Telangana High Court
Smt. A.Kameshwari vs The State Of A.P., Thru Cbi on 27 December, 2024
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 633 OF 2010
JUDGMENT:
The appeal is filed by the appellant/Accused aggrieved by the conviction recorded by the Special Judge for CBI Cases, Hyderabad, in CC.No.17 of 2006, dated 23.04.2010, for the offences under Sections 409 and 477-A of the Indian Penal Code and Sections 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988.
2. Heard G.Jithender Reddy, learned counsel for the appellant and Sri T.Srujan Kumar Reddy, learned Special Public Prosecutor for respondent-State.
3. The case of the prosecution is that a joint surprise check was conducted on 22.03.2005, 23.03.2005, 25.03.2005, and 26.03.2005 by PWs.12 and 13 in the Secunderabad Cantonment Board. During the course of the said surprise checks, significant quantities of medicines were discovered in the appellant's office apart from the medical store, which were without proper documentation. Stock book was not updated and several discrepancies were found including shortage and excess quantities. According to the CBI, the appellant maintained false 2 records, misrepresenting the stock issued and storing large quantities of medicines in her office without any documentation. Case was registered on 31.03.2005 after simultaneously searching in the Cantonment General Hospital and also the appellant's residence. The search in the appellant's residence led to the seizure of certain records, stock books, indent slips and also large quantities of medicines belonging to the cantonment board. There were a total of 29 items of drugs and surgical items worth Rs.7,603.09 ps. There were nearly 58 instances of falsification of stock books. The books and indents were in the hand writing of the appellant. Accordingly, charge sheet was filed against the appellant.
4. The learned Special Judge framed charges under Sections 409 of the Indian Penal Code for the reason of keeping huge quantities of stock in the office room without proper documentation which amounted to loss of Rs.7,603.09 ps. The second charge was for manipulating records to cover up the mis- appropriation of Rs.7,603/-. The third charge was framed under Section 13(1)(c) and (d) r/w.13(2) of the Prevention of Corruption Act for misappropriation of 29 medicines and also falsification of stock books and indent slips in 58 instances.
3
5. The learned Special Judge examined PWs.1 to 13 and documents Exs.P1 to P98 were marked. The seized drugs and surgical items were also marked as Material Object Nos.1 to 47. The learned Special Judge found the appellant guilty of committing the aforesaid offences.
6. The defence of the appellant is that the medicines seized in her house pertain to medical camp that was conducted at Cantonment area and some of the medicines were meant for her personal use. The said medical camp was in the slum area on 20.03.2005 and after the medical camp, the medicines were taken to her residence. It was informed in her office that the medicines were in her premises, however, the superiors of the appellant informed that the CBI had already conducted surprise checks. Further, the seized medicines and surgical items were kept in her house late night on 20.03.2005 and she was on leave after medical camp i.e. on 21.03.2005. The raids were conducted by CBI on 22nd, 23rd, 25th and 26th March, 2005.
7. Learned Counsel appearing for the appellant would mainly submit that the sanction Ex.P30 given by PW.11 was a result of pressure that was built up by the CBI for granting sanction against appellant. In fact, PW.11 was also an accused in Crime 4 No.RC 13(A)/05 of CBI, Hyderabad, which was registered on 16.05.2005. The said complaint was closed and final report was filed before the Special Judge on 30.05.2006. The sanction in the case was given on 23.03.2006. Two months after the sanction was granted, the CBI dropped the proceedings against PW.11. The counsel relied on the judgment of the Honourable Supreme Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat 1 wherein it is held at para-19 as follows;
"19. Since the validity of "sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to 1 (1997) 7 Supreme Court Cases 622 5 sanction" was taken away and it was compelled to act mechanically to sanction the prosecution"
8. He also relied on the Judgment of the Honourable Supreme Court in State of Karnataka v. Ameer Jan 2 wherein the Honourable Supreme Court held that the order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. It was further held that the sanctioning authority had passed the order of the sanction solely on the basis of report made by the Inspector General of Police. Except the report of the Inspector General of Police no record was available to the sanctioning authority. In the said circumstances, the Honourable Supreme Court found granting of sanction was bad.
