TMI Blog2011 (9) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... o 1.10.1987 against the first Respondent by which he was awarded the punishment of Rigorous Imprisonment (R.I.) for one year and cashiering. The facts leading to this appeal are as follows: 3. The first Respondent was deployed between 1.2.1984 and 3.10.1986 as the Commanding Officer of the 6 Armoured Regiment which was a new raising at the relevant time in the Indian Army. The unit was authorized for one signal special vehicle. In case such a vehicle was not held by the unit it was authorized to modify one vehicle with ad-hoc special finances for which it was authorized to claim 75% of Rs. 950/- initially and claim the balance amount on completion of modification work. 4. It is the case of the Appellant that the unit had sent a claim for 75% of the amount (i.e. Rs. 450/- as per the old rates) for modification of one vehicle, but the same was returned for want of justifying documents by the audit authorities. Yet the Respondent proceeded to order modification of some 65 vehicles in two lots, first 43 and thereafter 22. There is no dispute that he countersigned those bills, and claimed and received an amount of Rs. 77,692/- by preferring four different claims. The case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manding 6 Armoured Regiment, with intent to defraud, countersigned a contingent bill No. 1965/ULPG/85/TS dated 5 March 85 for Rs. 20962.50 for claiming an advance of 75% entitlement of cost of modification of 22 vehicles, well knowing that the Regiment was not authorized to claim such grant in respect of all types of vehicles. Such an offence as is mentioned in Clause (f) of Section 52 of the Army Act with intent to defraud, in that he, had filed on 9 Feb 85, while commanding 6 Armoured Regiment, with intent to defraud, countersigned a final contingent bill No. 1965/LP/02/TS dated 9 Feb 85 for Rs. 18150/- for claiming the balance of the cost of modification of vehicles, which was passed for Rs. 18149.98 well knowing that the Regiment was not authorized to claim such grant in respect of all types of vehicles. Such an offence as is mentioned in Clause (f) of Section 52 of the Army Act with intent to defraud, in that he, had filed on 9 Sep 85, while commanding 6 Armoured Regiment, with intent to defraud, countersigned a final contingent bill No. 1965/LP/04/TS dated 9 Sep 85 for Rs. 6987.50/- for claiming the balance of the cost of modification of vehicles, well knowing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant submitted that the Division Bench erred in holding that the particulars of the charges did not include the wrongful gain to the Respondent and corresponding loss to the army, nor was it proved, and therefore the charge of doing something with intent to defraud had not been conclusively proved. In his submission, Sub-section (f) is in two parts. In fact, the Division Bench of the High Court also accepted that there are two parts of this Section. The Respondent was charged with the first part which is 'doing something with intent to defraud'. Therefore, it was not necessary to mention in the charge the second part of the Sub-section which covers 'wrongful gain to one person or wrongful loss to another'. 11. The offence with which the Respondent was charged was doing something with intent to defraud. According to the Respondent, the act attributed to him was only to countersign the contingent bills. The fact is that the Army got defrauded by this countersigning of the contingent bills by the Respondent, inasmuch as no such purchases were authorized and in fact no modification of the vehicles was done. That being so, the charge had been established. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent for certain purchases which were neither authorized nor effected. The fact that the Respondent had countersigned the contingent bills was never in dispute. The Appellant placed on record the necessary documentary and oral evidence in support of the charges during the course of the enquiry which was conducted as per the provisions of the Army Act. We have also been taken through the record of the enquiry. It showed that these amounts were supposed to have been paid to some shops but, in fact, no such purchases were effected. The Respondent could not give any explanation which could be accepted. The Division Bench has clearly erred in ignoring this material evidence on record which clearly shows that the Army did suffer wrongful loss. 15. The Division Bench also took the view that the allegation against the Respondent did not come within the purview of intent to defraud. This is because to establish the intent to defraud, there must be a corresponding injury, actual or possible, resulting from such conduct. The Army Act lays down in Section 3(xxv) that the expressions which are not defined under this Act but are defined under the Indian Penal Code, 1860 (Code for short) shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed on to certain shops but the necessary purchases were in fact not made. In Dr. Vimla v. Delhi Administration reported in AIR 1963 SC 1572, a bench of four judges of this Court was concerned with the offence of making a false document as defined in Section 464 of the Code. In paragraph 5 of its judgment the Court noted that Section 464 uses two adverbs 'dishonestly' and 'fraudulently', and they have to be given their different meanings. It further noted that while the term 'dishonestly' as defined under Section 24 of Indian Penal Code, talks about wrongful pecuniary/economic gain to one and wrongful loss to another, the expression fraudulent is wider and includes any kind of injury/harm to body, mind, reputation inter-alia. The term injury would include non-economic/non-pecuniary loss also. This explanation shows that the term 'fraudulent' is wider as against the term 'dishonesty'. The Court summarized the propositions in paragraph 14 of the judgment in the following words: 14. To summarize: the expression defraud involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide intention. Assuming that the charge of wrongful gain to the Respondent was not specifically averred in the charges, the accused clearly understood the charge of 'intent to defraud' and he defended the same. He fully participated in the proceedings and there was no violation of any procedural provision causing him prejudice. The Courts are not expected to interfere in such situations (see Major G.S. Sodhi v. Union of India reported in 1991 (2) SCC 382). The armed forces are known for their integrity and reputation. The senior officers of the Armed Forces are expected to be men of integrity and character. When any such charge is proved against a senior officer, the reputation of the Army also gets affected. Therefore, any officer indulging into such acts could no longer be retained in the services of the Army, and the order passed by the General Court Martial could not be faulted. 19. In our view, the learned Single Judge was right in passing the order whereby he declined to interfere into the decision rendered by the General Court Martial. There was no reason for the Division Bench to interfere in that order in an intra-Court appeal. The order of the learned Single J ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
