Andhra Pradesh High Court - Amravati

S.V.V.Rama Krishna vs The State Of Andhra Pradesh on 28 November, 2022

Bench: Ninala Jayasurya

                                         1



       IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
             THE HON'BLE SRI JUSTICE NINALA JAYASURYA
                  CRIMINAL PETITION NO.2245 of 2022
Between:-

S.V.V. Rama Krishna                                ....               Petitioner

                                        And

1) The State of Andhra Pradesh,
represented by its Public Prosecutor,
High Court of Andhra Pradesh,
Amaravati.

2) The Station House Officer,
Addateegala Police Station,
East Godavari District.                            ....              Respondents

Counsel for the Petitioner        :          Mr.B.Chandra Sekhar

Counsel for the Respondents       :          Learned Assistant Public Prosecutor

ORDER:

The present Criminal Petition is filed seeking to quash the proceedings in

C.C.No.207 of 2015 on the file of the Judicial Magistrate of First Class,

Addateegala, East Godavari District.

2. The petitioner herein is Accused No.9 in the above said case registered

for the offences punishable under Sections 409, 420, 468, 477-A, 109

R/w Section 120-B of IPC. Pursuant to a complaint lodged by the

Sub-Treasury Officer, Addateegala, F.I.R.No.2 of 2014 was registered against

Accused Nos.1 to 5 for the said offences. After investigation, the Police laid a

Charge Sheet wherein the petitioner is arrayed as Accused No.9. The learned

Magistrate took cognizance of the offences in C.C.No.207 of 2015 against all

the accused i.e., 26 in number, wherein a total amount of Rs.41,21,878/- was

involved. Seeking to quash the said Calendar Case, petitioner/Accused No.9

filed the present Criminal Petition on various grounds.

3. Heard learned counsel for the petitioner and the learned Assistant Public

Prosecutor appearing for the respondent-State.

4. The learned counsel for petitioner, inter alia, submits that on a complaint

of Sub-Treasury Officer, Addateegala alleging creation of false documents and

drawing of monies by cheating the Government and misappropriation of

Government funds, the Police have initially registered the crime against

5 persons i.e., A.1 to A.5 and later implicated the petitioner as Accused No.9 at

the time of filing Charge Sheet. He submits that in so far as the

petitioner/Accused No.9 is concerned, the allegation is that funds to a tune of

Rs.25,000/- were irregularly drawn for telephone & postage expenses with one

bill by Accused No.2 and the petitioner/Accused No.9 without actually incurring

the expenditure when the petitioner was working at Primary Health Center,

Jonnavaram. The learned counsel further submits that basing on the said F.I.R,

departmental proceedings were initiated against the petitioner/Accused No.9

and the other accused with reference to the said allegations, apart from the

Criminal prosecution.

5. Drawing the attention of this Court to the Articles of Charge dated

20.12.2013, the learned counsel would further submit that the petitioner

submitted explanation to the Charges levelled against him and the disciplinary

authority had appointed an Inquiry Officer to inquire into the Charges framed

and a report was submitted on 18.11.2021 inter alia holding that the Charges

levelled are not proved. He further submits that the competent authority i.e.,

Director of Public Health & Family Welfare after considering the matter and in

the light of the enquiry report vide Proceedings dated 10.01.2022 dropped

further action against the petitioner and thus the allegations of irregular drawal

of amounts for telephone & postage expenses were not proved against the

petitioner and the departmental proceedings ended in his favour.

6. The learned counsel submits that in such circumstances, continuation of

criminal prosecution/proceedings on the very same set of allegations on the

basis of which departmental proceedings were initiated and culminated in

acquittal of the petitioner is not only un-sustainable, but also constitutes abuse

of process of Law. Relying on the decisions of the Hon'ble Supreme Court in

Radheshyam Kejriwal Vs. State of West Bengal and another1; Ashoo

Surendranath Tewari Vs. Deputy Superintendent of Police, EOW, CBI

and another2 and the decisions of learned Single Judges in Crl.P.No.6523 of

2012 dated 13.07.2015 and Crl.M.C.No.3407 of 2010 dated

20.05.2022, the learned counsel would seek to allow the present petition by

quashing the proceedings, in so far as the petitioner/Accused No.9 is

concerned.

(2011) 3 SCC 581

(2020) 9 SCC 636

7. The learned Assistant Public Prosecutor, on the other hand, submits that

the departmental proceedings are different and distinct from the criminal

proceedings and there is no bar for taking action simultaneously in respect of

both the proceedings. He further submits that the acquittal of the

petitioner/Accused No.9 in departmental proceedings would not come in the

way of continuation of the criminal proceedings and the petitioner would have

ample opportunity to prove his innocence in the criminal proceedings and urges

for dismissal of the quash petition.

