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. 964/1987
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
D.J.Halli Police have charge sheeted the accused alleging the offences punishable u/s.408 and 477A of IPC.
2. The facts alleged is that the accused being Sales Assistant under CW1 dealing with the monetary transaction of KFCSC, Retail Point No.1, D.J.Halli, Bangalore by falsification of account and misappropriated Rs.33,841.40 by way of non-remittance, short remittance of cash, collected by sales proceeds of commodities to the account of KFCSC Ltd. for the period 1.7.1984 to 19.3.1986. He is said to have made false entries in the day book and sought records in the institution of the complainant and thereby committed the said offences.
-2- CC 964/1987
3. 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 15 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. CW19 to 21 were given up. PW3 reported to be dead. 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.
4. 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 Limite, 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.33,841.40 by way of non remittance, short remittance of the cash collected by the sale proceeds of the commodities of the said retail point to the account of KSCFC and
-3- CC 964/1987 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 ?
5. 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
6. 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.
7. 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.) 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 and sale of food grain and essential commodities. The corporation is said to have been
-4- CC 964/1987 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.
8. 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 Watchman. In this regard the office order dated 10.8.1983 marked as
-5- CC 964/1987 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 following :
"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.
9. 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 Sales Assistants. This includes the name of the accused which is at
-6- CC 964/1987 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.
10. 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 admitted to be appointed as the Sales Assistant in one of the retail
-7- CC 964/1987 point of D.J.Halli, KFCSC and that it was his duty to collect permit from the concerned range office and to lift the foodgrains 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.
11. 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 said to be about 300 retail points in Bangalore and among that one
-8- CC 964/1987 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.
12. At the outset it is necessary to note at this stage the evidence of the junior auditor PW1. According to him Devarajeevanahalli retail fair price shop is said to fall within the purview of the internal auditor
-9- CC 964/1987 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. 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 some 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.
13. 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.
- 10 - CC 964/1987
14. PW1 has further stated that, there are said to be
misappropriation of the amount by way of short and excess remittance. The excess remittance is said to be without any explanation. The details of non remittance, short remittance and excess remittance are said to be as follows :
Date Ex. Page Concern Sale Relevant Remitted Not Remittance No. ed entry proceeds entry in Rs. remitted Amount the bank Rs. Excess Short Rs. statemen remittance remittance t Rs. Rs.
29.10.84 P.10 143(2) P.10(a) 6083.62 P.18(a) - Not - -
remitted 30.10.84 P.10 147(2) P.10(b) 3417.75 P.18(b) - Not - -
