THE HONOURABLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.263 OF 2020
ORDER:
This Criminal Revision Case is filed by the petitioner-Accused No.1 aggrieved by the order dated 18.12.2019 in Crl.M.P. No.692 of 2019 in C.C. No.2828 of 2018 passed by the I-Additional Judicial Magistrate of First Class, Warangal in dismissing the discharge petition filed by the petitioner-accused No.1.
2. The case of the prosecution, as per the charge sheet filed by the Inspector of Police, CID, RO, Warangal, was that on 18.01.1995, the Joint Director (Vigilance), Social Welfare Department, Hyderabad lodged a complaint at CID police Station, Hyderabad stating that as per the instructions of the Director of Social Welfare, he along with his staff, surprised the hostels in Warangal District and seized the hostel records and conducted enquiry into the various financial irregularities and misappropriation of funds for the year 1993-94. During the year 1993-94, the Director, Social Welfare Department released an amount of Rs.238.83 lakhs towards maintenance of 94 Dr.GRR,J 2 Crl.R.C. No.263 of 2020 Social Welfare Hostels in Warangal District. The Director of Treasuries and Accounts Department had also issued authorization to the District Treasury Officer, Warangal to release the above amount. As per the expenditure statement obtained from the District Treasury Officer, Warangal, the Wardens of 100 hostels of Warangal District had drawn an amount of Rs.276.77 lakhs instead of an amount of Rs.238.83 lakhs released, thus they had drawn an excess amount of Rs.37.97 lakhs without any authorization from the Government through false claims by producing fake receipts and vouchers by maintaining false attendance registers with the connivance of accused Nos.3, 4 and 8. The complainant cited 50 names in his petition; 32 Wardens/Matrons, 5 Assistant Social Welfare Officers, Deputy Director, District Social Welfare Officer, Assistant Accounts Officer of Social Welfare Department, District Treasury Officer, 3 Sub- Treasury Officers and 6 Senior Accountants of 32 hostels. The name of the petitioner-accused No.1 was not there in the said list.
3. Basing on the said complaint, a case in Crime No.4 of 1995 for the offences under Sections 406, 409, 420, 468, 471, 477(A) and 120-B IPC was registered by the CID Police, Hyderabad. During the Dr.GRR,J 3 Crl.R.C. No.263 of 2020 course of investigation, the Investigating Officers collected the original documents from the concerned departments, examined witnesses, conducted special audit of mis-appropriated amount, forwarded the fake bills to the Director FSL, Hyderabad for expert opinion, obtained prosecution orders against all the accused and filed separate charge sheets against the accused for individual hostels and obtained C.C. numbers as 176 to 186 of 2012, 190 to 202/2012. During the year 2018, he filed charge sheet vide C.C. No.2828 of 2018 against the petitioner-accused No.1 who worked in Wardhannapet Hostel and against others vide C.C. No.2827 of 2018 who worked at Nallabelli and C.C. No.2826 of 2018 at Narasampet Hostel. The Investigating Officer alleged that A1 to A9 conspired with each other and hatched out a plan to mis-appropriate the government funds. According to their plan, the accused prepared and claimed false bills, produced fake receipts and vouchers in the name of creditors and suppliers, maintained false attendance registers of boarders, prepared bills in excess than the eligibility and got the bills sanctioned directly by routing through the second and immediate superior officers, purchased the commodities and claimed the bills under various heads of accounts.
Dr.GRR,J 4 Crl.R.C. No.263 of 2020
4. It was earlier alleged on 14-10-2003 that A1 had drawn an amount of Rs 1,90,180 excess to the budget allotted for the year 1993-
94. After 17 years, the successor Investigating officer relying on a fresh audit filed charge sheet alleging that an amount of Rs 2,13,558/- was misappropriated. It was further mentioned in the charge sheet that accused No.1 voluntarily admitted the mis-appropriation of government funds and repaid an amount of Rs 2,13,558/- to the government by way of challan towards the amounts misappropriated by him in the State Bank of Hyderabad, Hanmakinda branch. The Investigating Officer on completion of investigation filed charge sheet against A1 to A9 for the offences under Sections 406, 409, 420, 468, 471, 477(A) and 120(B) IPC, and reported that A3 and A9 died during the course of investigation on 22.10.2005 and 08.10.2008 respectively.
