IC 45740 F Col Koharwal Kamal Son of Late Shri Rajes

ARMED FORCES TRIBUNAL, REGIONAL BENCH, JAIPUR (RAJ). O R D E R APPLICANT:

IC 45740 F Col Koharwal Kamal Son of late Shri Rajesh Kumar Saxena, Permanent Resident of 94 PUnjabpura Bareilly (UP) Presently R/o 21/GF Vatika InfoTech City, Ajmer Road, Jaipur earlier posted at 7 Guards Att. with HQ 18 Arty Bde (Alwar) (Rajasthan)

VERSUS

NON-APPLICANTS:

1. The Union of India Through Secretary, Ministry of Defence, Government of India, New Delhi. 2. The Chief of Army Staff, Army Headquarters, New Delhi 3. GOC-in-C, HQ South Western Command, Jaipur 4. GOC 18 Inf. Div. C/o 56 APO 5. Cdr. 18 Arty Bde, C/o 56 APO 6. GCM through GOC, 18 Inf. Div. 7. GOC HQ 10 Corps C/o 56 APO ::: APPEAL NO. 1 OF 2011 Under Section 15 of the Armed Forces Tribunal Act, 2007 against the Findings dated 30.6.2010 by the GCM and sentence dated 2.7.2010, as confirmed vide proceedilgns dated 16.12.2010 and promulgated on 27.12.2010 and executed with effect from 27.12.2010

::: DATE OF ORDER: DECEMBER 13,2012 ::: PRESENT HON’BLE MR. JUSTICE K.C. JOSHI (J) HON’BLE LT GEN SUSHEEL GUPTA(A)

Appellant Ex Col Koharwal Kamal present in person. Mr. Ajay Shukla for the respondents. 2

BY THE COURT: (PER JUSTICE K.C.JOSHI):

This appeal is directed against the findings and sentence dated 30.6.2010 and 2.7.2010 respectively of the General Court Martial, which were confirmed on 16.12.2010 and promulgated on 27.12.2010, whereby the appellant has been held guilty of ten charges and sentenced to be cashiered, and to suffer rigorous imprisonment for one year subject to confirmation. The above finding and sentence were confirmed by the Confirming Authority vide order dated 16.12.2010. The brief facts leading to this appeal are: that appellant Koharwal Kamal was commissioned on 23.8.1986 and was promoted upto the rank of Colonel and appointed as Commanding Officer of 7 Guards. He took over the duties of Commanding Officer on 25.10.2007. While working as Commanding Officer, he was subjected to a Court of Inquiry and ultimately, summary of evidence was recorded. Thereafter, he was served with a chargesheet containing following 16 charges: FIRST CHARGE (Army Act Section 69) COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13(2) OF THE PRVENTION OF CORRUPTION ACT, 1988.

In that he at Field, between Dec 2007 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.80,000/- (Rupess eighty thiousand only) from the Officers Mess and JCOs Mess Accouts of the same Regiment on the pretext of payment for two conversion trophies.

SECOND CHARGE: (Army Act Section 69) COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between Feb 2008 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.37,608/- (Rupees thirty seven thousand six hundred eight only) out of the money collected from the persons belonging to the same Regiment on account of subscription for Cable TV and Station Sainik Institutite.

THIRD CHARGE: (Army Act Section 63) AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE In that he, at Field, on 31 December 2007, while being the Commanding Officer 7 GUARDS, improperly ordered JC-40247L Subedar Major RB Rai of the same Regiment to handover the charge of Regimental Treasury Chest to No 15361904F Hav (Clk) NV Rao, of the same Regiment, in contravention to the unit standing operating procedure on Regimental Treasury Chest dated 28 Jan 2006.

FORTH CHARGE: (Army Act Section 69) COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between Oct 2007 and Nov 2008, while being the Commanding Officer 7 GUARDS, Dishonestly misappropriated Rs. 68,814/- (Rupees Sixty eight thousand eight hundred fourteen only) from the Regimental Treasury Chest of the same Unit.

FIFTH CHARGE (Army Act Section 63) AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE. In that he, at Field, between Oct 2007 and Nov 2008, while being the Commanding Officer 7 GUARDS, improperly diverted a sum of Rs. 24,841/- (Rupees twenty four thousand eight hundred forty one only), the rum & cigarette allowance of troops of the same Regiment, for purchase of twenty four ceiling fans for the battalion. SIXTH CHARGE (Army Act Section 63) COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between Oct 2007 and Jul 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.72,647/- (Rupees Seventy two thousand six hundred forty seven only) out of the profit accrued from Gandiv Shopping complex.

