Andhra Pradesh High Court - Amravati
Devabhaktuni Subbarao, vs The State Of A.P., on 23 July, 2024
Author: K Sreenivasa Reddy
Bench: K Sreenivasa Reddy
IN THE HIGH COURT
OF ANDHRA PRADESH:;■■■ AIWARAVATI
TUESDAY, THE THIRTEENTH day of FEBRUARY
TWO THOUSAND AND twenty four
present
honourable SR/
JUSTICE K. SREENIVASA REDDY
QBIMinal APpp^i ^!2SUZ&585
of ?nn«
^Rjiw/NAL appf/\[ JIOlSTS of 7nnfl
Appeal under Section 374(2) of Cr.P.C
dated 29.04.2008 aggrieved by the Judgment
made in C.c.No.2 of 1999
forSPESACB Cases. Vijayawada. on the file of the SpecialJudge
Between:
Devabhaktuni -
Subbarao, s/o. Venkateswara r
Sarpanch D.No.5-615, Kanur Aged about 48 years,
District. Panchayat, Penamalur u Mandal. Krishna
AND
--Appe/lant/Accused No.2
The State of Andhra Pradesh.
Cases nep- by the Special Public Prosecutor for ACB
Through District Inspector,: Krishna, Vijayawad
3 Range, Vijayawada.
■••Respondenf/Complaina nt
Counsel for the Appellant; Sr/P PrabhakarRao
Counsel for the Respondent:
■ A Gayathr; Reddy ' Standing Counsel
tor ACB cum Spf. pp
rPIMINAL APP^*I S85 OF 2008
Appeal under Section 374(2) of Cr.p.C against the Judgment in
SPE & ACB Cases.
CC.No.2 of 1999 on the file of Special Judge
Vijayawada, dt.29.04.2008.
Between:
Prakasha Rao S/o.Hanumantha Rao,
1 Konkimalla Venkata Surya
R/O. D.No.11-40-92. Pulipativari Street, Vijayawada, (A.4) -92
2. KunKimaila Srinivasa Sai, S/o. Hanumantha Rao, R/o.D.No.11-40
Pulipativari Street, Vijayawada. (A.5)
...Appellants/Accused
AND
Prosecutor, for
The State of Andhra Pradesh, Rep., by Special Pubiic
ABC, High Court of A.P., Hyderabad.
...Respondent/Complainant
Counsel for the Appellants;■ Sri. T. Pradyumna Kumar Reddy
Counsel for the Respondent: Smt. A Gayathri Reddy, Standing Counsel
for ACB cum Spl. PP
' * QBUVUNAL APPf/\| ^^^L624 of 2nnfi
Appeal under Section 374(2) of Cr.P.c
Special Judge for against the Judgment of the
dated 29'^
SPE & acb Cases, Vijayawada i
day of April, 2008. in C.C.No.2 of 1999
Between;
Panugupati Nancharayya (A-3), s/o. Subba Rao
Dhanataxmi Aged 38
Enterprises. years, Proprietor of
D.No.27-12-46
Vijayawada-2 Chetlabazar, Governerpet,
Residing at H.No.35
i^ear Visalandh ra, 2/2-17, Second bine, Seetaramapuram,
r
Printing Press
Vijayawada. Brahmanadareddynagar,^ Chittugunta,
...Petitioner/Appenanf/Ac cused No.3
AND
The State of Andhra
Range, Vijayawada Pradesh, rep., efy District Inspector ACB \/i-
rep by Spl.P., acb Hyderabad. ' '
-Respondenfs/Complaiinant
Counsel for the Appellant;• Sri. T.S. Anirudh
Reddy
Counsel for the Respondent;
■ Gayathri Reddy, Standing Counsel
for ACB cum Spl. pp
CRIMINAL APPEAL NO: 625 OF 2008
Appeal under Section 374(2) of Cr.P.C against the Judgment of the
Special Judge for SPE & ACB Cases, Vijayawada, in CC.No.2 of 1999,
. dated 29'" day of April, 2008.
Between:
K.J.M.Ratnam, W/o Late Tadepalli Nageswara Rao, Aged about 67 years,
R/o D.No.9-139/A, Near Ankamma Temple, Bandhar Road, Kankipadu,
Krishna District.
(Petitioner Amended as per Court Order dated 03.03.2014 in Crl.A.No.625
of 2008 in Crl.A.M.P.No.102 of 2014))
...Petitioner/Appellant/Accused No.1
AND
The State of Andhra Pradesh, Rep., by District Inspector ACB, Vijayawada
Range, Vijayawada, rep., by Spl. Public Prosecutor, ACB Hyderabad.
...Respondents/Complainant
Counsel for the Appellant: M/s D Sangeetha Reddy
Counsel for the Respondent: Smt. A Gayathri Reddy, Standing Counsel
for ACB cum Spl. PP
The Court made the following Common Judgment:-
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
Criminal Appeal Nos.575. 585. 624 and 625 of 2008
Common Judgment:
Since the issue involved in all the Criminal Appeals is common
and arise out of one and the same crime, they are being disposed of
by this common judgment.
