Andhra HC (Pre-Telangana)
N. Venkateshwara Rao vs The State Of A.P, Rep. By Spl. Police ... on 16 October, 2014
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
Criminal Appeal No.743 of 2005
16-10-2014
N. Venkateshwara Rao..... Appellant
The State of A.P, Rep. by Spl. Police Establishment,Central Bureau of
Investigation,Visakhapatnam.. Respondent
Counsel for Appellant: Sri A. Hari Prasad Reddy
Counsel for Respondent : Sri P. Kesava Rao,
Special Standing Counsel for CBI
<Gist:
>Head Note:
?Cases referred:
1)2005 (2) ALD (Cri) 790
2)1997 (2) ALD (Cri) 59 = AIR 1997 SC 2960
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL APPEAL No.743 of 2005
Judgment:
Fact is stranger than fiction is indeed proved true in the present case!
Perhaps the swindler might not have known that a small mistake committed
by him in totalling the pension amount of one of the fake pension claims
created by him and mentioned as Rs.18,578/- instead of Rs.18,558/- (excess
is only Rs.20/-) would, long after caught the accidental attention of
residential audit party and their casual intimation under Ex.P8letter to the
Accounts and Pension Sections of Visakhapatnam Port Trust (for short
VPT) to recover the excess amount paid from the concerned pensioner and
Pension Sections verification revealing a startling truth that not only the
excess paid pension claim but also some 137 other claims were fake ones
created to swindle about Rs.19,80,000/-, resulting in report to CBI Police and
their laying charge sheet against the present accused, an employee in Cash
Section, VPT and resulting in conviction after trial. Had the simple
arithmetical mistake in totalling was not committed, whether the fraud would
have seen light of the day or not and if so when is anybodys guess.
2) This appeal is filed by the Accused Officer (AO) in the following
backdrop.
a) The AO functioned as Senior Assistant (Cash) in Cash Section of the
office of Financial Advisor and Chief Accounts Officer (for short FA &
CAO) of VPT from 01.04.1995 to 10.12.1998 and his duties were
disbursement of claim amounts to various staff members of VPT and
pensioners by collecting cash in the morning on all working days from the
Head Assistant (Cash) of the Cash Section who is in charge of Mini Cash
Chest for making payments and return the balance amount with vouchers in
the evening.
b) While so, the AO fraudulently and dishonestly prepared fake pension
bills (claims) in the names of non-existent pensioners by securing blank
pension claim forms from time to time from the Pension Section and filled in
the same with particulars of non-existent pensioners showing the pension
amount to be paid to the claimants and thereafter forged the signatures of
passing officers i.e. Accounts Officers concerned, (PWs.5 and 6) and
encashed those bills at his own cash counter where he was working. After
encashing the bills he handed over those cash vouchers along with genuine
vouchers duly entering the particulars viz: cash voucher number, name of the
pensioner and the amount paid in the cash book concerned to the nominated
Head Assistant (Cash) for cross checking the arithmetical accuracy. In the
aforesaid manner, during calendar year 1997, the AO abused his official
position and fraudulently and dishonestly presented 63 fake pension bills in
the names of non-existent pensioners (as shown in Annexure I to the charge
sheet) by forging the signatures of Accounts Officers concerned as well as
non-existent pensioners and misappropriated an amount of Rs.10,16,908/-
and thereby caused wrongful loss to VPT and corresponding wrongful gain to
himself.
c) On the complaint (Ex.P1) lodged by Sri K.V.Gupta, Senior Deputy
Financial Adviser and Chief Accounts Officer, VPT (PW1) with
Superintendent of Police, CBI, Visakhapatnam, a case in RC.01/A/99 was
Registered under Sections 409, 467, 471 and 477A IPC and under Section
13(2) r/w 13(1)(1) (c) of Prevention of Corruption Act, 1988 (for short PC
Act) and investigated and charge sheet was filed against AO.
d) On appearance of AO, the trial Court framed charges under Sections
420, 467, 465, 471 and 477A IPC and under Section 13(1)(d)(ii) r/w 13(2) of
PC Act and conducted trial.
e) During trial PWs.1 to 17 were examined and Exs.P1 to P124 were
marked on behalf of prosecution. Exs.D1 and D2 were marked on behalf of
AO during the cross-examination of PW3.
f) The defence of AO, inter alia, is that he is totally innocent and that he
paid the amount as per the pass orders made on the pension claims in Pension
Section and that he was made a scapegoat to save some other employees.
g) A perusal of the judgment would show that the trial Court relying upon
the prosecution evidence, has concluded that it was the accused who forged
the bogus pension claims and pressed them into service and swindled
Rs.10,16,908/- and accordingly convicted him for the offences under
Sections 420, 467, 471 and 477A IPC and Section 13(1)(d)(ii) r/w 13(2) of
PC Act and sentenced.