SEVENTH CHARGE (Army Act Section 63 {Alternative to the Sixth Charge}) AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE. 4

In that he, at Field, between Oct 2007 and Jul 2008, while being the Commanding Officer 7 GUARDS, improperly allowed the generation of black money from the profits accrued from Gandiv Shopping Complex.

EIGHT CHARGE (Army Act Section 69) COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between Jan 2008 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.65,527/- (Rupees sixty seven thousand five hundred twenty seven only) out of the proceeds from the block printing venture, run by the same Regiment.

NINTH CHARGE: Army Act Section 63 (Alternative to the Eight Charge) AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE. In that he, at Field, between J an 2008 and Nov 2008, while being the Commanding Officer 7 GUARDS, improperly allowed the block printing venture to be run in the same Regiment without maintaining official account of its transactions.

TENTH CHARGE: Army Act Section 69 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUT BY A PUBLIC SERVANT, CONTRARY TO SEC. 13 (2) OF THE PREVENSION OF CORRUPTION ACT, 1988. In that he, at Filed, between Oct 2007 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.23,705/- (Rupees twenty three thousand seven hundred five only) from the sale proceeds of soda water factory and from the sale of condiments, watches and quilts in the Non CSD, of the same Regiment.

ELEVENTH CHARGE: Army Act Section 69 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13 (2) OF HE PREVENTION OF CORRUPTION ACT, 1988. 5

In that he, At Field, between Aug 2008 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs. 26,877/- (Rupees twenty six thousand eight hundred seventy seven only), the arrears of condiment allowance for Apr and May 2008 of the troops belonging to the same Regiment.

TWELFTH CHARGE: Army At Section 69 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PPUBLIC SERVANT, CONTRARY TO SECION 13 (2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between Sep 2008 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs. 4,719/-(Rupees four thousand seven hundred nineteen only) accrued from the sale of condiments procured out of condiment allowance of the troops belonging to the same Regiment.

THIRTEENTH CHARGE: Army Act Section 69 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between Oct 2007 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.787,170/- (Rupees seventy seven thousand one hundred seventy only), through the sale of rations and LPG, the property belonging to the Govt.

FOURTEENTH CHARGE: Army Act Section 69 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARY TO SEC 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between Oct 2007 and Nov 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.22,000/- (Rupees twenty two thousand only), the money voluntarily contributed by troops of the same Regiment towards financial aid to Nk Baidnath Jha (Retd) of the same Regiment.

FIFTEENTH CHARGE: Army Act Section 69 COMMITTING A CIVIL OFFENCE, THAT IS TO SAY, CRIMINAL MISCONDUCT BY A PUBLIC SERVANT, CONTRARAY TO SEC 13(2) OF THE PREVENTION OF CORRUPTION ACT, 1988. In that he, at Field, between May 2008 and Aug. 2008, while being the Commanding Officer 7 GUARDS, dishonestly misappropriated Rs.3,782/- (Rupees three thousand seven hundred eighty two only) through the sale of 61 bottles of Rooh Afza, meant for free issue to the troops belonging to the same Regiment.

SIXTEENTH CHARGE: Army Act Section 53(b) EXACTING WITHOUT PROPER AUTHORITY MONEY FROM A PERSON. In that he, at Field, during Nov 2007, exacted, without proper authority, Rs 4,000/- (Rupees four thousand only) from No 3199541Y LNk PM Dixit of the same Regiment. In support of its case, the Department examined PW 1 Lt Col Bhaskar Bhari, PW 2 Nb Sub NV Rao, PW 3 NK Mondal, PW4 Sep Dharmendra Singh, PW5 Sub Ram Pal Yadav, PW 6 Sub Ram Raj Singh Yadav, PW 7 L/Nk PD Dixit, PW 8 Hav MK Bannerjee, PW 9 Hav Ashoke Saha, PW 10 NB Subedar Anil Kumar, PW 11 NB Sub Jagnarayan Singh, PW 12 Hav/Clk S Seenivasan, PW 13 Ex Sub Maj Ram Bali Rai, PW 14 Col Dharam Vair Singh, PW 15 Capt Sumit Kothiyal, PW 16 L/Nk Mahesh Tamang, PW 17 Guradsman Bapujee Rout, PW 18 Hav Arabinda Kumar Samal, PW 19 Col MJS Pathania, PW 20 Lovelesh Goel, PW 21 Sub Maj Ram Baran Sahani, PW 22 Jasveersingh, PW 23 Nb Sub Balbirsingh, PW 24 Hav Anand Kuamr Kashyap, PW 25 Guardsman Gobinda Chakrobortry, PW 26 Guardsman Sushant Kumar Pratihari, PW 27 Sub VK Mishra, PW 28 Col Jaydeep Yadav and PW 29 Nb Sub Ram Sahay Pal. and the accused- appellant Koharwal Kamal produced 6 witnesses viz., DW 1 Maj P Anil Kumar Naidu, DW 2 Sub Veerendra Kumar Pal, DW 3 Hav/Clk Anoop Kumar Yadav, DW 4 Hav Awadesh Kumar Singh, DW 5 Guardsman DK Gupta and DW 6 Ravi Soni, in his defence. The GCM also examined one IC 46337-F Lt Col R.K.Rawat as court-witness. 123 Documents were exhibited which were marked as Ex.1 to Ex.123.

