The State Of Andhra Pradesh, vs V.S.Murthy, A2,
2021 Latest Caselaw 2815 Tel

           HONOURABLE SRI JUSTICE P.NAVEEN RAO

              CRIMINAL APPEAL NO.85 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

V.S.Murthy, s/o. Venkata Ratnam,
Aged 63 years, Superintendent,
O/o the Asst.Director, Stationery
Officer, Kurnool, r/o. 4-112,
Durganagar Colony, Dilsukhnagar,
Hyderabad (A2).

                                    .....Respondent/accused No.2




The Court made the following:
                                                                     PNR,J
                                                       Crl.A.No.85 of 2010
                                  2


            HONOURABLE SRI JUSTICE P.NAVEEN RAO

                 CRIMINAL APPEAL NO.85 OF 2010
ORDER:

Heard Mr. C.Prathap Reddy, learned Public Prosecutor for

the State and Mr. H.Sudhakar Rao, learned counsel for the

respondent/accused.

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

judgment rendered by the II Additional Metropolitan Sessions

Judge at Hyderabad in Crl.A.No.95 of 2007 for the offences

punishable under Sections 409 and 420 of the Indian Penal Code

(IPC) reviewing the finding as guilt and sentence imposed by the

trial Court.

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

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 to A3 for the

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

As A1 and A3 died, the case against them was ordered as abated.

To prove the charges, prosecution examined P.Ws.1 to 8 and got

marked Ex.P1 to Ex.P24. After closure of the evidence of

prosecution, accused No.2 was examined under Section 313 of

Cr.P.C., with regard to incriminating evidence against him. He PNR,J Crl.A.No.85 of 2010

denied the same. Neither oral nor documentary evidence was

adduced by the accused.

5. Vide judgment in C.C.No.280 of 1999, rendered on

26.02.2007, the trial Court held A2 guilty of the offences under

Sections 409 and 420 of IPC and consequently convicted and

sentenced to under rigorous imprisonment for one year and also to

pay fine of Rs.500/-, in default to suffer simple imprisonment for a

period of one month for each offence under Sections 409 and 420

of IPC. It was ordered to run both sentences concurrently.

6. Aggrieved by the said judgment, A2 preferred Criminal

Appeal No.95 of 2007.

7. The appellate Court framed following points for

consideration:

1) Whether the prosecution is able to establish the guilt of the accused No.2 for the charge under Section 420 IPC (cheating) beyond any reasonable doubt ?

2) Whether the prosecution is able to establish the guilt of A2 for the charge under Section 409 (Criminal breach of trust by public servant) beyond any reasonable doubt ?

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

8. The appellate Court independently evaluated the evidence

adduced by the prosecution before recording its findings on each of

the points formulated for consideration. Learned II Additional

Metropolitan Sessions Judge at Hyderabad, by judgment rendered PNR,J Crl.A.No.85 of 2010

on 24.06.2008, on re-appreciating the entire evidence on record

held that the prosecution failed to establish the guilt of the A2

beyond all reasonable doubt and accordingly acquitted him.

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 charges 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 held that even taking the case of

the prosecution about entrustment or dominion over the statutory

items and misappropriation, it does not warrant offence

punishable under Section 420 IPC. It is further observed that

finding of A2 guilty by trial Court on this charge is without any

discussion or independent appreciation.

11. The lower appellate Court further held that absolutely there

is no proof on entrustment of the property said to have been

misappropriated and exclusive dominion over the alleged property

and in the absence of proof of entrustment or exclusive dominion

accused cannot be made scapegoat. The lower appellate court

having noticed that stationery items will find place in Stores

Acceptance Register and Security Register maintained by security

wing noted the admission of P.W.1 in cross-examination that he

has not verified these registers and also that he has not verified PNR,J Crl.A.No.85 of 2010

receipts and acknowledgments from receiving departments. Thus,

the lower appellate Court found serious lacuna in the evidence of

prosecution to establish the charge under Section 409 of IPC.

The lower appellate Court also held that non-production of audit

report which was the basis to commence enquiry and report an

adverse inference can be drawn. It is further observed that the

enquiry report of P.W.1 can only be a corroborative piece of

evidence and cannot be a substantive piece of evidence and there

has to be some acceptable evidence to corroborate what is stated in

the report.

12. The lower appellate Court further observed that there is no

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

the ground balance during the relevant period of alleged

misappropriation; that there is no legally acceptable evidence on

record to prove who made the manipulations and interpolations

and conversion of various sizes.

13. 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

adduced by the prosecution to sustain the charge under Section

409 of IPC, the lower appellate Court found that absolutely there is

no proof of 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 PNR,J Crl.A.No.85 of 2010

issuance thereof, observed that the case of the prosecution would

at the most amount to raising plea of suspicion against the

accused. It is then held 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 lower appellate Court also made stringent comments

against the trial Court Judge in dealing with the matter, recording

of evidence and appreciation of evidence.

14. 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

lower appellate Court.

15. 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

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 PNR,J Crl.A.No.85 of 2010

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).

16. 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 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)

17. Learned Public Prosecutor is unable to persuade the Court

on attracting any of these ingredients to reverse the well

2007 (4) SCC 415 PNR,J Crl.A.No.85 of 2010

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.

18. 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 reversing the said

decision.

19. The Criminal Appeal fails and is accordingly dismissed,

confirming the judgment dated 24.06.2008 in Criminal Appeal

No.95 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.85 of 2010

HONOURABLE SRI JUSTICE P.NAVEEN RAO

CRIMINAL APPEAL NO.85 OF 2010

Date: 28.09.2021 kkm