Hence the appeal by AO.
3) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for
appellant/AO and learned Special Standing Counsel (Spl.SC) for CBI.
4) Impugning the judgment learned counsel for appellant submitted that
the accused is innocent and as per the pass orders on the pension claims sent
from the Pension Section he disbursed the amount and CBI Police in order to
save the employees in other sections made him as scapegoat.
a) Expatiating his arguments, he firstly argued that as per the evidence of
PW1, during the relevant time there were about 5 to 6 thousand pensioners in
VPT. The prosecution in order to prove that all the 137 pension claims
(63 relating to present case and remaining relating to Crl.A.No.744 of 2005)
were of fictitious persons did not produce the Pension Register showing the
particulars of pensioners which would have enabled the Court to know
whether the pension claims concerning to the present case were made in
respect of existing claimants or fictitious persons. In view of non-fling of
Pension Register, prosecution failed to establish that the claims under
scrutiny are fictitious claims.
b) Secondly, learned counsel argued that Cash Section is an end section
i.e. to say it receives bills with pay orders from different sections through
DAK and after entering them in the Register in Cash Section, cash payment
will be made at the counters in Cash Section by four Senior Assistants (Cash)
including the AO. Similarly, pension claims will be received from the
Pension Section through DAK and after entering the pension vouchers in the
Register, payments will be made to the pensioners by verifying their Pension
Pass Books. Learned counsel argued that the defence contention is that all the
alleged bogus pension claims were generated in the Pension Section and
basing on the pass orders made in that section, the AO innocently paid the
amount. The prosecution in order to establish that the bogus pension claims
were not generated in Pension Section but originated in the Cash Section
alone, did not produce the DAK Register which contains the particulars of
the pension claims for the scrutiny of the Court. He vehemently argued that
DAK Register is an important piece of evidence to know whether bogus
claims were generated in Pension Section or in Cash Section. However, the
prosecution has not produced the said Register and it has not offered any
explanation either.
c) Thirdly, he argued that in stead of producing DAK Register the
prosecution produced Exs.P25Audit Bill Register (for short AB
Register) claiming as if, every pension claim made in the Pension Section
will be entered in the said AB Register for audit scrutiny and that none of the
pension claims covered by Exs.P9 to P24 and P27 to P73 were entered in
Ex.P25 and hence those claims were not generated in Pension Section.
Severely castigating the authenticity of Exs.P25, learned counsel argued that
no seal or endorsement is appearing on it to the effect that it was duly
maintained in Pension Section in due course of its day-today business.
Further, Ex.P25 appears to be newly stitched and therefore, it is clear that
Ex.P25 was fabricated by the prosecution and so it cannot be relied upon to
conclude that the pension claims were not originated in Pension Section.
d) Fourthly learned counsel argued that on all the pension claims (Exs.P9
to P24 and P27 to P73) the enfacement stamping of Pension Section is
available which indicates that all those pension claims were originated from
Pension Section. He submitted that PW3 in his cross-examination avouched
that the enfacement stamps found on Exs.P9 to P24 are genuine. He argued
that enfacement stamps will be available with Pension Section and accused
cannot have access to it.
e) Fifthly, vehemently arguing that finger print experts evidence (PW13)
is of no avail to the prosecution, learned counsel submitted that the IO has
not obtained the specimen finger prints of AO either before learned
Magistrate or in the presence of PW12 or some other independent witness.
Similarly, the Service Register (SR) and Physical Fitness Certificate which
allegedly contain the finger prints of AO were manipulated and the Service
Register and Physical Fitness Certificate do not belong to AO. Learned
counsel argued that the IO claims to have obtained Service Register and
Physical Fitness Certificate from one Jagannadham, VPT employee.
However, the said Jagannadham was not examined in the court to confirm the
same. So, the opinion of finger print expert which is based on his specimen
finger prints and the finger prints available in the Service Register and
Physical Fitness Certificate has no evidentiary value. Thus, he prayed to
allow the appeal and set aside the conviction and sentence.
