Bangalore District Court
State By D.J.Halli Ps vs S.Kambadasan on 31 July, 2015
IN THE COURT OF THE IV ADDL. C.M.M AT BANGALORE.
DATED THIS THE 31st DAY OF JULY 2015
PRESENT
Ms.Vela D.K. B.A., L.L.B., (Hon's)
IV A.C.M.M. Bangalore
CC No. 966/1987
Complainant : State by D.J.Halli PS
V/s.
Accused : S.Kambadasan, 38 Yrs.,
S/o Subramani,
R/o Ayanna Compound,
Nagayanapalya,
Maruthisevanagara,
Bangalore.
JUDGMENT
The documents produced in CC No.964/1987 have been relied upon for this case.
2. D.J.Halli Police have charge sheeted the accused alleging the offences punishable u/s.408 and 477A of IPC.
3. The facts alleged is that while the accused was discharging duty in the capacity of Sales Assistant in KFCSC Ltd., entrusted with work of sales of the commodities of the said retail point, failed to remit sales proceeds to the tune of Rs.14851.57 to the accounts of KFCSC Ltd. and misappropriated for own use with intent to defraud and falsified the entries in the account books and relevant records of the
-2- CC 966/1987 institution of complainant and committed criminal breach of trust and the said offences.
4. On filing of the charge sheet in the above said case, cognizance was taken for the said offences and summons was issued to the accused. On appearance of the accused, the mandatory provisions u/s.207 of Cr.P.C. was complied with. Charge was framed, Plea recorded. Accused pleaded not guilty and claimed trial. To prove the case, the prosecution has got examined 14 witnesses out of 22 witnesses and got marked Ex.P.1 to Ex.P.69. CW7 was reported to be not capable of moving due to paralysis stroke, hence dropped. CW12 reported to be dead. CW15 and 16 not traced. CW3, CW19 to 21 were given up. After the prosecution submitted its side closed, the statement of the accused u/s.313 of Cr.P.C. was recorded, wherein the accused have denied all the incriminating evidence appearing against him. There is no defence evidence in the present case.
5. On hearing the merits of the case, the points that arise for consideration are as follows :
1) Whether the prosecution proves beyond all reasonable doubt that, the accused while working as Sales Assistant under the complainant CW1 in KFCSC Limited, retail Point No.1, D.J.Halli, Bangalore during the period from 1.7.1984 to 30.6.1985, being entrusted with the monetary transactions of KFCSC Ltd., Retail point No.1, D.J.Halli misappropriated sum of Rs.14851.57 by way of non-remittance, short remittance of the cash
-3- CC 966/1987 collected by the sale proceeds of the commodities of the said retail point to the account of KSCFC and thereby committed the offence punishable u/s.408 of IPC ?
2) Whether the prosecution further proves beyond all reasonable doubt that, during the said period the accused willfully with an intention to defraud, falsified the entries in the day book of the said KFCSC Ltd., Bangalore and thereby committed the offence punishable u/s.477A of IPC ?
3) What order ?
6. The findings on the above points are as follows:
Point No.1 & 2 : In the negative.
Point No.3 : As per the final order for the following:
REASONS
7. Point Nos.1 & 2 : It is alleged that, while the accused was working under the KFCSC, there is said to be misappropriation committed by the accused by falsifying the entries in the registers. Therefore, these points being interlinked, are discussed and answered together in order to avoid repetition.
8. At the outset in regard to this case complaint Ex.P.1 has been filed on 24.11.1986 by the Karnataka Food and Civil Supplies Corporation Ltd., (hereinafter referred to as KFCSC Ltd.) Copy of complaint is marked as Ex.P.1(b). In the complaint it is alleged that, the said corporation to be a registered company established by the Government of Karnataka for the purpose of procurement, distribution
-4- CC 966/1987 and sale of food grain and essential commodities. The corporation is said to have been appointed as the sole agent of the State Government for the said purpose. The accused Kambadasan was said to be working as incharge Sales Assistant in Devara Jeevanahalli - I Retail point of the corporation and entrusted with the work of the sale of foodgrains to the ration card holders belonging to the corporation and crediting the sale proceeds to the Canara Bank in favour of corporation. While he was said to be working as the Sales Assistant during the period from 1.7.1984 to 19.3.1986 in the said retail point of the corporation, there is said to be misappropriation of the corporation funds to the extent of Rs.1,07,117.80 being the sale proceeds for the said period with dishonest intention to make wrongful gain for himself and wrongful loss to the corporation. This is said to amount to criminal misappropriation and criminal breach of trust in respect of the corporation funds amounting to Rs.1,07,117.80. This misappropriation is said to have been confirmed by the audit report dated 10.11.1986 and therefore Departmental action is said to have been initiated against the said official by keeping him under suspension. Therefore, it means that, the misappropriation alleged is said to have taken place during the period from 1.7.1984 to 19.3.1986 and the complaint has been filed on 24.11.1986.