2. Criminal Appeal No.575 of 2008 has been preferred by AO-2,
Criminal Appeal No.585 of 2008 has been preferred by A-4 and A-5,
Criminal Appeal No.624 of 2008 has been preferred by A-3 and
Criminal Appeal No.625 of 2008 has been preferred by AO-1 against
the judgment dated 29.{)4.2008 passed in CC No.2 of 1999 by the
learned Special Judge for SPE and ACB Cases, Vijayawada.
3. AOs-1 and 2 and A-3 to A-5 were tried for the offences
punishable under Section 13(2) read with 13(l)(c) and (d) of the
Prevention of Corruption Act, 1988 (for short 'the ActO and Sections
120-B, 409, 465, 471, 477-A and 418 read with 34 IPC.
4. By his judgment dated 29.04.2008, the learned Special Judge
found AOs.l and 2 and A-3 to A-5 guilty of respective charges leveled
against them and AOs.l and 2 were convicted and sentenced to .
undergo simple imprisonment for one year and to pay a fine of
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Crl.Appeat No.575 of 2008 and batch
Rs. 1,000/- (Rupees one thousand only) each in default to suffer simple
imprisonment for three (3) months for the offence punishable under
Section 13(c) read with Section 13(2) of the Act under 1^' count; AOs.l
and 2 were further sentenced to undergo simple imprisonment for one
year and to pay a fine of Rs. 1,000/- (Rupees one thousand only) each,
in default to suffer simple imprisonment for three (3) months for the
offence punishable under Section 477-A of IRC under 5^*^ count; AOs.l
and 2 and A-3 were further sentenced to undergo simple imprisonment
for one year and to pay a fine of Rs. 1,000/- (Rupees one thousand
only) each, in default to suffer simple imprisonment for three (3)
months for the offence punishable under Section 120-B of IPC under
7^*^ count; AOs.l and 2 were further sentenced to undergo simple
imprisonment for one year and to pay a fine of Rs. 1,000/- (Rupees one
thousand only) each in default to suffer simple imprisonment for three
(3) months for the offence punishable under Section 13(c) read with
Section 13(2) of the Act under 8* count; AOs.l and 2 and A-3 were
further sentenced to undergo simple imprisonment for one year and to
pay a fine of Rs. 1,000/- (Rupees one thousand only) each in default to
suffer simple imprisonment for three (3) months for the offence
punishable under Section 120-B of IPC under 14"' count; AOs.l and 2
were further sentenced to undergo simple imprisonment for one year
and to pay a fine of Rs. 1,000/- (Rupees one thousand only) each in
default to suffer simple imprisonment for three (3) months for the
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Crl.Appeal No.575 of 2008 and batch
offence punishable under Section 13 (c) read with 13(2) of the Act
under 15'^" count; AOs.l and 2 and A-4 and A-5 were further sentenced
to undergo simple imprisonment for one year and to pay a fine of
Rs.l,D00/- (Rupees one thousand only) each in default to suffer simple
imprisonment for three (3) months for the offence punishable under
Section 120-B of IPC under 21^'^ count.
5. The learned Special Judge found AOs.l and 2 and A-3 to A-5
not guilty and they were acquitted under Section 248(1) of Cr.P.C. for
the offence punishable under Section 409 of IPC against AOs.l and 2
under 2"^ count, for the offence punishable under Section 13(l)(d)
read with 13(2) of the Act against AOs.l and 2 under 3'''^ count; for the
offence punishable under Section 418 read with 34 IPC against AOs.l
and 2 and A-3 under 4^^ count, for the offences punishable under
Sections 465 and 471 of IPC against A-3 under count; for the
offence punishable under Section 409 of IPC against AOs.l and 2
under 9^*^ count; for the offence punishable under Section 13(l)(d)
read with 13(c) of the Act against AOs.l and 2 under 10^*^ count; for
the offence punishable under Section 418 read with 34 of IPC against
AOs.l and 2 and A-3 under 11^^ count; for the offence punishable
under Section 477-A of IPC against AOs.l and 2 under 12'^'^ count; for
the offences punishable under Sections 465 and 471 of IPC against A-3
under 13'^'^ count; for the offence punishable under Section 409 of IPC
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Crl.Appeal No.575 of 2008 and batch
against AOs.l and 2 under 16^*^ count; for the offence punishable
under Section 13Cl)(d) read with 13 (c) of the Act against AOs.l and 2
under l?^*^ count; for the offence punishable under Section 418 read
with 34 of IPC against AOs.l and 2 and A-4 and A-5 under 18^ count;
for the offence punishable under Section 477-A of IPC against AOs.l
and 2 under 19^*^ count and for the offences punishable under Sections
465 and 471 of IPC against A-4 and A-5 under 20**^ count.
6. All the sentences of imprisonments were ordered to run
concurrently. The un-marked property if any was ordered to be
destroyed after appeal time is over.
7. The substance of the charge against the accused is that;
AOs.l and 2, being public servants within the
meaning of Sec.2(c) of the Act, employed as Executive
Officer and Sarpanch respectively of Gram Panchayat,
Kanuru, during the period from 23.01.1996 to
30.10.1996, at Gram Panchayat, Kanuru, were
entrusted or under the control with the funds of Gram
Panchayat, Kanuru to a tune of Rs. 1,17,835/-, and as
such public servants, have dishonestly or fraudulently
misappropriated or otherwise converted for their own
use, the funds allotted by Gram Panchayat, Kanuru, to
a tune of Rs.l,17,835/- by creating or accepting fake
bills purported to have purchased Public Health material
from Anjana Agencies, Hanumanpet, Vijayawada, and
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Crl.Appeal No.575 of 2008 and batch
thereby committed an offence punishable under section
13(c) read with 13(2) of the Act.