5) Per contra, while opposing the appeal learned Special Standing
Counsel argued that from the nature of defence plea it is evident that AO too
admits that fraud has taken place but he was not responsible. He argued that
prosecution by examining PWs.5 and 6Accounts Officers in Pension
Section has established that the signatures on the pass orders in pension
claims do not belong to them and further, PW17handwriting expert also
confirmed that the signatures on the disputed documents do not belong to
them. Added to it, the prosecution by producing Ex.P25AB Register could
establish that none of the disputed pension vouchers were mentioned in the
said Register maintained by the Pension Section. All these, he argued, would
show that the disputed bills were not originated in the Pension Section. Apart
from proving this fact the prosecution proved further fact that all these claims
were originated in the Cash Section and fabricated by AO through the
evidence of PW13finger print expert and PW17Government Examiner
of Questioned Documents (GEQD) who deposed that handwritings,
signatures and thumb impressions on the pension claim vouchers belong to
AO. In the light of above, he argued, mere non-production of DAK Register
or Pension Register will not debilitate the prosecution case which was
otherwise proved. He further submitted that Ex.P25AB Register is not a
fabricated one but a genuine one and as it became worn out it was stitched to
see that pages are not lost. He thus prayed to dismiss the appeal.
6) In the light of above rival arguments, the points that arise for
determination in this appeal are:
1. Whether the fabricated pension claims were originated in Pension
Section or in Cash Section of VPT?
2. If they are originated in Cash Section, whether AO is responsible for
forging them and pressing them into service for cheating VPT?
3. Whether prosecution could establish the guilt of AO for the charges
levelled against him beyond reasonable doubt?
4. Whether the judgment of trial Court is correct?
7 a) POINT Nos.1 & 2: The procedure for payment of amounts to the
pensioners is that pensioners will fill up the prescribed format available in
the
Pension Section in VPT and submit. The particulars of claim will be noted in
the AB Register (Ex.P25) maintained in the Pension Section for audit
purpose. Then, the dealing assistant will go through the claims together with
record available with him to know about the genuinity of the claim and then
send to Supervisor for super check and thereafter the claim form will be
placed before the Accounts Officers (PWs.5 and 6). They will subscribe their
signatures within the enfacement stamp and then it becomes a pass order. All
the claims-cum-pass orders will be despatched to the Cash Section through
DAK for payment.
b) During the relevant period, there were four cash counters in the Cash
Section manned by Senior Assistants (Cash) and AO was one among them.
The pass orders received from different sections will be noted down in a
Register in Cash Section and they will be distributed to the Senior Assistants
(Cash). On every working day, the Senior Assistants (Cash) secure cash
from Head Assistant (Cash) from his Mini chest and acknowledge the same
in Cash Taken Registers (Exs.P76 to 78). The disbursement will be
mentioned in the cash books (Exs.P79 to P91) and after due disbursement, in
the evening, they will return the balance amount along with vouchers. This
procedural aspect is not disputed by the AO.
At this juncture it is pertinent to mention about the evidence of PW7
P.Papa Rao, who was the Head Assistant (Cash) during 1993-2000. He
deposed that he was in control of Mini chest from July, 1996 to June 1997
and he used to distribute cash among Senior Assistants (Cash) who sit in the
cash counters by mentioning the same in Cash Taken Registers covered by
Exs.P76 to P78. He stated that cash payments made at the counters will be
entered in cash books covered by Exs.P79 to P91. Then, most importantly
this witness at length deposed about the amounts taken and returned by AO
from him on different dates. This witness further deposes that from out of the
amounts taken from him, the AO disbursed amounts covered by fabricated
pension vouchers under Exs.P9 to P24 and P27 to P73. This part of his
evidence is not challenged by AO. It signifies that amounts covered by
fabricated vouchers were disbursed from his counter. However, his
contention is that he disbursed the amounts as per the pass orders made in the
claims by the Pension Section and the signatures and LTMs on those
documents do not belong to him. So, the pertinent point is whether the
fabricated pension claims were originated in Pension Section or in Cash
Section. To establish that they were not originated in Pension Section, the
prosecution examined PWs.5 and 6Accounts Officers and PW17
handwriting expert and also produced Ex.P25AB Register.
