Bombay High Court
The State Of Maharashtra vs Rodbarao S/O Vikramji Makhane on 1 March, 2011
Author: S. S. Shinde
Bench: S. S. Shinde
1 cri appeal 330.99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 330 OF 1999
The State of Maharashtra
through P. S. Bhagyanagar,
Nanded. .. Appellant
(Orig. Complainant)
Versus
1.
Rodbarao S/o Vikramji Makhane,
Age : 60 Years,
2. Marotrao S/o Nagorao Sonkamble,
Age : 52 Years,
3. Shyamrao S/o Premeshwar Panchal,
Age : 25 Years,
All R/o Lavour Colony,
Nanded, District Nanded. .. Respondent
(Orig. Accused)
Smt. Y. M. Kshirsagar, A.P.P. for the Appellant/State.
Shri G. N. Chincholkar, Advocate for Respondent Nos. 1 & 2.
Shri P. B. Rakhunde, Advocate h/f Shri S. B. Bhapkar, Advocate
for the Respondent No. 3.
CORAM : S. S. SHINDE, J.
DATE : 01ST MARCH, 2011.
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2 cri appeal 330.99
ORAL JUDGMENT :
. This appeal appeal is filed challenging the judgment and order dated 12.05.1999 passed by the Chief Judicial Magistrate, Nanded in R.C.C. No. 409/1991.
02. The learned Additional Public Prosecutor appearing for the State submitted that, the evidence of the P.W. 1 brought on record by the prosecution corroborates with the spot panchanama which is prepared by the P.W. 3 and I. O. is sufficient to convict the respondents/original accused Nos. 1 to 3. The learned A.P.P. invited my attention to the evidence of prosecution witnesses and submitted that, the necessary inspection was carried out as stated by the P.W. 1 in his examination in chief. Relying on the statement of the P.W. 1 in examination in chief, the learned A.P.P. for the State would submit that, the respondents by showing more students in the bill which was submitted to the P.W. 1 have received the excess amount of Rs. 34,735/- for the period June 1989 to May 1990 and Rs. 19,445/- for the period June 1990 to August 1990. Relying on the evidence of P.W. 1 about the inspection carried out in the school, the learned A.P.P. would submit that, this appeal deserves to be allowed.
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03. On the other hand, the learned counsel for the respective respondents submitted that, so far respondent No. 1 is concerned, he is nowhere connected with the alleged submission of bill or receiving any amount from the Government. So far respondent Nos. 2 and 3 are concerned, the learned counsel for the respondents submitted that, except the evidence of P.W. 1 there is no evidence which supports the prosecution case. There is no corroboration to the evidence of P.W. 1. The evidence of P.W. 1 is also untrustworthy, since he is involved in other 16 cases as an accused. The learned counsel for the respondent Nos.
1 and 2 further submitted that, the respondent/accused No. 1 has no concern with that amount, as the cheque is not in his name.
The P.W. 1 is involved in 16 criminal cases for criminal breach of trust and misappropriation of the amount as admitted by him, therefore, evidence of P.W. 1 is not trustworthy and reliable. He further submits that, the allegation that the students shown as a bogus by showing them backward class is devoid of any merits since their certificates are produced on record. The statements of their parents are not recorded and there is no explanation for the same.
The learned counsel further submitted that, in the ::: Downloaded on - 09/06/2013 17:01:55 ::: 4 cri appeal 330.99 complaint it is disclosed that amount of Rs. 54,280/- is misappropriated while in cross examination of P.W. 1 has deposed that amount of Rs. 49,825/- was taken in excess. The counsel further submitted that, P.W. 1 himself was Social Welfare Officer at the relevant time. He had not raised any objection in the bills nor he has called report of Education Officer at the relevant time when the cash and finance officer sanctioned the bills. The learned counsel further submitted that, the prosecution failed to prove its case beyond reasonable doubt.
04. The learned counsel also invited my attention to the cross examination of the P.W. 1 and submitted that, P.W. 1 in his cross examination has admitted that, he did not produce the register for the relevant period for which there is allegation against the respondents for claiming excess amount. At the cost of repetition the learned counsel for the respondents would submit that, merely relying on the evidence of P.W. 1 order of acquittal cannot be reversed. Therefore, he would submit that, this appeal may be dismissed.
05. I have given due consideration to the submissions of the learned counsel for the parties. Since this is an appeal against ::: Downloaded on - 09/06/2013 17:01:55 ::: 5 cri appeal 330.99 acquittal unless this Court is fully convinced that the evidence brought on record unequivocally indicates the involvement of the respondents in the offence alleged against them, no order of acquittal can be reversed. Even if the another view is possible, is no ground to interfere in the acquittal order, if possible view is taken by the Trial Court. In this background it would be appropriate to refer to the evidence of P.W. 1.
The P.W. 1 in his evidence has stated that, on 11th September, 1990, C. & F. O. and he himself visited the school and he found that register showing, the admission was given to 180 students for the year 1988. He has further referred to the attendance register in respect of 01st standard students for the year 1988-89 and 1990-91 and also attendance register in respect of 03rd standard students for the year 1990-91. Relying on the registers maintained by the respondent/institution, this witness has claimed that more students than existing strength in the record is shown in the bill submitted by the respondents.