5. The trial was conducted in C.C. Nos.7/2010, 751/1999, 802/2004, 185/2012, 176/2012 and 202 of 2012 and the accused persons in the said cases were acquitted. Thereafter, the petitioner- Accused No.1 filed a discharge petition vide Crl.M.P. No.692 of 2019 in C.C. No.2828 of 2018 pointing out the latches in the investigation Dr.GRR,J 5 Crl.R.C. No.263 of 2020 stating that the charge sheet was filed without verifying the audit report, the auditor, who audited the accounts did not follow the procedure of audit and the same was not corroborated by Government Audit Report. A departmental enquiry was conducted against him and found that he was not involved in the fraud or mis-appropriation of funds and he was reinstated into service. The statements of the witnesses and the Government Orders based on which the Investigating Officer came to a conclusion that the petitioner had committed the offence, had not been filed along with the charge sheet. The original FIR and the complaint were not filed. The Audit was not conducted by the auditors appointed by G.O.Rt.No.46. Having completed service, he retired and filed O.A. No.2733 of 2004 before the Andhra Pradesh Administrative Tribunal to quash the proceedings of the District Collector, Warangal as his pension was stopped. The same was allowed by the Tribunal. Against the orders in O.A. No.2733 of 2004, the Department preferred an appeal. However, on the advice of the Government Pleader of the High Court, no appeal was preferred by the department and pension was released. The disciplinary proceedings against the petitioner were closed and he was reinstated into service. As he was exonerated in the disciplinary Dr.GRR,J 6 Crl.R.C. No.263 of 2020 proceedings, he was liable for discharge. As the accused persons in the other calendar cases were acquitted, the continuation of the present proceedings against him was incorrect.
6. The Police, CID filed counter.
7. On considering the contentions of both the counsel for the petitioner and the Assistant Public Prosecutor, the learned I- Additional Judicial First Class Magistrate, Warnagal, dismissed the petition.
8. Aggrieved by the said dismissal, the petitioner-Accused No.1 preferred this revision contending that the Investigating Officer filed 30 charge sheets against 47 accused before the trial court and in left over three charge sheets against three accused were filed in the year 2018-19. The trial court gave full effect of trial in 30 Calendar Cases and acquitted 47 accused and delivered common judgments dated 26.02.2018 and 29.08.2018. The prosecution miserably failed to prove the guilt of 47 accused. The final report under Section 173 Cr.P.C. in CC No.2828 of 2018 in Crime No.4 of 1995 was filed on 10.09.2018 before the trial court after 25 years. None of the allegations made against the petitioner would constitute any offence punishable under Sections 406, 409, 420, 420, 468, 471, 477(A) and Dr.GRR,J 7 Crl.R.C. No.263 of 2020 120(B) IPC. The trial court, without looking into any material to proceed against the petitioner, concluded prima facie that the material available was sufficient to proceed against the petitioner and committed an error in dismissing the discharge petition. The impugned order was perverse on the face of it. The mis-appropriated amount pertained to three years i.e. 1992-93, 1993-94, 1994-95, but the petitioner's working period was only four months and in three hostels and three hostels i.e. i) Government Social Welfare Boys Hostel, Wardhannapet, ii) Government Social Welfare Boys Hostel for 9th and 10th Classes, Ellanda and iii) Government Social Welfare Boys Hostel for 9th and 10th classes, Wardhannapet, but not as alleged by the prosecution that he worked in Government Social Welfare Boys Hostel Wardhannapet for one year and in one hostel. The petitioner's right to fair and speedy trial was defeated due to the delay in filing the charge sheet. The continuation of criminal proceedings would not serve a fruitful result. For the same set of facts, allegations, same charges and same evidence, the other accused persons were acquitted in 30 Calendar Cases. Accused Nos. 2 to 8 are common in all the 33 Calendar Cases. A1 was neither a drawing officer nor disbursing officer in C.C. No.2828 of 2018. No preliminary enquiry Dr.GRR,J 8 Crl.R.C. No.263 of 2020 was conducted by the CID Officials before registering the crime and issuing the FIR. The petitioner was declared as disbursing officer to the limited extent of pay and allowances vide G.O.Ms.No.235, Social Welfare (E) Department, dated 07.10.1978. The Deputy Director, Social Welfare has been declared as sanctioning