V.P. Gupta, J.
1. The appellant was employed as an accountant in the office of the Chief Medical Officer, Chamba in May/June 1973. One Anant Ram s/o Sukhdyal (now deceased) was employed as a peon in the health department in civil dispensary, Killar, District Chamba. The prosecution version is that Anant Ram wanted an advance of Rs. 10,000/- for carriage of medicines from Chamba to Killar and an advance of Rs. 7,000/- was sanctioned. The appellant was to pay Rs. 7000/- to Anant Ram on 26-5-1973, but according to Anant Ram he was paid only Rs. 5000/- and the remaining amount of Rs. 2000/- was retained by the appellant. Anant Ram took medicines from Chamba. He again visited Chamba on 15-6-1973 and gave receipts worth Rs. 4514.23 to the appellant. On the asking of the appellant, he destroyed the receipts and the appellant prepared fresh forged receipts valued at Rs. 8730/- with the result that a bill for withdrawing an amount of Rs. 8730/- was prepared. The appellant had initialled all these receipts on 15-6-1973 and had given the same to Rajinder Singh (PW3) a clerk in C. M. O's office at Chamba to pass the voucher. The bills were prepared by Rajinder Singh on the asking of the appellant and all the documents including the vouchers were handed over by him to the appellant. The appellant left Chamba for Simla at about 3 p.m. but before leaving Chamba, he, after checking and initialling the bills, sent the same to the C. M. O. Chamba for sanction. Anant Ram again appeared on 18-6-1973 before the C. M. O. Chamba and applied for an advance of Rs. 11757- for carriage of medicines. He gave a statement to the C, M. O. Chamba in the presence of Rajinder Singh, Mohan La! and Sudarshan Kumar about al! the facts. After the return of the appellant from Simla, the C, M. O. asked him to give his explanation regarding Rs. 2000/- which had allegedly been retained by him and also regarding preparing of the forged receipts. The appellant maintained that he had disbursed Rs. 7000/- to Anant Ram and the receipts were prepared by him on the asking of Anant Ram, because Anant Ram had informed him that the original receipts were lost. The C. M. O. Chamba becoming suspicious, reported the matter to the police and a case was registered against the appellant and Anant Ram,
2. The appellant was charged and tried for having committed offences under Section 5(1) (d) of the Prevention of Corruption Act (hereinafter the Act) and under Sections 468, 467, 471 and 409,1. P. C. Co-accused Anant Ram was also charged under Section 5(1)(c) of the Act and Sections 467,468,471 and 409,I. P. C. Both the accused pleaded not guilty to the charges and they were tried for the same. The Special Judge Kangra at Dharamsala, held that Anant Ram was guilty of having committed offences under Section 5(1)(c) punishable under Section 5(2) of the Act and under Sections 467, 471 and 409, I. P. C. and he was accordingly convicted.
3. The appellant was also found guilty of having committed offences under Section 5(1)(d) punishable under Section 5(2) of the Act and under Section 468, I. P. C. and for abetting Anant Ram under Sections 409 and 471, I. P. C. The appellant was sentenced to rigorous imprisonment for three years and a fine of Rs. 2000/- for the offence under Section 5(2) of the Act and rigorous imprisonment for two years and a fine of Rs. 500/- for the offence under Section 468, I. P. C. and rigorous imprisonment for two years and a fine of Rs. 500/- under Section 471, I. P. C. and rigorous imprisonment for three years and a fine of Rs. 500/- for the offence under Section 409, I. P. C. The sentences were ordered to run concurrently.
4. Feeling aggrieved from this judgment of the learned Special Judge, the appellant has filed this present appeal
5. I have heard Shri M. G. Chitkara, the learned Counsel for the appellant and the learned Assistant Advocate General for the State,
6. The learned Counsel for the appellant contends that the appellant had paid the amount of Rs. 7000/- to Anant Ram (now deceased) and the statement c/i Anant Ram cannot be used against the appellant. He also contends that the statement (Ex. PU) of Anant Ram was recorded under pressure and has no relevancy for proving any offence against the appellant. The prosecution has failed to prove the case and the evidence has not been correctly appreciated by the learned Special Judge.
7. The learned Counsel for the respondent supports the judgment of the learned Special Judge and contends that the conduct of the appellant in getting the various bills prepared before leaving for Simla on 15-6-1973, and in requesting Rajinder Singh (PW 3) for preparing the bills as also initialling and forging of receipts clearly establishes that the appellant has committed the offences. The handwriting expert has proved that forged receipts were prepared by the appellant and from the various documents and the circumstantial evidence it is proved that the appellant has committed the offences.
