State Rep By Inspector Of Police vs Chattu Srinivasa Rao
2021 Latest Caselaw 5503 AP

                 THE HONOURABLE SRI JUSTICE D.RAMESH

 CRIMINAL REVISION CASE Nos. 3388, 3393 of 2017, 06, 09, 12, 15,
                29, 424, 512, 513 & 861 of 2018

COMMON ORDER:

       The above mentioned revision cases were filed by the petitioner/

/complainant/State against the orders dated 05.9.2017 passed in

different Crl.M.P's in C.C.No.16/2011 on the file of the II Additional

Special Judge for CBI Cases, Visakhapatnam, which were filed for

discharging the accused from the C.C.No.16/2011. For the sake of

convenience and for better understanding, the same were furnished

hereunder in a tabular form.

Crl.R.C.No.     Name of accused    Accused   Offences        Discharge petition     no.
                                   no.
                                             charged         and date of order

3388       of   E.Srinivasa        A-46      120-B r/w 420   Crl.M.P.No.827/2016
2017            Chakravarthy                 & 471 of IPC    dated 05.9.2017
3393       of   G.Venkatarami      A-24      120-B r/w 420   Crl.M.P.No.1513/2016
2017            Reddy                        & 471 of IPC    dated 05.9.2017
06 of 2018      Ch.Srinivasa rao   A-15      120-B r/w 420   Crl.M.P.No.06/2018
                                             & 471 of IPC    dated 05.9.2017
09 of 2018      Y.Suryanarayana    A-40      120-B r/w 420   Crl.M.P.No.245/2017
                                             & 471 of IPC    dated 05.9.2017
12 of 2018      J.Srinivasa rao    A-23      120-B r/w 420   Crl.M.P.No.1512/2016
                                             & 471 of IPC    dated 05.9.2017
15 of 2018      J.Shivaji          A-41      120-B r/w 420   Crl.M.P.No.1515/2016
                                             & 471 of IPC    dated 05.9.2017
29 of 2018      B.Kotaiah          A-27      120-B r/w 420   Crl.M.P.No.244/2017
                                             & 471 of IPC    dated 05.9.2017
424 of 2018     A.Srinivasa Rao    A-17      120-B r/w 420   Crl.M.P.No.424/2018
                                             & 471 of IPC    dated 05.9.2017
512 of 2018     L.Praveen Kumar    A-47      120-B r/w 420   Crl.M.P.No.1516/2016
                                             & 471 of IPC    dated 05.9.2017
513 of 2018     Y.Rajasekhar Rao   A-21      120-B r/w 420   Crl.M.P.No.513/2017
                                             & 471 of IPC    dated 05.9.2017
861 of 2018     Ch.Venkateswarlu   A-26      120-B r/w 420   Crl.M.P.No.1514/2016
                                             & 471 of IPC    dated 05.9.2017



2.     All the criminal revision cases are arising out of the same crime

and same issue and hence they are being dispose of with a common

order.

3.     The State filed the present revision cases aggrieved by the

orders dated 05.9.2017 passed in a petition in C.C.No.16/2011 on the

file of the II Additional Special Judge for CBI Cases at Visakhapatnam.
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4.   The accused nos.46,24,15,40,23,41,27,17,47,21 and 26 filed

petitions under section 239 Cr.P.C before the Court below to discharge

them from the C.C.No.16/2011. The said applications were allowed by

the Court below vide orders dated 05.9.2017.

5.   The brief facts of the case are a criminal case was registered on

27.6.2006 under section 120-B r/w 420 IPC and sec.13(2) r/w

13(1)(d) of Prevention of Corruption Act 1988 against one R.Subbarao

who was the then Cotton Purchase Officer in Cotton Corporation of

India (for short CCI), Guntur. During the investigation it revealed that

A1 conspired with A4 to A47 and in furtherance of conspiracy procured

huge quantities of cotton kapas from A4 to A47.       The investigation

further established that A4 to A47 were marginal farmers who do not

have sufficient extent of lands to cultivate the cotton kapas by them

supplied to the CCI.