authority of diet charges and other bills to the hostels and the Assistant Accounts Officer, Office of the Deputy Director, Social Welfare had been declared as Drawing and Disbursing Officer to the hostels vide G.O.Ms.No.112 SW (B1) Department, dated 24.07.1982. Therefore, the petitioner-accused No.1 was not authorized to draw funds and it was the DDO/Assistant Accounts Officer of Government Social Welfare Boys Hostel, Wardhannapet, who had drawn an amount of Rs.2,13,558/- from the Treasury in the year 1993-94 and the bills were sanctioned by the Deputy Director of Social Welfare, Warangal. The prosecution failed to produce any material to show as to how the petitioner was connected to the case. The Investigating Officer mis- informed the trial court that the petitioner voluntarily admitted the guilt of mis-appropriation of government funds and repaid the amounts to Government by way of challan. The petitioner had not remitted any amounts to the Government as per the records of the Dr.GRR,J 9 Crl.R.C. No.263 of 2020 Government Social Welfare Department. As the petitioner did not mis-appropriate any government funds, the question of repaying would not arise at all. The Investigating Officer had not filed the remitted challans for fair trial. As the Government had not entrusted any funds/supply of rice and food items to petitioner-Accused No.1 for the year 1993-94, the question of mis-appropriation of funds would not arise. The court would not take cognizance as original bills and vouchers were already destroyed by the Accountant General office. The Investigating Officer had fabricated the FSL report by sending false bills and vouchers. When the original bills were destroyed in 2004, the Investigating Officer could not send the original bills in August, 2015 to the FSL. Any of the provisions of the offences under IPC were not attracted against the petitioner. The enquiry officer, who conducted the departmental enquiry, found that the petitioner was not involved in any fraud or mis-appropriation of funds. Thus, the petitioner was reinstated into service as on duty. The reasons given by the trial court for dismissing the discharge petition were unsustainable, and prayed to set aside the order dated 18.12.2019 in Crl.M.P. No.692 of 2019 in C.C. No.2828 of 2018 in Dr.GRR,J 10 Crl.R.C. No.263 of 2020 Crime No.04 of 1995 passed by the I-Additional Judicial Magistrate of First Class, Warangal.
9. Heard learned counsel for the revision petitioner and the learned Additional Public Prosecutor.
10. The learned counsel for the revision petitioner filed written arguments.
11. Perused the record. The petitioner was working as a Warden in the Social Welfare Boys Hostel, Wardhannapet in Warangal District at the relevant time. As per his contention, he worked only for four months out of the total period of three years in the hostel where the mis-appropriation of funds was alleged. As per the charge sheet, he worked during the financial year 1993-94 at the Boys Hostel, Wardhannapet. Every year, the Government would allot budget district wise for the maintenance of the social welfare hostels of all districts in the State. At the District Level, basing on the budget received from the Government, the Deputy Director, Social Welfare with the assistance of D.S.W.O. and A.A.O. would re-allot hostel-wise budget to hostels once in every quarter from April to March after taking the approximate monthly expenditure of each hostel as per the strength of boarders of the [email protected] Rs.150/-, 160/- per month per Dr.GRR,J 11 Crl.R.C. No.263 of 2020 boarder into consideration. The budget allotment would be treasury head-wise and the 270 head is concerned to the diet charges of the hostel. He would issue budget allotment proceeding and communicate to the Wardens of the Hostels and he would also communicate the same to the District Treasury Officer. The District Treasury Officer in-turn would approve it and communicate the same to all the Sub- Treasuries of the District authorizing them to release Government cash from Government Treasury as per budget allotted by the DDSW for the maintenance of Social Welfare Hostels. The amount would be paid to the Wardens through S.B.H. Bank wherever bank was available and cash would be paid from Treasury itself, if the S.B.H. Branch was not available. While collecting money from the Bank, the Warden should take cash if the bill amount was less than Rs.1,000/- and disburse it to the concerned, if the bill amount was more than Rs.1,000/-, he should take Demand Draft in the name of the party itself and hand over the D.D. to party under proper acknowledgment.