The General Court Martial vide its order dated 30.6.2010 held the accused-appellant not guilty of charges Nos. 7,8,10,12,13 and 15 but however, held him guilty of charges No.1 to 6, 9,11,14 and 16 and sentenced him to be cashiered and further to suffer rigorous imprisonment for one year subject to confirmation. The above findings and sentence awarded by the General Court Martial was confirmed by the Confirming Authority vide its order dated 16.12.2010. The above findings and sentence as awarded by the General Court Martial and confirmed by the Confirming Authority have been promulgated on 27.12.2012 and accused appellant was taken into custody on 27.12.2012. Hence this appeal.

During pendency of this appeal, the sentence awarded by General Court Martial has been suspended by this Tribunal vide its order dated 6.1.2011.

We have heard the appellant in person and Shri Ajay Shukla, the learned counsel appearing for the non-applicants and have carefully gone through the record of the case.

As stated above, the GCM found the accused-appellant guilty of charges No.1 to 6, 9, 11, 14 and 16 and acquitted him of charges No.7,8,10,12, 13 and 15. Therefore, we are required to deal with charges No. 1 to 6,9,11,14 and 16.

REGARDING CHARGE NO.1:

It is alleged against the accused that while working as Commanding Officer 7 Guards, he dishonestly misappropriated a sum of Rs.80,000/- from Officers Mess and JCO’s Mess Accounts of the same Regiment on the pretext of payment for two conversion trophies. In this respect, it was contended by the accused-appellant that he was unaware about the fact that any minute sheets were initiated to the effect that no payment was required to be made. He has submitted that he was under the impression that trophies were purchased from the market. According to him, after the cheques were encashed, it was decided by him to pay M/s Singh Enterprises a sum of Rs.87,000/- as outstanding. This contention was also raised by the accused-appellant before the GCM but it did not find 8

any favour for the reason that whatever evidence produced by the Department fully established this charge against the appellant.

With regard to charge No.1, the statement of P.W.2 Naib Subedar NV Rao is most important. He has categorically stated that at the relevant time, accused-appellant was the Commanding Officer and under his orders, he changed the entries “Conversion trophy presented by Colonel Dharam Vir Singh” and “Presented by Lovelesh Goel” to read as “Conversion trophy purchased on credit and taken on charge’ and ‘Purchased on credit and taken on charge’ in Cash Account Books of Officers’ Mess and JCOs Mess respectively (Exihibits 19 and 20). In his examination-in-chief, this witness has identified the signatures of Major Promit Gangadhar, Lt Col Bhaskar Bharti, Capt AA Jayant, Lt Col Sukhbirsingh, Maj Mandeep Sanghera, Lt Col BC Kutty and Subedar Ramadhar Mahato. He has clearly stated in his statement that on the instructions of the appellant, he converted the entries in the Cash Account Book of the Officers’ Mess and JCOs Mess respectively and he was told by the accused to obtain receipt from P.W.22 Jasveer Singh but he refused to give the receipt saying that he had not received any money from the appellant in October 2008. The appellant was afforded adequate opportunity to cross-examine this witness and this witness was subjected to cross-examination at length. The statement made by P.W.2 Naib Subedar NV Rao is fully supported by the statement of P.W.22 Jasveer Singh. The above version given by P.W.2 Naib Subedar NV Rao could not be shettered in his cross-examination. In these circumstances, in our considered opinion, the GCM as also the Confirming authority have rightly held Charge No.1 to be proved against the appellant.