9. By virtue of the nature of the offences alleged in the present case, it is necessary to note the nature of the work that was entrusted to the accused. Prior to that it is to be noted that it is an admitted fact from the oral evidence that the accused was appointed as the
-5- CC 966/1987 Watchman. For this the office order dated 10.8.1983 marked as Ex.P.27 shows that he was appointed as Watchman in the corporation. In this office order it is mentioned that he will be on probation for a period of one year from the date of joining the duty. It is also necessary to note the rule 4 which is as follows :
"4. He / She will be eligible for confirmation after satisfactory completion of probation. At the time of confirmation, he /she will be required to execute an agreement in the prescribed form on a stamp paper of requisite value at their own cost agreeing to serve the Corporation for a minimum period of 3 years from the date of confirmation."
Thereby it means that only on completion of the probation, the accused was eligible for confirmation that would be in about August 1984. At the time of confirmation he is said to be required to execute an agreement in the stamp paper and that he was to agreed to serve the corporation for a minimum period of 3 years from the date of confirmation. The misappropriation alleged is said to have taken place during the period 1.7.1984 to 19.3.1986 which is prior to his confirmation.
10. As per Ex.P.28 dated 12.8.1983 the accused has submitted the duty report of joining himself as the Watchman to the said Corporation. Subsequently, there is an official memorandum of the KFCSC dated 16.6.1984 about the posting of Junior Assistant (probationary) attached to WRP, Bangalore office. It contains the list of the Junior Assistants who have been appointed and posted as
-6- CC 966/1987 Sales Assistants. This includes the name of the accused which is at Sl. No.24 and the place of the appointment is Devara Jeevanahalli R/Point-I. It further mentions that, the Junior Assistants shows in the Sl. Nos. 21 to 23 (at Sl. No.24 is the accused) to hand over the charge immediately and to report to the undersigned on 18.6.1984. As per Ex.P.3 there is job chart of the Sales Assistant issued by the KFCSC Limited and this is dated 11.2.1987. This reads as follows :
1) The sales assistant has to collect the permit from the concerned range officer.
2) He has to lift the foodgrains in accordance to the permit issued by the range officer from the concerned wholesale point.
3) He has to issue the foodgrains to the card holders assigned to the retail point, as per the scale of issues fixed by the Food Department.
4) The sales assistant has to remit the sale proceeds everyday to the bank assigned by the corporation.
5) The sales assistant has to maintain the accounts in the particular registers, prescribed by the corporation.
6) He is not supposed to show any shortage either in cash or in foodgrains.
7) The sales assistant is the complete charge of the retail point.
8) He has to submit the monthly returns to the corporation.
11. The date is significant to be noted for the reason that appointment of sales assistant is dated 16.6.1984 but the job chart of the Sales Assistant is dated 11.2.1987 and the period of misappropriation is 1.7.1984 to 19.3.1987. The acquittance roll of the accused is as per Ex.P.4. At the same time it is also necessary to note that while recording the 313 statement the accused had
-7- CC 966/1987 admitted to be appointed as the Sales Assistant in one of the retail point of D.J.Halli, KFCSC and that it was his duty to collect permit from the concerned range office and to lift the foodgrain from the wholesale point to the retail point and to issue foodgrains to the ration card holders assigned to that retail point and to remit the every day sale proceeds to the bank. Further has admitted that it was his duty to maintain the account in the prescribed register and to be incharge of the said retail point with dominion over the cash and the property of the said point. That the relevant day books maintained by accused and the entries to be in the handwriting of the accused. That the accused to be bringing the stock from the godown and selling the same, was maintaining the accounts and remitting the amount of account of KFCSC in Canara Bank, D.J.Halli shop and that as per the direction of the accused PW8 to be remitting the amount to the Canara Bank and handing over the counterfoils of the challans to the accused after remitting the amount. But he has denied about misappropriation of the amount. By virtue of the answers mentioned in the statement and the above discussed documents, oral evidence, it means that the accused was appointed as the Watchman and subsequently was to do the work of the Sales Assistant. Of course with regard to the duty of the Sales Assistant there is no document is produced that is addressed to the accused.