AOs.l and 2 further committed an offence under
Section 409 IPC for misappropriation of funds to a tune
of Rs. 1,17,835/- during the said period.
During the said period, AOs.l and 2 abusing
their position as public servants obtained pecuniary
advantage by accepting fake bills in the name of Anjana
Agencies, Hanumanpet, Vijayawada and thereby
committed an offence punishable under Section
13(l)(d)r/w 13(c) of the Act.
In furtherance of their common object, AOs.l
and 2 in collusion with A-3 cheated the Gram
Panchayat, Kanuru by creating fake bills thereby
committed an offence punishable under Section 418 r/w
34 IPC and 477-A IPC.
A-3 during the said period used fraudulent bills
as genuine and he is alleged to have forged documents,
thereby committed the offences punishable under
Sections 465 and 471 IPC.
AOs.l and 2 in furtherance of their common
object in collusion with A-3 created fake bills and
thereby committed an offence punishable under Section
120-B of IPC.
AOs.l and 2 being public servants during the
period on 18.05.1996, dishonestly or fraudulently
misappropriated the funds allotted by the Gram
Panchayat, Kanuru, to a tune of Rs.4,03,355/- by
creating or accepting fake bills purported to have
purchased electrical goods from Dhanalakshmi
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Crl.Appeal No. 575 of 2008 and batch
Enterprises, Vijayawada and thereby committed an
offence punishable under Section 13(c) read with 13(2)
of the Act.
AOs.l and 2 during the said period have
misappropriated the funds of Gram Panchayat to a tune
of Rs.4,03,355/- and thereby committed an offence
punishable under Section 409 IPC. In the course of
same transaction, they being public servants committed
an offence punishable under Section 13(l)(d) read with
13(c) of the Act.
AOs.l and 2 and A-3 together cheated the Gram
Panchayat, Kanuru to a tune of Rs.4,03,355/- and
thereby they committed an offence punishable under
Section 418 read with 34 IPC.
AOs.l and 2 In the course of same transaction
have misappropriated the funds which were allotted to
Gram Panchayat, Kanuru to a tune of RS. 1,17,835/- as
if they purchased electrical goods from Dhanalakshmi
Enterprises, Vijayawada and thereby committed an
offence punishable under Section 477-A of IPC.
A-3 fraudulently or dishonestly used certain
documents as genuine and thereby committed the
offences punishable under Sections 465 and 471 IPC.
In furtherance of their common intention, AOs.l
and 2 and A-3 have conspired together and
misappropriated the amounts to a tune of Rs.4,03,355/-
and thereby committed an offence punishable under
Section 120-B IPC.
AOs.l and 2 during the year 1996, they being
entrusted or under the control with the funds belonging
J "
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Crl.Appeal No.575 of 2008 and batch
to Gram Panchayat to a tune of Rs. 19,889/- dishonestly
or fraudulently misappropriated the said funds and
thereby committed an offence punishable under Section
13(c) read with 13(2) of the Act. In the course of same
transaction, they committed the offence punishable
under Section 409 IPC and Section 13(l)(d) read with
13(c) of the Act.
AOs.l and 2 and A-4 and A-5 in the course of .
same transaction, have, conspired together in
misappropriating the funds to a tune of Rs. 19,889/- and
thereby committed an offence punishable under Section
418 read with 34 IPC.
A-4 and A-5 have used fake bills as genuine and
thereby committed the offences punishable under
Sections 465 and 471 IPC.
AOs.l and 2 in the year 1996 made false entries
in the stock, register belonged to the Gram Panchayat,
Kanuru, as if they purchased water works material
worth Rs. 19,889/- and thereby committed an offence
punishable under Section 477-A IPC.
Lastly, AOs.l and 2 and A-4 and A-5 have
conspired together in misappropriating the funds,
thereby committed an offence punishable under section
120-B IPC.
8. Case of the prosecution, in brief, is as follows.
a) AO-1 worked as Executive Officer in Gram Panchayat,
Kanuru, Krishna district from 23.01.1996 to 30.10.1996 and AO-2
worked as Village Sarpanch of the said Gram Panchayat, as such they
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Crl.Appeal No.575 of 2008 and batch
are Public Servants within the meaning of Section 2 (c) of the Act. A-3
is a business man under the name and style of Dhanalaxmi
Enterprises, Govcrnorpct, Vijayawada. k-A and A-5 arc brothers and
Managing Partners of Rajyalaxmi Enterprises, Nuziveedu.
b) It is alleged that AO.l, while functioning as Executive
Officer, Kanur Gram Panchayat, Krishna District, during the period from
23.01.1996 to 30.10.1996 connived with AO.2 and actuated with
corrupt practices and in abuse of their official position misappropriated
the Gram Panchayat funds during the said period, fabricated fake bills
in the name of Anjana Agencies, Hanumanpet, Vijayawada as if public
health material amounting to PvS.1,17,835/- were purchased from the
said Anjana Agencies, Vijayawada. In fact the said Anjana Agencies
never existed at the relevant period at Hanumanpet, Vijayawada. AOs-
1 and 2 made false entries in the stock register as if public health
materials were supplied by the said Anjana Agencies, and thereby
caused wrongful loss to the Gram Panchayat, Kanur and wrongfully
obtained pecuniary advantage for themselves and also gained
wrongfully.