c) PW5K.Suryanarayana was the Accounts Officer in Pension Section
of VPT from 1997 to 1999. He used to pass pension bills. He clearly deposed
that the signatures within the enfacement stamp at the bottom appearing as
K.Suryanarayana in Exs.P45 to P73 do not belong to him. In the cross-
examination he stated that the enfacement stamps on Exs.P45 to P73 are not
genuine stamps. He denied the suggestion that all the bills were routed
through Pension Section and accused made the bills believing to be
genuine. (Emphasis supplied). He denied the further suggestion that the
signatures on Exs.P45 to P73 belong to him.
d) Then PW6V.V.Ramana Murthy another Accounts Officer also
deposed in similar fashion. He deposed that the signatures on Exs.P9 to P44
do not belong to him. He further stated that in case of genuine claim forms,
the details of the claim forms will be entered in Ex.P25AB Register. In this
case, the particulars of Exs.P9 to P44 are not mentioned in Ex.P25. He
affirmed that Exs.P9 to P44 are not genuine claim forms. In the cross-
examination he admitted that the enfacement stamps on Exs.P9 to P44 belong
to VPT. He denied the suggestion that the signatures on Exs.P9 to P44 are
similar to Ex.P75 i.e. his specimen signature sheet. So, a close scrutiny of
the evidence of PWs.5 and 6 would show that they emphatically denied their
signatures on the fabricated claim forms. One may argue that in order to
avoid suspicion being cast on them, PWs.5 and 6 might have deposed
falsehood as if the signatures on the fabricated vouchers do not belong to
them. It must be noted that the said argument does not contain any substance
because PW17GEQD on comparison of the signatures on vouchers with
the specimen signatures of PWs.5 and 6 categorically stated that signatures
on vouchers do not belong to them. At the same time, he deposed that the
signatures on the vouchers belong to accused. It is true that the evidence of
PW17 is based on opinion but not based on facts to his knowledge and his
evidence is only a corroborative piece. In my view, despite limitation
attached to the evidence of the expert, still the evidence of PW17 can be
accepted for the reason that the report submitted by him using most scientific
aids like lenses, magnifiers and light sources etc is backed by Ex.P25
AB Register. If really pension claimsExs.P9 to P24 and P27 to P73 were
generated in Pension Section and passed by PWs.5 and 6 certainly their
particulars would have been mentioned in Ex.P25AB Register for audit
purpose. However, that is not the case here. It shows that those claims were
not originated in Pension Section and hence there was no occasion for PWs.5
and 6 to sign on them. The independent expert also expresses the same
opinion. Thus, it is clear that the claim forms were not prepared in Pension
Section. On the other hand, the evidence of PW17 and also PW13finger
print expert would show that they contain the signatures, handwritings and
thumb impressions of AO. Therefore, it is clear that those claims forms were
prepared at the end of AO. That, the payments in respect of all the fabricated
vouchers were made from the cash counter of AO alone but not from the
other counters also confirms the view that AO was the author of fabricated
claim forms.
8) Further, the evidence of PWs.8 to 10 also confirms the role of AO.
a) PW8S.Chandramohan Rao was the Head Assistant (Cash) in VPT
during 1997. He deposed that accused worked in Cash Section as Senior
Assistant from 1995 and that he can identify the signatures and handwritings
of AO. This witness identified signatures and handwritings of accused on
Exs.P22 and P73 vouchers. In the cross-examination he stated that Ex.P9
voucher in the name of P.Mahalaxmi was also in the handwriting of accused.
He denied the suggestion that the handwritings on Ex.P22 and P73 do not
belong to accused. I see no reason to discard the evidence of PW8 as he being
the colleague of accused can identify his handwritings and signatures.
b) PW9R.Satyam was the Head Assistant (Cash) in VPT during
1997-98 and his duty was to attend the verification of cash vouchers and
bank reconciliation work etc. The accused worked in his section during
1997-98. This witness says that he can identify the handwritings and
signatures of AO since he worked in his section. He categorically deposed
that bill numbers, dates, amounts, calculations and pension numbers found
underneath the signatures/LTI on Exs.P13 to 21, P38, P53 to P55 and P71 to
P73 are in the handwriting of accused. In the cross-examination he stated that
enfacement stamps will be in the custody of Pension Section and Head
Cashier will verify the pension vouchers and other vouchers with the cash
book on the next day. He denied the suggestion that the vouchers referred by
him do not contain the signatures of AO. He denied the further suggestion
that to save the skin of employees in Pension and Cash Sections who
involved in swindling of amounts, a false case was foisted against him.
