G. Ratna Sagar vs The State Of Ap., Through Spl.Pp ...
2022 Latest Caselaw 7514 AP

  THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

          CRIMINAL PETITION No.9617 of 2018

ORDER:-

     This Criminal Petition, under Section 482 of the Code

of Criminal Procedure, 1973, is filed by the Accused Nos.1,

2, 10 and 11 to quash the proceedings in C.C.No.10 of

2018 on the file of the Principal Special Judge for CBI

Cases, Visakhapatnam.

     2.    The allegations, in brief, in the charge sheet

may be stated as follows:

     Tobacco Board was constituted by the Government

of India under an Act of Parliament to bring out an all

round development of the tobacco industry. A1/the

petitioner No.1 was the Auction Superintendent, A2/the

petitioner No.2 was the Assistant Manager, Accounts,

A10 and A11/petitioner Nos.3 and 4 were Field Officers

at Auction Platform 17, Tobacco Board, Devarapalli. A1

worked from 2004 to June, 2006 and A2, A10 and A11

worked from August, 2005 to February, 2007.         As per

the guidelines and Circular Orders for registration of

Virginia Tobacco Growers and Barn operators, a person
                              2



who wanted to register himself as tobacco grower, has to

submit an application in the prescribed proforma giving

the details of the land held by him and number of the

authorized barns possessed by him. That application has

to be processed by Field Officer. After making necessary

verification, the Auction Superintendent approves the

registration of grower. Thereafter he will send the file to

the Assistant Manager (Accounts) for accepting the fee

and to ensure that the grower of tobacco had no

outstanding dues with any bank or any other institution

including the Tobacco Board.        Further as per the

procedure and guidelines of the Board, the growers have

to renew their registration every year by paying the

prescribed fee. If once registration is completed, the

grower will be issued with Tobacco Grower's Pass Book

(TGPB), wherein the particulars of the growers, name of

the bank from which the grower intends to take loan and

the bank with which he is having account, number of

barns he owned or taken on lease, the area of land

cultivated etc.
                                3



     A3 to A9 moved applications for registration as

growers   of   tobacco   and       also   some   of   them   for

construction of barns showing that they are owners of

different extents of land in different survey numbers

though they did not possess at all or owned only small

extent of land than what they have shown in their

applications. The petitioners herein who were concerned

in processing such applications as well as recommending

and registering the applicants as growers of tobacco and

possessors of barns, accepted the said applications,

processed them and registered the applicants in the

register maintained. They recommended for the crop

loans etc., A4 to A9 and some of the growers of tobacco

along with other accused entered into conspiracy and as

such wrong entries were made in the TGPBs as if they

borrowed loan from a bank wherefrom they have not

borrowed or recommended to a bank for loan which is

other than the bank that sanctioned the loan earlier and

it is even before full repayment is made. The details of

loans borrowed etc., are given in detail in the charge

sheet, which may not be necessary to state here.
                              4



     Thus, for the conspiracy the petitioners herein and

other accused have entered in committing offences in

fabricating documents, forging the signatures, using

forged documents as genuine, falsification of accounts

and also cheating, the CBI filed the charge sheet against

the petitioners herein and other nine (9) accused for the

offences punishable under Sections 120B, 420, 465,

468, 471, and 477A IPC and under Section 13(2) r/w

13(1) (d) of the Prevention of Corruption Act.

     3.    Heard Sri Dammalapati Srinivas, learned

Senior Counsel for the petitioners and Sri N. Harinath,

learned Deputy Solicitor General, appearing for the

respondent. Perused the record.

4. On reliable information received during the

year 2005, it is found that A3 approached the Tobacco

Board Auction Platform, Devarapalli and got issued with

Tobacco Board Growers Registration (TBGRs).

Information further revealed that Tobacco Board

supplies quality fertilizers at a price advantage to the

farmers by negotiating with the manufacturers and

procures the required fertilizers against the indents

received from the registered growers and in the process,

Tobacco Board also negotiates with the nearby local

branches of Nationalized Banks for the issue of input

loans and crop loans to the registered farmers in tobacco

cultivation at competitive rates of interest. In view of the

agreement between the growers, banks and Tobacco

Board, the tobacco sale proceeds would be routed

through banks and the concerned Tobacco Board

Auction platform officials have to ensure proper

repayment of loans to the banks by the borrower

Tobacco growers. This agreement facilitates the bankers

to finance the farmers liberally to sustain them in

cultivation.