8. This Court has considered the submissions made, perused the material

on record and the point that falls for consideration by this Court is as to

"whether the criminal proceedings against the petitioner/Accused No.9 are

liable to be quashed, in the facts and circumstances of the case?"

9. In order to appreciate the contentions advanced by both the learned

counsel, it would be appropriate to refer to the Charges framed against the

petitioner/Accused No.9 in the departmental proceedings as also in the Charge

Sheet. As per the Charge Memo Rc.No.8359/VC-II-B/2013 - 15 dated

20.12.2013 issued by the Director of Public Health and Family Welfare (FAC),

Article 2 of the Charge Memo reads as under:-

"Article - 2 It is found that the funds to a tune of Rs.25,000/- were irregularly drawn for telephone & postage expenses by Sri S.V.V. Rama Rao, Sr. Asst, PHC, Gangavaram, presently Superintendent O/o DM&HO, East Godavari district colluding with Medical Officers of the PHC, without actually incurring the expenditure. The funds were paid on the names of the 3rd parties viz., M.Satyanarayana, Samalkot (Rs.25,000/-). But there is only payment of Rs.826/- was made to the telephone connection No.273273 of the PHC during the year 2010-11."

10. In so far as the Charge Sheet is concerned, though it refers to several

Charges against as many as 26 accused, the Charge, which is relevant to the

petitioner may be extracted for ready reference:-

"In PHC Gangavaram, it is found that the funds to a tune of Rs.25,000/- were irregularly drawn for telephone and postage expenses with one bill by A2 and A9 without actually incurring the expenditure. The funds were paid on the names of 3rd party i.e. A20 (Rs.25,000/-). But there is payment of Rs.826/- was made to the telephone connection No.273273 during the year 2010-2011 and hence the balance of funds got misappropriated."

11. Thus, it is clear that on the basis of very same set of allegations,

the proceedings i.e., both departmental as also criminal were initiated against

the petitioner. In so far as the departmental proceedings are concerned, it is

evident from the material on record i.e., Proceedings of the Director of Public

Health and Family Welfare dated 10.01.2022 that the Charge referred to above,

was dropped pursuant to a report submitted by the Inquiry Officer. In such

circumstances, continuation of criminal proceedings with reference to the very

same set of allegations, is not legally sustainable.

12. In Radheshyam Kerjiwal, the Hon'ble Supreme Court was dealing with

an issue with regard to impact of the findings recorded in adjudication

proceedings under the provisions of Foreign Exchange Regulation Act, 1947 on

criminal proceedings and in case in the adjudication proceedings, the person

concerned is exonerated, can he ask for dropping of the criminal proceedings

on that ground. The said issue was answered by a majority of 2:1 in favour of

the appellant before the Hon'ble Supreme Court, inter alia holding that in the

case of the findings by the Enforcement Directorate in the adjudication

proceedings that there is no contravention of the provisions of the Act, it would

be unjust and abuse of process of the Court to permit the Enforcement

Directorate to continue with the criminal prosecution. While referring to the

earlier decisions, the Learned Judges by majority (dissented by Hon'ble Sri

Justice P.Sathasivam) laid down the ratio that can be culled out from the earlier

decisions at Para 38 as follows:-

(i) Adjudication proceeding and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceeding is not necessary before initiating criminal prosecution;

(iii) Adjudication proceeding and criminal proceeding are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue underlying principle being the higher standard of proof in criminal cases.

13. The Hon'ble Judges at Para 39 further held as follows:-

"In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court."

14. In Ashoo Surendranath Tewari a three member Bench of the

Hon'ble Supreme Court while referring the above said ratio laid down in

Radheshyam Kerjiwal referred to supra, set aside the Judgment of the

Hon'ble High Court and that of the Special Judge and discharged the appellant

therein from the offences under the Penal Code. The conclusion reached in the

above said case was based on the Central Vigilance Commission's (CVS) order

which was in favour of the appellant and chances of conviction in a criminal

Trial involving the same facts appear to be bleak.

15. In a very recent Judgment, the Chief Justice of High Court of Orissa by

an Order dated 20.05.2022 in Crl.M.C.No.3407 of 2010 allowed the same in the

light of the decisions of the Hon'ble Supreme Court in Radheshyam Kerjiwal

and Ashoo Surendranath Tewari referred to above. In the said case, the