c) AO-1, while functioning as Executive Officer, Gram
Panchayat, Kanur, conspired with AO-2 Surpanch, Kanur Panchayat
and with A-3 Proprietor of Dhanalaxmi Enterprises, Vijayawada to
misappropriate the Gram Panchayat funds and in pursuance of their
common intention fabricated fake bills in the name of Dhanalaxmi
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Crl.Appeal No.575 of 2008 and batch
Enterprises, Vijayawada as if .electrical goods worth Rs.4,03,355/- were
purchased for the said Gram Panchayat Kanur on 18.05.1996. AO-1
made false entries in the Stock Registers of Kanur Gram Panchyat, as if
Electrical Goods worth Rs.4,03,355/- were received from the said
Dhanalaxmi Enterprises, Vijayawada and even without receiving the
said electrical stock, payment was made In the name of Dhanalaxmi
Enterprises, thereby caused wrongful loss to the said Grama Panchayat
and AOs.l and 2 and A-3 gained wrongfully and obtained pecuniary
advantage for themselves.
d) AO.l, while functioning as Executive Officer, Kanur Gram
Panchayat, actuated with corrupt practices and in abuse of his official
position conspired with A0.2 Village Panchayat Sarpanch, Kanur and
also with A-4 and A-5 partners of M/s. Rajyalaxmi Enterprises,
Nuziveedu, Krishna District to misappropriate Gram Panchaya funds,
and in pursuance of their common intention, AO.l obtained fake bills
numbering 4 from Rajyalaxmi Enterprises, Nuziveedu and with
fraudulent intention made false entries in the stock register, as if
material belonging to water works amounting to Rs. 19,889/- were
received and payment was also made to the said Rajyalaxmi
Enterprises, Nuziveedu in the year 1996, thereby caused wrongful loss
to the Gram Panchayat, Kanur and AOs.l and 2 and A-4 and A-5
gained wrongfully and obtained pecuniary advantage for themselves.
\ :■
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Crl.Appeal No.575 of 2008 and batch
e) On the representation petition of L.W.l Valluri Bhaskar Rao
and another of Kanuru Village a regular enquiry was ordered in
Rc.No.57/RE-VRI/97, dated 23.05.1997, by the Director General, Anti-
Corruption Bureau, A.P. Basing on the report of the said regular
enquiry, permission was obtained to register a case against the
accused officers. Accordingly, the Director General, Anti-Corruption
Bureau, A.P., in Memorandum No.57/RE-VKI/97 dated 09.07.1997
accorded permission to register a case against AOs. 1 and 2 and other
accused. Accordingly, a case in Crime No.l2/ACB-VJA/97, under
Section 13(2) r/w 13(l)(c) of the Act and Sections 409, 420 and 477-A
IPC was registered against AOs.l and 2 and others, and investigated
by P.W.ll. The Secretary to Government, Panchayatraj and Rural
Development, A.P., being the competent authority to remove AOs.l
and 2 from Government service passed prosecution sanction orders.
After completion of investigation, charge sheet was filed against the
accused for the offences punishable under Section 13(2) read with
13(l)(c) and (d) of the Act and Sections 120-B, 409, 465, 471, 477-A
and 418 read with 34 IPC.
9. On appearance of accused, copies of documents were furnished
to them as required under Section 207 Cr.P.C. and, thereafter, charges
under Section 13(2) read with 13(l)(c) and (d) of the Prevention of
Corruption Act, 1988 (for short 'the Act') and Sections 120-B, 409, 465,
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Crl.Appeal No.575 of 2008 and batch
471, 477-A, 418 read with 34 IPC were framed against the accused as
stated supra, read over the contents and explained to them in Telugu,
for which they pleaded not guilty and claimed to be tried.
10. In support of its case, the prosecution examined PWs.l to 11
and got marked Exs.Pl to P95 and Ex.Xl.
11. After closure of the prosecution evidence, accused were
examined under Section 313 Cr.P.C., explaining the incriminating
material found against them in the evidence of prosecution witnesses,
for which they denied. On behalf of the accused, no oral evidence was
adduced, except marking Exs.Dl to D39.
12. The learned Special Judge, on appreciation of entire oral and
documentary evidence on record, found the accused guilty and.
accordingly, convicted and sentenced them as aforesaid. Against the
said conviction and sentence, the present Criminal Appeals have been -
preferred.
13. Pending the Criminal Appeals, AO.l and A-5 died. In respect of
AO.l, CrI.A.MP No.102 of 2014 was filed to bring the legal heir of
deceased AO.l on record and the said application was allowed by an
order of this Court dated 03.03.2014. However, since A-5 died and no
application has been filed on behalf of deceased A-5 for bringing his.
LRs on record, the case against A-5 is hereby abated.