6.   Sri Rayapati Subbarao-A1 worked as Cotton Purchase Officer in

CCI, Guntur from November 1994 to May 2006.           During the year

2004-05, he was incharge of Pericherla, Pirangipuram centers of

Guntur District and Madhira Centre of Khammam District. As per the

procedure in vogue, the cotton purchase officer test the quality of the

cotton brought by the farmers and fix up the rates as per the minimum

support price and passes the boras for weighment. the weight of each

bora will be recorded on the kata chitta (weighment slip) which bears

the signature of the farmer and a bidding slip will be prepared which

will contain the details of number of boras, lot number and the name

and address of the farmer. All these details of purchase are entered in

a separate register. One copy of the register will be submitted to the

CCI for payment and one copy will be retained with the Agricultural

Market Committee (for short AMC).      Basing on the said information,
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the CCI will send the cheques in the names of the farmers to the AMC.

The CCI/AMC will obtain acknowledgment of the cheque from the

farmers on a separate voucher containing revenue ticket and hands

over the cheque to the farmer on identification of the farmer with the

slip available with the farmer.

7.     Sri R.V.K.Prasad-A3, son of A1 is in cotton business running M/s.

Balachamundeswari      Cotton      Company     Limited   and     A1     and   A3

purchased cotton from the farmers at a lesser price knowing very well

that MSP operations are going to be launched by CCI. Accordingly 44

farmers   sold   cotton    at   all   the   three   centers   i.e.    Pericherla,

Phirangipuram and Madhira, in the same period where A1 was the

cotton purchase officer.    Though the centers are far away from one

another and are located in three different districts, but the farmers

received the sale proceedings from CCI through their bank in

Corporation Bank, Guntur.         None of the farmers were having large

extents of land but they have supplied large quantities of cotton as

sold to CCI. So from the purchases made by CCI it is evidence that

huge quantities of cotton was procured from each of the farmers who

do not have any land at all. All of them connived with A1 in procuring

huge quantities of cotton from marginal farmers and sold the same to

CCI.   The signatures in takpatties and weighment slips were forged

and also documents were fabricated. None of the farmers have signed

in the said documents. All these farmers cultivated the huge quantity

of cotton though they do not have agricultural lands and they have

received lakhs of rupees as sale proceeds. These discrepancies point

towards the role played by the respondent in criminal conspiracy to

cheat CCI in collusion with A1 to A3.

8. Learned counsel appearing on behalf of the petitioner has

submitted that the Court below has erred in allowing the application

filed by the respondents for discharge under section 239 Cr.P.C though

there is sufficient material available to show the involvement of the

respondents. It was clearly established during the investigation done

in between 10.01.2005 to 14.02.2005, the respondents in all the

revision cases sold almost 1321 quintals of cotton kapas to CCI at

Perecherla center, under Minimum Support Price Operations, at a cost

which was considerably higher than the prevailing market price of the

cotton.

9. Learned counsel further submitted that during the year 2004-05,

the prevailing market price of the cotton was very low and hence the

Government of India announced minimum supporting price to see that

the interest of the farmers as well as to boost their morale with regard

to further cultivation of cotton. The accused illegally availed this

benefit and siphoned huge amount of minimum support price in the

form of commission by way of selling huge quantity of cotton kapas to

CCI. In view of the said omissions and commissions of the

respondents/accused, attracts the offences under criminal conspiracy,

cheating and forgery and therefore on completion of investigation, the

agency filed charge sheet before the Special Court on 31.12.2009 and

accordingly the Special Court has taken cognizance of the case and

allotted calendar case no.16/2011 on 09.6.2011.

10. To support this contention, learned counsel relied on the

documents filed along with the charge sheet wherein he specifically

brought to the notice of the court and that the respondents/accused

are marginal farmers and some of the accused are even not having

small extent of land but they have siphoned huge quantity of cotton

kapas and received the amount at MSP rates from CCI. He also

brought to the notice of the Court that at the time of investigation, the

investigating officer have also verified the signatures of the farmers in

the register as well as the signatures at bank in bank account opening

forms. They also have found certain discrepancies and also they have

verified the records of the farmers and as per 10(1) adangals and 1B

registers are in the names of other persons. In view of the said

circumstances, A4 to A47 in collusion with A1 to A3 have acquired

large quantities of kapas from the local framers and supplied the said

quantity to the CCI by claiming as farmers in collusion with A1 to A3.

Accordingly, they have involved in the crime by cheating the CCI they

have siphoned the huge amount. Without considering the same, the

Court below has allowed the petitions filed by the respondents/accused

for discharging them, is bad in law and it is contrary to the judgments

reported in the Hon'ble Apex Court.

