1 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. 3 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. 6 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.