8. I have considered the contentions of the learned Counsel for the parties and have also gone through the records of the case.
9. It is an admitted case that Anant Ram was being allowed advance amounts for the carriage of medicines from Chamba to various places in Pangi valley. Anant Ram made an application (Ex. PCC) to the C. M. O. Chamba for an advance of Rs. 10,000/- and on this application an amount of Rs. 7000/- was sanctioned which was paid to him in May, 1973 vide contingent bill Ex.PX., the signatures of Anant Ram on the bill (Ex.PX) are Ex.PX/2.
10. According to the prosecution version, an amount of Rs. 2000/- was retained by the appellant and the remaining amount of Rs. 5000/- only was paid to Anant Ram. Anant Ram spent some amounts for the carriage of the medicines vide muster rolls Exs.PW/1, PW72 and PW/3. He then came to Chamba in June, 1973 and showed these muster rolls to the appellant who asked him to tear off these muster rolls. The appellant prepared fresh receipts for Rs. 8730/- and Anant Ram signed/thumb marked these receipts upon the asking of the appellant. Thumb impressions on all the receipts except Exs.PC, PD, PH and PN were found to be of Anant Ram, while the receipt Ex.PC is signed by one Puran Chand, Ex.PD by one Lanjum, Ex.PH by one Raju, Ex.PN by one Shukardeen, The prosecution further alleges that the appellant initialled the various receipts and gave the same to Rajinder Singh (PW3) Bill Clerk in C. M. O's office for preparation of bills. On the asking of the appellant Rajinder Singh (PW3) prepared the bills Ex.PR, with its duplicate Ex.PR/1 as also the statements of vouchers Exs.PS and PS/1. He also prepared a document G. F. R, (Ex.PT). In the bills and the vouchers it is mentioned that an amount of Rs. 1730/- was spent in excess of Rs. 7000/- as calculated on the basis of the various receipts mentioned above. After preparing the bills, the statements and G, F, R., Rajinder Singh (PW3) handed over all these documents to the appellant, who after checking the bills initialled the same and sent them to C. M. O. Chamba for sanction on 15-6-1973 before leaving Chamba for Simla.
11. Anant Ram presented an application (Ex.PV) on 18-6-1973 at 12.20 noon to the C. M. O. Chamba demanding an amount of Rs. 11757- as advance for carriage of supplies but the C. M. O. Chamba became a little suspicious and he enquired from Anant Ram as to what had happened to Rs. 7000/- already advanced to him earlier. Anant Ram upon the asking of the C. M. O. disclosed that he had only been paid Rs. 5000/- by the appellant and the remaining amount of Rs. 2000/- was taken by the appellant. Anant Ram also disclosed that upon the asking of the appellant some fresh receipts were prepared and that the appellant had asked him to tear off the muster rolls. At this stage the C. M. O. called his clerks Rajinder Singh (PW3), Sudarshan Kumar (PW4) and Mohan Lal (PW10) and asked Rajinder Singh (PW 3) to take down the statement of Anant Ram. Sudarshan Kumar and Mohan Lal were asked to sign as witnesses. Anant Ram accordingly gave his statement (Ex. PU) and signed the same at a place Ex.PU/1. It was also signed by the C. M. O. Chamba (Dr. B. L. Kapoor). Anant Ram also produced the original muster rolls which, according to the instructions of the appellant, were to be torn by him. The C. M. O. Chamba wanted to get the explanation of Rajpal (appellant) but as Rajpal was not available in Chamba, therefore, he waited for the return of Rajpal. Rajpal (appellant) met the C. M. O. on 3-7-1973. The C. M. O. apprised him about the statement of Anant Ram and asked him to give his explanation. Rajpal accordingly gave his explanation (Ex. PBZ) in writing. In this explanation he also gave replies to some questions which were put to him by the C. M. O. and which are recorded at Ex. PWZ/1. The C.M.O. was not satisfied with the explanation of the appellant and, therefore, he sent a letter (Ex. PCA) to the Superintendent of Police, Chamba on 11-7-1973, after getting directions from the Director of Health Services to whom the whole position had been explained earlier. Upon receipt of this information a case was ordered to be registered.
12. Anant Ram was also convicted and sentenced. He filed an appeal in this Court (Cr. A. No. 63 of 1983) but his appeal was dismissed as he died during the pendency of the appeal.