12. The warden of Social Welfare Hostel was authorized by the Government to run the hostel on credit purchase and clear the credit dues after drawing the cash from the Government Treasury as per Dr.GRR,J 12 Crl.R.C. No.263 of 2020 procedure. He should purchase provisions and vegetables, mutton, chicken, eggs, fire-wood etc., in local market on credit as per the requirements of the hostel as per the strength of the boarders @ Rs.150/-,160/- per month per boarder grade. He should enter all the provisions purchased on credit and the provisions received through Departmental supply in the stock and issue register of the hostel and the page number of that register must be mentioned on credit vouchers (original and duplicate) as a proof of that he entered the purchased food provisions in the stock and issue Register of the hostel. Subsequently the stock would be stored in the hostels store room. Later he would issue food provisions from the hostel stock to the cook daily as per the day requirement. The day-wise consumption should be entered in the stock and issue Register invariably. The warden should obtain credit vouchers in duplicate from the party from whom he purchases food provisions on credit. The warden in the first week of succeeding month should prepare the monthly bill in duplicate in APT.C Form No.58 as per the credit vouchers and submit it in duplicate to the A.S.W.O along with credit vouchers, students attendance statement and monthly expenditure statement for his scrutiny and approval.
Dr.GRR,J 13 Crl.R.C. No.263 of 2020
13. It was further alleged that the Social Welfare Auditors had conducted audit of the records and found the following irregularities misappropriation of Government fund to a tune of Rs.2,13,558/- (D-14):
PARA-I. Excess diet charges has been claimed (From 1.4.93 to 31.3.94) for Rs.58, 194/-
1) The warden has drawn excess diet charges of Rs.66, 623/- from 1.4.93 to 31.03.94 the details of the same are in Annexure-I enclosed. Hence Rs.581947-(Annexure-I) may to recovered from the Warden.
PARA-II. Excess Expenditure purchase of Rice at higher rates than that of A.P. Civil Supplies Corpn. Rs * 0.24 .-580/=
1) Cost of 78Qtls of rice at Rs.580-12 PS,, at Market Rs.45,250/-
2) Cost of 78 Qtls of rice at Rs.265/- as charged by Rs.20,670/-
the Civil Supplies Corporation. Need Rs.24580-00 needs to be recovered from Warden.
PARA-III. Irregular Purchase of Medicines needs recovery An amount of Rs.11665/- has been drawn vide T.No.595, Dt.15.10.93 under 262 other charges towards medical expenses for the period from 193-94 actually this has to be drawn under MH 225-01-282-04-260-262. The Warden has not maintained sick boarders register and also the medical expenses for hostel is Rs.200/- P.A. if budget is provided under relevant head of account. The warden has violated the rules and drawn Rs.11, 665/- irregularly towards medical expenses. In the circumstances detailed above the expenditure is held medical PARA-IV. Irregular drawal of Water supply charges Rs.78,720/-
PARA-V. Irregular Expenditure towards electrical etc. and carpentry Repairs-Needs Recovery Dr.GRR,J 14 Crl.R.C. No.263 of 2020
1) Towards electrical materials in 12/93 Rs.24,000/-
2) Towards electrical materials in 1/94 Rs. 8,520/- Total Expenditure: Rs.32,520-00/-
PARA-VI. Excess drawl of photographic charges Rs.1,725/- needs recovery PARA-VII. Republic Day, Celebrations-Excess Expenditure of Rs.1380/-
PARA-VIII Stock of Vegetables, eggs etc purchased not reflected in the monthly Expenditure statement-Needs Recovery for Rs.2,854/ PARA-IX Totaling mistake in the monthly Exp.Statement Rs.450/-needs recovery.
RECOVERY PARTICULARS
Sl. Para Amount
No.