REGARDING CHARGE NO.2: As per charge No.2, it is alleged that while working as Commanding Officer 7 GUARDS, the accused-appellant had dishonestly misappropriated a sum of Rs.37,608/- out of the money collected from the persons belonging to the same Regiment on account of subscription for Cable TV and Station Sainik Institute. To prove this charge, the Department has produced P.W.2 Naib Subedar NV Rao and PW 13 Sub Maj RB Rai.

In his statement before the GCM, PW 2 Naib Subedar NV Rao has categorically stated that in a Sainik Samamelan held in Feburary 2008, the accused announced that a subscription at the rate of Rs.6/- per person per month would be charged with effect from June 2007 for Cable TV and Station Sainik Institutions and that subscription continued until June 2008 when it was stopped on the orders of the accused. He has further stated that during this period, a sum of Rs.50,008/- was collected as subscription and out of this amount, only a sum of Rs.12400/- was paid and the balance amount was handed over to the accused.

It was contended by the appellant that this amount was in PRI and utilized for making advance payment of Rs.50,000/- to ‘MAHAK Enterprises’ for a trophy.

P.W.13 Sub Maj RB Rai has deposed that a sum of Rs.50,000/- was collected on the orders of the appellant and the appellant took out Rs.50,000/- from the almirah. Thus, the statement of P.W.2 Naib Subedar NV Rao is fully supported by the evidence of P.W.13 Sub Maj RB Rai. These two witnesses were cross-examined in detail by the accused- appellant but their evidence could not be shettered. In this view of the matter, in our view, charge No.2 also stands proved against the appellant and the GCM and the Confirming Authority have rightly held this charge to be proved against the appellant.

REGARDING CHARGE NO.3:

It is alleged that on 31st December 2007, while working as Commanding Officer 7 GUARDS, the accused appellant improperly ordered JC 40247L Subedar Major RB Rai of the same Regiment to handover the charge of Regimental Treasure Chest to No.15361904F Hav/Clk NV Rao of the same Regiment in contravention to the Unit Standing Operating Procedure on Regimental Treasure Chest dated 28th Janaury 2006. To prove this charge, the Department has produced P.W.2 Naib Subedar NV Rao and P.W.13 Sub Maj RB Rai.

P.W.13 Sub Maj RB Rai has stated before the GCM that he proceeded on three months leave with effect from 31st December 2007 to 10

3rd April 2008 and when he went to the accused for informing him about his proceeding on leave, the accused told him not to hand over the Regimental Treasury Chest to Subedar Ramadhar Mahato. He has stated that the accused told him to hand over the charge of Regimental Treasure Chest to PW 2 Naib Subedar NV Rao. According to him, when PW2 declined to take over the charge of Regimental Treasure Chest, the accused called PW2 and ordered him to take over the charge of Regimental Treasure Chest but PW 2 Naib Subedar NV Rao showed him the Standard Operating Procedure (SOP) and told him that he was not authorized to take over charge of Regimental Treasure Chest. However, the accused ordered him to take over the charge of Regimental Treasure Chest. The statement of PW 13 Subedar Maj RB Rai is fully supported by the evidence of PW 2 NV Rao. These two witnesses were cross-examined by the accused in detail but their evidence given in their examination in chief could not be shettered. Thus, the prosecution has succeeded in proving this charge against the appellant that while working as Commanding Officer 7 GUARDS, the accused appellant improperly ordered JC 40247L Subedar Major RB Rai of the same Regiment to handover the charge of Regimental Treasury Chest to No.15361904F Hav/Clk NV Rao of the same Regiment in contravention to the Unit Standing Operating Procedure on Regimental Treasure Chest dated 28th Janaury 2006. This charge has been rightly held to be proved by the GCM as also the Confirming Authority.

