Telangana High Court
D. Swaroopa Rani, vs The State Of Andhra Pradesh, on 17 October, 2023
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.674 OF 2007
Between:
D.V. Satyanarayana Pratap ...Appellant/A36
And
State of Andhra Pradesh,
Rep.by its Public Prosecutor,
High Court of A.P., Hyderabad. ...Respondent
Criminal Appeal No.675 OF 2007
Between:
D. Swaroopa Rani ...Appellant/A 24
And
The State of A.P. rep. by Public Prosecutor,
High Court of A.P.,
Hyderabad. Respondent/Complainant
Criminal Appeal No.703 OF 2007
Between:
Ratilal Lalji Praveen Chander & 1 other Appellants/Accused No.3&7
And
The State of A.P. Rep by
Public Prosecutor, Hyderabad. ...Respondent/Complainant
Criminal Appeal No.715 OF 2007
Between:
Pamula Gangadharam ...Appellant/Accused
And
The State of A.P. rep by
Public Prosecutor. ...Respondent.
Criminal Appeal No.743 OF 2007
Between:
Ch. Suryanarayana (A10) (died) & 3 others ...Accused-
Appellants
And
State of A.P. rep. by
Public Prosecutor, High Court,
Hyderabad. ...Respondent-
Complainant
Criminal Appeal No.744 OF 2007
Between:
Uradi Santosh Kumar ...Appellant/A5
And
The State, through
Asst. Commissioner of Police,
C.C.S., D.D., Hyderabad, rep by
Public Prosecutor,
High Court, Hyderabad. ...Respondent/Complainant
Criminal Appeal No.749 OF 2007
Between:
Avisetti Prasad Rao & 2 others ...Appellant/Accused
Nos.20,22,41
And
State of Andhra Pradesh,
Through the ACP, Central Crime Section,
Detective Department, Hyderabad,
Represented by the Public Prosecutor,
High Court of A.P., Hyderabad. ...Respondent/Complainant
Criminal Appeal No.752 OF 2007
Between:
Malyala Anjaiah ...Appellant/Accused No.6
And
State rep by Public Prosecutor,
High Court, Hyderabad. ...Respondent/Complainant.
Criminal Appeal No.755 OF 2007
Between:
Kadimi Venkateswara Rao ...Appellant/Accused-4
And
The State of A.P.
Rep.by its Public Prosecutor,
Hyderabad. ...Respondent/Complainant
Criminal Appeal No.756 OF 2007
B.Sudhakar ...Appellant/Accused No.35
And
The State of A.P.,
Through Public Prosecutor,
High Court of A.P. ...Respondent/Complainant
Criminal Appeal No.790 OF 2007
R. Mothya Naik ...Appellant /Accused No.1
And
The State of A.P.
Through Public Prosecutor,
High Court of A.P. ...Respondents
Criminal Appeal No.1019 OF 2007
D. Shankar Rao ...Appellant/Accused No.2
And
The State of Andhra Pradesh,
Rep. by the Public Prosecutor,
High Court of A.P., Hyderabad. ...Respondent
DATE OF JUDGMENT PRONOUNCEMENT :17.10.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
Wish to see their fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A.No.674 OF 2007
% Dated : 17.10.2023
# D.V. Satyanarayana Pratap ...Appellant/A36
And
$ State of Andhra Pradesh,
Rep.by its Public Prosecutor,
High Court of A.P., Hyderabad. ...Respondent
+ CRL.A. No.675 OF 2007
# D. Swaroopa Rani ...Appellant/A 24
And
$ The State of A.P. rep. by Public Prosecutor,
High Court of A.P.,
Hyderabad. Respondent/Complainant
+ CRLA. No.703 OF 2007
# Ratilal Lalji Praveen Chander & 1 other Appellants/Accused No.3&7
And
$ The State of A.P. Rep by
Public Prosecutor, Hyderabad. ...Respondent/Complainant
+ CRLA. No.715 OF 2007
# Pamula Gangadharam ...Appellant/Accused 42
And
$ The State of A.P. rep by
Public Prosecutor. ...Respondent.
+ CRLA.No.743 OF 2007
# Ch. Suryanarayana (A10) (died) & 3 others ...Accused-Appellants
And
$ State of A.P. rep. by
Public Prosecutor, High Court,
Hyderabad. ...Respondent-Complainant
+ CRL.A. No.744 OF 2007
# Uradi Santosh Kumar ...Appellant/A5
And
$ The State, through
Asst. Commissioner of Police,
C.C.S., D.D., Hyderabad, rep by
Public Prosecutor,
High Court, Hyderabad. ...Respondent/Complainant
+ CRL.A. No.749 OF 2007
# Avisetti Prasad Rao & 2 others ...Appellant/Accused Nos.20,22,41
And
$ State of Andhra Pradesh,
Through the ACP, Central Crime Section,
Detective Department, Hyderabad,
Represented by the Public Prosecutor,
High Court of A.P., Hyderabad. ...Respondent/Complainant
+ CRL.A.No.752 OF 2007
# Malyala Anjaiah ...Appellant/Accused No.6
And
$ State rep by Public Prosecutor,
High Court, Hyderabad. ...Respondent/Complainant.
+ CRL.A. No.755 OF 2007
# Kadimi Venkateswara Rao ...Appellant/Accused-4
And
$ The State of A.P.
Rep.by its Public Prosecutor,
Hyderabad. ...Respondent/Complainant
+ CRL.A.No.756 OF 2007
# B.Sudhakar ...Appellant/Accused No.35
And
$ The State of A.P.,
Through Public Prosecutor,
High Court of A.P. ...Respondent/Complainant
+CRL.A. No.790 OF 2007
# R. Mothya Naik ...Appellant /Accused
No.1
And
$ The State of A.P.
Through Public Prosecutor,
High Court of A.P. ...Respondents
+ CRL.A.No.1019 OF 2007
# D. Shankar Rao ...Appellant/Accused No.2
And
$ The State of Andhra Pradesh,
Rep. by the Public Prosecutor,
High Court of A.P., Hyderabad. ...Respondent
! Counsel for the Appellants: Sri Ch. Dhanamjaya, K L B Kumar,
V. Surender Rao, K. Suresh Reddy,
C. Vasundhara Reddy, Enuganti
Sudhanshu Rao, B. Nalin Kumar, P.
Vamsheedhar Reddy, T.
Pradyumna Kumar Reddy, H. Sudhakara Rao,
Sreenivasa Rao Ravulapati, Ch.Dhanamjaya.
^ Counsel for the Respondents: Sri Public Prosecutor
>HEAD NOTE:
? Cases referred
1.(2007) 1 SCC 1
2. 2023 SCC Online SC 900
3.(1984) 4 SCC 116
4.(2023) 4 Supreme Court Cases 731
5.(2011) 10 Supreme Court Cases 768
6. (1995) 1 Supreme Court Cases 142
7. 1984 (Supp) Supreme Court Cases 207
8.(2019) 2 SCC 303
9.(Criminal Appeal no. 25 of 2012 dated 11.08.2022)
10. 2023 SCC Online SC 900
11. 2023 SCC Online Pat 2239
12. (2012) 2 SCC 34
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.674, 675, 703, 715, 743, 744, 749,
752, 755, 756, 790 & 1019 OF 2007
COMMON JUDGMENT:
1. Criminal Appeal No.674 of 2007 is filed by A36, Crl.A.No.675
of 2007 is filed by A24, Crl.A.No.703 of 2007 is filed by A3 & A7;
Crl.A.No.715 of 2007 is filed by A42, Crl.A.No.743 of 2007 is filed
by A10, Crl.A.No.744 of 2007 is filed by A5, Crl.A.No.749 of 2007 is
filed by A20, A22 & A41, Crl.A.No.752 of 2007 is filed by A6,
Crl.A.No.755 of 2007 is filed by A4, Crl.A.No.756 of 2007 is filed by
A35, Crl.A.No.790 of 2007 is filed by A1 and Crl.A.No.1019 of 2007
is filed by A2, questioning their conviction in CC.No.1 of 2003,
dated 11.06.2007 recorded by the Special Judge under the
Prevention of Corruption Act for Speedy Trial of Cases of
Embezzlement of Scholarship amounts in Social Welfare
Department, Etc. at Criminal Courts Complex, Nampally,
Hyderabad. Accused Nos.A3, A4, A20, A22, A34, A35, A36, A41 &
A42 for the offences punishable under Sections 109 r/w 409, 109
r/w 419, 109 r/w 420, 109 r/w 467, 109 r/w 468, 109 r/w 471
IPC, A24 is convicted and sentenced under Sections 109 r/w 409,
109 r/w 419, 109 r/w 420, 109 r/w 467, 109 r/w 468, 109 r/w
471 and Section 109 r/w 201 of IPC and A5, A6, A7 & A10 were
convicted and sentenced under Sections 109 r/w 419, 109 r/w
420, 109 r/w 467, 109 r/w 468, 109 r/w 471 IPC; convicting and
sentencing Accused No.1 for the offences punishable under
Sections 419, 420, 467, 468, 409, 471 of the Indian Penal Code
and A2 is convicted and sentenced under Sections 409, 419, 420,
467, 468 and 471 IPC.