13. From the narration of the various facts and documentary evidence, it is proved that Anant Ram was allowed an advance of Rs. 7000/- which was paid to him vide Ex.PX. It also finds mention in the entries in the cash register Ex.PCF. Dr. B. L. Kapoor (PW 11) states that Anant Ram told him that out of Rs. 7000/-, the appellant had taken Rs. 2000/- on the date, when the money was advanced. He admits that the entry in Ex. PCF must have been signed by him because according to the practice the cash book entries used to be initialled by him after satisfying himself about the payment. Hence it is proved that Rs. 7000/- were actually paid to Anant Ram.
14. Statement of Anant Ram (Ex. PU) was recorded by Rajinder Singh (PW 3) on 18-6-1973. This statement is proved by Rajinder, Singh (PW 3), Sudarshan Kumar (PW 4), Mohan Lal (PW 10) and Dr. B. L. Kapoor (PW 11). Anant Ram in his statement under Section 313, Cr. P.C. has stated that the appellant gave him only Rs. 5000/- and kept the balance of Rs. 2000/- with him. The appellant told him that if the amount of Rs. 5000/- could not meet the total expenses then he would be paid more. He admitted the correctness of the statement (Ex. PU).
15. The statement of Anant Ram recorded under Section 313, Cr. P. C. cannot be used as evidence against the appellant because' the appellant had no opportunity to cross-examine Anant Ram (a co-accused). Even against Anant Ram this type of confession is in the nature of a very weak type of evidence. In : 1968CriLJ657 Narayan Swami v. State of Maharashtra, while considering the value and relevancy of a statement recorded under Section 342, Cr. P. C. (now Section 313, Cr. P. C.) of a co-accused, it was observed that such a statement cannot be used against a co-accused. In Narayan Swami's case (supra) one Dilawar Singh and Narayan Swami were charged for having committed offences under Sections 195 and 196 read with Section 34, I. P. C. Dilawar Singh (co-accused) was also involved in some other dacoity case in which he had given a statement. Dilawar Singh (co-accused) also gave a statement under Section 342, Cr. P. C. in the case referred to above. The statements of Dilawar Singh made in the dacoity case as well as in this case were sought to be used against Narayan Swami. In these circumstances, it was held as follows:
The legal position is quite clear, viz., that the evidence, given by Dilawar, in the dacoity case, cannot be used as evidence against the appellant, who had no opportunity of cross-examining Dilawar, in the said case; and the statements of Dilawar, as co-accused, made under Section 342, Cr. P. C., in the present trial cannot be used against the appellant.
16. In 1973 Cri L J1761, Public Prosecutor v. B. Rama Murti, a Division Bench of the Andhra Pradesh High Court also considered the value and relevancy of a statement of an accused recorded under Section 342, Cr. P. C. for being used against another coaccused, and it was held that such a statement given under Section 342, Cr. P. C. cannot be used against a coaccused.
17. It may be stated that the purpose of recording a statement under Section 342 (now Section 313) is only to get the explanation of the concerned accused regarding the incriminating circumstances which are sought to be used against him. The accused, whose statement under Section 342 (now Section 313) is recorded, is not to explain the incriminating circumstances which may be found against his co-accused. A statement under Section 313, Cr. P. C. is always recorded without oath and a co-accused can have no chance to cross-examine the person making the statement. In these circumstances such a statement cannot be used against a coaccused. (After considering the evidence his lordship-proceeded.)
25. If the prosecution version is believed that Anant Ram being a subordinate and illiterate person was acting on the directions of the appellant, then Anant Ram should have destroyed the muster rolls (Exs. PW/1, PW/2 and PW/3), However, it appears that Anant Ram, in spite of the specific directions of the appellant, did not destroy these muster rolls and kept the same with him. Further, if the appellant was interested in forging the receipts and withdrawing some amounts for him or for Anant Ram then in that case before getting the receipts forged, he would have seen that Anant Ram destroys the muster rolls in his presence because the same were available when the receipts were prepared. The fact that the muster rolls have not been destroyed, can lend support to the defence version that Anant Ram might have told the appellant that he had lost the original receipts and that the appellant should scribe fresh receipts for him so that upon those fresh receipts he could obtain the signatures of the different persons to whom the payment was made. If this possibility is not excluded then in that case mere scribing of the various receipts by the appellant upon the asking of Anant Ram without the signatures or thumb impressions of payees can be said to be an act on the part of the appellant under a bona fide belief and not with any criminal intention.
26. In view of the above discussion, the various charges levelled against the appellant are not proved beyond any reasonable doubt and as such the appellant is entitled to an acquittal.
27. As a result of the above discussion, this appeal is accepted and the judgment of the learned Sessions Judge is set aside. The appellant is acquitted of the various offences. The appellant is on bail and as such his bail bonds are discharged.