1. Para-I 58,194-00
2. Para-II 24,584-00
3. Para-III 11,665-00
4. Para-IV 78,720-00
5. Para-V 32,520-00
6. Para-VI 1,175-00
7. Para-VII 1,380-00
8. Para-VIII 2,854-00
9. Para-IX 450-00
Total 2,13,558-00
14. The CID auditors also had conducted audit on the records and found Rs.2,13,558/- were misappropriated by the accused.
15. The contention of the learned counsel for the revision petitioner was that basing on the complaint given by the Joint Director (Vigilance), Social Welfare Department, Hyderabad, the CID Police, Dr.GRR,J 15 Crl.R.C. No.263 of 2020 Hyderabad registered a case in Crime No.4 of 1995. The Investigating Officer, after investigation, filed charge sheets splitting them into 33 criminal cases against 50 accused. 48 accused were acquitted in 31 Calendar Cases. The criminal proceedings registered against all the 50 officials were one and the same. Accused Nos.2 to 8 were common in all the 33 Calendar Cases. The trial court, after conducting full-
fledged trial in 31 cases acquitted all the accused. The Government/CID, RO, Warangal had not challenged the said orders acquitting the accused in 31 cases before any forum and the said orders had become final and conclusive. Conducting the trial against the petitioner after 25 years would be a futile exercise and relied upon the judgments in CC No.210 of 2010 dated 29.08.2018 and in CC No.178 of 2012 dated 29.08.2018.
16. On a perusal of the judgment in CC No.210 of 2010 dated 29.08.2018, the trial court observed that:
"PW.1- the Joint Director (Vigilance), Social Welfare Department, who lodged the complaint stated that he found an amount of Rs.109.50 lakhs were over drawn above the eligibility and authorization given by the Director of Treasuries and Accounts. They verified the records as per the norms fixed by the Government under each budget head i.e. diet charges, cosmetic charges, wages, electricity charges, rents etc. None of the officials shall draw excess amount than the sanctioned budget by the D.D.O. The accused No.1 the DDO in collusion with the accused Nos.4 to 7 had not accounted for the cash Dr.GRR,J 16 Crl.R.C. No.263 of 2020 book, stock and issue register and other Registers and mis- appropriated the said excess amount, as such he recommended for taking action against 32 Wardens of Social Welfare hostels at Warangal, Deputy Director Social Welfare, Warangal, The Deputy Director Social Welfare Accountant, Accounts Officer and treasury officials."
The trial court further observed that:
"One of the Investigating Officer i.e. Ch.Rajaiah, Inspector of Police, CID, RCC, Warangal, had addressed a letter to the Additional Director General of Police, CID on 12.12.2004 to the effect that he personally verified budget control Registers of all S.T.Os to know whether the Treasury staff had released Government cash over and above the budget or not and found that all S.T.Os have released the budget to the bill amount within the budget only. No one STO found of releasing of amount over and above the budget. The Dy. Director (Vigilance) of Social Welfare Department Sri. U. Subrahmanyam in his enquiry report has wrongly alleged that the Treasury staff had released the Government cash over and above the budget allotted. But in my Investigation the said allegation was not established.
It was also further mentioned by Ch. Rajaiah in his letter that Sri U. Subrahmanyam had stated that he treated the amount drawn by the Wardens from Treasury after 31.03.1994 as over and above the budget as this release had taken place prior to the release of budget from the Government. This contention of the Deputy Director Vigilance was found as incorrect as, as per Treasury records the amount drawn by the Wardens after 31 March 1994 was clubbed in the budget of 1994-95 but not included in the budget of 1993-94. Hence the Deputy Director Vigilance findings of the amount released after 31st March 1994 as excess to the budget of 1993-94, is not correct and baseless. Moreover as per G.O. Ms. No. 144, dated 30.03.1994 of the Finance Department, the Government had authorised the Treasury staff to admit the bill of first quarter (1.4.1994 to 30.5.1994) in the pending release of budget for the year 1994-
95. Basing on the said G.O. only the Treasury staff had admitted the hostel bills passed by the D.D.S.W. in the 1st quarter of 1994-95 in the pending release of budget from the Government. However, after getting budget release proceedings for the 1st quarter of 1994-95 from D.D.S.W. the amount which was already released in the quarter in the pending budget allotment, has been adjusted in the budget released. The then Joint Director, Treasury and Accounts, Hyderabad Sri M.N. Keshava Dr.GRR,J 17 Crl.R.C. No.263 of 2020 Rao, who conducted departmental enquiry about the involvement of Treasury staff in the Social Department scam, had mentioned that during the year 1993-94 some mis- classification was taken place in booking of the hostel bills due to the negligence of the treasury staff and the computer operators. But the Government amount was not released over and above the budget. Hence, the Treasury staff had not released Government amount over and above the budget during the years, 1993-94 and 1994-95 as alleged by the Deputy Director vigilance.