2. Since all the appeals are arising out of common judgment in
CC No.1 of 2003, all these appeals are being heard together and
disposed by way of this Common Judgment.
3. The Central Crime Station, Detective Department,
Hyderabad investigated into the scholarship scam case
regarding pre-metric and post-metric scholarships. Three
cases in all were filed. Two cases pertaining to post-metric
scholarships (C.C.No.1 of 2003 and CC No.3 of 2003) and one
case pertaining to pre-metric scholarship (CC No.2 of 2003).
All the three cases were tried by the Special Judge under the
Prevention of Corruption Act for Speedy Trial of Cases of
Embezzlement of Scholarship Amounts in Social Welfare
Department, etc. at Criminal Courts Complex, Red
Hills,Nampally, Hyderabad.
4. The case is that the accused A1 to A43 in CC No.1 of
2003 herein are from the office of the Social Welfare
Department, Pay and Accounts Department, Nationalized
Banks and also private persons, who are kith and kin of the
accused. All of them have conspired to cheat the Government.
Pursuant to the alleged conspiracy, A1 and A2 have floated
bogus colleges and claimed scholarships in the names of those
colleges. A1 and A2 prepared forged and fabricated post-metric
scholarships, bills, which is Form 103. The said Form 103
which are scholarships bills were prepared in the name of
bogus colleges by preparing sanction proceedings and forging
the signatures of District Social Welfare Officers (DSWOs),
District Backward Classes Welfare Officers (DBCWOs), District
Tribal Welfare Officers (DTWOs) and also forging the list of SC,
ST and BC communities. The signatures of fictitious principals
were forged on the bills. A2 also forged the bills and signatures
of bogus colleges by preparing post-metric scholarship bills in
Form 103. Both A1 and A2 opened bank accounts in the name
of 25 fictitious colleges. After having produced the bills in the
Pay and Accounts Office and after processing, cheques were
taken and deposited into Bank accounts and money was
withdrawn. The total loss to the Government was
Rs.26,38,46,476/-.
5. The learned Special Judge mainly relied on the evidence
of witnesses who stated about the non-existent colleges and
also opening of accounts in Andhra Bank and other banks.
6. Learned Special judge also placed reliance on the bank
transactions whereby the cheques were deposited and
amounts were withdrawn. Further, the writings and
signatures of the accused which were identified formed basis
for conviction. Out of 43 accused, A1, A2 worked in Social
Welfare Department, A3 and A4 were Auditors in Deputy Pay
and Accounts Office, A5 worked as Assistant Social Welfare
Officer (ASWO), A6 worked as Assistant Backward Classes
Welfare Officer (ABCWO), A7 worked as Superintendent in
Deputy Pay and Accounts Office, A10 worked as Assistant Pay
and Accounts Officer in Deputy Pay and Accounts Office, A20
worked as Assistant Pay and Accounts Officer in Deputy Pay
and Accounts Office, A22 worked as Superintendent in Deputy
Pay and Accounts Office, A24 is the wife of A2, A34 and A35
worked as Superintendents in Deputy Pay and Accounts
Office, A36 worked as Accountant in State Bank of Patiala,
R.P.Road branch. A41 worked as Deputy Pay and Accounts
Officer and A42 worked as District Tribal Welfare Officer
(TDWO), Hyderabad.
7. Acquitted accused are A8-District Tribal Welfare Officer,
A9- District Tribal Welfare Officer, A11-Junior Assistant in
Tribal Welfare Office, A12-Welder, A13 (wife of A12), A14-
Inspector of Branches, Andhra Bank, A15-Branch Manager,
Andhra Bank, A16-Business man, A17-Deputy Director, Social
Welfare Department, A18-Branch Manager, Andhra Bank,
A19-Branch Manager, SBH, A21-retired PAO, A23-wife of A1,
A25-son of A2, A30-Auditor (Computer operator) in Deputy
PAO office, A31-Assistant Auditor in PAO, A37-Retired Deputy
PAO, A38-Retired Superintendent, PAO, A40, A43.
Proceedings against A26 to A29 were quashed by High Court.
8. Totally 122 charges were framed for the offences under
Sections 419, 420, 409, 467, 468, 471 and 109 of IPC against
the accused. The charges were framed on the basis of the bills
produced in Pay & Accounts Office, opening of accounts in
banks, withdrawal of amounts from the Bank and fabrication
of sanction proceedings and filed along with Form 103 bills,
which were also fabricated.
9. As already stated, the crux of the allegation is that the
scholarships meant for SC, ST, BC students were swindled by
submitting fake scholarship application forms in the names of
fictitious and bogus educational institutions with fictitious
student names as belonging to SC, ST and BC communities,
sanction proceedings of scholarships, stamp receipts, bills
etc., were all fabricated.
SANCTION U/S.197 Cr.P.C:
10. Learned Special Judge has framed point No.45 to assert
whether the prosecution is bad in respect of accused for want
of sanction orders under Section 197 of Cr.P.C.
11. Answering the said point, learned Special Judge has
found that though sanction orders were obtained from the
competent authorities against A1 to A10, A20 to A22, A30,
A31, A34, A35, A37, A38, A41 and A43, the prosecution failed
to bring on record the said sanction orders.
12. However, the learned Special Judge found that the said
sanction orders were not necessary in view of the judgment of
Hon'ble Supreme Court in the case of Prakash Singh Badal
and another v. State of Punjab and others 1, wherein it was
held as follows:
"The offence of cheating under section 420 or for that
matter offences relatable to sections 467, 468, 471 and
120-B can by no stretch of imagination by their very
nature be regarded as having been committed by any
public servant while acting or purporting to act in
discharge of official duty. In such case, official status
only provides an opportunity for commission of the
offence."
(2007) 1 SCC 1
13. Having extracted the said paragraph, learned Special
Judge found that there is no necessity for sanction to be
obtained under Section 197 of Cr.P.C to prosecute the officials
and it cannot be said that prosecution is bad for want of
sanction order.
14. Firstly, there is no explanation as to why the prosecution
failed to bring on record the sanction orders which were
obtained against the accused. Sanction against public servant
is an act necessitated under Section 197 of Cr.P.C to protect
officers from false criminal prosecutions. Learned Special
Judge has committed an error in finding that there was no
necessity reducing sanctity of Section 197 of Cr.P.C for
obtaining sanction orders and its object redundant. Section
197 of Cr.P.C or similar provision under the Prevention of
Corruption Act were introduced by the legislature to prevent
and protect public servants from being criminally prosecuted,
which acts amounted to criminal offences, during discharge of
their official duties.
15. Recently, the Hon'ble Supreme Court in the case of
A.Srinivasulu v. State rep. by the Inspector of Police 2
clarified that the observations of the Hon'ble Supreme Court in
Prakash Singh Badal's case (supra), held as under:
"50. But the above contention in our opinion is far-fetched. The
observations contained in paragraph 50 of the decision in Parkash
Singh Badal (supra) are too general in nature and cannot be regarded
as the ratio flowing out of the said case. If by their very nature, the
offences under sections 420, 468, 471 and 120B cannot be regarded
as having been committed by a public servant while acting or
purporting to act in the discharge of official duty, the same logic
would apply with much more vigour in the case of offences under the
PC Act. Section 197 of the Code does not carve out any group of
offences that will fall outside its purview. Therefore, the observations
contained in para 50 of the decision in Parkash Singh Badal cannot
be taken as carving out an exception judicially, to a statutory
prescription. In fact, Parkash Singh Badal cites with approval the
other decisions (authored by the very same learned Judge) where this
Court made a distinction between an act, though in excess of the
duty, was reasonably connected with the discharge of official duty
and an act which was merely a cloak for doing the objectionable act.
