HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1887 of 2009
JUDGMENT:
1. The State aggrieved by the acquittal of the respondent/A2 for the offence under Sections 409, 468, 471 and 420 of IPC vide judgment in Criminal Appeal No.97 of 2007 dated 24.06.2008 passed by the II Additional Metropolitan Sessions Judge, Hyderabad, the present appeal is filed.
2. The Police-CID, City Zone-II, filed case against A1 to A3 in Cr.No.3 of 1995 under Sections 409, 420, 468 and 471 of IPC. The State police, after investigation filed charge sheet against A1 to A3. A1 died, for which reason, the case against A1 was abated. A2 and A3 were proceeded against by the VI Additional Chief Metropolitan Magistrate, Hyderabad and by order dated 26.02.2007, convicted A2 and A3. However, the respondent/A2 preferred Criminal Appeal No.97 of 2007 before the II Additional Metropolitan Sessions Judge, Hyderabad. The learned Sessions Judge, by order dated 2 24.06.2008 acquitted the respondent/A2 for the offences as stated supra.
3. The case of the prosecution is that a complaint was lodged by the Special Deputy Collector, P.A to Commissioner on behalf of Commissioner, Printing, Stationery & Stores purchase, Chanchalguda stating that the stationery items including white papers to various State Government Departments in the State of Andhra Pradesh were being supplied through stationery wing of the said department through its Head Office at Chanchalguda and branch office at Kurnool and Vijayawada. During audit, certain objections were made and several irregularities including misappropriation of large quantities of stationery by the officers concerned was found. The said misappropriation was by manipulating, tampering and making false entries in the concerned registers. An enquiry was ordered, in which P.W.2, Mohd. Meeran Mohiuddin, was appointed as enquiry officer. On completion of enquiry, he submitted three separate reports pertaining to Head Office, Chanchalguda, Branch offices 3 Kurnool and Vijayawada. He pointed out that in the Head office at Chanchalguda, Hyderabad, irregularities and misappropriation to a tune of Rs.3,26,462.97 np, in the branch office at Kurnool to a tune of Rs.12,972.57 np and Rs.5,51,413.43 np in the branch office at Vijayawada and named the officers responsible.
4. The police, after investigation charge sheeted the respondent/A2 and two others as stated above. The learned Magistrate, after adducing evidence found that there was misappropriation of stationery articles and that the respondent/A2 and two others were responsible for the misappropriation of stationery articles at Vijayawada branch by adopting three kinds of modus oprandi. The said modus operandi was by way of excess debiting, directing debiting and false debiting. Stationery articles were shown as issued to non existing offices by forging the signatures of indentors by creating false indents and false gate passes. In the said process, the accused caused loss to the government by 4 creating fake indents, gate passes and forging the signatures of indentors, showing the same as genuine.
5. Learned Sessions Judge, on appeal found that the learned Magistrate has only reproduced the entire evidence on record and gave finding that the accused are guilty of the charges. However, there is no discussion as to how the offences were attracted. The learned Sessions Judge found that for offence under Section 420 IPC, there should be deception of a person and pursuant to such deception practiced, a person must have been induced to deliver any property. The case is not one of inducement, but a case of entrustment over the stationery items alleged to have been misappropriated by the Government servants. For the said reasons, the case of the prosecution being one of entrustment, an offence falls within Section 409 of IPC, but no offence is made out under Section 420 IPC.
6. Learned Sessions Judge found that there is no evidence to establish that the respondent/A2 and others have created any false document for the purpose of cheating and used the 5 same as genuine. In the said circumstances when there are no forged documents an offence under Section 468 of IPC is not made out. Further, in the absence of any forged documents being used for the purpose of cheating, Section 471 of IPC is not attracted.
7. Regarding the offence under Section 409 IPC, learned Sessions Judge found that P.W.1 has stated that he did not verify the receipts of the stationery items with respect to the indents and also did not collect acknowledgments from the receiving departments. In the absence of verification of the receipts and the acknowledgments with respect to the indents and corresponding acknowledgments, it is not possible to come to a definite conclusion about any such excess debiting, directing debiting and false debiting. The amount of balance of stationery was also not correct when the said balance was not verified, the question of misappropriation does not arise. The officers receiving the stationery were also not examined. Though testified that they have sustained loss, they did not mention about the complicity of the 2nd respondent or anyone 6 else. The basis for lodging the complaint against the respondent/A2 was the enquiry report of Mohd.Meeran Mohiuddin, but the said enquiry report was also not produced. The material documents, which are registers containing entries of issuing material and gate passes were also not seized during investigation. The said documents would have thrown light on the alleged misappropriation, if produced. In the said circumstances, the learned Sessions Judge found that the evidence on record is not sufficient to record conviction and accordingly, set aside the conviction recorded by the learned Magistrate.
8. Having perused the record, the findings of the learned Sessions Judge are based upon the evidence adduced during the course of evidence. None of the ingredients of Sections 468, 471 and 420 of IPC are made out. No documents are produced to say that they were fabricated documents, the question of using fabricated documents for the purpose of cheating does not arise. None of the documents were established to be fabricated.
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9. Coming to the offence under Section 409 IPC, the prosecution has failed to produce material documents in respect of their claim that there was any entrusment. In the absence of proof of the stationery being supplied to the departments, both existing and non-existing, the question of misappropriation does not arise. The reasons given by the learned Sessions Judge based on record and reasonable.
10. The Hon'ble Supreme Court in the case of Radhakrishna Nagesh v. State of Andhra Pradesh1 held that under the Indian criminal jurisprudence, the accused has two fundamental protections available to him in a criminal trial or investigation. Firstly, he is presumed to be innocent till proved guilty and secondly that he is entitled to a fair trial and investigation. Both these facets attain even greater significance where the accused has a judgment of acquittal in his favour. A judgment of acquittal enhances the presumption of innocence of the accused and in some cases, it may even indicate a false 1 (2013) 11 supreme court Cases 688 8 implication. But then, this has to be established on record of the Court.
11. The finding of the learned Sessions cannot be said to be unreasonable, warranting interference by this Court in appeal.
12. Accordingly, the Criminal Appeal is dismissed.
_________________ K.SURENDER, J Date: 21.09.2022 kvs 9 THE HON'BLE SRI JUSTICE K.SURENDER Crl.A.No.1887 of 2008 Dated:21.09.2022 kvs 10