REGARDING CHARGE NO.4:

It is alleged that while working as Commanding Officer 7 GUARDS, the appellant dishonestly misappropriated a sum of Rs.68,814/- from the Regimental Treasury Chest of the same Unit. For proving this charge, the Department has produced PW2 Naib Subedar NV Rao, who has categorically stated that on 2nd and 3rd October 2008, he was called by the accused, who demanded a sum of Rs.60,000/- for presenting a trophy from his side to the Unit and he handed over the entire amount of Rs.27,800/- pertaining to Non CSD and Rs.31,000/- from the JCO Mess Account to the appellant. He has further stated that the accused told him to make up for the advances made out of the unaccounted/ black money but there was no money in the Regimental Treasure Chest but on the 11

orders of the appellant, Rs.20,000/- were withdrawn from the Battalion Fund and a sum of Rs.16350/- was handed over to the accused and the balance of Rs.3650/- merged with Regimental Treasure Chest. Thereafter, Bills for Rs.6350/- were received and in this way, total amount of Rs.68814/- remained with the accused. PW 13 Subedar Major RB Rai has stated that on 30th November 2008, the accused had given him Rs.68800/-, which was the deficient amount in Regimental Treasure Chest under various heads.

It was contended by the appellant that this amount of Rs. 68814/- was left behind by PW2 Naib Subedar NV Rao in an envelope duly pasted by tape and kept in a polythene bag which was kept by the office runner of the accused in the drawer of the side table in the office of the accused and that packet as such, was handed over to PW 13 Sub Maj RB Rai and there was no deficiency in the said amount.

However, PW 12 Havildar S Seenivasan has stated that when he took over the Regimental Treasure Chest from PW2 Naib Subedar NV Rao, he was told that there was a deficiency of Rs.58814/- in the Regimental Treasure Chest and this amount was handed over to him in a polythene bag by the accused by saying that it contained money belonging to the Regimental Treasure Chest and when that envelope was opened, a red cloth bag of Regimental Treasure Chest alongwith a chit (Ex.90) was found containing details of cash as per Ledger and on ground cash. It also contained deficiency of Rs.58814/-. He has further stated that when he alongwith PW 12 Havildar S Seenivasan counted the cash, the cash was found in order as detailed in Ex.90. This deficiency coupled with Rs.10000/- which were handed over to the accused by PW 2 Naib Subedar NV Rao after withdrawing from the Battalion Fund for which no bills had been received from the accused, raised the total deficiency to Rs.68814/-. The version given by these three witnesses corroborates each other and is even fully supported by the Chit Ex.90. These three witnesses were cross- examined in detail but nothing could be shettered from the statements given by them in their examination in chief. Thus, charge No.4 has also been rightly held to be proved against the appellant by the GCM as also the Confirming Authority.

REGARDING CHARGE NO.5:

It is alleged that between October 2007 and November 2008, while working as Commanding Officer 7 GUARDS, the appellant diverted a sum of Rs.24,841/-, the rum and cigarette allowance of troops of the same Regiment, for purchase of twenty four ceiling fans for the Battalion.

The Department has produced PW 2 Naib Subedar NV Rao to prove this charge. He has stated that in the first week of February 2008, a sum of Rs.24,841/- on account of Rum and Cigarette Allowance for the month of November 2007 was received by PW 2 Naib Subedar NV Rao but the accused told him not to distribute the same. He has further stated that 4- 5 days later, he was called by the accused and asked to prepare a minute sheet for purchase of 24 ceiling fans to be paid out of the battalion fund. The accused told him that on ground, the payment would be made from the Rum and Cigarette allowance for the month of November 2007 and to prepare a minute sheet, which was approved by the accused.

PW 18 Havildar Arabinda Kumar Samal, who was performing the duties of CSD Canteen NCO from 31st December 2007 to 15th June 2008 has categorically stated that between 20th & 28th February 2008, he received a sum of Rs.25,806/- towards the costs of ceiling fans from PW 2 Naib Subedar NV Rao. These two witnesses were also cross-examined in detail but nothing could be shettered from what they have stated in their examination in chief before the GCM. There is nothing to disbelieve the testimony of these two witnesses. The action of the appellant in diverting the said amount was improper and amounted to an act prejudicial to good order and military discipline. Thus, charge No.5 has also been rightly held to be proved by the GCM and the Confirming Authority. REGARDING CHARGE NO.6:

It is alleged that between October 2007 and July 2008, while working as Commanding Officer 7 GUARDS, the appellant dishonestly misappropriated a sum of Rs.72647/- out of the profit accrued from Gandiv Shopping Complex.