12. PW2 the Administrator of APMC, Bangalore has stated to be working as District Manager in the City Retail points, KFCSC, Bangalore during the period from 20.8.1986 to 11.8.1987. There was
-8- CC 966/1987 said to be about 300 retail points in Bangalore and among that one retail point was said to be at D.J.Halli. According to him, the accused was the Sales Assistant and he was to collect permit from the concerned range office, Bangalore and to lift the foodgrains from the whole point of KFCSC to the retail point and to issue the foodgrains to the ration card holders who are assigned to the retail point and remit the sale proceeds of the every day and remit the sale proceeds to the concerned bank. He was to maintain the accounts prescribed in the register. The Sales Assistant is said to be over all charge of the retail point and to submit the monthly returns to the H.O. and he is said to be the only person who is said to have dominion over the cash and the property of that retail point. He has admitted that, as per Ex.P.2 accused to be posted as Sales Assistant. The nature of the suggestion put forth to this witness has been as follows :
"It is true that, earlier to the accused being appointed as Sales Assistant he was appointed as Watchman in KFCSC"
This nature of the suggestion and the answers given by the accused in the course of Sec.313 Cr.P.C. statement means that the accused was appointed as the Watchman and thereafter as the Sales Assistant in the KFCSC. That being so, what was the kind of entrustment given to the accused and what was expected from the accused is to be considered.
13. At the outset it is necessary to note at this stage the evidence of the junior auditor PW1. According to him Devarajeevanahalli retail
-9- CC 966/1987 fair price shop is said to fall within the purview of the internal auditor jurisdiction of CW7. This auditor is said to have audited the accounts of the retail shop and according to him the accused was said to be working as incharge Sales Assistant in the retail shop during the relevant period of the incident. His audit is said to have been reviewed by the internal auditor CW7. That audit report has been marked as Ex.P.5 wherein he is said to have found accused to have misappropriated sum of Rs.1,07,117.80 during the period 1.7.1984 to 30.3.1986. The nature of misappropriation stated by this witness has been that, for the period 1.7.1984 to 19.3.1986, misappropriation was said to be of the stock to the tune of Rs.24532.70. During the period from 1.7.1984 to 30.6.1985 there is said to be misappropriation by the accused of the stock in the retail point to the tune of Rs.7,527.57.
14. Accused is said to have failed to remit sale proceeds of empty gunny bag to the tune of Rs.7324/-. During this period the accused is said to have misappropriated sum of Rs.14,851.57. Apart from misappropriation of the stock, the accused is said to have also misappropriated the cash realised by selling the stock to the tune of Rs.70,234.71 by way of non remittance of the sale proceeds. Misappropriation of Rs.4,992.54 is said to by way of short remittance. Further accused is said to have remitted the amount to the account of KFCSC without any reference. The accused is said to have remitted in total sum of Rs.40,485.95 during that period. After deducting the excess remittance, the actual misappropriation is said to come to Rs.33,841.40.
- 10 - CC 966/1987
15. Ex.P.5(a) to (d) are said to contain the details of shortage of stock, non remittance of sale proceeds, short remittance of sale proceeds and excess amount remitted. The daily sales and stock register pertaining to KFCSC for the year 1984-85 marked as Ex.P.10 is said to have been perused by him.
16. PW6 has stated as follows :
"During the period from 1.7.84 to 30.6.85 there was a shortage of food grains and other commodities worth about Rs.7527.57. During the said period, the accused has failed to remit the sale proceeds of empty gunny bags to the tune of Rs.7324.00. Thus during the said period the accused has misappropriated the total sum of Rs.14,851.57.
On 1.7.84 to 30.6.85 accused had not accounted for empty sugar gunny bag of 162 at the rate of Rs.8/- per bag to the tune of Rs.1296/- and empty gunny bags of rice & other commodities of 3736 at the Rs.4/- to the tune of Rs.14944/- and misappropriated the said amount for this personal gain. From 1.7.84 to 30.6.85 there was shortage of food grain to the tune Rs.7527.57, thereby the accused has totally misappropriated during that period the amount of Rs.14851.57. I have noted the said misappropriation in page No.7 of my audit report.