remitted 3.12.84 P.12 50(2) P.12(a) 4280.41 P.18(c) - Not - -
remitted 29.10.84 P.10 143 P.10(C) 1990.00 P.18(b) - Not - -
remitted 8.12.84 P.12 69 P.12(b) 5486.09 P.18(c) - Not - -
remitted 15.12.84 P.12 91 P.12(d) 4359.21 P.18(a) - Not - -
remitted 17.12.84 P.12 95 P.12(c) 2206.86 P.18(d) - Not - -
remitted 20.12.84 P.12 105 P.12(f) 1194.00 P.18(d) - Not - -
remitted 21.12.84 P.12 109 P.12(b) 1592.00 P.18(d) - Not - -
remitted 24.12.84 P.12 120 P.12(h) 4928.60 P.18(d) - Not - -
remitted 27.12.84 P.12 123 P.12(I) 2035.36 P.18(d) - Not - -
remitted 28.12.84 P.12 125 P.12(j) 3331.35 P.18(d) - Not - -
remitted 29.12.84 P.12 129 P.12(k) 1194.00 P.18(d) - Not - -
remitted 31.12.84 P.12 134 P.12(l) 5739.35 P.18(d) - Not - -
remitted 9.8.84 P11 123 P.11(a) 2337.46 P.18(e) 2388.00 - Rs.50.54 -
10.9.84 P10 10 P.10(d) 2813.25 P.18(f) 3393.00 - Rs.580.00 - 13.7.84 P.11 43 P.11(b) 2336.77 P.18(g) Rs.2346.80 - Rs.10.03 -
18.8.84 P.11 144 P.11(c) 6689.34 P.18(h) Rs.6228.00 - - Rs.461.34 12.9.84 P.10 17 P.10(e) 2350.83 P.18(I) Rs.3250.85 - Rs.900.02 -
Book (L)
- 11 - CC 964/1987 5.9.84 P.11 196 P.11(d) 4175.76 P.18(j) Rs.4070.00 - - Rs.106.76 15.9.84 P.10 26 P.10(f) 1483.82 P.18(k) Rs.1475.00 - - Rs.8.82 26.9.84 P.10 56 P.10(g) 3753.30 P.18(l) Rs.3670.30 - - Rs.136.00 27.9.84 P.10 63 P.10(h) 4003.20 P.18(m) Rs.4133.20 - Rs.100.00 -
30.9.84 P.10 63 P.10(I) 5696.00 P.18(n) Rs.4877.00 - - Rs.819.00 16.10.84 P.10 107 P.10(j) 2489.57 P.18(o) Rs.2774.00 - Rs.284.43 -
20.10.84 P.10 122 P.10(k) 4349.00 P.18(c) Rs.4690.00 - Rs.340.00 -
22.10.84 P.10 125 P.10(l) 2457.75 P.18(q) Rs.2017.00 - - Rs.440.75 24.10.84 P.10 - P.10(m) 3009.77 P.18(r) Rs.2610.50 - - Rs.399.27 6.11.84 P.10 162 P.10(n) 6163.75 P.18(s) Rs.6193.75 - Rs.30.00 -
7.11.84 P.10 - P.10(o) 5592.48 P.18(t) Rs.5582.48 - - Rs.10.00 10.11.84 P.10 - P.10(p) 3426.37 P.18(u) Rs.3483.37 - Rs.57.13 -
15.11.84 P.10 194 P.10(q) 735.20 P.18(v) Rs.721.00 - - Rs.14.25 17.11.84 P.12 5 P.12(m) 5641.81 P.18(w) Rs.3652.00 - - Rs.1989.81 26.11.84 P.12 30 P.12(n) 3341.82 P.18(x) Rs.2745.00 - - Rs.596.82 30.11.84 P.12 - P.12(o) 2790.06 P.18(y) Rs.2764.00 - - Rs.26.06 4.12.84 P.12 54 P.12(p) 4994.57 P.18(z) Rs.3005.00 - - Rs.1989.57 5.12.84 P.12 59 P.12(q) 5370.66 P.18(aa) Rs.5219.00 - - Rs.151.66 10.12.84 P.12 - P.12(r) 1911.62 P.18(ab) Rs.1900.00 - - Rs.11.62 11.12.84 P.12 - P.12(s) 4879.96 P.18(ac) Rs.4869.00 - - Rs.10.96 12.12.84 P.12 80 P.12(t) 1614.38 P.18(ad) Rs.1322.00 - - Rs.292.38 20.12.84 P.12 - P.12(u) 1532.35 P.18(ae) Rs.1843.00 - Rs.310.65 -
21.12.84 P.12 109 P.12(v) 4131.75 P.18(af) Rs.4122.00 - - Rs.9.75 4.1.85 P.12 149 P.12(w) 4317.97 P.18(ag) Rs.4374.00 - Rs.6.03 -
9.1.85 P.12 169 P.12(x) 6301.80 P.18(ah) Rs.6202.00 - - Rs.99.80
15.1.85 P.12 190 P.12(y) 4379.88 P.18(ai) Rs.4165.00 - - Rs.254.88
17.1.85 P.12 - P.12(z) 6492.86 P.18(aj) Rs.6480.00 - - Rs.12.86
24.1.85 P.13 30 P.13(1) 1194.00 P.18(ak) Rs.1184.00 - - Rs.10.00
- 12 - CC 964/1987
25.1.85 P.13 33 P.13(2) 2977.09 P.18(al) Rs.2968.00 - - Rs.9.09
11.2.85 P.13 95 P.13(3) 2534.08 P.18(am) Rs.2566.00 - Rs.31.97 -
16.2.85 P.13 110 P.13(4) 3266.55 P.18(an) Rs.3147.00 - - Rs.19.55
20.2.85 P.13 121 P.13(5) 2966.20 P.18(ao) Rs.3000.00 - Rs.33.80 -
22.2.85 P.13 128 P.13(6) 3012.28 P.18(ap) Rs.3212.00 - Rs.199.72 -
25.2.85 P.13 191 P.13(7) 3149.32 P.18(aq) Rs.3120.00 - - Rs.29.32
13.3.85 P.13 185 P.13(8) 2577.52 P.18(ar) Rs.2570.00 - - Rs.7.52
14.3.85 P.13 188 P.13(9) 1802.44 P.18(as) Rs.1100/- - - Rs.702.40
19.3.85 P.14 5 P.14(1) 2404.09 P.18(at) Rs.2398.00 - - Rs.6.99
26.3.85 P.14 24 P.14(2) 3054.55 P.18(au) Rs.2995.00 - - Rs.99.55
28.3.85 P.14 34 P.14(3) 5493.45 P.18(av) Rs.3800/- - - Rs.1693.45
4.4.85 P.14 55 P.14(4) 6421.08 P.18(aw) Rs.6315.00 - - Rs.106.08