PW 2 Naib Subedar NV Rao has stated that Gandiv Shopping Complex was being managed by 7 GUARDS on the Units’ arrival at Lalgarh Jattan. The JCO Incharge Shopping Complex from December 2007 onwards, was PW5 Naib Subedar Ram Pal Yadav, who used to deposit the cash of the sale proceeds from the shops with him after informing the appellant. According to him, Unit was running Vegetable, Grocery, Soft Drinks/Ice Cream Shop and Photo Studio in the Shopping Complex. He has further stated that for May and June, the profit from these shops which was shared equally with 150 Armoured Brigade was deposited in the AWWA Shopping Complex fund Account opened by him in August 2007 but the accused told him that henceforth, the profit would neither be deposited in the Bank nor distributed without his concurrence and the same was to be shared on a quarterly basis between the Unit, Brigade and the Station Headquarters in the ratio of 44%, 44% and 12% respectively. The distribution of profit was dictated by the accused. The Department has produced a note made by accused on his official Pad (Ex.59) wherein he has indicated that how much profit was to be scaled down from the sales of January and February 2008.

The statement of PW 2 Naib Subedar NV Rao has been fully corroborated by the evidence of PW 5 Naib Subedar Ram Pal Yadav, PW 16 L/Nk Mahesh Tamang and PW 26 Guardsman SK Pratihari.

It was contended by the appellant that he had never ordered for preparation of fake summaries. However, the fact that the accused had kept profit in the PRI office under his direct control after scaling down from the actual profit itself amounted to dishonest misappropriation. Even otherwise, in his cross-examination PW 2 Naib Subedar NV Rao has stated that money from this fund was being utilized by the accused at his will. The testimony of PW2 Naib Subedar NV Rao, PW 5 Naib Subedar Ram Pal Yadav, PW 16 L/Nk Mahesh Tamang and PW 26 Guardsman SK Pratihari could not be shattered from their examination in chief during their cross- examinations. Moreover, retention of money by scaling down the actual profits with PW 2 Naib Subedar NV Rao in PRI office under his direct control and spending it at his own discretion without maintaining any official record amounted to dishonest misappropriation. Thus, the GCM 14

and the confirming authority have rightly held this charge to be proved against the appellant.

REGARDING CHARGE NO.9:

It is alleged that between January 2008 and November 2008, while working as Commanding Officer 7 GUARDS, the appellant improperly allowed the block printing venture to be run in the same Regiment without maintaining official account of its transactions.

To prove this charge, the Department has produced PW 11 JC404310W Naib Subedar Jagnarain Singh, JCO Incharge and PW 9 non CSD NCO Havildar Ashoke Saha. They have deposed that they directly functioned under the accused and all orders were passed to them directly by the accused. The sale proceeds were not taken in any account book and no ledgers of its transactions were maintained. No stock taking Board of Officers was ever held to check the stores. It was the responsibility of the accused to ensure that proper official account of the transactions of the block printing venture was maintained. The appellant has not produced any evidence in his defence to rebut this charge. Thus, charge No.9 has also been rightly held to be proved against the appellant by the GCM and the Confirming authority.

REGARDING CHARGE NO.11:

It is alleged that between August 2008 and November 2008, while working as Commanding Officer 7 GUARDS, the appellant dishonestly misappropriated a sum of Rs.26,877/-, the arrears of condiment allowance for April and May 2008 of the troops belonging to the same Regiment.

The Department has produced PW 2 Naib Subedar NV Rao, and PW 13 Ex Subedar Major (Honorary Captain) Ram Bali Rai. PW 2 Naib Subedar NV Rao has stated that in September 2008, he was handed over an amount of Rs.26877/- in cash on account of arrears of condiment allowance and on demanding this money by the accused, it was handed over by him to the accused. 15

It was contended by the appellant that it was decided in the Unit to utilize this amount to present gifts to the Personnel below Officer’s rank (PBOR) on the occasion of Battlel Honours Day. In support of his contentention, he has placed reliance on the testimony of PW 8 L/Nk MK Bannerjee, who has stated in his cross-examination that he was given Rs.27,000/- to procure 250 Milton Flasks from a Milton dealer in the last week of November 2008 by the accused which could not be purchased due to required quantity not being available at the desired price and he returned that money to the accused and this money was handed over by the accused to PW 13 Ex Subedar Major Ram Bali Rai. Thus, it is clear that a sum of Rs.26877/- was given to the accused by PW 2 in September 2008 and it was paid to PW 8 L/NK MK Bannerjee for procuring Milton flasks only in the last week of November 2008. Hence, retention of money by the accused which was received on account of arrears of condiments allowance of the troops which should have gone to the troops shows dishonest misappropriation by the accused. In this view of the matter, we are firmly of the view that charge No.11 has been rightly held to be proved against the appellant by the GCM and the Confirming authority.