During 1.7.84 and 30.6.85 ad had not remitted the value of empty gunny bags to the tune of Rs.7324/- and there was shortage of food grains at retail point amounting to Rs.7527.57 and thereby he totally misappropriated Rs.14,851.87.
From 1.7.84 to 30.6.85 the Sugar bag of 162 and rice bags of 3036 were supplied to retail point of accused.
- 11 - CC 966/1987 Accused was expected to sell empty sugar bags and rice bags after sale of 10 bags each and account for the same to the society. But the accused after selling those 162 sugar bags & 3736 rice bags had not accounted for the same and value of each sugar bag was Rs.8/- and value of each rice bag was Rs.4/- and thereby the accused misappropriated the amount to the tune of Rs.7324/-.
I have annexed the stock statement along with my audit report. There was shortage of materials totally to the tune of Rs.24,532.70 for 2 years. Out of the same there was shortage of materials to the tune of Rs.7527.57 during 1.7.84 and 30.6.85."
No exhibits are marked about the same.
17. The above nature of misappropriation has been stated by PW6. But he himself has stated as follows:
"I have not made any features in audit report for casing delay of 3 years for not auditing the account of the said retail shop."
There was said to be no audit of the account monthly or fortnightly. He has again stated as follows :
"I have not made the observation regarding the pre audit report. I did not ask the Supervisory Officer of KFCSC as to why the periodical audit was not conducted."
18. He himself has stated that earlier accused was said to be working as the Watchman. The suggestion put forth to this witness has been that the accused have acted only on the instruction of his
- 12 - CC 966/1987 superior officer. It is interesting to note that, further this PW6 has stated " FUÀ £ÉÆÃrzÀ DAvÀjPÀ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£Á PÉʦr ¥ÀæPÁgÀ £Á£ÀÄ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£Á ¢£ÁAPÀzÀ ªÀiÁ»w ¥ÀvÀæ, Drmï £ÉÆÃl£ÀÄß PÉÆnÖzÀÝ §UÉÎ, £ÀµÀÖªÁzÀ §UÉÎ ¥ÀæªÀiÁt ¥ÀvÀæ, F zÁR¯ÉUÀ¼À£ÀÄß £À£ÀÄ £À£Àß ªÀgÀ¢AiÀÄ°è ¥Àj²Ã®£É ªÀiÁrzÉÝÃ£É DzÀgÉ CªÀÅUÀ¼À£ÀÄß ªÀgÀ¢AiÉÆA¢UÉ ¸À°è¹®è. ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£Á ªÀgÀ¢AiÉÆA¢UÉ ¸À°è¸À¨ÉÃPÁzÀ zÁR¯ÉUÀ¼À §UÉÎ ¸ÀzÀj ªÀgÀ¢AiÀÄ°è £ÀªÀÄÆzÁVzÀÄÝ ¸ÀzÀj zÁR¯ÉUÀ¼À£ÀÄß £Á£ÀÄ ¸À°è¹®è."
19. The audit conducted by him is said to have been inspected by internal auditor. He alone is said to have conducted the audit without any assistance and particularly has stated "D PÁ®zÀ°è DAvÀjPÀ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£É EgÀ°®è. CzÉà jÃwAiÀiÁV ªÀiÁ¹PÀ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£É ¸ÀºÀ EgÀ°®è. "
20. On account of shortage of staff, though accused was said to be the Watchman, he was said to have been entrusted as incharge Sales Assistant and only till that period he is said to have conducted the audit. With regard to the capability of the accused he has stated DgÉÆɦUÉ ¸ÀzÀj ¸Éïïì C¹¸ÉÖAmï PÉ®¸ÀzÀ «zÁåºÀðvÉ, C£ÀĨÀsªÀ EgÀ°®è JAzÀgÉ ¸Àj. The internal audit officer is said to have passed an order directing him to conduct the enquiry. The MD is said to direct the internal audit office. He is said to be not an internal audit officer. He has particularly stated JA.r.gÀªÀgÀÄ EAlgï£À¯ï Drmï D¦üøÀgïgÀªÀjUÉ DzÉò¹zÀgÀÄ CªÀgÀÄ £ÀAvÀgÀ £À£ÀUÉ DzÉò¹zÀgÀÄ. £ÁåAiÀiÁ®AiÀÄzÀ°ègÀĪÀ zÁR¯ÉUÀ¼À°è £Á£ÀÄ vÀAiÀiÁj¹
- 13 - CC 966/1987 ¸À» ªÀiÁrzÀ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£ÉAiÀÄ°è £À£Àß ¸À» EgÀĪÀÅ¢®è. £Á£ÀÄ ¸À°è¹zÀ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£Á ªÀgÀ¢AiÀÄ£ÀÄß £ÀªÀÄä EAlgï£À¯ï Drmï PÀZÉÃjAiÀÄ°è ªÀÄgÀÄ ¥ÀjµÀÌj¹ ¸À°è¸À¯ÁVzÉ. £À£Àß ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£É ªÀgÀ¢AiÀÄ£ÀÄß ¥ÀjµÀÌj¹zÀªÀgÀÄ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£ÉAiÀÄ£ÀÄß ªÀiÁr®è.
