Karnataka High Court
T Srinivasan vs Central Bureau Of Investigation on 10 April, 2013
1 Crl.A.No.1391/2004
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF APRIL, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.1391 OF 2004
BETWEEN:
1. T SRINIVASAN
SINCE DEAD REP BY HIS LRS.
1A. SMT. S VIJAYA
W/O. LATE T SRINIVASAN
AGE 43 YEARS
R/O. NO.1449, 12TH CROSS
21ST A MAIN, 1ST SECTOR
HSR LAYOUT, BANGALORE-34.
... APPELLANT
(BY M/S: RAVI B NAIK ASSTS, ADVS)
AND:
CENTRAL BUREAU OF INVESTIGATION
REP. BY HIGH COURT PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE.
... RESPONDENT
(BY SRI: C H JADHAV, ADV FOR CBI)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 CR.P.C. AGAINST THE JUDGMENT DATED
10.09.2004 PASSED BY THE XXI ADDL. C.C. AND
S.J., & SPL. JUDGE FOR CBI CASES, BANGALORE, IN
SPL.C.C. NO.7/89 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES P/U/Ss.409,
2 Crl.A.No.1391/2004
477A OF IPC 5(2) R/W. SECTION 5(1)(c) OF THE
PREVENTION OF CORRUPTION ACT, 1947 AND
SENTENCING HIM TO UNDERGO R.I. FOR 3 YEARS AND
TO PAY A FINE OF RS.20,000/- AND I.D., TO
UNDERGO FURTHER S.I. FOR SIX MONTHS FOR AN
OFFENCE P/U/S. 409 OF IPC AND FURTHER SENTENCING
HIM TO UNDERGO R.I. FOR 3 YEARS AND TO PAY A
FINE OF RS.20,000/- AND I.D., TO UNDERGO FURTHER
S.I. FOR SIX MONTHS FOR AN OFFENCE P/U/S. 477A
OF IPC AND FURTHER SENTENCING HIM TO UNDERGO
R.I. FOR 3 YEARS AND TO PAY A FINE OF
RS.20,000/- AND I.D., TO UNDERGO FURTHER S.I.
FOR SIX MONTHS FOR AN OFFENCE P/U/S. 5(2) R/W.
SECTION 5(1)(c) OF THE PREVENTION OF CORRUPTION
ACT. IT IS FURTHER ORDERED THAT THE SUBSTANTIVE
SENTENCE OF IMPRISONMENT SHALL RUN CONCURRENTLY
AND THE SENTENCE OF FINE SHALL RUN
CONSECUTIVELY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
J U D G M E N T
The appellant has challenged his conviction and sentence for the offences punishable under Sections 409, 477A and Sections 5(2) read with Section 5(1)(c) of Prevention of Corruption Act, 1947 (hereinafter referred to as 'Act' for short) on a trial held by Special Judge, Bangalore City.
3 Crl.A.No.1391/2004
2. The facts relevant for the purpose of this appeal are as under:
The deceased-appellant T Srinivasan was a Medical Store Keeper in CGHS Dispensary No.3 situated at Basavanagudi, Bangalore. Inbetween 01.04.1982 to 24.02.1983, he was the custodian of medical stores in the Dispensary and was responsible for the maintenance of medical stores stock register/ledger and the records.
In case of need, the medicines were procured from the Central Medical Store, CGHS, Jayanagar by submitting an indent and T. Srinivasan, the appellant was receiving the said medicines and was bound to keep the account and he was responsible for supplying medicines against the indents signed by the medical officers incharge sent by different sections of dispensary. The prosecution alleges that T Srinivasan, the deceased-appellant who is accused before the Trial Court misappropriated the medicines 4 Crl.A.No.1391/2004 entrusted to his custody and in his efforts erased, over written the original figures by showing less quantity of receipt in the stock register and by not accounting the actual quantity of receipt and certain items of medicines received from the Central Medical Stores. In that way, he committed misappropriation of 47 items of medicines received for the aforesaid period and misappropriated 57 items of medicines by means of making fictitious entry in the medical stores stock register/ledger pertaining to indent numbers as if the said medicines was supplied against the indent numbers or by inflating the figures in the said stock register/ledger. The total value of medicines misappropriated is said to be Rs.82,379.47ps(25,584.06ps + 56,795.41ps).
He is said to have violated all the responsibilities and misappropriated 104 items of medicines dishonestly and said to have 5 Crl.A.No.1391/2004 committed the offence punishable under Sections 409, 477A and Sections 5(2) read with 5(1)(c) of the Act. On the basis of information received, RC No.41/1985 was registered and the FIR (Ex.P48) was sent. PW14 recorded the statement of witnesses and CW19 continued the investigation and filed the chargesheet.