6.4.85 P.14 61 P.14(5) 5471.01 P.18(ax) Rs.5270.00 - - Rs.201.01
8.4.85 P.14 65 P.14(6) 4921.70 P.18(ay) Rs.4908.00 - - Rs.13.70
10.4.85 P.14 75 P.14(7) 4118.90 P.18(az) Rs.4084.00 - - Rs.34.90
15.4.85 P.14 90 P.14(8) 2983.51 P.18(1) Rs.2750.00 - - Rs.233.31
3.5.85 P.14 140 P.14(9) 4341.25 P.18(2) Rs.4330.00 - - Rs.11.25
13.5.85 P.14 172 P.14(10) 2185.55 P.18(3) Rs.2175.00 - - Rs.10.55
15.5.85 P.14 177 P.14(11) 1739.55 P.18(4) Rs.1720.00 - - Rs.19.55
20.5.85 P.14 191 P.14(12) 2717.24 P.18(5) Rs.2688.00 - - Rs.29.24
6.6.85 P.15 45 P.15(1) 3765.75 P.18(6) & Rs.3750.00 - - Rs.15.75
18(7)
8.6.85 P.15 52 P.15(2) 3716.54 P.18(8) Rs.3676.00 - - Rs.44.54
12.6.85 P.15 61 P.15(3) 2190.00 P.18(9) Rs.2180.00 - - Rs.10.00
16.6.85 P.15 68 P.15(4) 1898.61 P.18(10) Rs.1750.00 - - Rs.148.61
19.6.85 P.15 86 P.15(5) 5805.94 P.18(11) Rs.5705.94 - - Rs.100.94
22.6.85 P.15 93 P.15(6) 2705.85 P.18(12) Rs.2700.00 - - Rs.5.85
26.6.85 P.15 97 P.15(7) 2322.91 P.18(13) Rs.2270.00 - - Rs.52.91
- 13 - CC 964/1987
15. The above nature of misappropriation has been stated by PW1. But he himself has stated as follows:
"I did not enquire regarding entrustment of the accused. Accused was working as incharge Sales Assistant."
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."
16. 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 superior officer. It is interesting to note that, further this PW1 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."
17. 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
- 14 - CC 964/1987 "D PÁ®zÀ°è DAvÀjPÀ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£É EgÀ°®è. CzÉà jÃwAiÀiÁV ªÀiÁ¹PÀ ¯ÉPÀÌ ¥Àj±ÉÆÃzÀs£É ¸ÀºÀ EgÀ°®è. "
18. 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 ¸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.
19. 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
- 15 - CC 964/1987 C¢üPÁgÀ E®è. ¸ÀzÀj ªÀgÀ¢UÉ ¸À» ªÀiÁqÀ®Ä EAlgï£À¯ï Drmï D¦üøï gÀªÀjUÉ C¢üPÁgÀ EgÀÄvÀÛzÉ.
20. Therefore, the evidence of PW1 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 PW1 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.
21. The audit report Ex.P.5 has been signed by one Shivarudrappa. No doubt it contains the name of PW1. 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 PW1 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. Therefore, it means that, opportunity in
- 16 - CC 964/1987 fact was given to the prosecution department to adduce the evidence in the present case. Inspite of that, the evidence of PW1 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 PW1 cannot be the basis for the offences alleged against the accused.
22. 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 bears only the signature of this Shivarudrappa. Thisreport 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 PW1, the material placed before the court shows that the case of the prosecution is entirely dependant on PW1 himself. This evidence of PW1 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
- 17 - CC 964/1987 documents along with the audit report, non-inspection of the audit report by the concerned are all fatal to the case of the prosecution.
23. The Administrator of the APMC examined as PW2. 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 marked as Ex.P.7 and Ex.P.8 no details of the document has been stated by this PW4. Formally PW5 has stated about carrying Ex.P.1 complaint to the concerned police station.
24. PW7 said to be the Supervisor of KFCSC, Bangalore from January 1984 to May 1987 has stated that, this Devarajeevanahalli 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
- 18 - CC 964/1987 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 PW7 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 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.