11. Reply to the said contentions, learned Senior Counsel Sri

Dammalapati Srinivas, appearing on behalf of the learned counsel for

the respondents has submitted that without there being any complaint,

the petitioner-State has suo-motu registered crime vide RC

11(A)/2006 dated 27.6.2006 as against A1 R.Subbarao. After

investigation, the revision petitioners have filed charge sheet against

A1 to A47 on the ground that the respondents in these revision cases

are small and marginal farmers and there by causing wrongful loss to

the tune of Rs.21,19,35,646/- to the CCI. The petitioners are trying to

substantiate their case in the charge sheet by comparing the extent of

land/ownership by the farmers A4 to A47 by the quantity of cotton

with the said farmers sold it to the CCI for the period of 2004-05 and

alleging that the said farmers are middlemen are benamis of A1 and

the revision petitioner has filed as many as 452 documents in the list

of documents annexed to the charge sheet and relied on 161 Cr.P.C

statements of 30 witnesses and showed them as list of witnesses.

12. After filing charge sheet, accused nos.15,17,21,23,24,26,27,40,

41,46 and 47 filed discharge petitions before the II Additional Special

Judge for CBI Cases, Visakhapatnam. At that point of time, the

respondent had brought to the notice of the Court the letter dated

08.01.2007 which was addressed by the revision petitioners to CCI

and the reply letter dated 31.01.2007 issued by the CCI to the

petitioners. In letter dated 08.01.2007, the revision petitioner asked

certain questions to the CCI and the CCI has replied in their letter

dated 31.01.2007. The contents of the said letter reads as follows:

Q1. Is there any difference between the cotton purchases made by Shri R.Subbarao and other cotton purchasing officers in your branch during the year 2004-05?

A. The purchases were made as per guidelines under MSP during 2004-05 season. There were no differences between he cotton purchases made by Shri R.Subbarao and other cotton purchasing officers during the cotton season 2004-05.

Q2. There are voluminous transactions took place for purchase of cotton from centers in repeated names, is there any deviations of rules in purchases of cotton at various centers by Shri R.Subbarao?

A.Kapas purchases were made under MSP operation, as per H.O. guidelines only from the market yards/functional market yards and in the presence of respective of concerned APMC's.

Q3. If any loss caused to Cotton Corporation of India because of the purchases made by Shri R.Subbarao, may please be elicited?

A. Purchases were made under MSP guidelines only, the rates were paid to the farmers as per MSP guidelines and quality parameters, and no loss caused by Shri R.Subbarao in this regard.

4. Whether there is any complaint from APMC/farmers against purchases made by Shri R.Subbarao?

A. No complaints received from APAMC/farmers against the purchases made by Shri R.Subbarao during 2004-05 season.

5. Was there any objections raised by various audits against the purchases made by Shri R.Subbarao and other cotton corporation officers?

A. No objections were raised by statutory/Government Auditors regarding the cotton purchases during the cotton season 2004-05.

6. It may also be clarified whether there is any cotton lying in the godown as unsold which was purchases by Shri R.Subbarao during the cotton season 2004-05 and resulted to loss to CCI?

A. All the purchases made by Shri R.Subbarao during the season 2004-05 were sold and lifted by buyers.

On perusal of the said letter it was not disputed by the revision

petitioners. In the said letter the CCI has clarified and asserted that

there is no violation or deviation occurred while conducting MSP

purchases for the year 2004-05 and it was also clarified that not a

single rupee loss caused to the CCI. Though the petitioners are relying

on the documents filed along with the charge sheet and more than 400

pages are only statements made by LWs 1 to 30. But in the said

statements there is no procedural violations or deviations while

conducting MSP and there is no statement with regard to the loss

caused to the CCI. The entire case of the revision petition is that all

the accused has caused wrongful loss of 21crores and odd to the CCI

by siphoning together by committing cheating and forgery. But as per

the letter dated 31.01.2007 issued by the CCI has ruled out the

allegations made by the revision petition. They have clearly stated

that no loss has been caused and no violations are made during the

year 2004-05. But still the revision petitioner is contending that the

loss caused to the Corporation to a tune of rupees 21 crores and odd

by making the respondents i.e. farmers as A4 to A47 naming them as

a middlemen and binamees of A1.