17. The trial court observed that the prosecution failed to examine the persons, who supplied wood, vegetables and provisions to the hostels from whom the accused obtained fake bills. As such, there was no incriminating material collected by the Investigating Officers. The Investigating Officer Mr. Naresh Kumar admitted that he did not collect any of the documents or records to show that LWs.17 to 20 supplied provisions to the Social Welfare hostels.
18. The enquiry officer - P. Soma Raju, who conducted departmental enquiry against 32 hostels, Social Welfare Officers and 3 Account Social Welfare Officers, was examined as PW.9 and as per his enquiry report, the accused spent excess amount in the Social Welfare Girls Hostel, Ghanpur-A, but not mis-appropriated the amount. Though the Government had to supply subsidy rice to the hostels, the Government did not supply the same and the concerned Dr.GRR,J 18 Crl.R.C. No.263 of 2020 Wardens of the hostels at Warangal District including the accused A2 purchased rice from open market as such, they spent excess amount. It was also observed by the trial court that the said report under Ex.P.10 given by PW.9 Soma Raju was a general report but not delinquent wise. Thus, the said observations of the Enquiry Officer were applicable to all the accused, but, not only to the one against whom trial was conducted. It was also observed by the trial court that as per the proceedings issued by the District Collector dated 25.05.1996, the Enquiry Officer observed that the Wardens were not found involved in any mis-appropriation and he did not know whether the diet charges were enhanced from Rs.150/- per month for boarder to Rs.170/- per month per boarder as per G.O.Ms.No.72 dated 25.04.1998. The trial court observed that the Investigating Officers failed to collect the documents i.e. proceedings dated 06.10.2007 issued by the District Collector, Warangal as well as G.O.Ms.No.75, dated 25.04.1998.
19. The trial court also observed that there was no mention in column Nos.2, 3 and 4 in stock and issue Register under Ex.P.12 with regard to the person to whom the stock was issued, rate of quantity of stock issued for boarder. When there was no specific mention under Dr.GRR,J 19 Crl.R.C. No.263 of 2020 Ex.P.12 with regard to the person to whom the stock was issued and also the quantity per boarder issued, then the question of specific stock mis-used would not arise.
20. The trial court also observed that in every District, there was a Purchase Committee in which the Joint Collector would be the Chairman and the Purchase Committee had to finalise the rate by calling tenders from the suppliers, then the supplier shall supply the stock i.e. oil, salt, onion upma ravva and all food items. The Enquiry Officer failed to mention the rates fixed by the Purchase Committee with respect to essential commodities of the hostels. Every purchase bill pertaining to the hostel would be scrutinized by the accounts officer of the concerned District, who would work under the control of Deputy Director, Social Welfare and thereafter the said bills would be submitted to the Treasury. When the Accounts Officers scrutinized the purchase bills before submission to the Treasury, then the Accounts Officer was the relevant witness but the Investigating Officers failed to examine the Accounts Officer who scrutinized the said purchase bills. The trial court also observed that there was no record to show that specific amount fixed by the Purchase Committee Dr.GRR,J 20 Crl.R.C. No.263 of 2020 with regard to purchase of raw-food items like oil, salt, onions, etc., in the Social Welfare Hostels. Then, the question of spending excess amounts spent by the hostel wardens in collusion with the accused A1, A4 to A7 would not arise, as there was no record to show the purchase of raw food items over and above the price fixed by the concerned purchase committee.