Interestingly, the proposition laid down in Rakesh Kumar
Mishra (supra) was distinguished in paragraph 49 of the decision
in Parkash Singh Badal, before the Court made the observations in
paragraph 50 extracted above.
51. No public servant is appointed with a mandate or authority to
commit an offence. Therefore, if the observations contained in
paragraph 50 of the decision in Parkash Singh Badal are applied, any
act which constitutes an offence under any statute will go out of the
purview of an act in the discharge of official duty. The requirement of
a previous sanction will thus be rendered redundant by such an
interpretation."
2023 SCC OnLine SC 900
16. The Hon'ble Supreme Court observed that the
requirement of previous sanction would be rendered
redundant if it is interpreted that every act of which a public
servant is alleged to have committed would be without
protection, which the legislature thought it fit to protect public
servants who were discharging their duties, which are
reasonably connected to their official functions.
17. The prosecution has committed an error in not bringing
the sanction orders on record. The application or non-
application of mind in granting sanction and whether the acts
alleged in the present case were connected with their official
duties or not would have been part of the record. Even before
discussing the evidence, the learned Special Judge concludes
that the accused/public servants have indulged in the alleged
acts of cheating, criminal misappropriation and forgery and
sanction to criminally prosecute public servants was not
necessary.
18. None of the official witnesses have stated that the bills
which were brought on record were fake and fabricated bills or
that the officials have fraudulently committed such acts of
producing fabricated bills, having knowledge about the alleged
falsity of the bills. The witnesses from Backward Class Welfare
Department, Social Welfare Department, Tribal Welfare
Department and Pay & Accounts Office, stated that no
infirmity was detected in any of the bills and procedure
adopted while passing bills.
19. The admissibility of the evidence produced by the
prosecution and documents marked would be discussed in the
subsequent paragraphs, which has a bearing on the
application of mind by the Competent Authority granting
sanction to prosecute public servants.
20. Even prior to discussing the evidence in the present
case, it is necessary that the law laid down by the Hon'ble
Supreme Court for appreciating evidence has to be gone into.
A reading of the evidence of witnesses and findings of the
learned Special Judge, the basics of admissibility of evidence
in criminal trial have been utterly disregarded and on the
basis of inadmissible evidence, conclusions were drawn in the
judgment.
21. The case is one of circumstantial evidence. The five
golden principles constituting panchsheel to prove a case
based on circumstantial evidence were summed up in Sharad
Birdhichand Sarda v. State of Maharashtra 3, which reads as
follows:
"153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established. It may be noted here that this Court
indicated that the circumstances concerned "must or should" and not
"may be" established. There is not only a grammatical but a legal
distinction between "may be proved" and "must be or should be proved"
as was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri)1033 : 1973 Crl LJ
1783] where the observations were made: [SCC para 19, p. 807: SCC
(Cri) p. 1047]
"Certainly, it is a primary principle that the accused must be and not
merely may be guilty before a court can convict and the mental distance
between 'may be' and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not be
explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(1984) 4 SCC 116
(4) they should exclude every possible hypothesis except the one to be
proved, and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have
been done by the accused."
22. In Neeraj Dutta v. State (Government of NCT of
Delhi) 4 the Hon'ble Supreme Court held as follows:
"52. Again, oral evidence can be classified as original and hearsay
evidence. Original evidence is that which a witness reports himself to
have seen or heard through the medium of his own senses. Hearsay
evidence is also called derivative, transmitted, or second-hand
evidence in which a witness is merely reporting not what he himself
saw or heard, and not what has come under the immediate
observation of his own bodily senses, but what he has learnt in respect
of the fact through the medium of a third person. Normally, a hearsay
witness would be inadmissible, but when it is corroborated by
substantive evidence of other witnesses, it would be admissible
vide Mukhtiar Singh [Mukhtiar Singh v. State of Punjab, (2017) 8 SCC
136 : (2017) 3 SCC (Cri) 607] .
55. Documentary evidences, on the other hand, are to be proved by the
production of the documents themselves or, in their absence, by
secondary evidence under Section 65 of the Act. Further, facts showing
the existence of any state of mind, such as intention, knowledge, good
faith, negligence, or ill will need not be proved by direct testimony. It
may be proved inferentially from conduct, surrounding circumstances,
etc. (See Sections 8 and 14 of the Evidence Act.)
56. Insofar as oral evidence is concerned, this Court in State of
Rajasthan v. Babu Meena [State of Rajasthan v. Babu Meena, (2013) 4
SCC 206 : (2013) 2 SCC (Cri) 364] ("Babu Meena") has classified the
same into three categories : (i) wholly reliable; (ii) wholly unreliable,
and; (iii) neither wholly reliable nor wholly unreliable. While an
accused can be convicted on the sole testimony of a wholly reliable
(2023) 4 Supreme Court Cases 731
witness, the uncorroborated evidence of a wholly unreliable testimony
of a witness must result in an acquittal.
57. Section 60 of the Evidence Act requires that oral evidence must be
direct or positive. Direct evidence is when it goes straight to establish
the main fact in issue. The word "direct" is used in juxtaposition to
derivative or hearsay evidence where a witness gives evidence that he
received information from some other person. If that person does not,
himself, state such information, such evidence would be inadmissible
being hearsay evidence. On the other hand, forensic procedure as
circumstantial or inferential evidence or presumptive evidence (Section
3) is indirect evidence. It means proof of other facts from which the
existence of the fact in issue may be logically inferred. In this context,
the expression "circumstantial evidence" is used in a loose sense as,
sometimes, circumstantial evidence may also be direct.
58. Although the expression "hearsay evidence" is not defined under
the Evidence Act, it is, nevertheless, in constant use in the courts.
However, hearsay evidence is inadmissible to prove a fact which is
deposed to on hearsay, but it does not necessarily preclude evidence
as to a statement having been made upon which certain action was
taken or certain results followed such as evidence of an informant of
the crime.
61. Section 62 of the Evidence Act defines primary evidence to mean
the documents itself produced for the inspection of the court. If primary
evidence is available, it would exclude secondary evidence. Section 63
of the Evidence Act deals with secondary evidence and defines what it
means and includes. Section 63 mentions five kinds of secondary
evidence, namely--
(i) Certified copies given under the provisions hereinafter contained;
(ii) Copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared with
such copies;
(iii) Copies made from or compared with the original;
(iv) Counterparts of documents as against the parties who did not
execute them; and
(v) Oral accounts of the contents of a document given by some person
who has himself seen it.
69. One of the modes through which a fact can be proved. But, that is
not the only mode envisaged under the Evidence Act. Proof of the fact
depends upon the degree of probability of it having existed. The
standard required for reaching the supposition is that of a prudent
man acting in any important matter concerning him."
23. In Sherimon v. State of Kerala 5, the Hon'ble Supreme
Court held as follows:
"17.The gist of the offence of conspiracy is the agreement between two
and more persons to do or cause to be done an illegal act or a legal act
by illegal means. There must be meeting of minds resulting in an
ultimate decision taken by the conspirators regarding commission of
the crime."
24. In P.K.Narayanan v. State of Kerala 6, the Hon'ble
Supreme Court held as follows:
"9........ An offence of conspiracy cannot be deemed to have been
established on mere suspicion and surmises or inferences which are
not supported by cogent evidence.
10. The ingredients of this offence are that there should be an
agreement between the persons who are alleged to conspire and the
said agreement should be for doing of an illegal act or for doing by
illegal means an act which by itself may not be illegal. Therefore the
essence of criminal conspiracy is an agreement to do an illegal act
and such an agreement can be proved either by direct evidence or by
circumstantial evidence or by both and it is a matter of common
experience that direct evidence to prove conspiracy is rarely
available. Therefore the circumstances proved before, during and
after the occurrence have to be considered to decide about the
complicity of the accused. But if those circumstances are compatible
also with the innocence of the accused persons then it cannot be held
that the prosecution has successfully established its case. Even if
some acts are proved to have been committed it must be clear that
they were so committed in pursuance of an agreement made between
(2011) 10 Supreme Court Cases 768
(1995) 1 Supreme Court Cases 142
the accused who were parties to the alleged conspiracy. Inferences
from such proved circumstances regarding the guilt may be drawn
only when such circumstances are incapable of any other reasonable
explanation. From the above discussion it can be seen that some of
the circumstances relied upon by the prosecution are not established
by cogent and reliable evidence. Even otherwise it cannot be said
that those circumstances are incapable of any other reasonable
interpretation."