9. The learned Public Prosecutor admitted that PW.11 who granted sanction was an accused in FIR No.RC-13(A)/05 of CBI, Hyderabad, registered on 16.05.2005. In the FIR, PW.11 was shown as A2 and two others were also arrayed as accused. In the said FIR, it is mentioned that PW.11 along with others had caused loss to the cantonment board to the tune of Rs.11,68,290/- in the matter of procurement of medicines for cantonment general hospital. The appellant herein was also shown as Pharmacist who 2 2007 Law Suit(SC)1025 6 had conspired with PW.11 and arrayed as A3. The said crime was closed by the CBI on 30.05.2006 on the ground that there were procedural lapses and there was no criminality that could be attributed to PW.11/A1, the appellant herein-A3 and another.
10. Pending investigation against PW.11, sanction was granted by PW.11 on 23.03.2006 i.e. two months prior to the closure of the case against PW.11 in FIR No.RC-13(A)/05 of CBI, Hyderabad. PW.11 in his statement before the Court stated that he had received a detailed report from SP, CBI, Hyderabad along with the documents in connection with irregularities committed by the appellant and after verifying the report as well as the documents, sanction was accorded.
11. Having gone through the sanction order Ex.P30 and the final report/charge sheet which was filed, the charge sheet was copied verbatim with minor changes in the wording and also the table that was in the final report.
12. There leaves no doubt regarding the mechanical manner in which the sanction was granted. The averments in the charge sheet/final report were copied and signed by PW.11. After the sanction was granted against the appellant, proceedings were closed against PW.11 two months thereafter. As observed by the 7 Honourable Supreme Court in Mansukhlal's case, the sanctioning authority had not applied its independent mind and was under compulsion or constraint to grant sanction. In the said circumstances the discretion of the sanctioning authority "not to sanction" was taken away and PW.11 was compelled to act mechanically to grant sanction to prosecute the appellant. In the background of the sanction being granted under compulsion and mechanically done, the sanction is bad in law. On the said ground alone the appellant has to succeed in the appeal.
13. However, having gone through the evidence, the charge under Section 409 of IPC is for mis-appropriation of 29 medicines and surgical items which were found in the office room without proper documentation, valued at Rs.7,603.09 ps.
14. To attract an offence under Section 409 of IPC, the prosecution has to prove that any property that was entrusted should have been dishonestly misappropriated or converted the property to one's own use. The three Judge bench of the Honourable Supreme Court in N.Raghavender v. State of Andhra Pradesh 3 held that mere retention of property entrusted to a person without any misappropriation cannot fall within the 3 (2021) 18 SCC 70 8 ambit of criminal breach of trust as defined under Section 405 of the Indian Penal Code.
15. In the present case, the drugs were found in the house, which were kept after the camp and no drugs were missing, as such, the question of converting the property to own use of the appellant or misappropriating the same does not arise.
16. To prove the offence under Section 477-A of IPC, prosecution has to prove that the appellant had willfully with an intent to defraud has falsified the books of accounts. As already discussed above, the defrauding as alleged under Section 409 of IPC, was not made out. Further, the prosecution has not come up with any evidence quantifying the result of the alleged 58 instances of the indent slips maintained in the hospital to cover up misappropriation and cause loss to a tune of Rs.7,603/-. At first instance misappropriation itself was not proved. Further, nothing is specified by the witnesses as to what were the 58 instances resulting in the falsification of the stock books to cover up the misappropriation of Rs.7,603/-. Only on the basis of evidence that certain copies of the indents found in the office reflected variation with the original will not suffice to prove guilt under Section 477-A of the IPC, unless it is specified that the said variation in the 9 indents was to cover up any misappropriation of Rs.7,603/- drugs and surgical items that were found in the office stores, in accordance with the charges framed. The prosecution did not correlate in between the misappropriation charge under Section 409 and the falsification of accounts under Section 477-A of the IPC. Such vague assertions by the prosecution cannot form basis to find the appellant guilty under Section 477-A of IPC.
17. In view of the prosecution failing to prove the offence under Section 409 and 477-A of IPC, the offence under Sections 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988, which charge is on the basis of the charges under Sections 409 and 477-A of IPC, also are not made out.
18. Accordingly, the appellant succeeds and the Criminal Appeal is allowed setting aside the conviction recorded by the Special Judge for CBI Cases, Hyderabad, in CC.No.17 of 2006, dated 23.04.2010. Since the appellant is on bail, her bail bonds shall stand discharged.
__________________ K.SURENDER, J Date: 27.12.2024 tk