21. The trial court also observed that the Government appointed Sri K.S. Ramachandraiah Chetty, Retired Audit Officer to conduct special audit and the Investigating Officer Ch.Rajaiah failed to examine the said Ramachandraiah Chetty, appointed by the Government. Thus, the trial court after conducting full-fledged trial and after discussing the evidence in detail acquitted all the accused persons in the said case.
22. The evidence with regard to the present accused also would not be different as it was the same Enquiry Officer, who conducted departmental enquiry and the same Audit Officer, who conducted the special audit and the same Investigating Officers, who conducted the investigation in the present case also. The complainant was also one and the same. The procedure with regard to the purchase committee fixing rates in each district and non-examination of the Dr.GRR,J 21 Crl.R.C. No.263 of 2020 relevant witnesses by the Investigating Officer, was also applicable to the present criminal case. Conducting trial 25 years after the investigation, would dilute the process of trial, as many witnesses might not be available.
23. The contention of the learned counsel for the revision petitioner was that the documents were also not available. There was no original complaint and the original FIR. The Investigating Officer had not submitted the statements or the information with regard to the original bills nor filed the alleged vouchers along with the original FSL report nor the alleged repaid challans of the petitioner-A1 nor the alleged drawal of amount of Rs.2,13,558/-/- from the Treasury. The Government had set aside the preliminary enquiry submitted by Sri U. Subramanyam - de facto complainant, dated 02.01.1995 as the same was not in order and ordered for reopening a fresh enquiry on 13.10.1997 under Rule 41 of the APCS (CCA) Rules, 1991. Subsequently, the Principal Secretary, Government of Andhra Pradesh, Social Welfare Department, appointed experts in audit, by name, Sri K.S.R. Chetty and three other audit officers to conduct audit in all 94 Social Welfare Hostels in Warangal District for the year 1993-94 and they submitted a report in the year 2000. Thereafter, Dr.GRR,J 22 Crl.R.C. No.263 of 2020 after lapse of 27 years, in the year 2018, the Investigating Officer filed an audit report. When the Audit Report of the four Auditors was available in the office of the Inspector of Police, CID, RCIU, Warangal, which would disclose that no mis-appropriation of government funds for the period 1993-94 took place, the audit reports filed by the Investigating Officer were null and void. The learned Magistrate, Warangal erred in coming to the conclusion that audit report, vouchers and bills filed along with the FSL report could be the basis to continue the criminal proceedings.
24. The trial court in C.C. No.210 of 2010 also observed that the statements of the accused, the statements of the Investigating Officers, the three Vigilance Officers, Audit Officers, Directorate Officials and records collected by them were prepared as annexures, but, the said statements of accounts and the statements were not enclosed with the preliminary enquiry report under Ex.P.1 and it would create a doubt and the preliminary enquiry report without statements and enclosures could not be considered, and observed that the evidence of the witnesses would not be sufficient to bring home the guilt of the accused for the offences punishable under Sections Dr.GRR,J 23 Crl.R.C. No.263 of 2020 406, 409, 420, 468, 471, 477A and 120-B IPC beyond reasonable doubt.
25. The learned counsel for the revision petitioner also alleged that the original audit report of K.S.R. Chetty, who conducted audit along with his team stated that the Accounts Officer issued a certificate dated 16.12.2008 to the effect that the original vouchers and bills pertaining to the year 1993-94 in respect of the Social Welfare Hostel in Warangal District had been weeded out (destroyed) in 2004 as per the procedure laid down by the Government. When the original vouchers and bills pertaining to the year 1993-94 were weeded out, the Investigating Officer sending them to FSL on 13.08.2015, would not be believed. The documents marked in C.C. No.210 of 2010 also would not disclose filing of any FSL report or citing any FSL Officer as witness to the case. When the original FIR, original complaint, original vouchers, original bills, original audit report, original statements part-II under Section 161 Cr.P.C. which were primary evidence were not available, conducting the trial after 25 to 27 years would not serve any fruitful purpose.