25. In Jethsur Suranghai v. State of Gujarat 7, the Hon'ble
Supreme Court held as follows:
"9. Having gone through the judgment of the High Court......In our
opinion, the contention raised by the counsel for the appellant is
well-founded and must prevail. With due respect what the High
Court seems to have missed is that in a case like this where there
was serious defalcation of the properties of the Sangh, unless the
prosecution proved that there was a close cohesion and collusion
between all the accused which formed the subject matter of a
conspiracy, it would be difficult to prove the dual charges
particularly against the appellant (A-1). The charge of conspiracy
having failed, the most material and integral part of the prosecution
story against the appellant disappears...."
26. In State of U.P. v. Wasif Haider 8, the Hon'ble Supreme
Court held as follows:
"22. In the instant appeals before us, the prosecution has
failed to link the chain of circumstances so as to dispel the cloud of
doubt about the culpability of the respondent-accused. It is a well-
settled principle that a suspicion, however grave it may be cannot
take place of proof i.e. there is a long distance between "may be"
and "must be", which must be traversed by the prosecution to prove
its case beyond reasonable doubt [see Narendra Singh v. State of
1984 (Supp) Supreme Court Cases 207
(2019) 2 SCC 303
M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699 : 2004
SCC (Cri) 1893] ].
23. This Court in Kailash Gour v. State of Assam [Kailash
Gour v. State of Assam, (2012) 2 SCC 34 : (2012) 1 SCC (Cri) 717] ,
has held that : (SCC pp. 50-51, para 44)
"44. The prosecution, it is axiomatic, must establish its case
against the accused by leading evidence tha tis accepted by the
standards that are known to criminal jurisprudence regardless of
whether the crime is committed in the course of communal
disturbances or otherwise. In short, there can only be one set of
rules and standards when it comes to trials and judgment in
criminal cases unless the statute provides for anything specially
applicable to a particular case or class of cases."
24. In the present case, the cumulative effect of the aforesaid
investigative lapses has fortified the presumption of innocence in
favour of the respondent-accused. In such cases, the benefit of doubt
arising out of a faulty investigation accrues in favour of the accused."
27. In Ramnivas v. State of Haryana 9, the Hon'ble
Supreme Court held as follows:
"20. It is settled law that the suspicion, however strong, it may be,
cannot take the place of proof beyond reasonable doubt. An accused
cannot be convicted on the ground of suspicion, no matter how strong
it is. An accused is presumed to be innocent unless proved guilty
beyond a reasonable doubt.
21. In the preset case, we find that the prosecution has utterly
failed to establish the chain of events which can be said to
exclusively lead to the one and only conclusion, i.e., the guilt of the
accused...."
28. In A.Srinivasulu v. State rep. by the Inspector of
Police 10, the Hon'ble Supreme Court held as follows:
(Criminal Appeal No.25 of 2012 dated 11.08.2022)
"50. But the above contention in our opinion is far-fetched. The
observations contained in paragraph 50 of the decision in Parkash
Singh Badal (supra) are too general in nature and cannot be
regarded as the ratio flowing out of the said case. If by their very
nature, the offences under sections 420, 468, 471 and 120B cannot
be regarded as having been committed by a public servant while
acting or purporting to act in the discharge of official duty, the same
logic would apply with much more vigour in the case of offences
under the PC Act. Section 197 of the Code does not carve out any
group of offences that will fall outside its purview. Therefore, the
observations contained in para 50 of the decision in Parkash Singh
Badal cannot be taken as carving out an exception judicially, to a
statutory prescription. In fact, Parkash Singh Badal cites with
approval the other decisions (authored by the very same learned
Judge) where this Court made a distinction between an act, though
in excess of the duty, was reasonably connected with the discharge
of official duty and an act which was merely a cloak for doing the
objectionable act. Interestingly, the proposition laid down in Rakesh
Kumar Mishra (supra) was distinguished in paragraph 49 of the
decision in Parkash Singh Badal, before the Court made the
observations in paragraph 50 extracted above.
51. No public servant is appointed with a mandate or
authority to commit an offence. Therefore, if the observations
contained in paragraph 50 of the decision in Parkash Singh
Badal are applied, any act which constitutes an offence under any
statute will go out of the purview of an act in the discharge of
official duty. The requirement of a previous sanction will thus be
rendered redundant by such an interpretation."
29. In Teni Yadav v. State of Bihar 11, the Hon'ble Supreme
Court held as follows:
"11. ...... The burden is always on the prosecution to prove its case
beyond reasonable doubt on the basis of legally admissible evidence
and when the offence charged is gruesome or diabolic, much higher,
2023 SCC OnLine SC 900
2023 SCC OnLine Pat 2239
degree of assurance is required to infer the guilt of the accused. This
principle is succinctly explained by the Hon'ble Supreme Court
in Mousam Singha Roy v. State of W.B. reported in (2003) 12 SCC
377, paragraphs 27 and 28 of which reads as under:--
"27. Before we conclude, we must place on record the fact that we
are not unaware of the degree of agony and frustration that may be
caused to the society in general and the families of the victims in
particular, by the fact that a heinous crime like this goes unpunished,
but then the law does not permit the courts to punish the accused on
the basis of moral conviction or on suspicion alone. The burden of
proof in a criminal trial never shifts, and it is always the burden of
the prosecution to prove its case beyond reasonable doubt on the
basis of acceptable evidence. In the similar circumstance this Court in
the case of Sarwan Singh Rattan Singh v. State of Punjab (AIR 1957
SC 637) stated thus (AIR p.645,para 12)
"It is no doubt a matter of regret that a foul cold-blooded and
cruel murder should go unpunished. There may also be an element of
truth in the prosecution story against the accused. Considered as a
whole, the prosecution story may be true; but between 'may be true'
and 'must be true' there is inevitably a long distance to travel and the
whole of this distance must be covered by the prosecution by legal,
reliable and unimpeachable evidence before an accused can be
convicted.
28. It is also a settled principle of criminal jurisprudence that the
more serious the offence, the stricter the degree of proof, since a
higher degree of assurance is required to convict the accused."
12. Similar is the observation of the Hon'ble Supreme Court
in Shivaji Sahebrao Bobde v. State of Maharashtra ((1973) 2 SCC
793 : AIR 1973 SC 2622) whether it is held that certainly it is a
primary principle that the accused 'must be' and not merely 'may be'
guilty before a court to convict and the mental distance between 'may
be' and 'must be' is long and divides vague conjunctures from sure
conclusions."
Bogus Colleges:
30. As per Ex.P763 report submitted by P.W.133 to the ACP
the following Colleges were not in existence.
1. Key Junior College
2. Shivaji Degree College, Lakdikapul
3. Chanakya College, Krishna Nagar
4. Alekhya Junior College, Nagarjuna Nagar
5. DVR College, Jubilee Hills
6. S.D.College, Laxminagar
7. Sapthagiri College, Srinivas Nagar
8. R.S.M.College, Langrhouse
9. Global College, Lalitha Nagar
10. Mesco College, Keshava Nagar
11. R.s.M.College, Sai Nagar
12. Apex College, Sai Nagar
13. Royal Junior College, S.R.Nagar
14. Oxford College, Barkathpura
15. Red rose College, Vikasnagar
16. Gabriel College, Vikasnagar
17. Al-ameen Junior College, Erramanjil Colony
18. Al-ameen Degree College, Nadeem Colony, Toli
Chowki;
and
19. Samatha Degree College, Hanuman Bowli,
Hyderabad.
31. As per Ex.P800 report submitted by P.W.141 P.Devender
to the ACP the following Colleges were not in existence.
