Madras High Court
D.Sugumar vs Central Government on 27 April, 2010
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/04/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI CRL.A.(MD)No.1009 of 2000 1.D.Sugumar 2.C.Ramaiah 3.S.Kanchivanan 4.A.Rajendran .. Appellants/Accused Vs Central Government, through The Inspector of Police SPE/CBI/ACB Madras in Rc.No.18(A)/95 .. Respondent/Complainant PRAYER Appeal filed under Section 374(2) of Cr.P.C., against the judgment and the order of conviction passed by the learned III Additional District Court, Special Judge for CBI Cases, Madurai in C.C.No.53 of 1996 on 20.10.2000. !For Appellants ... Mr.R.Shanmuga Sundaram, S.C 2 to 4 ( 2 tofor Mr.R.Shanmugaraj For Appellant No.1 ... Mr.M.C.Swami ^For Respondent ... Mr.S.Rozario Sundararaj Special Public Prosecutor for CBI :JUDGMENT
The Criminal Appeal is preferred against the judgment and the order of conviction passed by the III Additional District Court, Special Judge for CBI Cases, Madurai in C.C.No.53 of 1996 on 20.10.2000.
2.The brief facts of the case are as follows:-
D.Sugumar, the first accused was working as Inspector of Works, Special works, Southern Railways, Madurai Region. He was a public servant. C.Ramaiah, the second accused, is a civil engineer and an authorized contractor for the Southern Railways. The 3rd accused S.Kanchivanam was the authorised representative of the second accused.
3. The second accused was a contractor for the construction of Ground Level Reservoir in Railway Colony, Madurai. According to the Contract, the cement for such construction has to be supplied by the Southern Railways. The first accused was the Inspector of Works and by an indent dated 04.03.1995, he was entrusted with 1000 bags of cement by the Inspector of Works (Open line), who in charge for the cement Godown, Southern Railways, Madurai. The 1st accused handed over 1000 Bags of cement to the 3rd accused, which was kept for construction of ground level reservoir at the Railway Colony. However, the first accused misusing and abusing the Official position issued false Gate-pass for transporting 200 bags of cement bags to the 3rd accused and who in turn, had transported the same in a lorry bearing Reg.No.TNU 397 with a Name Perumal to a shed at Sivakami Nagar at NarayanaPuram, Madurai where the second accused had kept a Godown for construction work. The second accused also arranged transport of another 200 bags of cement through a lorry bearing Registration No.TN Y 686 named Andal, to transport the same to MGR Nagar, Thiruppalai, Madurai, where the 4th accused/ A.Rajendran was constructing his own house.
4.The Railway Police Force initiated action and seized the cement Bags at both the above places. However, the Inspector of Police, C.B.I., also registered a case and investigated the mis-use of official power of the first accused and also criminal conspiracy to misappropriate the properties of the Railways, and laid charge sheet for offences under Sections 120-B, 477(A) of I.P.C., and under the Provisions of the Prevention of Corruption Act, against the accused.
5.The charge was laid before the 3rd Additional District Judge/Presiding Officer for CBI Cases, Madurai. On appearance, the chargs were framed and on denial of charges, a trial was conducted.
6.In order to prove the case of the prosecution 19 witnesses were examined and 44 exhibits were marked. On the side of the accused no witnesses were examined but three exhibits were marked. On analysing the oral and documentary evidences, the learned Additional District Judge-cum-Presiding Officer, Special Court for CBI Cases, Madurai found all the accused guilty of the charges framed against them and has imposed various sentences for each offences. Aggrieved by the same, all the accused have preferred the present appeal on various grounds. The main ground raised before this Court is that the cement bags which were seized from A4 are not proved to be the cement bags belonged to the Railways.
7.The point for consideration arises in all the appeals are whether the conviction and sentence passed by the Presiding Officer Special Court for CBI cases, Madurai is sustainable.