5. During the year 2006-07, A3 and others in

collusion with A1 approached Vijaya Bank, Gopalapuram

and got no dues certificate. In furtherance of conspiracy,

the accused approached Union Bank of India,

Koyyalgudem for availing term loans for construction of

barns. In connection with that, Union Bank of India,

Koyyalagudem, wrote a letter dated 17.2.2006 for giving

clearance to sanction loans to farmers. In response to

this, A1 gave a letter dated 18.2.2006 addressed to

Union Bank of India, Koyyalagudem with a request to

sanction loans to the farmers. Based on this, Union bank

of India, Koyyalagudem sanctioned loan of Rs.1.70 lakhs

each to four (4) growers as term loan and also sanctioned

crop loans to the accused to a tune of Rs.22.6 lakhs.

Thereafter the accused has got No Due Certificate and

lien endorsements and availed crop loans to a tune of

Rs.4.9 lakhs from State Bank of India, Chityala during

the year 2006 without the knowledge of Union Bank of

India, Koyyalagudem. Similarly, the accused in collusion

with A1 and A2 who are officials of Tobacco Board

Auction Platform Devarapalli/Gopalapuram got 'No dues

Certificate' and lien endorsements and availed loans to a

tune of Rs.8.7 lakhs from Andhra Bank, Kannapuram

without the knowledge of Union Bank of India,

Koyyalagudem.

6. Information also revealed that Tobacco Board

constituted another Auction Platform at Gopalapuram by

taking out some areas from Tobacco Board Auction

Platform, Devarapalli. The accused and other growers

came into the jurisdiction of Tobacco Board Auction

Platform, Gopalapuram. The new officials of Auction

Platform of Gopalapuram repaid some of the loan

amounts to State Bank of India, when the sale proceeds

were received from the buyers of above growers.

Thereafter two banks i.e., Andhra Bank, Kannapuram

and Union Bank of India, Koyyalagudem did not receive

any repayment from Tobacco Board, Gopalapuram

Auction Platform officials or the borrowers/growers i.e.,

A3 and others. Thus neither the growers nor Tobacco

Board Auction Platform officials of Gopalapuram made

any repayments to these banks and thereby the

accounts became sticky and caused loss to a tune of

Rs.41.00 lakhs approximately.

7. It is also revealed during investigation that in

the year 2008, Government of India introduced waiver of

agricultural loans. As per the scheme, waiver is normally

applicable to one loan in one crop season. But in the

present case, the concerned bank officials of the three (3)

banks connived with accused and waived part of loan

amounts contrary to the existing rules and regulations.

It is found that the officials of Tobacco Board in collusion

with the accused has got the loan sanctioned on the

basis of fake no due certificate/clearance certificate and

waiver of part of loan amounts.

8. A perusal of the First Information Report goes

to show that the accused have obtained loans from three

banks. In respect of three banks, only one report has

been registered as FIR in respect of the accusations

contained against the accused. After conducting

investigation, police filed earlier a charge sheet against

the accused for the offences punishable under Sections

120B r/w 420, 465, 468,471 and 477-A IPC, which was

numbered as C.C.No.2 of 2011 on the file of the II

Additional Special Judge for CBI Cases, Visakhapatnam.

In the said Calendar Case, as many as 18 accused were

charge sheeted, among whom the petitioners herein were

accused Nos.1,2,10 and 11. But, while filing charge

sheet in the said case, the respondent could not obtain

necessary sanction for prosecution in respect of the

officials of State Bank of India and Andhra Bank, who

were also named as accused in that FIR. Hence they

were dropped and not charge sheeted, though the

officials of Union Bank of India were charge sheeted

since sanction was accorded against them. Again in the

present charge sheet No.3 of 2016 on the file of the

Principal Special Judge for CBI Cases, Visakhapatnam

relating to the same F.I.R.No.RCVSP2008A0019, dated

31.12.2008, the petitioners herein are arrayed as A1, A2,

A10 and A11. It is stated that a separate charge sheet has

been filed in respect of others. The charge sheet bearing

No.3 of 2016 is filed into the Court in the year 2016, the

same has not been numbered for incomplete details and

returned with objections on several occasions and later the

charge sheet when was resubmitted, it is taken on file and

numbered as C.C.No.10 of 2018.