During the trial, prosecution examined PWs.1 to 16 and in their evidence Exs.P1 to P48 documents were admitted. Statement of the accused was recorded under Section 313 Cr.P.C. No defence evidence was led. Anyhow, the accused got marked Exs.D1 and D2 - the contradiction in Exs.P1 and P2. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, convicted the accused for the aforesaid offences and he was ordered to undergo rigorous imprisonment for three years and to pay fine of Rs.20,000/- for each of the offences under 6 Crl.A.No.1391/2004 Sections 409, 477A and Section 5(2) read with 5(1)(c) of the Act and for non payment of fine, he was ordered to undergo simple imprisonment for 6 months for each of the offences. The accused aggrieved by the conviction and sentence has preferred this appeal. During the pendency of appeal before this Court, he died and his wife Smt.S Vijaya is brought on record vide order dated 18.07.2006.
3. Heard Sri.Ravi B Naik, learned Counsel for the appellant and also Sri.C H Jadhav, learned Counsel for CBI.
4. The point that arises for my consideration is:
"Whether the appellant has made out any grounds to warrant interference in the conviction and sentence for the charges under Sections 409, 477A and Section 5(2) read with 5(1)(c) of Prevention and Corruption Act?"7 Crl.A.No.1391/2004
5. Learned Counsel for the appellant would contend that the sanction order (Ex.P2) is invalid for the reason that PW1 - Dr.Sheela was neither an appointing authority nor had an authority to remove the accused from the services. Therefore, he submits that the prosecution of accused in the absence of valid sanction is illegal. So also, he would contend that PW1 - Dr.Sheela has not applied her mind while considering the grant of sanction and in the absence of application of mind, Ex.P2 is not a valid sanction in law. He also contend that there is no material on record to prove the entrustment of property, therefore, Section 409 IPC is not attracted. He also submit that the alleged misappropriation and false entries have not been proved satisfactorily, therefore, he fervently submits that the conviction and sentence ordered by the Trial Court are utterly illegal and deserves to be set aside. 8 Crl.A.No.1391/2004
6. On the other hand, learned Counsel for the respondent supporting the judgment and order of Court below contends that there is ample material on record to prove the validity of sanction order Ex.P2 and the evidence on record is more than sufficient to sustain the order of conviction and sentence.
7. The scrutiny of evidence of PW1 - Dr.Sheela reveals that she was working as Deputy Director, CGHS, Bangalore at the relevant point of time, whereas the accused was working as a Store Keeper and this post was Group - 'C' and the Deputy Director was the appointing and also removing authority in respect of Group - 'C' post. The accused was originally appointed in the Department of Post and Telegraphs by the Director of Telecommunications. He was a postal employee formerly. The accused opted for CGHS unit and was absorbed in the said unit. So it is the contention of learned Counsel that as the 9 Crl.A.No.1391/2004 accused was originally appointed by the Director of Telecommunications, PW1 Dr.Sheela was the Deputy Director in CGHS and as the Director Post in CGHS is not equivalent to the post of Director in Telecommunications, he would submit that PW1 - Dr.Sheela had no authority to consider the grant of sanction.
8. The records placed and the evidence of PW1 reveals that it is in the month of February 1976 the accused opted and absorbed in CGHS unit coming under the Union Ministry of Health and Family Welfare and he was holding the post of Pharmacist in CGHS at Bangalore and PW1
- Dr.Sheela was the then Deputy Director of CGHS. The accused was working as a Store Keeper and the post was designated as Pharmacist and it was Group 'C' post. As per the schedule of powers, the Deputy Director in CGHS was the Head of Office vested with the authority of appointment as well as removal or dismissal of 10 Crl.A.No.1391/2004 an employee who held Group 'C' post. It may be that the accused was appointed in P & T Department by the then Director of Telecommunications. Though, the post of Director of Telecommunications is equivalent to the post of Deputy Director in CGHS Department, the said question does not arise for consideration for the sole reason that the accused opted to CGHS unit and he was absorbed in the services in the said unit. So subsequent to his absorption in CGHS unit, he was employed to the post in 'C' group and the Deputy Director was the competent authority to appoint and remove the servant in his/her unit and therefore, the contention that PW1 had no authority to grant the sanction (Ex.P2) cannot be accepted.
9. That apart, accused had approached this Court in Crl.P.No.1138/2004 under Section 482 Cr.P.C. to quash the proceedings against him 11 Crl.A.No.1391/2004 on the ground of invalid sanction. He had taken up some contention before this Court in the aforesaid petition which came to be dismissed vide order of this Court dated 15.06.2004. The question of validity of sanction having been decided once by this Court, the appellant has no right to take up such contention again. Even otherwise for the reason stated supra, the sanction order Ex.P2 cannot be invalid on the ground of incompetency of PW1 to grant the sanction.
10. Though it is contended that while granting the sanction, PW1 has not applied her mind to the facts, perusal of sanction order Ex.P2 would clearly reveal that PW1 - Dr.Sheela took into consideration the records relating to misappropriation, criminal misconduct etc.,
11. Reliance is placed on the decision of Apex Court reported in (2004) 4 SCC 615 (State Vs. Dr.R C Anand and another) wherein the Apex 12 Crl.A.No.1391/2004 Court held that the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it which could be done by placing relevant files before the Court to show that all the relevant documents were considered.
