The State Of Andhra Pradesh vs K. Shyam Rao
2021 Latest Caselaw 2807 Tel

           HONOURABLE SRI JUSTICE P.NAVEEN RAO

              CRIMINAL APPEAL NO.505 OF 2010

                       Date: 28.09.2021

Between:

The State of A.P., rep.by the
Public Prosecutor,
High Court of A.P., Hyderabad.
                                          .....Appellant/Petitioner

     And

K.Shyam Rao s/o. late Venkata Rao,
Aged 62 years, r/o. 1-8-724/A,
Vegetable Market Road, Mallakunta,
Hyderabad and another.
                                      .....Respondents/accused




The Court made the following:
                                                                            PNR,J
                                                             Crl.A.No.505 of 2010
                                    2


            HONOURABLE SRI JUSTICE P.NAVEEN RAO

                 CRIMINAL APPEAL NO.505 OF 2010
ORDER:

Heard learned Public Prosecutor for the State and

Mr. H.Sudhakar Rao, learned counsel for the accused.

2. The State is an appeal against recording acquittal in the

judgment rendered by the II Additional Metropolitan Sessions

Judge at Hyderabad in Crl.A.No.93 of 2007 for the offences

punishable under Sections 409, 420, 468 and 471 of the Indian

Penal Code (IPC) reversing the finding of guilt and sentence

imposed by the trial Court.

3. The case of the prosecution is that Accused Nos.1 and 2

misappropriated stationery items with dishonest intention by

fabricating the indents and by forging the signatures of indenters

and used said indents as genuine thereby cheated the Government

and caused loss to the Government. In substance, it is alleged

that accused misappropriated government money by resorting to

excess debiting, direct debiting and false debiting of stationery

items.

4. The trial Court framed charges against A1 and A2 for the

offences punishable under Sections 409, 468, 471 and 420 of IPC.

To prove the charges, prosecution examined P.Ws.1 to 30 and got

marked Ex.P1 to Ex.P105. After closure of the evidence of

prosecution, when accused were examined under Section 313 of

Cr.P.C., they denied the incriminating evidence. Neither oral nor

documentary evidence was adduced by the accused.

PNR,J Crl.A.No.505 of 2010

5. Vide judgment in C.C.No.284 of 1999, rendered on

26.02.2007, the trial Court held A1 and A2 guilty of the offences

under Sections 409, 468, 471 and 420 of IPC and consequently

convicted and sentenced to under rigorous imprisonment for one

year and also to pay fine of Rs.500/- each, in default to suffer

simple imprisonment for a period of one month each for each

offences under Sections 409, 468, 471 and 420 of IPC. It was

ordered to run all sentences concurrently.

6. Aggrieved by the said judgment, A1 and A2 preferred

Criminal Appeal No.93 of 2007.

7. The lower appellate Court framed following points for

consideration:

1) Whether the prosecution is able to establish the guilt of the accused 1 and 2 for the charge under Section 420 IPC (cheating) beyond any reasonable doubt ?

2) Whether the prosecution is able to establish the guilt of A1 and A2 for the charge under Section 468 IPC (forgery) beyond any reasonable doubt ?

3) Whether the prosecution is able to establish the guilt of A1 and A2 for the charge under Section 471 IPC (using the forged documents as genuine) beyond any reasonable doubt ?

4) Whether the prosecution is able to establish the guilt of A1 and A2 for the charge under Section 409 IPC (criminal breach of trust by public servant) beyond any reasonable doubt ?

5) Whether the order of conviction and sentence passed by way of impugned judgment is incorrect, illegal, unsustainable and liable to be set aside ?

PNR,J Crl.A.No.505 of 2010

8. On re-appreciating the entire evidence on record, learned

II Additional Metropolitan Sessions Judge at Hyderabad, by

judgment rendered on 24.06.2008, held that the prosecution failed

to establish the guilt of the A1 and A2 beyond all reasonable doubt

and accordingly acquitted them. Against the said judgment of

acquittal, the State preferred the instant appeal.

9. The lower appellate Court held that offences punishable

under Sections 409 and 420 of IPC are mutually contradictory and

cannot go together. They can be alternatively framed, but cannot

be found guilty for both offences on the same set of evidence. It is

further held that even taking the evidence adduced by the

prosecution is held valid, it can at the most amount to criminal

breach of trust by public servant and not cheating.