9. The contention of the learned Senior Counsel

appearing for the petitioners is that in respect of the very

same offences, the petitioners were charge sheeted in

C.C.No.2 of 2011 and they were tried and acquitted of all

the offences on 13.6.2018 by the II Additional Special

Judge for CBI Cases, Visakhapatnam. The present charge

sheet has been filed in respect of the very same incident

and offences by showing Andhra Bak Manager as A12 for

whom earlier sanction could not be obtained by the

respondent for prosecution. The sum and substance of two

charge sheets is one and the same and the said

prosecution said to have been emanated from the common

FIR. When once the petitioners were tried for the same

offences and acquitted of the charges, they are not liable to

be tried for the same offences, more so, when the sum and

substance of the cases is one and the same.

10. Learned Sessions Judge has dealt with entire

evidence brought on record in C.C.No.2 of 2011 elaborately

and acquitted the accused. The material witness to the said

incident is P.W.3, who is Senior Grade Officer at Auction

Platform-17. A perusal of the said evidence shows that

Tobacco Board is no way concerned with the survey

number and extent of land in which the grower has raised

crop; once the grower is registered, it is the will and

pleasure of a grower either to raise or not to raise crop and

also where the crop to be raised; grower's passbook will be

issued for the purpose of identification of a registered

grower; at the time of opening of passbook itself the grower

has to inform the particulars of his bank for remitting the

sale proceeds to said bank; certain procedure is

contemplated for change of name of bank by borrower; the

board never stood as a surety for any bank on behalf of any

grower and they have no statutory obligation with regard to

whether the loan was discharged or not by the grower. It is

apparent on record that the growers generally choose the

bank, in which they are having accounts and the villages in

which they are living; it is the will and pleasure of opening

of account by grower in a bank; the names of banks

mentioned in Ex.P38 are only optional but not mandatory;

he did not state before CBI that the growers will open their

accounts only in the banks mentioned in Ex.P38 and did

not state before CBI that if any borrower wants to obtain a

loan from a bank other than the bank mentioned in

growers passbook, he has to obtain no objection certificate

from the bank mentioned in passbook and submit an

application for permission to Auction Superintendent, then

he will forward the same to Assistant Manager, Accounts

and thereafter forward the same to computer section for

necessary changes.

11. Going by the evidence of P.W.4, it goes to show

that the passbook that is given to Tobacco Grower does not

create any title for creating a mortgage with any bank for

any loan; the Board has no lien or any obligation on behalf

of any bank with regard to the crop raised and sold on a

platform by grower except to show the grower is registered

with Board; the passbook issued by the Board will not have

any sanctity and it is only a passbook exclusively for the

use of Board for selling of the products on platform.

12. Thereafter all the officials of the Tobacco Board

were examined. On perusal of those statements, nothing

concrete had come out as to how by virtue of their

discharge of their official duties any loss is caused to the

banks.

13. Thus, even in the present case on hand, when

the sum and substance is one and the same and if same

witnesses are to be examined, they cannot in any way

deviate from the version what they deposed in the earlier

case.

14. It is pertinent to mention here that none of the

bank employees is shown as accused except A12 in the

present case and in the earlier connected case. The Branch

Manager, Union Bank of India, Koyyalagudem was

examined as P.W.15. His evidence goes to show that waiver

amount for the loan was made as per the scheme covered

under Ex.154. It is further stated that either the

Government of India, Head Office or Regional Office did not

take any objection on the list including the borrowers

referred in his examination; the criteria for all the

beneficiaries covered under Ex.P153 also applied to the

beneficiaries referred in his chief-examination and the list

of beneficiaries was prepared voluntarily by the bank

without the intervention of borrowers and at no stage the

accused 3 to 12 are involved in the said process.

15. Likewise the other Branch Managers and

Deputy General Managers were examined. A perusal of the

evidence of those witnesses also goes to show that they did

not deviate from the procedural aspects while preparing

Ex.P153 and guidelines in Ex.P154.

16. After examining the witnesses, the learned

Sessions Judge made observation to the extent that the

accused in the said cases are entitled for benefit of doubt

under law. A conjoint reading of evidence of prosecution

witnesses coupled with the documentary evidence

produced for prosecution and defence, nothing is to point

out any guilt on the part of the accused. The entire process

goes to show that it is a case of abuse of authority. Each

and every case of abuse of authority does not come within

the purview of the crime. On perusal of the record, it can

be safely concluded that there is no dishonest or

fraudulent intention on the part of the accused and that

there is no piece of evidence to say that they criminally

conspired together for doing unlawful act. With the above

observations, the learned Sessions Judge found the

accused 'not guilty' and acquitted them of all the charges.