26. The learned counsel for the revision petitioner relied upon the judgments of the High Court of A.P. in Kovvuru @ Kommuru Dr.GRR,J 24 Crl.R.C. No.263 of 2020 Prasad Reddy v. State of Andhra Pradesh and another1, on the aspect that:
"7........since some of the main accused in the criminal case have already been acquitted after full- fledged trial, the other accused in split up cases are also entitled to be acquitted."
27. He also relied upon the judgment of this Court in Polishetty Nagishetty Arun Kumar v. The State of Telangana and another2 wherein by relying upon the judgment of the Hon'ble Apex Court in Pothula Suresh v. The State of A.P. [2011 Crl.L.J. 609]; and Mohinder Singh v. State of Punjab [(2018 11 SCC 570], this Court held that:
"When some of the accused in the same case found not guilty and acquitted after full-fledged trial, the proceedings against the other accused are liable to be quashed."
28. The trial court dismissed the discharge petition on the ground that each and every case had to be decided on the merits of the case and acquittal of certain accused in other cases could not be a ground to discharge the petitioner from the present case. But, the prosecution failed to explain as to why it took such a long delay of 27 years in filing the charge sheet against the revision petitioner-accused 1 2020 (1) Law Summary 173 2 2022 Latest Caselaw 110 Tel Dr.GRR,J 25 Crl.R.C. No.263 of 2020 when it could file the charge sheet against the other accused persons. It would affect the right of the petitioner-accused for fair and speedy trial. Taking cognizance of the offence on the FIR lodged in the year 1995 in connection with the incident alleged to have taken place in the year 1993 and the trial to be commenced after 27 years itself is a violation of the petitioner's right to fair and speedy trial. The revision petitioner was also exonerated from the disciplinary proceedings as per the District Collector's proceedings in R.C. No.A1/780/94 dated 06.10.2007. The departmental proceedings and criminal proceedings were conducted on identical and similar set of facts. On the allegations made by the Joint Director, the District Collector, Warangal, served a charge memo on the revision petitioner-accused No.1 vide charge memo Rc.No.A3/A1/780/94-(2), dated 26.12.1994 to the petitioner for the charge of mis-appropriation of funds for an amount of Rs.1,90,180/-. An Enquiry Officer was appointed. The Enquiry Officer conducted the enquiry and found that the petitioner was not involved in the fraud or mis-appropriation of funds. Accepting the enquiry report, the District Collector reinstated the petitioner into service. The contention of the petitioner was that since he was exonerated from the disciplinary proceedings, he may also be Dr.GRR,J 26 Crl.R.C. No.263 of 2020 discharged from the criminal proceedings, as both the proceedings were based on same material i.e. Joint Director's report and the audit report.
29. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Apex Court in Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI and another3 to contend that criminal prosecution cannot proceed against the petitioner after being exonerated in a departmental enquiry for the same allegations. In the said judgment, a three Judge Bench led by Justice R.F. Nariman had held that:
"...In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue."
30. In the present case also, the charges levelled against the petitioner in the departmental proceedings and the criminal proceedings are on the same set of facts and circumstances. Basing on the above judgment of the Hon'ble Apex Court and since the petitioner was exonerated from the disciplinary proceedings, he can also be discharged from the present criminal proceedings. Hence, for 3 2020 (9) SCC 636 Dr.GRR,J 27 Crl.R.C. No.263 of 2020 all the above reasons, it is considered fit to allow the revision case by setting aside the impugned order.
31. In the result, the Criminal Revision Case is allowed setting aside the order dated 18.12.2019 in Crl.M.P. No.692 of 2019 in C.C. No.2828 of 2018 on the file of the I-Additional Judicial Magistrate of First Class, Warangal. The revision petitioner-Accused No.1 is discharged for the offences under Sections 406, 409, 420, 468, 471, 477A read with 120-B IPC.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________ Dr. G. RADHA RANI, J January 19, 2023 KTL Dr.GRR,J 28 Crl.R.C. No.263 of 2020 THE HONOURABLE Dr. JUSTICE G. RADHA RANI CRIMINAL REVISION CASE No.263 OF 2020 January 19, 2023 KTL Dr.GRR,J 29 Crl.R.C. No.263 of 2020