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Crl.Appeal No.575 of 2008 and batch
14. Sri N. Hari Prasad Reddy, learned Counsel appearing on behalf
of learned counsel for the aRpellants/AO-2, A-3 and A-4 submits that
there is dbbuluLely iio accusation against AO-2, A-3 and A-4. According
to him, PW,7, who is the Executive Officer, categorically stated that it
is AO.l who is solely responsible for placing the orders. When once
resolution has been passed by the Gram Panchayat, it is AO.l alone
who is supposed to place the orders. According to learned Counsel,
PW.7 in categorical terms stated that A0.2 does not play any role to
take the material purchased for its utilization and the Executive Officer
alone is responsible for the same. He further submits that on a perusal
of the entire evidence on record goes to show that A-3 and A-4
supplied the material. The only grievance of PW.7 who is the
successor of AO.l is that the material supplied is of sub-standard
quality and the material that has been purchased is more than the
requirement which is in violation of the guidelines issued by the
Government from time to time. According to the learned Counsel, A-3
is the Proprietor of Dhanalakshmi Enterprises and A-4 is the Proprietor
of Rajyalakshmi Enterprises and as and when an order was placed for
supply of material before them, it is their bounden duty to supply the
said material. It is not the case of the prosecution that the material
which was supplied is of sub-standard quality. When such is the
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Crl.Appeal No.575 of 2008 and batch
situation, none of the accusations as alleged would attract against the
accused.
15. On the other hand, learned counsel appearing on behalf of AO.l
submits that from time to time materials have been supplied by A-3
and A-4. Nowhere, it is mentioned that the Gram Panchayat has not
received the stock as mentioned in the stock register. PW.7 who is the
successor of AO.l took charge on 13.10.1996 and after lapse of seven
months he addressed a letter Ex.PlS on 29.05.1997 for supply of
duplicate bills. Except stating that the Gram Panchayat has not
deceived the stock as mentioned in stock register, there is no material
on record to show that what is the stock that has not been supplied by
A-3 and A-4. A sweeping accusation has been made to the extent that
the Gram Panchayat has not received the stock as mentioned in the
stock register.
16. On the other hand, Smt. A. Gayatri Reddy, learned Standing
Counsel for ACB-cum-Special Public Prosecutor appearing on behalf of
the State, submitted that the accused conspired together and
submitted fake bills for supply of stocks. According to her, no original
bills were placed on record and the stocks which were supplied were
sub-standard one. According to her, all the accused conspired
together in misappropriating the funds of the Gram Panchayat, Kanuru
and the learned Special Judge was right in convicting the accused-
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CrI.Appeal No.575 of 2008 and batch
basing on the evidence that is available on record and further
submitted that it calls for no interference by this Court.
17. Heard both sides and perused the material on record.
18. Now the point that arises for consideration is whether the
prosecution has proved the guilt of the accused beyond all, reasonable
doubt.
19. PW.l is an agriculturist. He stated in his evidence that in the
month of February, 1997, on one day, on coming to know about the
irregularities committed by AOs.l and 2 in purchasing electrical goods,
public health material and water works, he along with others had gone
to the office of Gram Panchayat, Kanuru and demanded AO.l to show
the articles purchased under different bills. AO.l could not show the
material stating that the key is not available with him and he stated
that after arrival of Sarpanch i.e. A0.2, he would be in a position to
show the stock. Then, they made an application before the District
Panchayat Officer about the irregularities committed by AOs.l and 2.
The District Panchayat Officer informed that he would enquire into the
matter, but he did not take any action.
20. PW.2 speaks only with regard to the existence of M/s. Anjana
Agencies, Vijayawada and he states that Anjana Agencies are not
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Crl.Appeal No.575 of 2008 and batch
registered dealers on the roll's of the Assistant Commercial Officer,
Hanumanpet.
21. PWs.3 and 4 did not support the prosecution case and they
were treated hostile by the prosecution.
22. PW.5 worked as the ACTO, Krishnalanka, Vijayawada from May
1995 to October 1997. He states that on 03.06.1997 he proceeded to
Dhanalakshmi Enterprises, Vijayawada along with the Inspector of
Police, ACB and found A-3, the Proprietor of the firm. On questioning,
A-3 produced some bill books and when he was asked to produce cash
book, stock register and ledger for the year 1996-97, A-3 stated that
he was not maintaining the above registers and he was unable to
produce them, but he produced two receipt books. Exs.P.12 and P13
are the cash/credit bill book and receipt book of M/s.Dhanalaksh mi
Enterprises seized by the Inspector of Police in their presence.
23. PW.6 is working as Sweeper in Panchayat Office, Kanuru. He
did not support the prosecution case and he was treated hostile by the
prosecution.
24. PW.7 worked as the Executive Officer, Gram Panchayat, Kanuru,
from 01.11.1996 to September 1997. He is the successor of AO-1.
After taking charge, he is stated to have verified the bills with regard to
purchase of electrical goods, water works and public health material
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Crl.Appeal No.575 of 2008 and batch
and found some of the bills missing. He found duplicate bills instead of
original bills. According to him. the goods which were supplied are not
in accotdance with the agreement entered at the time of tenders and
there is deficiency in the stock. Accordingly, he addressed a letter
dated 05.03.1997 to Dhanalakshmi Enterprises (A-3) to give suitable
clarification with regard to the said aspect. Ex.PlS is the letter
addressed by him. A-3 replied to the said letter intimating that they
would produce the LR and other bills which show that they purchased
products and samans of SIMA Company as incorporated in the
agreement. Ex.P19 is the reply from A-3. According to PW.7, on
verification of stock register he came to know that AO.l had purchased
the material more than the requirement which is in violation of
guidelines issued by the Government from time to time.