21. The receipts of the sales per day are said to have been enclosed with the monthly statements. But though statements are said to be not in the book as he has stated ¸ÀzÀj vÀBSÉÛUÀ¼ÀÄ ªÀ»UÀ¼À°è EgÀĪÀÅ¢®è. £Á£ÀÄ ¥Àj²Ã®£É ªÀiÁrzÀ AiÀiÁªÀÅzÉà ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£Á ªÀgÀ¢AiÀºÀÄ£ÀÄß E°èªÀgÉUÉ £Á£ÀÄ ¸À» ªÀiÁr®è. £À£ÀUÉ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£É ªÀiÁqÀ®Ä ¤zÉðñÀ£À E®èzÉà EgÀĪÀÅzÀjAzÀ ¸À» ªÀiÁr®è CAzÀgÉ ¸ÀļÀÄî. ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£Á ªÀgÀ¢UÉ ¸À» ªÀiÁqÀ®Ä £À£ÀUÉ C¢üPÁgÀ EgÀĪÀÅ¢®è. ¯ÉPÀÌ ¥Àj±ÉÆÃzÀ£É ªÀiÁqÀ®Ä C¢üPÁgÀ EzÉ ¸À» ªÀiÁqÀ®Ä C¢üPÁgÀ E®è. ¸ÀzÀj ªÀgÀ¢UÉ ¸À» ªÀiÁqÀ®Ä EAlgï£À¯ï Drmï D¦üøï gÀªÀjUÉ C¢üPÁgÀ EgÀÄvÀÛzÉ.
22. Therefore, the evidence of PW6 shows that he is said to have conducted the audit. He is said to be not authorised to sign the audit report and therefore not signed audit report. It is only prerogative of the internal audit who is said to be authorised to sign the audit report. Why is it that PW6 has the authority if any to conduct the audit without signing the audit report is not substantiated in the present case. He himself as above noted in the oral evidence has stated that, the audit conducted by him would be again perused by internal auditor. If that has taken place or not is not forthcoming in the material placed before the court.
- 14 - CC 966/1987
23. The audit report Ex.P.5 has been signed by one Shivarudrappa. No doubt it contains the name of PW6. This Shivarudrappa has been cited as CW7 in the charge sheet. On 9.10.2002 as per the order sheet it is been noted that CW7 to be reported not to be capable of moving on account of paralysis stroke and therefore dropped. In regard to the document that were said to have been enclosed by this PW6 as per his evidence, in fact this court had enquired to the concerned jurisdictional police station to submit about the documents and the report of the D.J.Halli police station dated 29.7.2015 has been to the effect that the documents pertaining to this case as well as the other three connected cases to have been destroyed on account of fire at the office. This document is in CC No.964/1987. Therefore, it means that, opportunity in fact was given to the prosecution department to adduce the evidence in the present case. Inspite of that the evidence of PW6 shows that he alone is not authorised to conduct the audit. The validity of his audit is depended upon the inspection by the internal auditor CW7. But unfortunately CW7 has been dropped on account of medical reasons. Therefore, mere evidence of PW6 cannot be the basis for the offences alleged against the accused. Therefore, from the evidence of PW6 it means that, his independent report by itself is not the clinching evidence for the said offences.