8. On 6.3.95, P.W.8, one V.R.Manickam, a Constable attached to the Railway Protection Force, followed a lorry bearing Reg.NO.TNU 397, which left the godown at Railway Colony, Madurai and he noticed that the lorry halted at Block No.51, Sivakami Nagar, Narayanapuram, Madurai. In that Block a construction was going on and the cement bags were unloaded in a thatched shed situated nearby. After unloading, the lorry started moving and P.W.8 stopped the lorry and questioned the driver as to why the cement bags have been unloaded there and on enquiry, he was told that the cement bags were transported from Railway godown and the lorry driver handed over a Gate-Pass, which was hand written. The witness found in the Gate-pass that the cement bags are to be sent to Theni Cutting Works (Railways) at Bodinayakkanur. On the next day he gave a written complaint to the Railway Protection Force and a case was registered in Crime No.5/1995 and this was the starting of the investigation by R.P.F.
9.P.W.7, one Selvaraj, Inspector at R.P.F. Madurai. On information he went to the above said Place along with a team of officers and found 200 cement bags of 'Texmaco' brand and seized the same under Mahazar before witnesses. He arrested A2, Ramaiyah and recorded a confession statement. In pursuant to the confession he proceeded to the House at Thirupalayam, Madurai, which belongs to A5 and seized 200 Texmaco bags under mahazar. He also recorded the statement of A4. As stated earlier, he registered a case in Crime No.5 of 1995 and under Section 3(A) of RPF Act. This incident happened on 08.03.1995. On the same day, he examined A1 and also the Staff in charge of the cement godown and seized the documents. A3 was also arrested and confession Statements were recorded. After completion of the investigation he filed a charge sheet. The case was pending before the Judicial Magistrate Court No.7, at Madurai.
10.However, the investigation has been handed over to the Central Bureau of Investigation (CBI) and a case was registered in FIR 18/95 in R.C.18(A)/95 on 19.04.1995 by the CBI. P.W.19, who was the Inspector of Police at CBI/ACB, Chennai, was entrusted with investigation. He was furnished with necessary papers in the RPF and from 25.04.1995 he started his investigation, examined witnesses, collected documents and found that A2 was entrusted with a contract of construction of Ground Level Resvoir in the Railway colony for which cements were supplied by the Railways. A1 who was working as Inspector of Works was entrusted with 1000 bags of cement and he had facilitated A2 and A3 to transport 400 bags of the Railway property to A4 and to the use of A2 from the Railway godown through two lorries. The Gate-pass was prepared by A1 and false entries were made in the Registers under a conspiracy for theft of 400 bags of cement belonging to Railway.
11.Mr.R.Shanmugasundaram, for Mr.R.Shanmugaraj, learned Senior Counsel appearing for the appellants/A2 to A4, submitted that P.W.8 the Constable attached to the RPF seemed to have seized the Gate-pass, which is marked as Ex.P.12, and there is no evidence to show that this pass was prepared by A1 for the removal of cement from the Railway godown. The learned counsel pointed out that the said Gate-pass relates to transport of cement bags to another working site at Bodinayakanur and only on assumption, the said Gate- pass was used to remove 200 bags the case has been foisted. The learned counsel pointed out that the brand 'Texmaco' was commonly available in the market and there is no evidence to show that the seized cement bags belonged to the Railways. The leaned counsel pointed out that A1 being the Inspector of Works, had handed over 1000 bags of cement to the Contractor and the same was stored within the Railway Colony. The learned counsel pointed out that the storage point within the Railway Colony, where the Ground Level Water Reservoir was being constructed, was not searched by the Authorities. The learned counsel pointed out that it is not the case of the prosecution that there was shortage of cement bags at the construction site. The learned counsel pointed out that it was elicited from Railway Officials that the Gate-passed used to be in a printed form for a specific purpose and the movements of the vehicles are checked at the check- post. The learned counsel also pointed out that A2 and A4 had produced Bills and vouchers for purchase of 400 bags of cement from a private dealers and the prosecution was failed to prove the seized cement bags belonged to the Railways.
12.Mr.M.C.Swami, the learned counsel appearing for the first appellant would submit that the prosecution has filed to prove the alleged mis-use of power by A1. The learned counsel pointed out that A1 has not forged any documents and the Provisions of Prevention of Corruption Act are not attracted. The learned counsel also pointed out that the alleged Gate-pass, which is marked As Ex.A12 do not reflect the movement 200 bags given to A2 and therefore, there is nothing on record to show that A1 has committed any offence.
13.I have heard the learned counsel on either side and perused the materials available on record.