13. A4 to A47 though they are not having large extents of lands but

in the entire charge sheet or in the statements given under 161

Cr.P.C. none would made that A4 to A47 have not conducted

agricultural operations. It is not out of the place to mention that as

per the customary practice prevailing in the State of Andhra Pradesh,

the farmers would take the lands on oral lease basis and do the

cultivation. But the same was not denied and not made in the

statements of LWs 1 to 30 and there is no evidence to show that the

respondents A4 to A47 are not farmers except saying that they are not

having large extents of land. It is also submitted that there was no

complaint registered against any of the respondent farmers from any

staff or representatives of APAMC or CCI. When there are no

complaints against the farmers either by agricultural market

committees or by the CCI, the respondents only on the basis that the

farmers are not having large extents of lands filed charge sheet

including them as accused. In the said circumstances, considering the

record and the allegations, the Court below has rightly allowed the

application filed by the respondents and discharged them from the

charges.

14. To support his contention, learned Senior Counsel has mainly

relied on the judgment of the Hon'ble Apex Court in between Union of

India vs. Prafulla kumar samal and another1 wherein it is recited

that:

"The short point which arises for determination in this case is the scope and ambit of an order of discharge to be passed by a Special Judge under section 227 of the Code. The appeal does not raise any new question of law and there have been several authorities of the High Courts as also of this Court on the various aspects and grounds on which an accused person can be discharged, but as section 227 of the Code is a new section and at the time when the application for special leave was filed, there was no direct decision of this Court on the interpretation of section 227 of the Code, the matter was thought fit to be given due consideration by this Court.

(1979) 3 Supreme Court Cases 4

We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, charge- sheet directly to the Special Judge and the question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the charge-sheet is submitted before the Special Judge.

Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

And also the judgment of the Composite High Court of Andhra

Pradesh in between B.S.Neelakanta and another vs. The state of

A.P rep. by Public Prosecutor 2 wherein it is recited that after

considering the entire material available on record, if the court

considers that there is no sufficient ground for proceeding against the

accused, then the court shall discharge the accused and record its

reasons for doing so. Therefore, when once the court arrives at an

opinion that there is no sufficient ground to proceed against the

accused, it is imperative on the part of the Court to discharge the

Crl.R.C.No.1788 of 2011

accused and for that purpose, the court may have to record reasons

for discharging the accused.

15. Learned Senior Counsel further submitted that as per the

observations of the Apex Court 1st cited supra in which clearly held

that a test to determine a prima-facie case would naturally depend

upon the facts of each case and it is difficult to lay down a rule of

universal application and based on the facts and circumstances in

exercising jurisdiction under section 227 of the Code the Judge which

under the present Code is a senior and experienced court cannot act

merely as a post office or a mouthpiece of the prosecution, but has to

consider the broad probabilities of the case, the total effect of the

evidence and the documents produced before the Court.

16. In the instant case, except filing the documents of revenue

records and the 161 Cr.P.C statements of LWs 1 to 30, there is no

document showing the involvement of the respondents or there is no

finding with regard to showing that the respondents have not

cultivated the lands though they are not having the lands in their

names. In the said circumstances, the Court has rightly considered

the record and allowed the revisions.

17. Considering the rival contentions and on perusal of the record,

this Court is of the opinion that the prosecution has not filed any

document or statement with regard to the involvement of the

respondents herein and merely based on the statements made by LW1

to LW30 and basing on the revenue records they cannot construe that

the respondents have not conducted the agricultural operations during

that period. Apart from that on perusal of the letter of CCI dated

31.01.2007 it clearly discloses that no complaints were received from

APAMC against farmers on the purchases made during 2004-05. And

also it is clearly stated that they have followed the procedure and

guidelines issued by the Government of India while procuring the

cotton under MSP guidelines. And it further stated that no loss is

caused to the CCI during the said period. In the said circumstances

and as observed by the Hon'ble Apex Court that while framing of

charges under section 227 of the Code, the undoubted power to shift

and weigh the evidence for the limited purpose of finding out whether

or not a prima-facie case against the accused has been made out and

there is no evidence to show the involvement of the respondents in the

present crime.

18. For the above said reasons, this Court is of the opinion that the

Court below has rightly allowed the applications filed by the

respondents herein and this Court did not incline to interfere in the

said order which holds good.

19. Accordingly, all the revision cases are dismissed.

As a sequel thereto, the miscellaneous petitions, if any, pending

in this revision cases shall stand closed.

__________________ JUSTICE D. RAMESH Date: 27.12.2021 RD

THE HONOURABLE SRI JUSTICE D.RAMESH

CRIMINAL REVISION CASE Nos. 3388, 3393 of 2017, 06, 09, 12, 15, 29, 424, 512, 513 & 861 of 2018

Dated 27.12.2021

RD