17. Learned counsel appearing for the petitioners

further relied upon the judgment of the Hon'ble Apex Court

in State of Bombay Vs S.L.APTE and another,1 wherein

it is held,

"We shall first take up for consideration Art. 20(2) of the Constitution whose terms we shall

(1961) 3 SCR 107

repeat:

"20. (2) No person shall be prosecuted and punished for the same offence more than once."

16. To operate as a bar the second prosecution and the consequential punishment there under must be for "the same offence". The crucial requirement, therefore for attracting the Article is that the offences are the same, i.e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.

It would be seen from a comparison of s.

105 of the Insurance Act and s. 405 of Indian Penal Code (s. 409 of the Indian Penal Code being only an aggravated form of the same offence) that though some of the necessary ingredients are common they differ in the following :

(1) Whereas under s. 405 of the Indian Penal Code the accused must be "entrusted" with property or with "dominion over that property", under s. 105 of the Insurance Act the entrustment or dominion over property is unnecessary; it is sufficient if the manager, director, etc. "obtains possession" of the property.

(2) The offence of criminal breach of trust (s. 405 of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or "the

disposition in violation of the law or contract", is done with a dishonest intention, but s. 105 of the Insurance Act postulates no intention and punishes as an offence the mere withholding of the property - whatever be the intent with which the same is done, and the act of application of the property of an insurer to purposes other than those authorised by the Act is similarly without reference to any intent with which such application or misapplication is made. In these circumstances it does not seem possible to say that the offence of criminal breach of trust under the Indian Penal Code is the "same offence" for which the respondents were prosecuted on the complaint of the company charging them with an offence under s.105 of the Insurance Act. If, therefore, the offences were distinct there is no question of the rule as to double-jeopardy as embodied in Art. 20(2) of the Constitution being applicable.

21. The next point to be considered is as regards the scope of s. 26 of the General Clauses Act. Though s. 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this

provision also cannot be invoked. It, therefore, follows that in the present case as the respondents are not being sought to be punished for "the same offence" twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable.

22. In passing, it may be pointed out that the construction we have placed on Art. 20(2) of the Constitution and s. 26 of the General Clauses Act is precisely in line with the terms of s. 403(2) of the Criminal Procedure Code which runs : "403. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1)."

23. It would be noticed that it is because of this provision that the respondents before us were originally charged before the Magistrate in Criminal Case 82 of 1953 with offences under s.409 of the Indian Penal Code as well as s. 105 of the Indian Insurance Act."

18. Learned Senior Counsel appearing for the

petitioners also relied on the judgment of the Hon'ble Apex

Court in Kolla Veera Raghav Rao Vs. Gorantla

Venkateswara Rao and another,2 wherein it is held,

"Thus, it can be seen that Section 300 (1) of Criminal Procedure Code is wider than Article 20

CDJ 2011 SCC 099

(2) of the Constitution. While, Article 20(2) of the Constitution only states that „no one can be prosecuted and punished for the same offence more than once‟, Section 300(1) of Criminal Procedure Code states that no one can be tried and convicted for eh same offence or even for a different offence but on the same facts."

19. Learned counsel for the petitioners also relied

on the judgment of the Hon'ble Apex Court in State of

Jharkhand Vs. Lalu Prasad Yadav alias Lalu Prasad

3wherein it is held,

"33. In State of A.P. v. Cheemalapti Ganeswara Rao and Anr., this Court dealt with misjoinder of parties Under Section 239 of the old Code of Criminal Procedure This Court with respect to 'same transaction' has observed thus:

10. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which the Legislature has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to

(2017) 8 Supreme court Cases 1

infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same.

Further, it was held that:

Where, however, several offences are alleged to have been committed by several Accused persons it may be more reasonable to follow the normal Rule of separate trials. But here, again, if those offences are alleged not be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the Accused persons in defending themselves."

34.............

35. In Sardar Sardul Singh Caveeshar v. State of Maharashtra, this Court considered the question of conspiracy in a case where the Accused had first defrauded one Jupiter company and thereafter another company called Empire. Argument was raised that once having been convicted of conspiracy qua the Jupiter case, he could not be convicted qua company called Empire. This Court relying upon judgment in State of Bombay v. S.L. Apte (1961) 3 SCR 107 has laid down thus:

In the present case, applying the test laid down by this Court, the two conspiracies are not the same offence: the Jupiter conspiracy came to an end when its funds were misappropriated.