REGARDING CHARGE NO.14:

It is alleged between October 2007 and November 2008, while working as Commanding Officer 7 GUARDS, the appellant dishonestly misappropriated Rs.22,000/-, the money voluntarily contributed by troops of the same Regiment towards financial aid to NK Baidnath Jha (Retd.) of the same Regiment. To prove charge No.14, the Department has produced PW 14 Col Dharam Vir Singh, who has stated that 3-4 months before relinquishing command, Naik Baidnath Jha (retired), a 1971 war casualty belonging to 7 GURADS requested him for financial assistance, therefore, in a Sainik Sammelan, he announced that whoever wanted to contribute money could do so voluntarily and till the time, he relinquished the command, the process of collecting money was still in progress.

PW 6 Subedar Major Ram Raj Yadav has stated that on the day the accused assumed command, he called and asked him to handover the 16

money collected for Naik Baidnath Jha and on his apprising this direction to Subedar Major RB Rai, Subedar Major RB Rai handed over a sum of Rs.9000/- to him, which was delivered by him to the accused on the same day at about 1430 hours. He has further stated that on 25/26 December 2007, he received Rs.7300/- from Subedar AK Mishra and PW 10 Havidlar Anil Kumar of ‘B’ Company and this money was also handed over by him to the accused after apprising PW 13 Subedar Major RB Rai. The contribution of ‘C’ Company amounting to Rs.4500/- was received by him on 5th February 2008 and the same was also handed over to the accused on 5th February 2008. He has further stated that he reminded the accused in March 2008 and 2-3 months thereafter, to send the money to Nk Baidnath Jha (retired). He has also stated that on 5th/6th Decmeber 2008, when a court of inquiry was in progress at Jaipur, the accused called him on his mobile and asked to send the money to Nk Baidnath Jha and when he told the accused that the entire money was with him, the accused told him to somehow manage the amount. Eventually, an amount of Rs.22000/- was arranged by PW 23 Naib Subedar Balbir Singh and handed over to PW 3 Havildar NK Mondal. PW 23 Balbir Singh has stated that this much of amount was arranged by him from Wet Canteen Contractor of the Unit on loan. Further, PW 3 NK Mondal has stated that he was told by PW 6 Ram Raj Yadav to keep Rs.400/- as travelling expenses and hand over Rs.21600/- to Nk Baidnath Jha which he did on 8th December 2008 and he handed over this money to Nk Baidnath Jha on 8th December 2008 and obtained the receipt Ex.63.

In his statement, PW 6 Subedar Major Ram Raj Yadav has stated that when PW 3 NK Mondal rang him up on his mobile from the house of NK Baidnath Jha, he informed the accused that PW 3 NK Mondal had reached the house of NK Baidnath Jha and the accused directed him to ask PW 3 NK Mondal to obtain a receipt to the effect that money had been paid by the Battalion Subedar Adjutant PW 6 Subedar Major Ram Raj Yadav in February 2008. Consequently, PW 3 NK Mondal obtained the receipt Ex.63 accordingly. It was contended by the appellant that this money was never handed over to the appellant by PW 6 Subedar Major Ram Raj Yadav and was expended by Subedar Major Ram Raj Yadav in advancing loans to DW 6 Havildar Awadesh Arya and PW 5 Guardsman DK Gupta. The testimony 17

of PW 6 Subedar Major Ram Raj Yadav, PW 3 NK Mondal and PW 14 Dharam Vir Singh could not be shattered in their examination and thus, cannot be disbelieved. Considering the status and position of the accused in a Unit where Commanding Officer’s word is believed without question, it was highly improbable for a J CO to ask his Commanding Officer to give receipt of the same handed over to him. Thus, the charge No.14 has also been rightly held to be proved against the appellant by the GCM and the Confirming authority.

REGARDING CHARGE NO.16:

It is alleged that during November 2007, while working as Commanding Officer 7 GURADS, the appellant exacted a sum of Rs.4000/- from LNK PM Dixit of the same Unit without proper authority.

