightly acquitted the accused
persons/revisionists. Further, the accused persons/revisionist were
Government employee at the relevant time but the prosecution has
failed to bring prosecution sanction order in proper way during the
course of trial.
62. It needs to refer herein that although admissibility of evidence,
and not manner of its collection, matters: The Indian Evidence Act
does not necessitate procedural morality during evidence
collection. The general rule continues that if the evidence is
admissible, it does not matter how it has been obtained.
Reference in this regard be made to the judgment rendered by the
Hon’ble Apex Court in the case of Umesh Kumar Vs State of AP,
(2013) 10 SCC 59.
63. But at the same time, it is also settled proposition of law that
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even if a document or evidence is procured by improper or
illegal means, there is no bar to its admissibility provided it is
relevant to the matter in issue and its genuineness is duly
established. The manner of procurement does not, by itself,
render such evidence inadmissible. However, as a matter of
judicial caution, the Court, in exercise of its discretion, may
exclude certain evidence in a criminal trial if the strict
application of admissibility rules would operate unfairly against
the accused. More importantly, before acting upon such
evidence, the Court must be satisfied that it is genuine,
authentic, and free from tampering or mutilation. In the instant
case question has already been raised about the genuineness
of the documents based upon which the judgment of conviction
has been passed.
64. Further, it is evident that in the instant case as regards the legal
and valid oral evidence to prove the guilt beyond doubt is one
and the only evidence that of the complainant / informant as
P.W-4 and in the name of documentary evidence the joint
report prepared in course of investigation but on examination of
the two that is the evidence of PW.4 and Ext. 8 none is legally
acceptable. It is an admitted fact that the so called joint report
was prepared in course of investigation by two persons
Mrityunjay Singh and Krishna Nand Choudhary, but when the
document was marked as exhibit 8, PW4 identified only the
writings of Mritunjay Singh and not of other signatory nor
2026:JHHC:20000-DB
proved the contents; however, his statements as recorded by
the Appellate Court in paragraphs 31, 32, 33 of judgment are
sufficient to sustain the objection raised as to very admissibility
of those documentary evidences still marked as Ext. 1 to 14/1
particularly Ext. 8, and the appellate Court relied and referred
to those exhibits.
65. From perusal of the Exhibit, it is evident that the informant (P.W
4) alone had proved only the signature and writing on
documents marked as Exhibit-I to 14/1 some of them with
objections but in his cross-examination, he had stated in
paragraph 31-33 of his evidence that none of those exhibited
documents were either prepared in his presence or signatures
thereon put in his presence.
66. Further, it is evident from perusal of the impugned order that
Appellate Court failed to appreciate that neither the contents of
cash registers nor the entries and contents of measurement
books were legally proved by the author of those documents;
even as they did not explain the reason for withholding the
official witness who had prepared or had custody of those
documents EXT 1 to 4; and as such was admitted in evidence
in complete violation of settled proposition of law as stipulated
in the Evidence Act/BSA which has already been discussed
and referred hereinabove in the preceding paragraphs.
67. On the basis of the discussion made hereinabove, it is manifest
that the learned Appellate Court, while reversing the order of
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acquittal passed by the learned Trial Court, has failed to
appreciate the evidences available on record in their proper
perspective. Consequently, this Court is of the considered view
that the impugned order suffers from perversity and patent
error, and therefore warrants interference in exercise of
revisional jurisdiction.
68. Accordingly, the order/judgment dated 28.02.2022 passed by
the learned District & Additional Sessions Judge-IV, Gumla in
Criminal Appeal No. 103 of 2013 is hereby quashed and set
aside.
69. In the result, the instant revision petitions stand allowed.
70. Pending interlocutory application(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree.
(Pradeep Kumar Srivastava, J.)
(Pradeep Kumar Srivastava, J.)
07/07/2026
Rohit/-A.F.R.
Uploaded on 09.07.2026