10. The lower appellate Court further held that even according to

the evidence adduced by the prosecution, it does not in any way

establish the ingredients to constitute an offence of forgery for the

purpose of cheating as defined under Sections 463, 464 and 468 of

IPC. It is further held that there is no acceptable evidence to

establish fraudulent or dishonest use of a document as genuine

and knowledge of reasonable belief on the part of person using the

document that it is forged.

11. The lower appellate Court further held that there is no

evidence, direct or circumstantial to show that accused have

misappropriated and that allegation of misappropriation cannot be

presumed merely on the ground that accused failed to give any

explanation for the shortage. On thorough analysis of evidence PNR,J Crl.A.No.505 of 2010

adduced by the prosecution to sustain the charge under Section

409 of IPC, the appellate Court observed that absolutely there is no

proof on stock of stationery items received, issues made and the

ground balance during the relevant period and that there is no

legally acceptable evidence on record to prove who made the

manipulations, interpolations and conversion of various sizes and

issuance thereof. It is further observed that case of the prosecution

would at the most amount to raising plea of suspicion against the

accused. It then went on hold that suspicion cannot be a

substitute for legal proof and therefore prosecution failed to

establish the guilt of the accused for the charge under Section 409

of IPC beyond reasonable doubt and held that accused are entitled

to benefit of doubt. The appellate Court also made stringent

comments against the trial Court in dealing with the matter,

recording of evidence and appreciation of evidence.

12. I have gone through the evidence adduced by the

prosecution and judgments rendered by Courts below. On careful

consideration of the submissions of learned Public Prosecutor,

I am not persuaded to upset the well considered decision of the

appellate Court.

13. It is appropriate to notice that while there are no fetters on

the appellate Court to go into all aspects of the case, review, re-

appreciate and reconsider the evidence, it must exercise judicial

restraint in reversing the finding of not guilty. The presumption of

innocence raises to higher pedestal whenever the trial Court or

lower appellate Court grants acquittal. It is settled principle of law

that the scope of consideration of appeal against acquittal is within PNR,J Crl.A.No.505 of 2010

a narrow bandwidth. It is not in every case this court should

reverse the decision of Court below granting acquittal, even when

two views are possible on same set of evidence. Ordinarily,

interference is not warranted even when acquittal is found to be

wrong. An order of acquittal can be interfered with only when

there are compelling and substantial reasons, such as 'clearly

unreasonable', Court below 'ignored the evidence or has ignored

material documents', bordering on perversity. (Mrinal Das vs.

State of Tripura = (2011) 9 SCC 479; Maloth Somaraju Vs.

State of Andhra Pradesh = (2011) 8 SCC 635).

14. In Chandrappa v. State of Karnataka1, the Hon'ble

Supreme Court delineated the principles that emerged from

plethora of decisions as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his

2007 (4) SCC 415 PNR,J Crl.A.No.505 of 2010

acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

(emphasis supplied)

15. Learned Public Prosecutor is unable to persuade the Court

on attracting any of these ingredients to reverse the well

considered decision of the lower appellate Court. On the contrary,

as rightly observed by the lower appellate Court, the trial Court

has not evaluated the evidence properly to record finding of guilty

against accused.

16. Having given anxious consideration to the submissions of

learned Public Prosecutor, in the facts and circumstances of this

case, I am of the opinion that there is no illegality or perversity in

the findings of lower appellate Court warranting interference by

this Court.

17. The Criminal Appeal fails and is accordingly dismissed,

confirming the judgment dated 24.06.2008 in Criminal Appeal

No.93 of 2007 on the file of the Court of II Additional Metropolitan

Sessions Judge at Hyderabad. Pending miscellaneous petitions if

any shall stand closed.

___________________________ JUSTICE P.NAVEEN RAO Date: 28.09.2021 Kkm PNR,J Crl.A.No.505 of 2010

HONOURABLE SRI JUSTICE P.NAVEEN RAO

CRIMINAL APPEAL NO.505 OF 2010

Date: 28.09.2021 kkm