The Empire conspiracy was hatched

subsequently, though its object had an intimate connection with the Jupiter in that the fraud of the Empire was conceived and executed to cover up the fraud of the Jupiter. The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive is not an ingredient of an offence. The proof of motive helps a Court in coming to a correct conclusion when there is no direct evidence. Where there is direct offence for implicating an Accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of Article 20(2) of the Constitution and, therefore, that Article has no relevance to the present case."

20. Learned counsel for the respondent-State also

relied upon some observations in the same judgment of

the Hon'ble Apex Court in State of Jharkhand Vs. Lalu

Prasad Yadav alias Lalu Prasad, wherein it is held,

" We are unable to accept the submissions raised by the learned Senior Counsel. Though there was one general charge of conspiracy, which was allied in nature, the charge was qualified with the substantive charge of defalcation of a particular

sum from a particular treasury in particular time period. The charge has to be taken in substance for the purpose of defalcation from a particular treasury in a particular financial year exceeding the allocation made for the purpose of animal husbandry on the basis of fake vouchers, fake supply orders, etc. The sanctions made in Budget were separate for each and every year. This Court has already dealt with this matter when the prayers for amalgamation and joint trial had been made and in view of the position of law and various provisions discussed above, we are of the opinion that separate trials which are being made are in accordance with the provisions of law otherwise it would have prejudiced the accused persons considering the different defalcations from different treasuries at different times with different documents. Whatever could be combined has already been done. Each defalcation would constitute an independent offence. Thus, by no stretch, it can be held to be in violation of Article 20(2) of the Constitution or Section 300 CrPC. Separate trials in such cases is the very intendment of law. There is no room to raise such a grievance. Though evidence of general conspiracy has been adduced in cases which have been concluded, it may be common to all the cases but at the same time offences are different at different places, by different accused persons. As and when a separate offence is committed, it becomes punishable and the substantive charge which has to be taken is that of the offence under

the PC Act, etc. There was conspiracy hatched which was a continuing one and has resulted into various offences. It was joined from time to time by different accused persons, so whenever an offence is committed in continuation of the conspiracy, it would be punishable separately for different periods as envisaged in Section 212(2), obviously, there have to be separate trials. Thus it cannot be said to be a case of double jeopardy at all. It cannot be said that for the same offence the accused persons are being tried again."

21. The learned counsel for the respondent-State

relying upon the very same judgment in State of

Jharkhand Vs. Lalu Prasad Yadav alias Lalu Prasad

and taken to this Court to the above paragraph of the said

judgment and contended that if the modus operandi is not

one and the same as envisaged in Section 212 Cr.P.C.,

obviously there have to be separate trials. Thus, it cannot

be said to be a case of double jeopardy at all and the

accused cannot be said to be tried again for the same

offence.

22. In the case on hand, the alleged conspiracy was

entered during the year 2005 and as a result of the same

other offences said to have been committed during the year

2005-06. There is no variance with regard to time and

place in respect of the offences said to have been

committed in the earlier case in C.C.No.2 of 2011. In fact

the prosecution story has been the same even in this case

and it is based on the very same FIR. When once these

accused were prosecuted by conducting full-fledged trial

and are found not guilty and are acquitted of charges,

initiation of the proceedings for the self same offences once

again would amount to double jeopardy. Ingredients of

offence in the two (2) cases are the same and there cannot

be two different trials. It is also found that the principle of

issue estoppel is attracted as the same issues cannot be

agitated afresh again and again when once the accused

were tried and judgment was delivered in the earlier case.

23. In view of the said circumstances, there cannot

be no separate trial in respect of the same offences basing

on same set of facts. Thus, in view of the previous trial

which is concluded, there cannot be separate trial on the

same charge of conspiracy. The principle of issue estoppel

stands merged in the principles of Autrefois acquit and

Autrefois convict enshrined in Article 20(2) of the

Constitution of India and Section 300 of the Code of

Criminal Procedure, 1973. The witnesses and the accused

are same in respect of both the cases. When such is the

position, when once the accused are already acquitted,

they cannot be tried for the very same offence again.

Hence, while allowing the Criminal Petition, the

proceedings in C.C.No.10 of 2018 on the file of the

Principal Special Judge for CBI Cases, Visakhapatnam.

Accordingly, the Criminal Petition is allowed.

Miscellaneous Petitions, if any, pending in this

Criminal Petition, shall stand closed.

_________________________________ JUSTICE K. SREENIVASA REDDY Date: 30.09.2022 GR

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

CRIMINAL PETITION No.9617 of 2018

Date:30.09.2022 GR