1. Citizen Junior College, Nampally
2. Aditya College, Gaganmahal
3. Priyanka Gandhi College for Women,
Narayanguda
4. BNS College, Narayanaguda
32. It is quite interesting to note that PW-133 in his report
Ex.P763 has mentioned both Al-ameen Junior College and Al-
Ameen Degree College as the non existing Colleges though in
his Ex.P237 letter the Registrar, Osmania University has
mentioned that Al-Ameen Degree College was in existence.
33. According to the prosecution, there were bills pertaining
to the above mentioned 25 colleges which were non existent
and floated by A1, assisted by other accused for the purpose of
claiming scholarships. To prove that the colleges did not exist,
the prosecution examined P.W.9, who worked as Joint
Secretary, Board of Intermediate Education. PW9 issued letter
Ex.P214. In the said letter, he stated that 13 colleges have
never applied for recognition.
34. The other witness P.W.12, who was the Secretary of
A.P.State Council of Higher Education, Hyderabad has issued
letter Ex.P235 addressed to the Registrar, Osmania University
regarding affiliated colleges of Osmania University. Out of the
list of 28 colleges which were named in the letter addressed by
P.W.12, three of the colleges were affiliated and accordingly
Ex.P237 reply was given.
35. The prosecution also examined P.W.133, police
constable, who verified and submitted Ex.P763 report that
there were no such colleges. Similarly, P.W.141, another police
constable submitted Ex.P800 report and stated about non-
existent colleges. Under Ex.P763, 19 colleges were verified and
submitted that they were non-existent. Under Ex.P800, four
colleges were shown as non-existent. However, P.W.133 in
Ex.P763 stated that two of the colleges namely Al-Ameen
Junior College, Erramanjil Colony and Al-Ameen Degree
College, Nadeem Colony, Tolichoki, which were at serial
Nos.17 and 18 on Ex.P763 report were existing. On the basis
of the said letters issued by P.Ws.9, 12, 37, 133 and 141,
learned Special Judge concluded that the colleges are bogus.
36. P.W.9, who worked as Joint Secretary in the Board of
Intermediate stated that there will be a list of recognized
colleges in the Board. However, the said list was not handed
over to the police. Witness further admitted that the list of
recognized colleges maintained in the Board would be
authentic record to ascertain whether colleges were existing or
bogus colleges. He further stated that he was not aware about
the list of recognized colleges prior to his joining the
Intermediate Board. The witness joined in the year 2002 and
the alleged bogus claims were prior to year 2002. The witness
further admits that every year colleges will be deleted and new
colleges will be added and he is not aware about the colleges
prior to his joining in the year 2002.
37. On similar lines, P.W.12 who was the Secretary in
A.P.State Council for Higher Education stated that there would
be an official list of the colleges affiliated to the Osmania
University and will be available in the University. What were
the records referred to by P.W.12 while certifying that certain
colleges did not exist was not stated by P.W.12. P.W.12 also
admitted that there will be a list of recognized colleges
available with the Higher Education Department. However,
both P.Ws.9 and P.W.12 failed to provide the list of colleges for
relevant the years 1990-2001, which was the alleged period of
claims. When the list of colleges was available, no reasons are
given as to why the said official records were not collected by
the police or handed over by the witnesses.
38. Having admitted that the record was available regarding
existence of colleges for non-production of the said record, an
adverse inference has to be drawn under Section 114 (g) of the
Indian Evidence Act.
"114((g) That evidence which could be and is not produced
would, if produced, be unfavourable to the person who
withholds it;"
39. The other two witnesses are Police Constables P.W.133
and P.W.141 who also gave letters that colleges were not
existing. There is no reason why the Investigating Officer had
to rely on the police constables of his department to certify
non-existence of colleges. Investigating Officer had access to
the official records of both the departments of higher
education, the Intermediate Board and also Osmania
University records where the list of colleges would be available.
40. Another aspect is the authenticity of existing colleges.
The prosecution has marked Ex.P402 through P.W.21. P.W.21
worked as District Social Welfare Officer. She admitted in her
examination that the list of colleges enclosed to Ex.P402 was
for the year 1990-2000. In the said list, the names of the 25
alleged bogus colleges find place. It is brought on record that
A17 had prepared Ex.P402, and addressed to the Deputy Pay
and Accounts Officer on 21.10.1999 even prior to the
registration of crime in the present case. In this case, crime
was registered on 13.05.2002. In fact, A17, who died during
trial addressed Ex.P402 and lodged a complaint with Jubilee
Hills Police on 13.05.2002, stating that she found two forged
bills in the name of DVR college, Jubilee Hills and the said
bills were submitted and signatures of staff members of
Deputy Director, Social Welfare Department were fabricated.
The said complaint of A17 was registered as crime No.151 of
2002 and later investigation was handed over to the CCS, DD,
Hyderabad. During the course of investigation, A17 was added
as accused. No evidence is placed by the prosecution in the
Court below that A17 had fabricated Ex.P402 in conspiracy
with the other accused. There is no evidence to that effect
either by the Investigating Officer or any other witness. The
said document is not disputed by the prosecution, in which
the names of 25 alleged bogus colleges names find place. The
witnesses do not say that ExP402 was false and fabricated.
41. P.W.2 is the Pay and Accounts Officer, who worked from
July, 2001 in Pay and Accounts Office. P.W.4 is also an
auditor in the Pay and Accounts Office, who worked in the
scholarship wing. Both of them state that the list of colleges
will be available in the Pay and Accounts Office. However, the
prosecution has failed to collect the said documents reflecting
the names of colleges.
42. The evidence of existence of colleges is based on
assumptions and letters given by witnesses which have no
sanctity in the back ground of admission of witnesses that the
list of colleges would be available and the said documents, for
the best reasons known, were not collected during
investigation and not placed before the Court below to infer
that the colleges were non existent. The Investigating Officer
(P.W.143) has committed blatant error in not collecting the
said record. In the absence of such record, it cannot be
concluded that the colleges were not existent on the basis of
uncorroborated testimony of witnesses. Burden is always on
the prosecution to discharge its burden of proving a fact by
reliable evidence.
Bills:
43. Bills were raised and cheques issued in the Pay and
Accounts Office. The prosecution has examined six witnesses
from the Pay and Accounts Office. The witnesses, the
documents marked and against which accused evidence is
adduced, is tabulated below.
Sl.No. Name of the Exhibits Details of Against accused
witness marked Exhibits
1. Sathinagi Reddy, P13-P81 Bills A3,7,10,34,39,22,35
PAO (P.W.2)
P82-P116 Cheques A20, 10,39
P117-P131 Bills copies A4, 39, 34, 20, 41
D4 GOMs.No.88
D5-D8 PAO
manuals
D9/10 Proceedings
2. Y.Annapurna, P20-23 Bills A43
Auditor (P.W.4)
P28-31 Bills A4, 34, 39
P42, 43 Bills A4, 39, 34, 20, 41
P45 Bills A4, 39, 34,20, 41
P56-P61 Bills A4, 34, 39
P68-P75 Bills A4, 34, 39
P80 Bills A4, A39
P19 Bills A4
P67, 68 Bills A4, A34
P133-196 Bills A4, 34, 39
3. P.Srinivas Rao,
Asst.Auditor
(PW5)
4. Raghavendra
Chary
Asst.PAO (PW6)
5. V.Ambigekar,
Auditor (P.W.8)
6. K.Jaiswan, P215-224 Register of A31
Assistant Auditor Bills
(PW10)
44. The crucial witnesses for the prosecution P.Ws.2 and 4
have identified the signatures and writings on the bills as that
of the accused, who are mentioned in column No.5. However,
either P.W.2 & P.W.4 or any of the witnesses stated that the
cheques were issued in respect of bogus colleges or non-
existent colleges. Further, it is not the case of the witnesses
that bills identified by them were forged by any of the accused.
Even the sanction orders in the bills were not disputed by the
witnesses and did not say that the signatures in the sanction
orders did not tally with the specimen signatures which were
available in the office. It was further stated by PWs.2 and 4
that the required formalities and procedures were in
accordance with PAO manuals (Exs.D5 to D8) and the
corresponding government orders were followed in respect of
the bills that were raised and also the consequent cheques
that were issued.
45. PWs.2 and 4 stated that the signatures of the
sanctioning authorities from the department DSWO, DPCW
and DPWO available in the office were not tallying. However,
the said officers, who are the sanctioning authorities were
examined as PWs.32, 33, 41, 42, 46 and 105 in the case. The
said witnesses have denied their signatures on the documents
which are sanctioning orders in the bills.