14.A1 was working as Inspector of Works (Special Works) Southern Railways, Madurai Region, during the period 1992-96. A1 was a Civil Engineer and Contractor. A2 was entrusted with a work of construction of Ground Level Reservoir (herein after referred as GLR) within the Railway Colony. According to the terms of contract, the cement and iron rods are to be supplied by the Southern Railways. A1 being the Inspector of Works, (herein after referred as IOW) he has to place and indent to the Inspector of Works (Open line). During 1995, P.W.4, one Meer Amirudeen was the Inspector of Works (Open line) he was incharge of cement godown. On 04.03.1995, A1 gave a Letter of Indent (Ex.P5) for 1000 bags of cement to be handed over to A2 for GLR. P.W.4 endorsed and directed the godown incharge to release 1000 bags of cement. On 06.03.1995, 1000 bags were released and the same was taken delivery by A3, who was working under A2. P.W.5 was a Senior Clerk working in the cement godown. A3 brought two lorries and 200 cement bags was loaded in each lorry in the morning and likewise in the evening three load were loaded and thereby 1000 bags were released. A1 made an acknowledgement for receipt and necessary entries were made in the ledger.
15.P.W.8, one Manikkam, was working as a Constable at Railway Protection Force, Madurai. On 06.03.1995, around 3.30 p.m., he watched a lorry bearing Reg.No.TNU 397 leaving the cement godown through the Check-post. He followed the lorry and the lorry went to Block No.51 Sivakami Nagar, Narayanapuram, Madurai. While he was watching 200 bags of cement was unloaded. P.W.8 intercepted the lorry and enquired the lorry driver. The lorry driver produced Ex.P12, Gate-pass, which was issued by A1. The Gate-pass was intended for Theni Cutting Works at Bodinayakkanur.
16.On 07.03.1995, he gave a complaint to P.W.7, the Inspector of Railway Protection Force, who registered a case and investigated. He proceeded to the said place at Narayanapuram and seized 200 bags of cement and arrested A2. He recorded the confession of A2 and in pursuant to his confession he proceeded to Thiruppalai and seized another 200 bags from A4. He found that the cement bags belonging to the Railways were moved out with a help of A1 by issuing the alleged Gate-pass, Ex.P.12 and thereby various offences have been committed. The case is pending before the Judicial Magistrate Court. Meanwhile, CBI has investigated the present case and has laid a charge sheet for the offences under Section 120(b) for criminal conspiracy, under Section 409 for criminal breach of trust, under Section 477(A) Falsification of records, under Section 201 for screening the evidence and against A1 under Section 13(1)(c) and 12(1)(d) r/w 13(2) of Prevention of Corruption Act.
17.Indisputably A2 is entitled for 1000 bags from the cement godown. A1 is incharge of the GLR work entrusted to A2. Therefore, he had placed the indent and authorised release of cement bags. The bags are supposed to be removed and stored at a shed near the GLR site. According to the prosecution, A1 issued a bogus Gate-pass, which is Ex.A12 under which two loads of cement each of 200 bags were removed form the site thereby, misappropriating the Railway property.
18.Mr.Shanmugasundaram, the learned Senior Counsel, for A2 to A4, would submit that the prosecution has failed to prove that the bags seized from A2 and A4 belonged to the Railways. The learned counsel also pointed out Texmaco is a common brand, which is available in the market and there is no special marking in the seized cement bags to show that they belonged to the Railways.
19.As rightly pointed out by the learned counsel, P.W.2, the Supervising Officer of A1. P.W.3, the Supervising Officer, who was incharge of the Post of Assistant Engineer (Works), P.W.4, who was the incharge of the cement godown, P.W.5, the Senior Clerk, who released the cement bags would state that there is no special marking in the cement bags. P.W.7, who seized the cement bags would state that out of 200 bags seized from A2, in 20 bags there were some marking of the Railway and 18 bags seized from A4 had some marking of IOW. In any event, Texmaco is a common brand of cement, which is available in market and the burden is heavily upon the prosecution to prove that the seized cement bags belonged to Railways.