25. PW.8 is the Inspector of Police, ACB, Vijayawada, who took up
further investigation in this case and after obtaining prosecution
sanction order against AOs.l and 2 he filed charge sheet.
26. PW.9 is the DCTO, who stated that he has not issued any way
bills in respect of Rajya Lakshmi Enterprises, Nuzvid for the years
1995-96 and 1996-97, since there is no commercial tax check post in
between Vijayawada and Nuzvid.
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Crl.Appeal No.575 of 2008 and batch
27. PW.IO is the Section Officer in Panchayat Raj Department, AP
Secretariat, Hyderabad, who, pursuant to the summons issued by the
Court, brought the file relating to GO Ms.Nos.469 and 470 i.e., sanction
orders against AOs. 1 and 2. EXS.P30 and P31 are the prosecution
sanction orders issued against AOs.l and 2.
28. PW.ll is the Inspector of Police, ACB, Vijayawada, who
conducted confidential enquiry on the representation of PW.l and
another and submitted a report to the DG, ACB, Hyderabad. On such
report, the DG, ACB ordered to conduct regular enquiry in
Rc.No.57/RE-VKI/97, dated 23.05.1997. Accordingly, he conducted
enquiry and submitted report to the Head Office, ACB. On the
instructions given by ACB Head Office, he registered a case in Crime
N0.12/ACB-VJA/97 for the offences punishable under Section 13(2)
read with 13(l)(c) of the Act and under Sections 409, 420 and 477-A
IPC against AOs.l and 2 and others. Ex.A35 is the original FIR.
29. The crucial witness to the alleged misappropriation of funds is
that of PW.7, who is the Executive Officer of Gram Panchayat, Kanuru
and is the successor of AO.l. On a perusal of his evidence goes to
show that in his chief examination PW.7 categorically stated that an
enquiry was ordered in connection with the irregularities that have
taken place in the Gram Panchayat, Kanuru. In connection with the
said enquiry, AO-2 is alleged to have bore grudge against PW.7 and
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Crl.Appeal No.575 of 2008 and batch
thereby AO-2 used to harass PW.7 and caused mental agony to him.
On one day, during the year 1997 in the month of June, at about 1.30
or 2.00 pm, supporters of AO-2 went to the office of PW.7 and
assaulted him by abusing. In connection with the same, PW.7 gave a
I
report and the police, after conducting investigation, filed charge sheet
against them and the said case ended in conviction. On assuming the
charge as Executive Officer of Gram Panchayat, PW.7 verified the bills
with regard to purchase of electrical goods, water works and public
health material and found some of the bills missing, He found
duplicate bills instead of original bills. Having noticed the same, he
intimated the same to the concerned. Except the said statement,
absolutely no documentary evidence has been placed on record to
show that PW.7 informed the same to his higher authorities. PW.7
could not state In what mode he intimated the same to his higher
authorities, in spite of giving reasonable opportunity to him. If really,
PW.7 has intimated to his superiors, it should have been in the form of
a letter or some document to show that he has intimated the same to
his higher ups. There is any amount of ambiguity with regard to the
said fact. In view of the same, this Court is of the opinion that much
credence cannot be given to such statement which is very vague.
30. PW.7 stated that on verification of relevant file, he addressed a
letter dated 05.03.1997 to Dhanalakshmi Enterprises (A-3), which is
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Crl.Appeal No.575 of 2008 and batch
marked as Ex.PlS, with regard to the genuineness of the sub-standard
samans supplied by SIMA Company. According to PW.7, the samans
which were supplied to the Gram Panchayat are not in accordance with
the agreement entered at the time of tenders. To the said letter, A-3
sent a reply dated 19.03.1997 intimating that they would produce LR
and other bills which would show that they purchased products and
samans of SIMA Company as incorporated in the agreement and
EX.P19 is reply from A-3. On a perusal of the evidence of PW.7 goes
to show that after addressing letters to A-3, he came to a conclusion
, that the Gram Panchayat has not received the stock as mentioned in
the stock register at the time of his taking over the charge. Except
stating that there is deficiency in the stock, absolutely there is no
material on record to show that, what is the stock that was ordered in
terms of the agreement and as per the Board resolution and what is
the deficiency in the stock. There is any amount of inconsistency in
the versions given by PW.7. On one hand, it has been stated by PW.7
that he came to know by verifying the stock register that AO-1
purchased the material more than the requirement. If really such is
the case, the question of deficiency in the stock would not arise at all.
According to PW.7, the purchase of material more than the
requirement is in violation of the guidelines issued by the government
from time to time. Having accepted the said statement, this Court is of
the opinion that purchasing the material in excess would not in any
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Crl.Appeal No. 575 of 2008 and batch
way come within the purview of aforesaid offences and the question of
mi.qapprnpriatinn of funds would not arise. There is any amount of
inconsistency in the statements made by PW.7.