46. The Investigating Officer in the said circumstances ought
to have collected the specimen signatures of the said witnesses
P.W.32, 33, 41, 42, 46 & 105 and the accused. The specimen
should have been sent along with all the bills for the purpose
of handwriting examination and opinion. The specimen
signatures of the sanctioning officers were available in the
department and also the bills. No reasons are given as to why
the documents were not sent to hand writing expert to rule out
that the witnesses have not signed on the said sanction
documents. Though the witnesses have entered into the box
and stated that the signature is not their signature, however,
it becomes necessary in the background of the bills being
passed in the department over a period of several years and
the accused denial of endorsing any fabricated bills.
47. None of the witnesses have stated as to who presented
the bills in the office and who collected the tokens thereof for
collecting the Government cheques.
48. According to the procedure, the funds are allotted after
identifying the colleges and students. All the bills and cheques
are subjected to internal audit and also the audit by the
officers of the Accountant General's office from time to time. It
is highly suspicious as to why the alleged fraud or claim was
not detected over the years.
49. The prosecution has resorted to marking the documents
without proving that there was any illegality in the said bills.
Merely marking the documents would not be suffice, more
particularly, in the back ground of the prosecution failing to
prove beyond reasonable doubt that the colleges were non-
existent or floated by A1 and A2.
50. Witnesses of backward class department.
Sl.No. Name of the witness Exhibits Details of Against
marked exhibits accused
1. K.Ashok Kumar P1 GOMs.No.42
(P.W.1) DBCWO
P2 List of
officers
P3-P8 Signatures A6
P10-P12 Bills A6
D1-D3 161 Cr.P.C
2. E.V.Narsimha P46-P50 Sanctions Denies his
Reddy signature
(P.W.32) DBCWO
P473-P477 Sanctions Denies his
signature
P478-/478 List of Denies his
students signature
3. Sunki Srinivasulu P32-P34 Bills Denies his
signature
(PW 105) DBCWO
51. P.W.1, P.W.32, P.W.105 were examined from the
Backward Class Welfare Department. The signatures of A6, list
of students were identified by the witnesses. None of the
witnesses have attributed anything against any of the accused.
The specimen signatures of the witnesses would be available
with the PAO's office, according to them. However, no
complaint was received from the Pay and Accounts Office
about any forgery committed. The witnesses only identified the
writings and signatures of the accused. However, they have
admitted that there was nothing wrong with the bills. Though
P.W.32 and P.W.105 denied their signatures on documents,
the documents ought to have been subjected to hand writing
examination test and opinion by an expert. No reasons are
given why the documents were not subjected to expert
opinion. As seen from the documents filed, there are 'Q'
markings of signatures indicating that all the disputed
documents such as cheques, bills etc., were sent to a hand
writing expert but no opinion was produced by the
prosecution. No reasons are given by the prosecution for such
non filing of opinion.
52. The following are the witnesses belonging to Social
Welfare Department.
Sl.No Name of the Exhibits Details of Exhibits Against
witness marled accused
talks
about
1. R.V.Prasad Raju Service Of accused A1,2,5,
(P.W.3)
2. G.Anantha P385/386 Endorsement/Records A1, 2, 5,
(P.W.21)
P387- A2
P400
P401 A5
P402-409 List of colleges A17
3. N.Yadiah P402- Letter A17
(P.W.29) P409
4. Dhara P480- Sanctions Denies
Chandraiah P488, his
(PW33) signature
D54
5. J.Roopa P402- List of Colleges etc A17
Kalpana P409
(P.W.39)
6. M.Vijaya P402- List of Colleges etc A17
(P.W.40) P409 denies his
signature
7. A.Vijaya Kumar P533- Sanctions A5
(PW41) P542
8. M.S.R.Bharath P543- Sanctions Denies
Kumar (P.W.42) P547, his
signature
D67
9. K.Chandra P547 Letter A17
Shekar (P.W.43)
10. C.Sridhar P550-
(P.W.46) P557,
D63
53. The witnesses stated that the Department maintains list
of approved colleges for grant of scholarships. The said list of
approved colleges was not collected by the Investigating
Officer. None of the witnesses stated that the names of the
colleges whose bills were passed with sanction proceedings
were not present in the approved list of colleges available with
them. Mysteriously, relevant documents were not collected
though available such as list of colleges and students, which
was available in the department.
54. P.Ws.33, 41, 42 and 46 who worked as District Social
Welfare Officers in the department stated that their signatures
were forged in the bills. However, no steps were taken to send
the bills to the handwriting expert. The necessity to send the
bills to the handwriting expert arises for the reason of the bills
being passed over the years. Though specimen signatures of
officers of Social Welfare Department were available in the
PAO's office, at no point of time, any complaint was made
regarding the signatures. As already stated relevant
documents were sent for hand writing examination by an
expert but opinion is not filed.
55. P.W.10 and 20 were examined from the Tribal Welfare
Department. P.W.10 marked Exs.P197, 208 proceedings,
Exs.P209 to 213 sanction proceedings pertaining to A8, A9
and A42. The witnesses accept that their department
maintains the list of approved colleges for grant of
scholarships. However, none of the witnesses have stated
about the non-existence of any of the colleges in the bills
which were shown to them. The prosecution ought to have
taken steps to collect the list of documents from the Tribal
Welfare Department which admittedly was available with
them. During the course of investigation, material documents
were not collected and during the course of trial, the Public
Prosecutor has not taken steps to ascertain from the witnesses
regarding the non-existent colleges. As already stated, the
evidence adduced to show that the colleges were non-existent
is suspicious and not based on actual records and registers
available in the department maintaining the list of colleges.
56. The learned Public Prosecutor ought to have questioned
the witnesses whether the colleges were existing or not during
course of trial. It would not amount to opinion of the witness
but would be on the basis of record. The documents were
marked through witness but nothing was adduced from the
witnesses to know whether the contents of documents were
correct or not. In cases of circumstantial evidence, the
circumstances relied upon by the prosecution can be linked
and convince the Court about culpability of the accused.
However, in the present case, the proof of non-existence of
colleges as provided by the prosecution is doubtful as
discussed earlier.
BANK ACCOUNTS OPENED IN THE NAMES OF COLLEGES:
57. The following is the tabular form of the evidence adduced
by the prosecution witnesses pertaining to the opening of
various Bank Accounts.
Sl.No Name of the Name of Name of Exhibits Nature of
witness college account Exhibits
holder P series
1. ASN Murthy, SD college K.Raju P278 Account
Andhra Bank, Reddy A12 opening
Mehdipatnam form
(P.W.14)
Sapthagiri G.Srilakshmi 279 Account
College (A13) opening
form
Alekhya K.Rajender 280 Account
Junior opening
form
College
DVR P.Rajashekar 281 Account
College opening
form
Chanakya P.N.Swamy 282-286 Account
College opening
form
RSM 287-289 Statement
College etc.,
2. DVSV Prasad, Mesco Jr. Latha 358-362 Account
Andhra Bank College opening
(P.W.17) form
Global P.Balaiah 363-368 Account
college opening
form
RSM B.Rama Rao 366-368 Account
College opening
form
3. Dasi Paulson, Mesco Jr. Latha 358 Account
Andhra Bank, college opening
Karvan (PW18) form
Global P.Balaiah 363 Account
college opening
form
RSM B.Rama Rao 366 Account
College opening
form
4. M.Lakshmi Al-Ameen Principal 410-416 Account
Nrayana, SBH, Jr.College opening
Raidurg (PW22) form
Apex Principal 417-422 Account
College opening
form
Al-Ameen Principal 423-430 Account
Degree opening
form
College
Oxford Principal 431-433 Statement
College ledger
Royal Principal 434-439 Account
College opening
form
BNS B.P.Rao 440-444 Account
college opening
form
Gabriel Principal 445-449 Account
College opening
form
Red Rose Principal 450-455 Account
college opening
form
5. KVS Raja, SBH, Al-Ameen Principal 410 Account
Raidurg (P.W.23) Jr.College opening
form
Apex Principal 417 Account
College opening
form
Al-Ameen Principal 423 Account
Degree opening
form
College
Royal Principal 434 Account
college opening
form
Gabriel Principal 445 Account
college opening
form
Red Rose Principal 451 Account
college opening
form
6. Ashok Mohanlal, Apex Principal 417 Account
SBH, Raidurg (PW College opening
27) form
BNS B.P.Rao 440 Account
college opening
form
Royal Principal 434 Account
college opening
form
Gabriel Principal 445 Account
college opening
form
Red Rose Principal 451 Account
College opening
form
Oxford Principal 432 statement
College
58. The documents have been marked as mentioned in the
above table which the prosecution relies on to state that A1
and A2 have opened the accounts. However, the documents
are not certified under the Bankers Book Evidence Act. None
of these Bank witnesses have made any endorsements on the
account opening forms and specimen signature cards of the
alleged College Accounts. All the witnesses stated in their
evidence that all the required formalities and procedures as
provided by their Manual of Instructions have been followed
while opening of the College Accounts by the concerned
Principals of those colleges. None of them stated that the Bank
Accounts spoken to by them are Bogus or impersonated
Accounts of non-existing colleges as alleged by the
prosecution. They have also stated that all the cheques of
various colleges would have been honoured only after the
signature appearing on them tallied with the specimen
signatures available in their Bank. Except making a vague
statement that A1 and A23 operated all the alleged college
accounts, none of them stated specifically that A1 or A23 had
filled up any vouchers or credit slips. No such documents were
collected and sent to a hand writing expert. None of the
witnesses have direct knowledge of the accused opening the
accounts.