However on reading his evidence it is not clear that about how many students' excess bill has been submitted by the respondents to him. In the capacity of Social Welfare Officer, he has admitted in his examination in chief that, the bill was submitted by the ::: Downloaded on - 09/06/2013 17:01:55 ::: 6 cri appeal 330.99 respondent No. 2 Secretary for the period June 1989 to May 1990 for Rs. 34,735/- for the 160 students. After submission of said bill his department i. e. Social Welfare Officer forwarded it to the C. & F. Department, Zilla Parishad, Nanded and the cheque was given to the accused No. 2 by the Finance Department, Zilla Parishad, Nanded. The other bill was for Rs. 19,445/- for the period June 1990 to August 1990. The total amount of Rs.
54,080/- was submitted to the Social Welfare Officer and the said bill was sanctioned. He has further stated that, the students about 160 are shown more while drawing the bill of Rs. 34,635/-.
In other bill 269 students were shown more while drawing bill of Rs. 19,445/-.
Upon reading his evidence, it is not clear that how this witness arrived to the conclusion of excess 160 and 269 students respectively. He has further stated in his examination in chief that Yousufuddin was the E. D. T. who signed the Inspection report produced on record vide Article 'A'. However, admittedly, Yousufuddin is not examined by the prosecution. Though, P.W. 1 has stated in his examination in chief that the bills are not tallied with the attendance register. However, he failed to depose any minute details about how the bills are not tallied with the ::: Downloaded on - 09/06/2013 17:01:55 ::: 7 cri appeal 330.99 attendance register. The other two persons who accompanied this witness for inspection/verification of the school are not examined by the prosecution.
06. He has stated in his cross examination that the billing clerk verified the bill and put up before him for counter signature, and thereafter, he referred those bills to C & F O. He stated that he is not supposed to verify the inspection report.
This admission of the P.W. 1 in his cross examination raises serious doubt about the correctness of the statement of this witness and also truthfulness of his version. The responsible officer working in the Government or any other local body cannot say that he is signing the bills without verifying the same. In fact the bills were submitted by the clerk and it was for this witness to properly look into bills and find out correctness of said bills and also number of students before he forwarded it to the C & F O Zilla Parishad. Therefore, from reading of his evidence it does appear that the clerk who verified the bill or the Social Welfare Officer/P.W. 1 have not verified the bill in accordance with Rules/norms. They were duty bound to find out from the relevant record and verify the bills and also strength of the ::: Downloaded on - 09/06/2013 17:01:55 ::: 8 cri appeal 330.99 students and then only to forward the bills for sanction to the C. & F. O. However, they have failed in their duties. The superior authorities in Zilla Parishad who is the ultimate sanctioning authority was also supposed to find out and verify the correctness of the figures of students and also amount mentioned in the bill. The verification of the bills and sending the bills is not an empty formality. On that point, it was for the P.W. 1 and other officers involved in the process to sanction the bill duly after verifying from the school record about genuineness of the figures of the students and also amount mentioned in the bills.
The bills were sanctioned, amount was also paid to the respondents. The inspection/verification by visiting the school was only in September, 1990. However, the allegations about claiming excess bill by showing more students first for the period June 1989 to May 1990 and for the period of June 1990 to August 1990.
The learned counsel for the respondent Nos. 1 and 2 is correct in submitting that in his cross examination the P.W. 1 has admitted that, he did not produce on record the Register for relevant period. The statement of the P.W. 1 in his cross examination that he is accused in 16 criminal cases pending in ::: Downloaded on - 09/06/2013 17:01:55 ::: 9 cri appeal 330.99 the Court before he went to depose also assumes importance.
The Trial Court, therefore, felt that there should be corroboration to the evidence of P.W. 1. However, the prosecution has not brought on record any evidence to corroborate the evidence of P.W. 1. Admittedly, he was accused in 16 criminal cases pending before the said Court at the relevant time. The evidence of P.W. 2 panch witness and police head constable is also vague. He has stated that he does not remember who has submitted the record with him. The evidence of S.I.O., CID (P.W. 3) in the cross examination reads thus :
"I cannot tell whether the accused No. 2 signed on the bill. The cheques were issued in the name of accused No. 1. The accused No. 3 joined in July 1990 as Head Master in the Swami Vivekanand Primary School. I do not know whether prior to that he was serving in Vivek Verdhani Primary School HUDCO. It is not true to say that the accused No. 3 has not claimed and received the Bill in June, 1990. The E. D. I. endorse the bill prior to sanction. I cannot tell who was the Education Inspector. It is not true to say that, name of the Education Officer is not mentioned. It is not true tos ay that, investigation is not proper."
08. Therefore, taking overall view of the matter and after independently scrutinizing of the evidence brought on record by ::: Downloaded on - 09/06/2013 17:01:55 ::: 10 cri appeal 330.99 the prosecution, this Court is not convinced to reverse the order of acquittal.
09. The Trial Court in para 13 has in detailed commented about the evidence of the prosecution witnesses and reached to the correct conclusion and acquitted the respondents. In my opinion, viewed from any angle, no case is made out to interfere in the impugned judgment and order of the Chief Judicial Magistrate, Nanded. Hence the appeal is devoid of any merit.
Same stands dismissed. The order of the acquittal of the respondents is confirmed. The record and proceedings be sent back to the concerned Court.
[S. S. SHINDE, J.] bsb/March. 11 ::: Downloaded on - 09/06/2013 17:01:55 :::