Telangana High Court

State Rep. By Insp Of Police Acb ... vs K. Anantha Padmanabha Rao, ... on 14 July, 2022

Bench: K.Surender

               HON'BLE SRI JUSTICE K.SURENDER

                CRIMINAL APPEAL No.458 OF 2006
JUDGMENT:

1. The State-ACB aggrieved by the acquittal of the

respondents 1 and 2/accused officers for the offence under

Section 120-B r/w Section 34 IPC, 468 r/w Section 34 IPC,

477-A r/w 34 IPC and 420 r/w Section 34 IPC and under

Sections 13(1)(d) r/w Section 13(2) of Prevention of Corruption

Act, 1988 vide judgment in C.C.No.11 of 1997 dated

05.10.2005 passed by the Principal Special Judge for SPE &

ACB Cases-cum-IV Additional Chief Judge, City Civil Court,

Hyderabad (for short 'the Special Judge'), the present appeal is

filed.

2. It is the case of the ACB that Cooperative Sub-Registrar,

ADCOSPIN, who was examined as P.W.1 submitted his audit

report dated 30.07.1992 pointing out irregularities in

purchases of cotton bales by the respondents/accused officers

herein. The first respondent/AO1 was working as Managing

Director and the second respondent/AO2 was working as

Spinning Manager, Spinning Mills, Adilabad.

3. The gravamen of the charge is that the respondents 1

and 2 (herein after referred to as 'Accused Officers') who were

employees in their respective positions entered into criminal

conspiracy for purchasing of Cotton Bales at abnormally

higher rates than the rates that prevailed in the market and

such purchases were made from unauthorized dealers and

also from fictitious persons. The said criminal acts of the

Accused Officers were in violation of guidelines issued by

SPINFED. Such purchasing of Cotton Bales was done when

the traders of Adilabad District refused to give bribe at 5% and

10%. The acts of the Accused Officers resulted in total loss of

Rs.16,44,369/-.

4. In the said process of purchase of Cotton Bales from

unauthorized dealers and unauthorized persons, the accounts

were fabricated by making fictitious entries in the Mill

Registers and Tender Registers, for which reason, the charges

were framed under Section 120-B r/w Section 34 IPC, 468

r/w Section 34 IPC, 477-A r/w 34 IPC and 420 r/w Section

34 IPC and under Sections 13(1)(d) r/w Section 13(2) of

Prevention of Corruption Act, 1988.

5. Learned Special Judge having recorded the evidence of

P.Ws.1 to 5 and marking Exs.P1 to P23 concluded that the

appellant ACB failed to make out a case, for which reason the

Accused Officers charged were acquitted.

6. Though notices were not served on the 1st

respondent/AO1, since the counsel for the 2nd respondent

appeared and the allegations leveled against Accused Officers

1 and 2 are one and the same, the counsel for the AO2 was

heard and the appeal is being disposed off.

7. The grounds, on which the learned Special Judge

acquitted the Accused Officers are; (i) on the basis of the

evidence adduced during trial, the Special Public Prosecutor

has conceded that forgery and fabrication of entries in the

registers could not be established beyond doubt; (ii) the onus

of proving each and every allegation is on the prosecution and

the prosecution failed to recover any incriminating evidence

and make out any circumstance to point towards the guilt of

the accused for the offence of forgery, cheating and

falsification of the accounts; (iii) the witnesses themselves

admitted that all the Cotton Bale purchases were made by the

Accused Officers in consultation with SPINFED; iv) There is no

examination of any alleged traders to whom the orders were

placed at higher rates even according to the Investigating

Officer, for which reason the question of forgery or

misappropriation as asserted by ACB does not arise; (v) the

Investigating Officer has failed to produce all the relevant

documents to establish any kind of criminal act, which could

be attributed to the Accused Officers; (vi) There is no evidence

collected either by the auditor-P.W.1 or PW.13 Inspector of

Police, who investigated the case to ascertain regarding the

prevailing rates at the relevant time when the purchases were

made by the Accused Officers vis-a- vis., purchased rates.