24. Procedure is said to be required to be followed i.e. the audit report has to be scrutinised by the internal auditor as he is said to be not athorised to sign the audit report. Ex.P.5 which is the audit report
- 15 - CC 966/1987 bears only the signature of this Shivarudrappa. This report Ex.P.5 has to be necessarily substantiated by Shivarudrappa who is said to be authorised person for the submission of the audit report. In view of the nature of the proceedings pertaining to the audit and specifically in reference to the non signing the audit by PW6, the material placed before the court shows that the case of the prosecution is entirely dependant on PW6 himself. This evidence of PW6 is not of such nature that only on his evidence there can be conviction. No doubt as per his evidence, he has stated the entries pertaining to the misappropriation said to have been alleged against the accused but he himself has stated the circumstances as above discussed which are of such nature namely that the audit report to have sanctity only when inspected by the internal auditor, that accused to be only incharge Sales Assistant, that not to have submitted the requisite documents along with the audit report, non inspection of the audit report by the concerned are all fatal to the case of the prosecution.
25. The Administrator of the APMC examined as PW1. But his evidence as above noted has been discarded by the court as dropped. In regard to the documents said to have been submitted at the time of mahazar no details of the documents has been stated by this PW4. Formally PW3 has stated about carrying complaint to the concerned police station.
26. PW5 said to be the Supervisor of KFCSC, Bangalore from January 1984 to May 1987 has stated that, this Devarajeevanahalli
- 16 - CC 966/1987 retail sales point to fall within his jurisdiction. He also in terms of PW1 has stated that, accused to be working as incharge Sales Assistant. His evidence is very vital for the reason that he himself has stated to be his responsibility to supervise the sales point falling within his jurisdiction in regard to lifting of the goods by the Sales Assistant from the wholesale depot proper distribution to the card holders and proper sale proceeds to the bank. He was said to be visiting all the 88 retail points once or twice a month. At every visit he was said to check the stock register, day book and find out the sale proceeds if being remitted to the bank or not. In case the sale proceeds are not remitted to the bank on the next day, he was said to have made a note in the day book and submit the report to the District Manager. When this is the procedure said to be in regard to the deposit of the sale proceeds, then it means that the day to day transaction is necessarily scrutinised atleast monthly. The audit has been conducted for the period from 1.7.1984 to 19.3.1986. During this period how can there has been no scrutiny monthly wise atleast. In this aspect no doubt this PW5 has stated that, he is said to have noticed the accused not to have remitted the sale proceeds for which he has not made endorsement in the day book marked as Ex.P.9 and the concerned entries Ex.P.9(a) to Ex.P.9(h). Thereafter audit of the retail point was said to have been conducted and the report submitted to the office. His evidence has been about the marking of the day book for the year 1984 as Ex.P.10 and Ex.P.11 which were said to have been maintained by the accused and has stated the accused to have made entries in those exhibits. Ex.P.12 according to him is
- 17 - CC 966/1987 another day book and the relevant entries Ex.P.12(a), 12(b). Five day books have been marked as Ex.P.13 to Ex.P.17 and another day book for the year 1986 is marked as Ex.P.18 from this witness. Only the above entries and day book have been marked, but the same has not been substantiated through this witness and this witness very importantly has not been cross-examined. In fact in the order of the Appellate Court, opportunity was ordered to be given but unfortunately this witness has not been secured and thereby there is no cross-examination of this witness. Apart from that, his evidence goes to show that, he has only stated about marking of the said document and some entries. But he himself has stated that there has to be entry on the day to day basis in the relevant registers in the sense that the sale proceeds ought to have been remitted from next day itself. For this purpose the report ought to be submitted to the District Manager.
27. The evidence of PW6 shows that the entries stated by him is on the date he has audited. But this witness PW5 was required to make the concerned entry during the particular month or on the day to day basis on the day itself. Such entries are not forthcoming in the exhibits stated by him. This witness himself has stated that it was his responsibility to supervise. His nature of evidence shows that in turn he has referred the audit report of PW6. Primarily it was his duty to report about any misdeeds if any found in maintaining the requisite registers of the sale proceeds.
- 18 - CC 966/1987
28. Office Manager of the KFCSC examined as PW7 has stated that he was said to be working as the Senior Assistant from 1981 to 1984 and as Quality Inspector he is said to have visited the retail shop and inspected the books of accounts. His nature of evidence has been that "When I visited the said retail shop the designation of the accused was Watchman but he was working as incharge Sales Assistant.
