The State Of Mah,Thr.Pso Amravati vs Dr Haribhau Raoji Wawage (Abated) ...
2017 Latest Caselaw 2186 Bom

                                                    1                     apeal505.05.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                       CRIMINAL APPEAL NO.505/2005

      The State of Maharashtra, 
      through PSO P.S., Badnera, 
      Dist. Amravati.                                        .....APPELLANT
                        ...V E R S U S...

 1. Dr. Haribhau Raoji Wawage
    (Appeal dismissed as against respondent
    no.1 as per order dated 16.06.2015)

 2. Wasudev Shioram Palaspagar,
    aged about 70 years, Veterinary Doctor,
    Sheeps & Goats Project, Pohra, Dist. Amravati.

 3. Ravindra Puramdas Ingole,
      aged 47 years, Junior Clerk, Sheeps
      & Goats Project, Pohra,Dist. Amravati.  ...RESPONDENTS
 -------------------------------------------------------------------------------------------
 Mr. M. J. Khan, A.P.P. for appellant.
 Mr. C. A. Joshi, Advocate for respondents.
 -------------------------------------------------------------------------------------------
                                CORAM:-  B. P. DHARMADHIKARI AND
                                              V. M. DESHPANDE, JJ.

DATED :- MAY 4, 2017

ORAL JUDGMENT (Per : B. P. Dharmadhikari, J.)

1. The State Government has filed this appeal under

Section 378 (3) of the code of Criminal Procedure, challenging

the acquittal of the respondents by Chief Judicial Magistrate,

Amravati on 22.06.2015 in Regular Criminal Case No.163/1990 of

an offence punishable under Section 409 read with Section 34 of

the Indian Penal Code.

2 apeal505.05.odt

2. The matter was heard for some time yesterday and due

to various heads under which misappropriation is alleged, hearing

came to be adjourned to today. We have heard at length both the

learned counsel i.e. Mr. M. J. Khan, learned A.P.P. for the

appellant and Mr. C.A.Joshi, learned counsel for the respondents.

3. Accused no.1 was about 64 years old when the appeal

was filed and is no more. The appeal against him has therefore

abated on 16.06.2015. He was incharge of the farm where the

alleged offence has taken place. The respondent no.2 was accused

no.2, working as Veterinary Officer under him. The respondent

no.3 was Junior Clerk working under the respondent no.1.

4. The learned Chief Judicial Magistrate has framed the

points for determination and point no.2 was; whether sanction

granted to prosecute the accused on 30.12.1994 is valid or not. In

paragraph no.30 that issue has been answered. The sanction was

granted for an offence punishable under Section 7, 13 (a) (i) read

with section 13 (2) of the Prevention of Corruption Act, 1986. The

grant is ex post facto and there is no such sanction for an offence

under Section 409 of the IPC. The Chief Judicial Magistrate has

3 apeal505.05.odt

found that the State Government sought sanction to prosecute

under Section 409 of IPC. However, no such sanction has been

produced. Thus, the sanction produced was found to be invalid.

These facts are not in dispute before this Court. The learned

A.P.P. however has submitted that the findings recorded on point

no.1 are also unsustainable.

5. With the assistance of both the counsel, we have

perused the evidence of seven witnesses examined by the

prosecution. Ganimiya Jirase (PW1) was supervisor in Sheep and

Goat Development Corporation. He has described the position of

accused no.1 as Divisional Farm Manager, accused no.2 as

Veterinary Officer and accused no.3 as Junior Clerk. He has

further stated that accused no.1 was obtaining his signatures to

show how many sheep and goats died. His evidence therefore does

not in any way implicate any of the respondents. Baban Villhekar

(PW2) has also not deposed anything against any of the accused.

Sanaullakhan Ibrahimkhan (PW3) also does not bring on record

any incriminating material. The evidence of Sharad Thakare

(PW4) is also on the same lines.

4 apeal505.05.odt

6. Babulal Gupta (PW6) was working as Financial Advisor

and Chief Accounts Officer. His evidence is mostly against the

accused no.1. The appeal against the accused no.1 (respondent

no.1) is already abated. In paragraph 12, he has deposed that the

respondent no.1 prepared records to show that 77 sheep have

died. The post mortem report without signatures were lying on

the table and he had seized it. He thereafter deposed that he felt

that 77 goats did not die and false post mortem reports were

prepared and he seized those reports and he has then pointed out

that the respondent nos. 2 and 1 were the only technical experts to

prepare such post mortem report. Then he points out that the

respondent no.1 issued directions to the respondent no.3 (accused

no.3) to make payments. His evidence therefore again does not

implicate either respondent no.2 or respondent no.3 in any way.

On the contrary, in his cross-examination, an evidence

has been brought on record creating doubt about the article "A"

which has been produced by the respondent-Corporation as Stock

Register. This witness has accepted that this register does not

have any column about opening balance or closing balance. He

5 apeal505.05.odt

has further stated that as per the rules, the respondent no.2 has

written the said register. He has stated, in response to a specific

question, that article "A" is Stock Register in which sales and

purchases are recorded. He was not aware whether it was the

duty of the respondent no.2 to sell or receive or distribute the

animals of the farm. He has accepted that his audit report was

based on article "A". When he was cross-examined by the

respondent no.2, he has stated that because of disproportionate

weights against the number of animals, he has presumed that

there is misappropriation. While answering the question put by

accused no.3 (respondent no.3), he accepted that there was a duty

list and it was not produced. He accepted that the accused no.3

(respondent no.3) was working as clerk.

7. Janardhan Patil (PW6) was working as Labour and he

does not speak anything material against the respondent nos. 2

and 3. Jagdish Villhekar (PW7) also does not depose anything

against the respondent nos. 2 and 3.

8. The learned A.P.P. has further invited our attention to

the statement of accused no.2 on record under Section 313 of the

6 apeal505.05.odt

Code of Criminal Procedure. He states that while answering

question no.3 about misappropriation of Rs.1,50,852/-, this

accused has accepted everything and commission of an offence by

him. We find Mr. Joshi, the learned counsel for the respondents,

right in submitting that that question does not put any

misappropriation to accused no.2. Only loss has been pointed out.

We further find that none of the witnesses has stated that the

unsigned post mortem reports taken in his custody by Babulal

Gupta (PW5) were prepared by accused no.2. In this situation, the

only position emerging on record has been accepted by the

accused no.2 and the answer is not in any way incriminating in

nature. Conversion of any property to his own use or advantage

by accused no.2 has not been even remotely urged by the

prosecution.

9. In view of this material on record, we find that the

learned Chief Judicial Magistrate has correctly recorded a

conclusion that there was no material against any of the

respondents so as to hold them guilty of an offence punishable

under Section 409 of the IPC or of Section 409 read with Section

34 of the IPC.

7 apeal505.05.odt

No case is therefore made out warranting interference.

The criminal appeal is therefore dismissed.

(V. M. Deshpande, J.) (B. P. Dharmadhikari, J.)

kahale