PW 7 L/Nk PM Dixit has stated that in the last week of November 2007, while he was undergoing Ummeedwar Cadre, he was called by the accused, who asked him to deposit Rs.4000/- with PRI Clerk for allegedly having sold Fuel Oil Lubricants during the Annual Trainng Camp in 2007 and when he denied to have sold such Fuel Oil Lubricants, the accused told him to remember that he was also undergoing the Ummeedwar Cadre and thus, after 2-3 hours, he deposited Rs. 4000/- with PRI Clerk PW 2 Naib Sub NV Rao. PW 2 Naib Sub NV Rao has also admitted in his statement that he apprised the accused that L/Nk PM Dixit had deposited a sum of Rs.4000/- and when he wanted to know on what count it was being deposited, the accused refused to disclose the reason/count. PW 7 L/Nk PM Dixit has further stated that when the accused asked him to change his statement, he requested the Officer recording Summary of evidence to allow him to change his statement.

It has been contended by the appellant that PW 7 L/Nk PM Dixit deposed against him as a conspiracy has been hatched against him by his successor and other officials of the Unit. The statement of PW 7 L/Nk PM Dixit is fully corroborated by the evidence of PW 2 NV Rao and their version could not be shattered in their cross-examination. Thus, charge No.16 has also been rightly held to be proved against the appellant by the GCM and the confirming authority. 18

It was next contended by the appellant that he has been charged for the offences under the provisions of the Prevention of Corruption Act without there being proper sanction from the Central Govt.

Per contra, it has been contended by the learned counsel for the resondents that the appellant has been chargesheeted for the offences under sections 53(b), 69 and 63 of the Army Act. Section 63 of the Army Act deals with violation of good order and discipline and section 69 deals with civil offences. The chargesheet Anexure A/1 clearly shows that the appellant has been charged with the offences under sections 53(b), 69 and 63 of the Army Act and has been held guilty of the aforesaid charges. In this view of the matter, we are firmly of the view that no sanction from the Central Govt. was required for prosecuting the appellant for the aforesaid charges.

It has been next contended by the appellant that while conducting General Court Martial proceedings against the appellant, principles of natural justice have not been followed by not affording appropriate opportunity to the appellant to cross examine the witnesses of the prosecution and further to lead evidence in his defence. We have gone through the original record of the GCM proceedings and we find that appellant was afforded appropriate opportunity to cross- examine the witnesses produced by the Department at length and even he himself produced 7 witnesses in his defence. Thus, it cannot be said that while conducting GCM proceedings, the principles of natural justice have been violated.

We have already discussed in detail each charge and we find that charges No.1,2,3,4,5,6,9,11,14 and 16 have been rightly held to be proved by the GCM and the Confirming authority. Therefore, we affirm the findings of the GCM and the confirming authority in holding charges No. 1,2,3,4,5,6 , 9, 11, 14 and 16 to be proved against the appellant.

In view of what has been discussed hereinabove, the findings recorded on Charges No.1,2,3,4,5,6, 9,11,14 and 16 by the GCM as confirmed by the confirming authority are affirmed. 19

REGARDING SENTENCE:

We have heard the appellant and the learned counsel appearing for the respondents on the question of sentence. It has been contended by the appellant that he has served the Army for more than 20 years and for the first time, he has been chargesheeted and sentenced to be cashiered and to suffer rigourous imprisonment for one year. He has further contended that he is not getting service pension and his family is dependent upon him. He has, therefore, prayed that looking to the facts and circumstances of the case, a lenient view may be taken regarding sentence. Per Contra, the learned counsel appearing for the respondents vehemently defended the sentence awarded to the appellant by the GCM as confirmed by the Confirming authority. We have considered the rival contentions made at the bar on behalf of both the parties. From perusal of the entire record of GCM proceedings, it is apparent that no evidence has been produced regarding any misconduct at any earlier stage by the appellant. In that view of the matter, considering the facts and circumstances of the case, we deem it just and proper to maintain the punishment of cashiering the appellant from service but reduce the sentence of one year rigorous imprisonment to the sentence already undergone by him. Accordingly, this appeal is allowed in part. The findings recorded on Charges No.1,2,3,4,5,6, 9,11,14 and 16 by the GCM as confirmed by the confirming authority are affirmed. The sentence awarded to the appellant by the GCM as confirmed by the confirming authority to be cashiered from service is also maintained but the sentence of one year’s rigorous imprisonment is reduced to the period of sentence already undergone by the accused-appellant. The original record of GCM proceedings be handed over the learned counsel for the non-applicants after obtaining a receipt in this appeal.

(Lt Gen Susheel Gupta)A (Justice K.C.Joshi) J.