The accused was expected to sell the materials and keep the stock as directed by the higher officer. The accused has discharged his duty as directed by the higher officer. I had not noticed the said short remittance on the same day itself. But I have noticed the same when I inspected the same periodically."
29. This witness has stated about the entries in Ex.P.9 in his evidence dated 26.3.2002. According to him he is said to have issued the memo to the accused as per Ex.P.18 which is the notice for short remittance and it is dated 17.10.1985. Similarly he has stated in regard to Ex.P.19 to Ex.P.25 said to be the memo and report about the short remittance. His evidence is prior to the disposal of the above case. After the remand this witness has not been secured.
30. PW8 is stated to be working as Assistant to the accused and according to him the duty of the accused was to bring stock from the go down and sell the same and maintain the same, remit the amount to the account of KFCSC in Canara Bank, D.J.Halli branch. This witness was said to be remitting the amount to the Canara Bank as
- 19 - CC 966/1987 per the direction of the accused and handing over the counterfoil of the challan to the accused towards remittance of the amount. But the evidence of PW8 has been that accused was required to discharge the duty as directed by his higher officer and the actual remittance of amount from the evidence of PW1 is said to have been done by him only. He has also stated as follows :
"It is true to say that himself and accused were serving in the same office. It is true to say that myself and the accused obey the orders of the superior officers."
31. The Quality Inspector PW10 has stated as follows :
"Earlier the accused was working as Watchman of godown of KFCSC. He was delivering the wheat, sugar, rice etc. as per the direction of his superior. It is false to say that there was shortage of materials while handing over the materials to the accused from the main godown. I was advising the accused to carry on the business promptly. Subsequently the accused was working as assistant sale man. Another Weighman was there in the said retail point. Since I was looking after 69 retail point, I was not able to go through the accounts in detail."
32. Thereby from his evidence it shows that physically he has not verified the stock at the time of inspection as he was said to inspect in total 69 retail points and therefore he had remitted the amount to have maintained the accounts as well as fixed his initial. Only after audit he is said to have come to know about the alleged misappropriation. This nature of the evidence adduced by the prosecution goes to show that the work of the accused ought to be
- 20 - CC 966/1987 supervised by the Supervisory officer and then by the Quality Officer and then by the other officials who had to necessarily on day to day basis scrutinise each and every entry made in the day book. While handing over the charge list prepared by the accused, PW12 has stated not to have visited the shortage of the stock and i.e. marked as Ex.P.27. PW12 has stated about the extract of the ledger pass sheet of the current A/c. No.315 of the Depot Manager marked as Ex.P.18. Similarly PW13 has stated about the ledger extract of the S.B. A/c No.235 of the accused marked as Ex.P.28. There is no cross- examination of these witnesses.
33. PW14 has stated about the stock receipt books as per Ex.P.68 and Ex.P.69. Unfortunately all these witnesses have not been cross- examined in the present case. At this juncture, the learned counsel for the accused has referred to the citation reported in AIR 1989 Supreme Court 1141, wherein it is held as under :
"(A). Evidence Act (1872), Ss.137 and 138 -
Party not subjecting himself to cross-examination in spite of order of Court - It is not safe to rely on examination-in-chief."
34. This matter was earlier disposed off vide judgment dated 31.10.203. Against that Criminal Appeal No.665.03 was preferred. The appeal was allowed on 24.9.2011 whereby the matter was remanded back for giving opportunity to the accused to further cross- examine all the prosecution witnesses and also after giving an opportunity to the prosecution to further examine the prosecution
- 21 - CC 966/1987 witnesses if any. Thereafter the matter was proceeded with from 2.11.2011. The application was filed by the counsel for the accused u/s.212(2) of Cr.P.C. seeking that in respect of the misappropriation during the period of one year one charge sheet to be filed. Therefore had sought to return all the charge sheets for resubmission. That application has been dismissed vide order dated 19.6.2013. Then summons, NBWs have been issued to secure the witnesses of the prosecution from 8.7.2013. From 13.3.2014 to 9.7.2014 accused had remained absent and NBW was issued to the accused. Subsequently it is only PW1 who was secured. On 18.8.14 the counsel for the accused had submitted no further cross-examination of PW4 and therefore PW4 was discharged. Again summons and warrants was being issued to secure the witnesses. PW1 was further cross-examined on 15.12.2014. On 31.3.2015 there is an order that the evidence of PW2, PW3, PW6 is discarded as the process issued through the COP not to be executed. Then the matter was posted for 313 statement and the matter was posted for arguments on 15.4.2015. From the proceedings of this case, it means that after the remand it is only PW1 who has been cross-examined and none of the other witnesses have been secured.