20.Indisputably, any movement of goods in and out of Railway area has to pass through Check-post and without a Gate-pass the goods cannot be transported. According to the prosecution, A1 issued Ex.P.12, Gate-pass, which is bogus. According to P.Ws.7 and 8, with the help of Ex.P.12 two loads of cement bags were removed. As far as seizure of Ex.P.12 is concerned, except the evidence of P.W.8, there is no independent witness to show that the same was seized from the lorry driver bearing Registration No. P.W.8 would state that "he intercepted the lorry and demanded the driver to show the Gate-pass". After unloading, when the lorry has started moving, I stopped and I questioned the driver as to why and what for the cement bags have been unloaded there, when I have questioned the name of the driver of the said lorry he told me that his name as Murugan. When I have asked him about further details he told that he has brought the cement bags from the Railway godown. On that, when I have demanded any record like Gate- pass, he has shown me a Gate-pass, saying that the same was issued by an Railway Officer, whose leg has been seen impaired. P.W.8 seized Ex.P.12 and the next day morning he lodged a complaint which was registered. Only on 08.03.1995 P.W.7 had seized 200 bags at the place of A2 and thereafter, at the place of A4.
21.Ex.P.12 is a hand-written pass. Admittedly that pass relates to a work at Theni. According to the prosecution, it is a forged document. The signature found in the Ex.P12 was compared with the signature of A2 and the Handwriting Expert would submit that the signature found is that of A1. The learned counsel for the appellant would submit that Ex.P.12 is not a forged document and it was established that Gate-pass can be issued in plain papers when the printed form was not available. The only question is whether Ex.P12 Gate-pass was issued by A2 to A4 for the movement of two loads of cement bags entrusted to A2? Except the evidence of P.W.8, there is no other independent evidence to show that Ex.P.12 was seized from the lorry driver. Ex.P.12 is a Gate-pass issued for some other purpose and it was proved during the relevant period the works and Theni was also going on. To connect the cement bags seized at the place of A2 and A4 with Ex.P12 the prosecution has to prove the following. (i) the cement bags seized from A2 and A4 belonged to the Railways and it is the same cement bags which were entrusted to them on 06.03.1995. (ii) The cement bags were transported with a help of A1, who issued Ex.P.12, Gate-pass.
22.As stated earlier, except the evidence of P.W.8, there is no other evidence to show that Ex.P.12 was seized from the lorry driver. P.W.8, who was assigned to watch over the movement of cement was following the lorry from the godown to the destination and watched the unloading of the cement. He had even intercepted the lorry driver and seized Ex.P.12. But he has not complained of the same immediately to his superiors. According to P.W.8, the entire movement was done at 3.30 p.m., on 06.03.1995. He has seized Ex.P.12 immediately after unloading but he has not revealed such illegal movement until next day. There is no explanation from P.W.8 for the delay. There is no proof to show that he has seized from Ex.P.12 from the lorry driver. There is no proof to show that Ex.P.12 was used to remove two loads of cement which was delivered to A2 and A3.
23.As rightly pointed out by the learned counsel appearing for A2 to A4, the godown situated at the site of GLR within the Railway campus was not immediately searched by P.W.7. The Stock-Register on 06.03.1995 was not verified with the available stock.
24.As far as the seizure from A4 is concerned, there is no evidence to connect the same with the Railway property. P.W.7 would state that A2 and A3 gave a statement on which the seizure was effected from A4. The admissibility of the confession statement recorded by P.W.7 was not discussed by the trial Court. The alleged statements were recorded under the Railway Property Unlawful Possession Act, 1966. In the judgment reported in 1997 6 SCC 514 State of Gujarat Vs. Anirudhsing and Another, the Hon'ble Supreme Court has held as follows:-
"14.In Balkishan A.Devidayal v. State of Maharashtra this Court was to consider whether an officer of the Railway Protection Force making an enquiry under the Railway Property (Unlawful Possession) act, 1966, is a police officer within the meaning of Section 25 of the Evidence Act. Afgter elaborate consideration of the provisions of the Code of Criminal Procedure (for short 'the CrPC") the Railway Property (Unlawful Possession) Act and Article 20(3) of the Constitution, this Court came to conclude that an RPF Officer is not a police officer within the meaning of Section 25 of the Act and, therefore, a confession made to that officer is admissible in evidence."