8. The learned Special Public Prosecutor appearing for the

appellant-ACB submits that the prosecution has examined

P.W.10, who is the Managing Partner of M/s.Raghunath and

Company of Adilabad. He filed tenders and then the

respondents approached him and asked him to pay 5%

commission towards purchase of his cotton and as he refused,

his tender was not accepted. In the said back ground, the

solitary testimony of P.W.10 would suffice to draw an inference

that the respondents indulged in corrupt practices attracting

offence under Section 13(1)(d) of the Prevention of Corruption

Act, 1988 and the other allied offences. For the said reasons,

requested to reverse the judgment of the trial court and

convict the Accused Officers for the charges framed against

them.

9. Learned counsel for the 2nd respondent/AO2 submits

that the trial Court has found that the Investigating Officer

has failed to even collect any existing market rates at the

relevant time and it cannot be assumed that these

respondents/Accused Officers have purchased Cotton Bales at

higher rates resulting loss to the extent of Rs.16,44,369/. He

further argued that in case of acquittal, the appellate court

while dealing with the case of acquittal shall not intervene in

the finding of the trial Court unless there are circumstances

established that the lower Court has committed an error in

coming to such conclusions acquitting the

respondents/Accused Officers.

10. In support of his contentions, he relied on the following

judgments; i) In re Pulipati Venkiah1, wherein it was held as

follows:

"There is a nice distinction between what is criminal and what is departmentally reprehensible and this distinction must be carefully borne in mind. A public servant can only be punished under the Penal Code when his act fulfils all the conditions of an offence as therein defined."

ii) In C.Chenga Reddy v. State of Andhra Pradesh2, wherein the Hon'ble Supreme Court held as follows:

"56. ...... The courts below have also found that the officials had committed serious administrative irregularities and lapses. Reference has been made both by the trial court and the High Court to the codal provisions i.e. A.P. PWD Code, A.P. Financial Code etc. and the circulars and instructions issued from time to time which were respected in their breach by the official accused. We have not found it possible to take a view different than the one taken by the courts below in this regard though in our opinion the breach of codal provisions or violation of the circulars and instructions and commission of administrative irregularities cannot be said to have been done by the officials concerned with any corrupt or dishonest intention. The learned counsel appearing for all the appellants also during the course of their arguments were unable to point out any error in those findings and according to them in the established facts and circumstances of the case, the irregularities, administrative lapses and violation of the codal provisions, could

AIR 1924 Madras 851

(1996) 10 Supreme Court Cases 193

only have resulted in a departmental action against the officials but criminal prosecution was not justified. Their argument has force and appeals to us...."

iii) In Golla Pullanna and another v. State of Andhra

Pradesh3 wherein the Hon'ble Supreme Court held that to find

an accused guilty of the offence of cheating, the essential

ingredients have to be proved, failing which there cannot be

any conviction.

iv) In N.Kishan Rao v. State of Andhra Pradesh4, this

Court held as follows:

"Looking to the entire evidence as brought on record at the trial Court, it can be said that the prosecution was able to prove that certain amounts belonging to different persons were entrusted to the accused but that is not sufficient to prove the guilt to the home of the accused of an offence punishable under Sections 409, and 477-A IPC and Section 13(1)(c ) and (d) read with Section 13(2) of the Prevention of Corruption Act, 1988."

v) In S.Harnam Singh v. The State (Delhi

Administration)5, wherein the Hon'ble Supreme Court held as

follows:

"Willfully as used in S.477-A means "intentionally" or "deliberately." But from the mere fact that certain entries were

(1996) 10 SCC 223

1997 (1) ALD (Crl.) 147 (AP)

AIR 1976 Supreme Court 2140

made "willfully" by an accused, does not necessarily follow that he did so "with intent to defraud" within the meaning of Section 477-A, Penal Code."

11. The crux of the case is that these Accused Officers

purchased Cotton Bales at higher rates causing loss to the

Mill. In the said circumstances, it is for the Investigating

Officer to collect evidence and demonstrate before the Court,

what was the existing market price and compare them with

the rates at which the Accused Officers have made purchases.

Only in the said event of such comparison being made and

evidence produced both oral and documentary to substantiate

that the Accused Officers have purchased the Cotton Bales at

higher rates, the question of finding the Accused Officers

guilty for the offence of cheating, forgery and criminal

misconduct does not arise.

12. For the aforesaid reasons and in the back ground of the

Investigating Agency failing to collect evidence, though

available, which is reprehensible, this Court has no other

option, but to uphold the finding of not guilty by the trial

Court. There are no grounds to interfere with the findings of

the trial Court.