31. So far as AO-2, A3 and A4 are concerned, in the cross-
examination of PW.7 by AO-2, he categorically stated that AO.l would
put his proposal in respect of the material required to be purchased
before AO-2. He categorically stated that after getting proposal from
AO-1, AO-2 would place the same before the Gram Panchayat Body for
its approval. In pursuance of conducting Panchayat Board Meeting and
after approval of the Board, the relevant material would be purchased
by AO-1 i.e. Executive Officer. If tenders are required to be called, it
would be placed before the Board and after its approval, AO-1 would
call for tenders. All the purchase of material and placing of orders
wouid be done by AO-1 in pursuant to the resoiutions being passed by
the Gram Panchayat. According to PW.7, it is AO-1 alone who will be
held responsible for all the purchase of materials and AO-2 has nothing
to do with it. When such is the case, it can safely be inferred that
AO-2, A-3 and A-4 have no roie to play in the said process of purchase
of material or maintaining the stock register. In view of the same,
since they do not play any role as per the version of PW.7, the
aforesaid provisions under Section 13(c) read with 13(2) of the Act and
Sections 120-B, 418 read with 34 IPC and 477-A IPC would not attract
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Crl.Appeal No.575 of 2008 and batch
as against AO-2, A-3 and A-4. There is absolutely no evidence on
record to show that there is falsification of accounts or using the
forged documents as genuine. No evidence is brought on record to
substantiate the said allegations. The said aspects, if any, would be
attracted as against AO-1, if really such accusations have been made.
The question of AO-2 and A-3 and A4, who are the Proprietors of
Dhanalakshmi and Rajyalakshmi Enterprises respectively, in any way
making use of the documents as genuine in supplying the material to
the Gram Panchayat, Kanuru, would not arise. Since there is no
material as against AO-2, A-3 and A-4, this Court is of the opinion that
the learned Judge erred in convicting AO-2, A-3 and A-4 for the
aforesaid offences. Accordingly, the convictions and sentences passed
against AO-2, A-3 and A-4 are set aside and they are acquitted of all
the charges leveled against them.
32. Insofar as AO-1 is concerned, on a perusal of the evidence on
record goes to show that except a sweeping accusation against AO-1,
there is no material that there is deficiency in the stock and AO-1 has
misappropriated. It is not shown what is the order that has been
placed for supply of material by AO-1 and what is the stock that is
available with the Gram Panchayat. According to the evidence of
PW.7, AO-1 purchased the material more than the requirement, which
is in violation of the guidelines issued by the Government from time to
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Crl.Appeal No.575 of 2008 and batch
time. Merely because the material was purchased more than the
requirement, it would not in any way attract the'offences as alleged.
On the other hand, there is an accusation to the extent that there is
deficiency in the stock. EXS.D2 to D16 were, marked showing the
stocks that are available at the Gram Panchayat and in his cross-
examination by AO-1 and A-3 to A-5, PW.7 stated as follows.
"To one Kusuma the then Junior Assistant, AO-1
handed over the charge in my presence. It is endorsed
at page No.4 of Ex.D-1, that underneath, delivery was
effected and underneath therein, I signed. It is true
that I did not inform to my superior authorities about
the shortage of the alleged stock as stated in my chief.
Ex.D-2 is the stock register for the year 1997-98
in respect of street light material. In Page No.l of
Ex.D-2, i.e.. the Brought Forward from page No.25 of
1996-97 stock register, I put my initial as E.O. in Col.
I\lo.5. At Col.No.3, it is noted that as per stock register,
there are 246 1 X 40 volts Tube Lights were available
and the relevant entry is marked as EX.P-3.
Ex.D-4 is the relevant entry at page No.61 of Ex.
D-2 showing as per page No. 162 of 1996-97 stock
register, there were 498 40 Volts Starters noted in Col,
No.3 which was initialled by me in col.No.5. It is noted
at page No.9 in Ex.D-2 as per the entry dated
30.07.1997, at Col.No.3 it is shown as NIL. Witness
adds: He has not certified with his signature.
P.W.4 Is the scribe of the entries and he put his
initials in Col.No. 4.
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Crl.Appeal No.575 of 2008 and batch
At page No.31 of Ex.D.2, as per page No.l40 of
the 1996-97 stock register, there were 793 40 Volts
Copper Chokes and relevant col.No.5, I put my initial
and it is Ex.D-5.
Ex.D-6 is the relevant entry at page No.81 of
Ex.D2 that showing as per page No.151 of 1996-97
stock register, there was stock of 5484 of T.L. Side
Holders. I put my initial in Col.No.5.
EX.D-7 is the relevant entry at page No. 107, in
Ex.D2, that showing the as per page No.110 of Stock
Register 1996-97, there were 8 250 Volts M.V. Bulbs
are available. I signed in Col.No.5.
Ex.D-8 is the relevant entry at page No.lll of
Ex.D-2, that showing as per page No. 119 of Stock
Register 1996-97, there were 19 250 Volts M.V. Choks
were available. I put my initial in col.No.5.
Ex.D-9 is the relevant entry at page No. 115 of
Ex.D-2, that showing as per page No. 103 of 1996-97
stock register, 38 400 Volts M.V. Bulbs are available,
witness adds: I did not put my initial in Col.No.5.
Ex.D-10 is the relevant entry at page No. 119 of
Ex.D-2 that showing as per page No.ll3 of Stock
Register for 1996-97, 16 400 volts M.V. Chokes are
available. I put my initial in Col.No.5.
Ex.D-11 is the relevant entry at page No.123 of
Ex.D-2, that showing as per page No.69 of 1996-97
Stock Register, 78 M.V. Lamp Holders are available. I
put my initial in Col.No.5.