59. The pay in slips pertaining to the deposit of Government
Cheques into these alleged accounts are also not marked as
Exhibits in this case. With regard to the withdrawals of
amounts from these College Accounts, the prosecution did not
produce any evidence as to who received the self cheques
marked as Exhiits and issued tokens, who passed and verified
the signatures on them with the specimens available, who
made the respective entries in the ledger boks and who made
payments arising out of these self cheques and as to who
returned such tokens and actually received the amounts
thereof. With regard to Account payee cheques, all these Bank
Witnesses through whom such cheques are marked simply
state in their cross-examination that all such cheques whether
self cheques or account payee cheques were passed and
cleared only after the signatures appearing on them were
tallied with the specimens available in their Bank.
60. As seen from the chief examination of P.W.14, P.W.17
and P.W.22, all of them were not working in those respective
Banks at the time of these College Accounts were opened in
their Bank and they admitted in their cross-examination that
they have no personal knowledge of opening those College
Accounts.
61. P.W.114 is an additional witness examined by the
prosecution who speaks of two alleged college Accounts
pertaining to SD college and Sapthagiri College marked as
Exs.P278 and P279. Witness says that A1 introduced the
account holders of Ex.P278 and P279 to the Bank. However,
A1 was operating the Accounts. In the cross-examination he
says that he was giving evidence only on the basis of records.
A1 signed as an introducer marked as Ex.P278(a) and P279(a)
which is identical to the signature of A1 in Ex.P322 which is
account opening form in Canara Bank, Kothur Branch. He
further admits that the signature and photograph of A12 and
A13 are there in Ex.P278 and P279 respectively as Account
Holders. P.W.114 having admitted that he was deposing on the
basis of record, one fails to understand how the witness can
identify the handwriting of A12 and A13. Sending the
documents Ex.P278(a) and 279(a) would have determined the
operation of accounts. Both A12 and A13 were acquitted.
62. P.W.114 further admits that A1 must have attended the
Bank on that day as an Introducer. All the transactions
pertaining to the two college Accounts are legal and there is
nothing illegal in them. A1 was attending the Bank as he was
having personal accounts of himself and his family members
and as such he knew him as a valued customer.
63. Ex.P358 to P373 are in respect of College Accounts in
Andhra Bank, Karwan. The prosecution examined P.W.17 and
P.W.18. P.W.17 states that he worked as Branch Manager of
Andhra Bank from 27/12/2001 to 9/9/2003. Ex.P358, P363
and P366 accounts were opened during the tenure of A18 and
admits that he has no personal knowledge as to which person
has actually operated the said Accounts. P.W.17 stated that as
per his enquiry it was A1 who operated the three Accounts.
P.W.17's evidence about A1 operating account is hearsay
evidence.
64. P.W.17 admits that the space where the Bank Manager
has to sign is left blank in Ex.P358, P363 and P366 and that
he has no personal knowledge of the documents spoken to by
him and his evidence is based on records and also that some
of the accounts he spoke were also closed by the time he took
charge as Bank Manager.
65. P.W.142, the Investigating Officer stated that P.W.14
admitted that he did not know A1. P.W.15 stated that he
knows A1 as a valued customer. P.W.142 admitted during
cross-examination that "PW.14 and 15 have not stated before
me that one Karunakar (P.W.114) was the person who was
authorized the opening of accounts on behalf of S.D.College,
Sapthagiri College, Alekhya College, D.V.R College, Chanakya
College and SRM College covered by Exs.P278 to P289. PWs.14
and 15 did not state before me that one Sura Giddayya
(P.W.109) and S.Anurdha (P.W.110) were the persons who dealt
with the transactions pertaining to the above colleges covered
by Exs.P278 to P289. I did not examine P.Ws.109, 110 and
114."
66. P.W.142 further admitted during cross-examination:
"P.W.17 did not give the name of the account holder 389 as
Laxmi. P.W.18 also stated that the introducer for the above
said three accounts covered by Exs.P358 and P365 was
A/c.No.389. P.Ws.17 and 18 did not state before me that the
signatures of the introducer in Exs.P358, P363 and P366 is
different from the signature of the account holder of 389 in
their bank. The account opening date is not noted at the top in
Exs.P358, P363 and P366 but the date stamp is affixed and it
indicates 21.11.2001, as the date of opening of those
accounts, Ex.P358, P363 and P366 do not contain any
signature of the bank official but at the right top there are
initials which could be the initials of bank officials. I did not
try to find out as to which official of the bank put those
initials."
67. P.W.114 admitted during cross-examination that A1
must have come to the bank on that day as an introducer for
the two accounts under Ex.P278 and P279 in the name of A12
and A13. He further admits that the Accounts covered by
Ex.P278 and P279 were opened after all the legal requirements
for opening of Accounts as provided by the Manual of
Instructions were satisfied and that there was no illegality in
opening of the two Accounts. P.W.114 admitted that as long as
he was in that Branch, it was not brought to his notice that A1
was operating the accounts covered by Ex.P278 and P279 and
that is the reason why he had not made any complaint to the
police against A1 in respect of forgery and impersonation. The
admission by the Investigating Officer/P.W.142 extracted
above and P.W.114 would go to show that only documents
were marked without having any personal knowledge of A1
transacting business in the said accounts.
68. There is absolutely no reliable evidence to infer that A1
had transacted business in the College Accounts marked as
Exhibits P280 to P289, P358, P363, P366, P410, P417, P423,
P431, P434, P440, P445, P451 and as an introducer in respect
of Ex.P278 and P279.
CHEQUE TRANSACTIONS IN THE COLLEGE ACCOUNTS:
69. Though this Court found that the prosecution failed to
establish that A1 transacted business in the college accounts,
it is necessary to discuss the evidence adduced by prosecution
regarding cheques issued in respect of the college accounts to
establish that A1 had issued the cheques pertaining to the
college accounts.
70. Charge No.21 refers to the self cheque No.214254 dated
15.12.1998 for Rs.80,000/- issued by the Principal, Sapthagiri
Junior College and marked through P.W.14 who took charge
only on 1/6/2002 as Manager of the Bank and he did not
attribute anything against A1 in this regard. No other witness
including the I.O i.e., P.W.142 stated anything in respect of
this Cheque.
71. Charge No.22 refers to the Bearers Cheque bearing
No.864552 dated 28.09.1999 for Rs.4,70,000/- issued by the
Principal, S.D.College in favour of Andhra Bank, Karwan
Branch marked through P.W.18 as Ex.P393. P.W.18 did not
say anything about clearing and crediting of the said cheque
in A/c.No.8826. P.W.18 did not say that A1 issued this cheuqe
and that the said amount was credited into SB A/c.8826 of
Ramavath Kaneef Raj, son of A1.