- 19 - CC 964/1987
25. The evidence of PW1 shows that the entries stated by him is on the date he has audited. But this witness PW7 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. When this witness himself has stated that it was his responsibility to supervise, in Ex.P.10 to Ex.P.18, except Ex.P.12(a) and (b) no other entries have been got marked from this witness. His nature of evidence shows that in turn he has referred the audit report of PW1. Primarily it was his duty to report about any misdeeds if any found in maintaining the requisite registers of the sale proceeds.
26. Office Manager of the KFCSC examined as PW8 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. It is true that accused had paid some amount on 24.3.1986 and 23.4.1986 and I have not taken into account of the said amount. Ex.D.1 and Ex.D.2 are for Rs.3500/-
and Rs.10,000/- respectively."
- 20 - CC 964/1987
27. The entries above noted from the evidence of PW1 has been in Ex.P.10 to Ex.P.18. This witness has stated about the entries in Ex.P.9 but his evidence has been recorded on 26.3.2002 whereas evidence of PW1 has been recorded prior to that and it was completed on 8.3.2001. According to him, he is said to have issued the memo to the accused as per Ex.P.19 which is the notice for short remittance and it is dated 17.10.1985 and it has the reference of dated 15.10.1985 of Rs.100/- in the day book. Ex.P.20 is said to be the copy of Ex.P.19 which is said to about receipt of the notice as per Ex.P.19. Similarly he has stated in regard to Ex.P.20 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.
28. PW9 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 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
- 21 - CC 964/1987 myself and the accused obey the orders of the superior officers."
29. The Quality Inspector PW11 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."
30. 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. Further his evidence shows that he had not gone into details of the accounts and that he allowed accused to have maintained the accounts correctly. This nature of the evidence adduced by the prosecution goes to show that the work of the accused ought to be 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 charge list marked as Ex.P.28. He has stated as follows :
- 22 - CC 964/1987 "While taking charge, I did not go to any shortage of stock. Hence the shortage was not noted in the charge list. He has stated not to know details of shortage."
31. PW13 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 PW14 has stated about the ledger extract of the S.B. A/c No.235 of the accused marked as Ex.P.29. There is no cross- examination of these witnesses.
32. PW15 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."
33. This matter was earlier disposed off vide judgment dated 31.10.2003. Against that Criminal Appeal No.663.03 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 witnesses if any. Thereafter the matter was proceeded with from 2.11.2011. The application was filed by the counsel for the accused
- 23 - CC 964/1987 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 non of the other witnesses have been secured.
34. 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 remand the witnesses have not turned up. Passing 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
- 24 - CC 964/1987 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.
35. 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 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.
- 25 - CC 964/1987
36. 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 : Md. Haroof
PW.2: M.A.Sadiq
PW.3: Syed Abdul Jabbar
PW.4: C.N.Lakshminarayana
PW.5: M.S.Ramu
PW.6: Venugopal
PW.7: K.P.Gowri
PW.8: Vasudeva
PW.9: Jayapal
PW.10: Chandrashekar
PW.11: Huchappa
PW.12: H.Nagaraj
PW.13: B.C.Bheemeswar
PW.14: V.J.Kamath
PW.15: Abdul Subhan
- 26 - CC 964/1987
List of exhibits marked for prosecution :
Ex.P.1 : Complaint
Ex.P.2 : Official Memorandum dated 16.6.1984 Ex.P.3 : Job Chart of Sales Assistant Ex.P.4 : Salary certificate of accused Ex.P.5 : Audit report Ex.P.6 : Stock register Ex.P.7 : Seizure mahazar Ex.P.8 : Seizure mahazar Ex.P.9 to Ex.P.17: Day book registers Ex.P.18: Bank statement Ex.P.19: Copy of Daily Inspection report Ex.P.20: Daily inspection report Ex.P.21: Memo dated 7.3.1986 Ex.P.22: Report dated 7.3.1986 Ex.P.23: Report dated 10.3.1986 Ex.P.24: Report dated 17.3.1986 Ex.P.25: Report dated 20.3.1986 Ex.P.26: Office order dated 10.8.1983 Ex.P.27: Duty report Ex.P.28: Charge list Ex.P.29: Bank statement Ex.P.30 to 67: Monthly statements Ex.P.68: Stock register Ex.P.69: Stock register List of M.O.s marked for prosecution : NIL List of witnesses examined on behalf of accused : NIL List of exhibits marked on behalf of accused :
Ex.D.1 & 2 : Receipts.
(Ms. Vela D.K.)
IV Addl.Chief Metropolitan Magistrate,
Bangalore.
- 27 - CC 964/1987
- 28 - CC 964/1987
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.