12. The scrutiny of evidence of PW1 - Dr.Sheela and the documents produced at Ex.P1 - SP's report file, P1(a) - SP's report, P1(b) - Appendix, P1(c) - statement of accused, P1(d) - oral calendar of evidence, P1(e) - calendar of list of documents etc., reveals that Ex.P1(a) is the report dated 31.03.1988 enumerating the facts and circumstances relating to this incident which runs into 16 pages, Ex.P1(b) are the different entries in relation to 47 medicines which were purchased from the Central Medical Stores and other documents relating to remaining 57 items of medicines and also relating to dishonest, misappropriation etc., 13 Crl.A.No.1391/2004 Ex.P1(c) is the questionnaire with answers of accused wherein he confessed his act of misappropriation, Ex.P1(d) comprises the substance of statement recorded by the investigating officer, Ex.P1(e) is the calendar of list of documents whereas Ex.P1(f) is the draft sanction order. No doubt it is true that the draft sanction order was sent to PW1 that does not mean that PW1 has not looked into the aforesaid documents, report etc., produced at Ex.P1(a) to P1(e).
13. Furthermore, PW1 in her evidence states that on perusal of all these documents and having been satisfied about sufficient grounds against the accused for the said charges, she issued the sanction order (Ex.P2). The draft sanction order was sent only for the purpose of convenience of PW1 and that does not indicate that PW1 without looking into the records has signed the sanction order. Hence, 14 Crl.A.No.1391/2004 the scrutiny of material placed on record, the evidence of PW1 and the sanction order Ex.P2 in the context of the aforesaid documents produced, it cannot be said that PW1 did not apply her mind to grant sanction. When there is positive evidence to prove the application of mind and when all the documents referred to supra were perused by PW1 and she took a decision to grant the sanction order at Ex.P2 as legal and valid.
14. So far as the evidence led by prosecution is concerned, PW2 - Muralidhar was the Pharmacist and was receiving the indents for supply of medicines from Dispensary No.3 and he has stated in his evidence in relation to supply of different medicines by way of tablets, syrup etc., He has also referred to the vouchers (Exs.P4 and 9) and indents (Exs.P5 to 8 & 10) in relation to supply of medicines. He has spoken to about the supply of each of the medicines as mentioned in vouchers and indents. He states 15 Crl.A.No.1391/2004 about the accused being Store Keeper in Dispensary No.3 and having been in custody of all those medicines which were sent by the Central Stores. The scrutiny of his evidence reveals that accused has not even challenged the transactions relating to indents submitted and the medicines supplied.
15. PW3 - Dr.Srinivasa Rao has spoken to about the supply of different type of medicines by way of tablets etc., and Exs.P17 to 27 are the entries in relation to the different tablets supplied by the Central Stores to Dispensary No.3 on which the accused was the Store Keeper. PW4 - V Ramesh supports the version of PW3 in relation to supply of medicines to dispensary No.3. He speaks to the contents of stock register maintained in dispensary No.3 being in the handwriting of accused. Virtually his evidence is not challenged. PW5 - Narasimhaiah is the Peon in the dispensary of accused and he 16 Crl.A.No.1391/2004 alongwith other witnesses i.e., PWs.6, 7, 8 and 11 are the persons who carried the medicines and entrusted them to the custody of accused. The cross examination of these witnesses does not reveal any such circumstances to discard their evidence.
16. PW9 - Jospeh speaks of the physical verification held by PW3 and it is relevant to note that the accused in his statement before PW3 has admitted that he is solely responsible for the misappropriation of medicines and gave it so in writing in Ex.P16. PW10 - Paul Jayaraj is the Pharmacist and was present at the time of physical verification and also noted the discrepancies in the stock and speaks to the contents of Ex.P16 - confession letter of the accused. His evidence is also not challenged seriously in the cross examination.
17. PWs.12 and 13 have also deposed that even in the absence of indents, the accused made 17 Crl.A.No.1391/2004 entries relating to the supply of tablets and the evidence of these witnesses is not seriously challenged. The fact that accused was Store Keeper in Dispensary No.3 and was responsible for receiving the medicines and disburse the same in different sections of dispensary is not disputed. The evidence led by the prosecution is sufficient to establish the entrustment of property i.e., medicines to the accused and it has been clearly established from the evidence that the accused erased and manipulated the entries and misappropriated 47 items of medicines worth Rs.25,584.06ps and further misappropriated other 57 items of medicines, thereby causing loss to an extent of Rs.56,795.41ps and this fact has been proved from the enormous evidence that has been adduced by the prosecution through the documents and also the oral evidence of witnesses. 18 Crl.A.No.1391/2004
18. The scrutiny of material placed on record reveals breach of trust, criminal misconduct and manipulation of fictitious entries. Looking into the aforesaid materials and the evidence adduced by the prosecution, I do not find any justifiable grounds to warrant interference in the conviction and sentence awarded by the Trial Court. Anyhow, as the appellant-accused (deceased) died during the pendency of this appeal, the sentence cannot be enforced but the conviction cannot be interfered with.
In the result, the appeal fails and is dismissed.
Sd/-
JUDGE *bgn/-