c) When the evidence of PW9 is perused, it must be said that he is the
neutral person. During the relevant period he worked in the Cash Section as
Head Assistant (Cash). His duty was to attend verification of cash with
vouchers. So, he is not connected with either verification of pension claims
or disbursement of cash to the pensioners. So, he cannot be said to be a
suspect though he worked in the Cash Section. Thus, in my view, there is no
need for him to speak falsehood to escape from possible suspicion on him in
respect of present fraud. Such a persons evidence would show that the bill
numbers, dates, amounts, calculations and pension numbers underneath the
signatures/LTIs. on Exs.P13 to P21, P38, P53 to P55 and P71 to P73 belong
to the accused. It would show that accused was the author of those vouchers.
d) Then, PW10V.Rajendra Prasad was the Senior Assistant (Cash) i.e.
Cashier in VPT during 1988 to 2000. He and AO were colleagues and
worked as Senior Assistants in Cash Section. He deposed that he was familiar
with the handwritings and signatures of accused. He stated that writings on
Exs.P9 to P13, P18, P19, P22 to P24, P27 to P35 and P39 to P70 are in the
handwritings of accused. In the cross-examination he stated there were about
15 Senior Assistants (Cash) under the Chief Cashier who allots work to them.
The duties would be changed once in 15 days or 30 days. He further stated
that on the next day of the transaction Head Assistant (Cash) would verify
cash books with vouchers. Most importantly he stated that Head Assistant
(Cash) would verify only arithmetical accuracy but not handwritings. He
denied the suggestion that except the CV numbers on the vouchers the other
handwritings do not belong to accused and they belong to him.
e) When the above evidence of PW10 is scrutinized, we would know that
he being the colleague of accused and attended similar work in another cash
counter, he had acquaintance with the handwritings of AO and so, he could
identify the handwritings of AO on the vouchers referred in his evidence.
The AO in a desperate attempt to throw suspicion on this witness, suggested
as if handwritings on those documents belong to this witness, but not him.
This is quite preposterous because as per the evidence of PW7, the fabricated
vouchers are routed from the counter of AO but not others. Further, the
experts confirmed the handwritings and finger prints of AO on the vouchers.
So, this suggestion cannot be considered to discard the evidence of PW10.
9 a) Now, coming to the arguments raised by the appellant, it is firstly
argued that Pension Register showing details of all the pensioners of VPT is
not filed. It is true that some of the witnesses spoken about Pension Register
but the same was not produced in the Court. The point is whether by that
count the credibility of prosecution case is adversely affected. I think no
because, the Pension Register if produced would no doubt have revealed
whether the fabricated pension vouchers (Exs.P9 to P24 and P27 to P73)
belong to existent or fictitious persons. Except that, Pension Register will not
help in any manner. The offence will be same whether the forgery is
committed in the names of existent persons or fictitious persons. Hence,
non-production of Pension Register will not have any adverse impact on the
prosecution case. Hence, this argument does not hold substance.
b) Secondly it is argued that DAK Register is not produced but in its
place manipulated Ex.P25AB Register is produced. I am afraid this
argument also does not hold good.
c) It is true that the particulars of pension vouchers passed in Pension
Section will be mentioned in DAK Register and dispatched to Cash Section
for payment and thereby the DAK Register if produced would enable the
Court to know whether the fabricated pension vouchers were generated in
Pension Section or not. Certainly the DAK Register is an important piece of
evidence to know the origin of those vouchers. However, at the same time, it
must be noted that it is only one of the important pieces of evidence but not
the only evidence. Though IO has not seized DAK Register, still he could
produce equally important, nay, more important register i.e. Ex.P25AB
Register. As deposed by the witnesses, Ex.P25 will be maintained in Pension
Section and whenever pension claim is filed the particulars of the claimants
such as name of the claimant, date and the amount etc. will be invariably
noted in the AB Register for subsequent audit purpose. If really the fabricated
pension claims were filed in Pension Section, certainly they would have
found place in Ex.P25. However, that is not the case here. As per the
evidence of PWs.3 and 4 the officers of VPT who checked and verified the
fabricated vouchers on the instructions of FA & CAO, the particulars of
vouchers are not found in Ex.P25. So, Ex.P25 is also equally important to
establish that fabricated pension claims were not generated in Pension
Section. In my considered view, Ex.P25 is more valuable piece of evidence
than DAK Register because in the DAK Register all communications made
from Pension Section to Cash Section will be mentioned, but in Ex.P25 only
the particulars of pension claims will be noted. So, despite absence of DAK
Register, Ex.P25AB Register would serve the purpose. The authenticity of
Ex.P25 is attacked on the ground that no seal or endorsement is found on
Ex.P25 depicting that it was maintained in Pension Section and further, it was
newly stitched. This argument cannot be accepted. On the top of Ex.P25 it is
noted as AB Register and it contains a pasted slip with the emblem of
Visakhapatnam Port Trust and with the letters in Hindi and English as
Visakhapatnam Port Trust. Since it became old, it appears, the same was
stitched to save the book leaves being lost. Therefore, non-production of
DAK Register is not a consequence.