72. The Charges No.23, 24, 28 to 32 framed are in relation
to certain cheques marked as Exhibits P414, P415, P428,
P427, P429, P426 and P413 through PW 22 but he did not say
that A1 issued these chques and withdrawn the amount
thereof. The said cheques should have been sent to an expert
to determine whether A1 issued the cheques.
73. Charge Nos.23 and 24 refer to Ex.P414 and P415
respectively which are self cheques alleged to have been issued
by the Principal, Al-Ameen Junior College, Nadeem Colony,
Hyderabad. P.W.22 and P.W.142 did not specifically say that
A1 issued these self cheques and withdrew the amounts
thereon. No other witness stated anything against A1 in
respect of these two cheques. However the Principal of the
college was examined to speak about the account and the
cheques. Except denial of the transactions, nothing was
attributed to A1. It cannot be assumed that A1 issued the
cheques only for the reason of the Principal of the college
denied the cheques.
74. Charge Nos.28, 29 and 30 refer to Ex.P428, P427, mand
P429 respectively, which are account payee cheques alleged to
have been issued by the Principal, Al-Ameen Degree College,
Nadeem Colony, Hyderabad. P.W.142 did not state whether
these cheques were encashed after clearing. But P.W.22 says
that all these cheques were honoured on legal tender and
there is nothing illegal in them. No where in these three
cheques A1's name or signature is found. P.W.38 who received
this cheque vide Ex.P428 from A1 admits in his cross-
examination that the said cheque was issued by the Principal
of Al-Ameen Degree College and it was cleared on 12/6/99
while he admits that in the cash book marked as P532, the
said entry was made on 15/4/99 and Ex.P428 is dated
27/4/99.
75. Charge No.29 refers to Ex.P427 and P22. PW142 did not
state anything in reference to this cheque against A1. PW30
states that he worked as Branch Manager of Amangal Branch
from September, 2001 to June, 2003. According to him
Ex.P427 is an account payee cheque in favour of Manager,
Sangameshwara Grameena Bank, Karkalpahad dated
16/3/99 and it was issued by Principal, Al-Ameen Degree
College, Nadeem Colony, Hyderabad for Rs.2 lakhs and it was
encashed by clearing.
76. Charge No.30 refers to Ex.P429 and PW22 and PW142
did not attribute anything against A1 in this regard. P.W.31
says in chief examination that he worked in the DCC Bank,
Amangal from December, 2001 to June, 2003, while the said
cheque i.e., Ex.P429 is dated 11/2/99 for Rs.1 lakh issued by
the Principal, Al-Ameen Degree College, Nadeem Colony,
Hyderabad in favour of Manager, DCC Bank, Amangal and it
was encashed through clearing. In the cross-examination
P.W.31 admits that when Ex.P429 was honoured he was not
in that Branch and he has no personal knowledge about the
presentation of the said cheque in their bank.
77. Charge Nos.31 and 32 refer to ExP426and P413, which
are bearer cheques issued in favour of Smt.Vijayalakshmi
alleged to have been issued by Al-Ameen Degree and Junior
College respectively. P.w.22 and P.W.142 did not state that
A23 came to the bank on that day and withdrew the amounts.
78. Charge Nos.25, 26 and 27 refer to Ex.P372, P360 and
P361 respectively relating to RSM and Mesco Colleges
accounts in Andhra Bank, Karwan. P.W.17 only stated that
the Ex.P372 is a bearer cheque bearing No.471102 dated
11/9/96 is in favour of R.M.Naik for Rs.25,000/- and it was
issued by the Principal, RSM. The specimen signature card
pertaining to this account is Ex.P370 which shows one
B.Purna Rao as the Principal, RSM College, who opened and
operated this account. The said B.Purna Rao is neither cited
as witness nor an accused in this case. The prosecution has
failed to connect A1 with the transactions in the college
accounts by adducing direct evidence.
79. The Hon'ble Supreme Court in Kailash Gour v. State of
Assam 12, has held that: (SCC pp.50-51, para 44)
"44. The prosecution, it is axiomatic, must establish its case against
the accused by leading evidence that is accepted by the standards
that are known to criminal jurisprudence regardless of whether the
crime is committed in the course of communal disturbances or
otherwise. In short, there can only be one set of rules and
standards when it comes to trials and judgment in criminal cases
unless the statute provides for anything specially applicable to a
particular case or class of cases.
24. In the present case, the cumulative effect of the aforesaid
investigative lapses has fortified the presumption of innocence in
favour of the respondent-accused. In such cases, the benefit of
doubt arising out of a faulty investigation accrues in favour of the
accused."
80. The alleged scam is enormous in the context of
involvement of officials/accused in fabrication of documents
and the way the Government was cheated. However, the
investigation has not collected direct evidence which was
available and based investigation on assumptions and
presumptions. Even during the course of trial, the prosecution
has merely marked documents without connecting the links.
(2012) 2 SCC 34
The evidence is circumstantial in nature and the
circumstances so elicited during evidence has to form a
complete chain without there being any missing links or
doubts that would be created when the case is viewed as a
whole. The prosecution has resorted to marking documents
through witnesses who had no knowledge about the execution
of the said documents and deposed based on their information
from others. It is not known as to why the said persons who
had direct knowledge about the transactions were not
examined. Merely marking documents will not suffice to read
into the contents of the said documents and infer that the
accused were responsible. The basis for the scam being
floating of fake schools and fake names of students, however,
the direct evidence available regarding details of schools in the
departments, which witnesses admit as available, was not
produced.
81. There cannot be any moral conviction of accused. Unless
the burden is discharged by the prosecution proving the case
beyond reasonable doubt, no conviction can be recorded. The
prosecution has placed heavy reliance on the alleged
transactions in banks. The said bank officials had no direct
knowledge and none of the witnesses said about withdrawal of
the amounts by the accused or depositing of the cheques by
the accused. The said cheques originated from the Pay and
Accounts Office and en-cashed in the Bank. Serious doubts
arise in the absence of proof of documents and absence of
witnesses to speak about handing over of the cheques to the
accused or the accused transacting business in the account.
For the reasons best known, none of the documents were
subjected to handwriting expert examination and no reasons
are given why the said procedure which could aid in
concluding the guilt or otherwise of the accused was not
followed. The specimen signatures of sanctioning officer of
bills were available in the Pay & Accounts Office but not
collected during investigation. The register of tokens given to
persons who present bills and collect cheques were available
but not seized for reasons best known to the investigating
officer.
82. A perusal of documents would show that most of the
documents in the case were sent for FSL examination by a
hand writing expert. It is evident since there were markings as
'Q' in all of the disputed documents. Markings of an expert are
present, who encircled the disputed signatures and writings
with blue and red pencils. Nothing is clarified by the
Investigating Officer as to why documents were sent to an
expert and no opinion was received. If received, why the said
reports were not filed or having sent them, why the documents
were taken back without opinion.
83. The prosecution has left yawning gaps in investigation
and failed to prove their case beyond reasonable doubt by
adducing admissible evidence. For the reasons in the foregoing
paragraphs, the prosecution has failed to prove by reliable
evidence that the offence was committed by the appellants
herein, as such, benefit of doubt is extended to the appellants.
84. In the result,
85. Criminal Appeal No.674 of 2007 filed by A36 is allowed.
86. Crl.A.No.675 of 2007 filed by A24 is allowed.
87. Crl.A.No.703 of 2007 filed by A3 & A7 is allowed.
88. Crl.A.No.715 of 2007 filed by A42 is allowed.
89. Crl.A.No.743 of 2007 filed by A10 is allowed.
90. Crl.A.No.744 of 2007 filed by A5 is allowed.
91. Crl.A.No.749 of 2007 filed by A20, A22 & A41 is allowed.
92. Crl.A.No.752 of 2007 filed by A6 is allowed.
93. Crl.A.No.755 of 2007 filed by A4 is allowed.
94. Crl.A.No.756 of 2007 filed by A35 is allowed.
95. Crl.A.No.790 of 2007 filed by A1 is allowed.
96. Crl.A.No.1019 of 2007 filed by A2 is allowed.
_________________
K.SURENDER, J
Date: 17.10.2023
Note: LR copy to be marked.
B/o.kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL Nos.674, 675, 703, 715, 743, 744, 749,
752, 755, 756, 790 & 1019 OF 2007
Dt. 17.10.2023
kvs