Ex.D-12 is the entry at page No.l27 of Ex.D-2,
that showing ad per page No. 132 of 1996-97 Stock
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Crl.Appeal No.575 of 2008 and batch
Register, 7 Tape rolls are available. I put my initial in
Col.No.6.
EX.D-13 is the relevant entry at page No. 131 in
Ex.D-2 that showing as per page No.76 of Stock
Register for 1996-97, 580 Meters of 1/18 Wire Coils are
available. I put my initial in Col.No.5.
Ex.D-14 is the relevant entry at page No. 139 of
Ex.D-2 that showing as per page No.lOO of 1996-97
stock register, 570 meters of 7/20 Wire Coils
(Alluminium) are available. I put my initial in Col.No.5.
Ex.D-15 is the relevant entry at page No.l45 of
Ex.D-2 that showing as per page No. 142 of 1996-97
stock register, 1 100 Amps Main Switch is available. I
put my initial in Col.No.4.
EX.D-16 16 the stock register for the years 1997-
98 showing the Items in appendix and the balance of
stock as on 1.4.1997 and in the relevant Col.No.5
disclosed that I put my initials, with regard to the Public
Health Material."
33. According to the prosecution, the stocks that are available with
the Gram Panchayat are shown as above. When there is no accusation
against AO-1 with regard to misappropriation of material, this Court
would not be in a position to accept that there is misappropriation
committed by AO-1. Merely because PW.9, who is the DCTO, has not
issued any way bill in respect of Dhanalakshmi Enterprises for
transport of goods, it cannot be said that the goods have not been
supplied at all. When there is a transparent approach as stated by
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PW.7 that a resolution was passed for purchase of material from A-3
and A-4 and pursuant to the resolution when AO.l has taken steps in
purchasing the material,, merely on the ground that the bills have not
been submitted,, the finger cannot be pointed at AO.l. It is the case of
PW.ll in the cross-examination that there is absolutely no violation of
Rules by the Gram Panchayat with regard to calling of tenders and
their acceptance. But, according to him there is violation with regard
to quotations and further in his cross-examination he stated that one
cannot get quotation through phone.
34. In order to base a conviction in Criminal Cases, the case has to
be proved beyond all reasonable doubt. Except alleging that there is
deficiency in the stock on one hand and on the other hand alleging
that AO-1 has violated the norms in purchasing the material in excess,
there is no other material to prove the deficiency of stock and thereby
the accused have misappropriated the funds. In order to prove the
case, the burden lies on the prosecution to show that there is
deficiency in stock and because of that the amounts have been
misappropriated by the accused. Once the burden is proved.
thereafter the onus shifts on the accused to show that whether there is
deficiency in the stock or not. Primarily, it is the burden of the
prosecution to prove the case. In the absence of any material to show
that there is deficiency in the stock, this Court is of the opinion that the
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Crl.Appeal No.575 of 2008 and batch
case against AO-1 would not stand. Accordingly, the conviction and
sentences passed against AO-1 are set aside and he was acquitted of
the charges levelled against him.
35. In view of the aforesaid facts and circumstances of the case,
Criminal Appeal Nos.575, 624 and 625 of 2008 are allowed and
Criminal Appeal No.585 of 2008 is partly allowed and the conviction
and sentences passed against AOs.l and 2, A-3 and A-4 by the learned
Special Judge for SPE and ACB Cases, Vijayawada in CC No.2 of 1999,
dated 29.04. 2008 are set aside. The appe|lants/AOs.l and 2, A-3 and
A-4 are found not guilty of the offences alleged and they are acquitted
of the charges leveled against them and are set at liberty. The bail
bonds stand discharged. The Criminal Appeal No.585 of 2008, in so far
as deceased A-5 is concerned, the same is dismissed as abated.
As a sequel thereto, the miscellaneous applications, if any,
pending in these Criminal Appeals shall stand closed.
SD/- S.V.S.R.MURTHY
Note: 23.07.2024 made m I.A.No.1
name ofamended as per co!!I7o?d^eTdIter
2024 in Crla.No.625 of 2008
SD/-S.V.S.R.MURTHY
JOINT REGISTRAR
//TRUE CO.PY//
SECTION OFFICER
To.
1. The Special Judge for SPE & ACB Cases, Vijayawada. (With Record)
2. The District Inspector. ACB, Vijayawada Range . Vijayawada, NTR
Krishna District.
3. One CC to Sri. P. Prabhakar Rao, Advocate [OPUC]
4. One CC to M/s D. Sangeetha Reddy, Advocate [OPUC]
5. One CC to Sri T Pradyumna Kumar Reddy, Advocate [OPUC]
6. One CC to Sri T Anirudh Reddy, Advocate [OPUC]
7. One CC to Sri. A. Gayathri Reddy, Standing Counsel for ACB-cum-Spl. Public
Prosecutor, [OPUC]
8. The Section Officer, Criminal Section, High Court of A.P. at Amaravathi.
(for sending LC record)
9. Three C.D Copies.
Ssl
sree
-
HIGH COURT DATED: 13/02/2024 23/07/2024 AMENDED COMMON JUDGMENT CRL.A.Nos: 575, 585, 624 & 625 OF 2008 PARTLY ALLOWING THE CRIMINAL APPEALS