d) Thirdly, it is contended that all the pension claims contain the
enfacement stamps and since the said stamps are available in Pension Section
alone and as PW3 in his cross-examination admitted that enfacement stamps
found in Ex.P9 to P24 are genuine, it must be held that all the pension claims
were originated in the Pension Section only. On perusal of the evidence, it
must be said that this argument is untenable. PW15IO admitted that he did
not make efforts to find out whether enfacement stamps on pension vouchers
are genuine or not. Therefore, even though for argument sake the enfacement
stamps found on pension claims are held as genuine, still by that fact one
cannot automatically conclude that the pension claims were originated in the
Pension Section. The reason is that the voluminous evidence on record shows
that pension claims were forged by AO as they contain his handwritings and
thumb impressions. So, irrespective of the genuinity or otherwise of the
enfacement stamps, the fact is that the pension claims are proved to be forged
by the AO.
e) Fourthly, it is contended that the thumb impressions of AO were not
taken before the Magistrate or in the presence of PW12 or some other
independent witness and further the Service Register and Physical Fitness
Certificate which allegedly contains his thumb impressions were not his
registers and they were fabricated and because of all these, the evidence of
PW13finger print expert is of no value. This is a farfetching argument.
PW15IO has clearly deposed that on 03.09.1999 he secured the presence
of AO and collected finger prints and handwritings of AO in the presence of
PW12Inspector, Central Excise, Visakhapatnam. Though PW12 stated that
on 03.09.1999 he attended CBI office and witnessed the CBI Inspector taking
specimen signatures, initials and handwritings of AO, he did not specifically
state about the Inspector taking specimen finger prints of AO in his presence.
However, Ex.P105, bunch of sheets containing specimen finger prints of AO
also contain the signature and designation of PW12 thereon with a
mentioning that the finger prints of AO were taken in his presence.
Therefore, non-mentioning of this fact by PW12 is only an omission. Since
the specimen fingerprints of AO were taken before PW12 who is an
independent witness their veracity cannot be challenged on the ground that
they were not obtained before Magistrate. It may be noted that in a case
reported in Chita Narasimha Prasad (A1) Ex. Manager, Andhra Bank vs.
Sub-Inspector of Police, CBI/SPE , a learned Judge of this Court relied
upon the Apex Courts decision reported in Mohd.Aman, Babu Khan and
another vs. State of Rajasthan and held thus:
Regarding the contentions that the thumb impressions,
handwritings and signatures of A-1 were not taken in the presence
of a Magistrate, the legal position is clear that they need not
necessarily be taken in the presence of a Magistrate. The
Investigating Officer is competent to obtain them during the course
of investigation but, as a matter of caution, they were required to
be taken in the presence of others. PWs.15, 16 and 18 are
witnesses in whose presence the thumb impressions, the specimen
signatures and the handwritings were taken and they were not
denied by A-1 disowning the authorship.
Thus, the learned Judge of this Court having regard to the above Apex
Courts decision held that though Investigating Officer is competent to obtain
them during the course of investigation but as a matter of caution they were
required to be taken in the presence of others. The evidence of PW13 clearly
shows that the finger prints on the disputed documents clearly tallied with the
specimen finger prints of AO on Ex.P105 and also tallied with the finger
prints on his Service Register and Physical Fitness Certificate. A perusal of
Ex.P104 shows that it was maintained by VPT, containing the various entries
relating to AO. Hence, its genuinity cannot be doubted. The further argument
of the appellant is that Jagannadham from whom the IO secured Service
Register and Physical Fitness Certificate of AO was not examined. When the
authenticity and genuinety of Ex.P104 is believed, mere non-examination of
Jagannadham is of no consequence. So, this argument does not hold water.
f) So, points 1 and 2 are concerned, basing on the above facts and
evidence it is held that fabricated pension claims were not originated in
Pension Section but originated in Cash Section of VPT and accused was the
author of those pension vouchers.