25.In the judgment of this Court reported in 1993 CRI.L.J.1457 (State v. Radhakrishnan) it has been held as follows:-
"6. ... No doubut true it is that the personnel belonging to Railway Protection Force in the eye of law, is not to the construe as a police officer. However, a confession statement made before P.W.1 is certainly admissible. The confession statement of accused 1, implicating accused 2 to 4 in the occurrence, cannot be read as evidence as against accused 2 to 4, If at all the same may be taken into consideration, as a lending assurance factor, if there are other evidence available on record, implicating them with the crime. The confession statements of accused 2 to 4, in the sense of rendering assistance to accused 1 in the alleged commission of the theft of the properties belonging to the railways, though admissible in evidence, like the confession statement of accused 1, yet, they cannot have any weight and credence, especially when their confessional statements had been retracted and when the witnesses for the seizure turned wholesale (wholly - Ed.) hostile to the prosecution."
26.In the present case also the confession statements were retracted and the witnesses turned hostile. Moreover, there is nothing to corroborate the statements recorded by P.W.7.
27.In the judgment of Orissa High Court reported in 1992 CRI.L.J.152 (State v. Lajarus Bahal), it has been held as follows:-
"10. Cement is a common goods. By itself it cannot be said to be railway property. However, it can be proved to be railway property by proving other similar goods of similar make in possession and proving that there was shortage of one. With that proof if it is found that accused was found in possession of such similar bag near about the place where other bags were in possession of railway administration, Court can legitimately make a reasonable suspicion that the cement bag was stolen or unlawfully possessed. In this case, prosecution has made no endeavour to prove similarity of the bags in the wagon, those found on the ground and are in possession of accused. In such circumstances, explanation of accused u/S.313, cr.P.C. that the cement bag belonged to Murty Contractor of building of Basanti Colony and he being an employee of Murty was taking his cement bag to site which is near the place where he was found cannot be thrown out."
28.A2 to A4 have produced defence evidence to show that they have purchased the cement bags on 05.03.1995 from two cement dealers. They were examined as prosecution witnesses and has disowned their documents. However, the burden is upon the prosecution to prove that the seized cement bags belonged to the Railways. As stated earlier, P.W.2, P.W.3, who handled the cement bags would state that the bags have no special marking. Therefore, the prosecution has failed to prove the seized cement bags belonged to the Railways and Ex.P.12, was used for the transport of the seized two loads of cement bags.
29.According to the prosecution, the accused conspired two commit an act of misappropriation of Railway property. Unless it is proved that there was an entrustment of Railway property to A2 and A3, and there was a breach of trust by removal of the Railway property by the active participation of A1 and the seized property is a Railway property, the criminal conspiracy cannot be made out.
30.Unless the prosecution proved that A2 has removed the property entrusted to him with dishonest intention, he cannot be punished for an offence under Section 409 of IPC for breach of trust. The prosecution has failed to prove that on 06.03.1995 there was a shortage of cement bags at the site of GLR and latter the Stock Register and the Work Register were altered to attract the provision of Section 477(A) I.P.C.
31.If Ex.P.12, Gate-pass is not connected with the property seized as a Railway property, A1 cannot said to have committed the offence under the Prevention of Corruption Act. As stated earlier, the property seized was not proved to be Railway property and there is not evidence to show that two loads were removed by using Ex.P.12. Therefore, there are material discrepancies in the prosecution theory and the benefit of doubt has to be given to the accused. The trial Court is wrong in concluding that the prosecution has proved its case beyond reasonable doubts and such fining is unsustainable and has to be set aside.
32.In the result, the appeal is allowed and the judgment and the order of conviction passed by the learned III Additional District Court, Special Judge for CBI Cases, Madurai in C.C.No.53 of 1996 on 20.10.2000 is set aside. The fine amount paid, if any, is ordered to be returned.
TO
1. THE 3rd ADDITIONAL DISTRICT COURT, SPECIAL JUDGE FOR CBI CASES, MADURAI.
2. THE INSPECTOR OF POLICE,SPE/CBI/ACB, MADRAS.
3. THE SUPERINTENDENT,CENTRAL PRISON, MADURAI.
4. THE CHIEF ENGINEER,SOUTHERN RAILWAY, MADRAS-3.
5. THE SPECIAL PUBLIC PROSECUTOR (CBI) MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.