35. No doubt the offences alleged in the present case are pertaining to 408, 477A of IPC. The proceedings in the present case goes to show that the witnesses have not been secured for further evidence. Mere marking of the exhibits and some entries by itself cannot prove the case of the prosecution for the reason that after the
- 22 - CC 966/1987 remand the witnesses have not turned up. Conviction only on the sole evidence of PW1 for the alleged offence is not safe in the present facts and circumstances of the case. By virtue of the procedure contemplated for the audit and that there are other superior officers who were required to scrutinise the accused, the emphasis is to be added to the fact that the accused was said to be only an incharge Sales Assistant and earlier to that he was a Watchman. The alleged misappropriation is said to have taken place two months after his appointment as Sales Assistant. When there are other superior officers who are required to scrutinise his work and they were required to submit the reports then and there itself why was it that subsequently only PW1 had to audit. This aspect is not substantiated in the present case.
36. The registers marked in the present case and the entries which are said to be in the registers as per the evidence placed before the court are not to the effect about the proving of the guilt of the accused beyond reasonable doubt. The work of the Sales Assistant was needed to be scrutinised by higher officials. Those higher officials ought to submit or make the relevant entry within reasonable time. When this aspect is considered, there is no substantive evidence to that effect. Thereby invariably it is only the evidence of PW1 which is the sole evidence of the prosecution. But unfortunately on account of the nature of the procedure of the audit stated by PW1 himself, thereby there is no evidence of such nature that there could be conviction of the accused. In view of the facts and circumstances of
- 23 - CC 966/1987 the case, prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Hence, the benefit of doubt has to be given to the accused. Therefore, the points for consideration are answered in the negative.
37. Point No.3 : In view of finding on the above points, the following :
ORDER Acting u/s.248(1) of Cr.P.C. accused is acquitted of the offences punishable u/s.408, 477A IPC.
Bail bond of the accused and his surety stands cancelled.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 31st day of July 2015) (Ms. Vela D.K.) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution :
PW.1 : M.A.Sadiq
PW.2: C.N.Lakshminarayana
PW.3: M.S.Ramu
PW.4: Venugopal
PW.5: K.P.Gowri
PW.6: Md. Haroof
PW.7: Vasudeva
PW.8: Jayapal
- 24 - CC 966/1987
PW.9: Chandrashekar
PW.10: Huchappa
PW.11: H.Nagaraj
PW.12: B.C.Bheemeswar
PW.13: V.J.Kamath
PW.14: Abdul Subhan
List of exhibits marked for prosecution :
Ex.P.1 : Complaint
Ex.P.2 : Transfer order
Ex.P.3 : Copy of Job Chart
Ex.P.4 : Salary certificate
Ex.P.5 : Audit report
Ex.P.6 : Mahazar of CW3
Ex.P.7 :
Ex.P.8 : Handwriting of CW2
Ex.P.9 & 10 : Day books
Ex.P.11: Another Day book
Ex.P.12 to 16: Five day books
Ex.P.17: Day book
Ex.P.18 to 20 : Memo
Ex.P.21 to 24 : Reports
Ex.P.25: Appointment order
Ex.P.26: Duty report
Ex.P.27: Shortage of stock
Ex.P.28: Account extract
Ex.P.29 to 65 : Monthly statements
Ex.P.66 and 67 : Receipts
List of M.O.s marked for prosecution : NIL
List of witnesses and exhibits marked on behalf of accused : NIL (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.
- 25 - CC 966/1987
31.07.2015
State by Sr.APP
Accused
For judgment
ORDER
(pronounced in open court vide separate order) Acting u/s.248(1) of Cr.P.C. accused is acquitted of the offences punishable u/s.408, 477A IPC.
Bail bond of the accused and his surety stands cancelled.
(Dictated to the stenographer, transcribed and computerised by her, corrected by me and then pronounced in open court on this the 31st day of July 2015) (Ms. Vela D.K.) IV Addl.Chief Metropolitan Magistrate, Bangalore.