These points are answered accordingly.
10) POINTS 3 and 4: In view of findings on points 1 and 2, it is clear that
accused is guilty of offences punishable under Sections 420, 467, 465, 471
and 477A of IPC and also Section 13(2) r/w 13(1) (d) (ii) of Prevention of
Corruption Act, 1988. The trial Court rightly convicted and sentenced the
accused for the aforesaid offences.
a) At this juncture one more aspect has to be discussed. At the initial
stage when the audit department found excess payment of Rs.20/- in respect
of one of the fabricated vouchers, it informed to Accounts and Pension
Sections to recover the said amount from the pensioner. In that context, the
initial enquiry revealed three vouchers relating to R.Ramgopal, Anand Rao
and J.Mariadas were not genuine and hence complaint was lodged against the
accused and he was prosecuted in C.C.No.649/2001 on the file of V
Metropolitan Magistrate, Visakhapatnam and he was convicted for the
offences under Sections 409, 468 and 477A IPC. However, the accused was
acquitted by the VII Additional Sessions Judge-cum-Fast Track Court,
Visakhapatnam in Crl.A.No.121 of 2002. Be that it may, after full fledged
enquiry the VPT authorities having found large scale forgery of pension
claims by the AO, lodged FIR with CBI Police and on investigation the CBI
charge sheeted AO for the offences not only under IPC but also Prevention of
Corruption Act, 1988. When the AO took the plea that his acquittal in
previous case is a bar for prosecution in the present case, the trial Court
observed that the crimes involved in the previous case and in the present case
are entirely different and therefore, Section 300 Cr.P.C. has no application in
the present case. I do endorse the same view.
b) It must be noted that each forgery committed by the AO over a length
of time is a distinct and different offence by itself though they are all
similar
in nature. Further, the offences committed by accused falls under separate
enactments i.e., Indian Penal Code as well as Prevention of Corruption Act,
1988. As per Section 26 of General Clauses Act, when the act or omission
constitutes an offence under two or more enactments, then the offender shall
be liable to be prosecuted and punished under either or any of those
enactments, but shall not be liable to be punished twice for the same offence.
In the instant case, as stated supra, the offences committed by AO are distinct
and different offences though of similar type and they fall under different
enactments. In view of it, the acquittal of AO for few earlier offences will
have no affect on the other offences which are distinct, different and fall
under different enactments. Therefore, the subsequent prosecution of the
accused will not hit either under Section 300 Cr.P.C. or under Section 26 of
General Clauses Act.
These points are answered accordingly.
11) In the result, I find no merits in the Criminal Appeal. However,
considering the submission of learned counsel for appellant that the
appellant/accused is 60 years old man (as per Ex.P104 his date of birth is
09.10.1954) and that he is suffering with old age ailments and he has family
to look after, the following order is passed:
a) This Criminal Appeal is dismissed by confirming the conviction
passed by the trial Court in C.C.No.23 of 2000.
b) However, the substantive sentences imposed by the trial Court on
each count under Sections 420, 467, 471 r/w 465 and 477A IPC and
under Section 13(2) r/w 13(1) (d)(ii) of Prevention of Corruption
Act, 1988 are reduced by three(3) months. The fine amounts and
default sentences imposed shall hold good.
c) All the reduced substantive sentences of imprisonment, as
mentioned supra, shall run concurrently.
d) The substantive sentences of imprisonment imposed in this case as
above and in C.C.No.24 of 2000 and confirmed in Crl.A.No.744 of
2005 shall run concurrently.
e) Consequent to the judgment in this Criminal Appeal, the
appellant/accused is directed to surrender before the trial Court on
or before 31.10.2014 and on such surrender the trial Court shall
commit him to jail for serving the sentence.
As a sequel, miscellaneous applications pending, if any, shall stand
closed.
_________________________
U. DURGA PRASAD RAO, J
Date: 16.10.2014