HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.295 OF 2005 Dated 8-4-2011 Between: Sadhupati Nageswara Rao. ..Petitioner. And: The State of A.P., represented by the Public Prosecutor, High Court of A.P., Hyderabad. . …Respondent. HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.295 OF 2005 ORDER: The revision petitioner was the sole accused in C.C.No.7 of 2003 on the file of the II Additional Junior Civil Judge-cum-Judicial First Class Magistrate, Bapatla. He was tried for the offences under Sections 409 and 420 I.P.C. on the complaint of L.W.10- Nadendla Jakraiah. The accused being the Fair Price Shop Dealer was not properly distributing the essential commodities. The Mandal Revenue Officer (P.W.1) directed the Deputy Tahsildar of Civil Supplies (P.W.2) to inspect the fair price shop of the petitioner-accused and take necessary action. The facts of the case, in brief, are as follows: On 25.7.2002 and 27.7.2002, P.W.2 along with Revenue Inspector of Civil Supplies (P.W.3) inspected the Fair Price Shop of the accused and submitted the report that the accused had disposed of 67.65 Quintals of “Food For Work” programme rice worth Rs.84,562/- under Ex.P.5 Mediators’ Report dated 25-7-2002 and also under Ex.P.6 another mediators report dated 27-7-2002 and L.W.5 Patan Karimulla and L.W.6 Karra Kotaiah were the mediators for Ex.P.5 whereas L.W.7 Ragala China Venkateswarulu, L.W.8 Kota China Meera Reddy and L.W.9 Gajula Haranadh Babu were mediators for Ex.P.6, basing on which P.W.1 preferred a police complaint which was registered in Cr.No.22 of 2002 by Vedullapalli Police Station on 31-7-2002 under Sections 409 and 420 I.P.C. and on 30.9.2002, the revision petitioner- accused was arrested and he was sent for remand and after investigation, the Charge Sheet was laid against the revision petitioner-accused. On the revision petitioner-accused pleading not guilty, he was tried for the said offences. The prosecution, in support of its case, had examined P.Ws.1 to 6 and got marked Exs.P.1 to P.12, on its behalf whereas, the revision petitioner-accused got himself examined as D.W.1 and got marked Ex.D.1 register and coupons with particulars of distribution of rice under Food For Work Programme. The trial Court considering the evidence of P.Ws.1 to 6 and other material on record, found the accused guilty for the offence under Section 409 I.P.C. and not guilty for the offence under Section 420 I.P.C. and accordingly convicted and sentenced him to suffer simple imprisonment for six months and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for one month. The revision petitioner-accused being aggrieved by the said impugned conviction order, preferred Crl.A.No.210 of 2004 on the file of the 1st Additional Sessions Judge, Guntur. However, the 1st appellate Court after appreciating the evidence and after assessing the other material on record, dismissed the appeal confirming the judgment and conviction as passed by the trial Court. Aggrieved by the said impugned judgment of the I appellate Court, the revision petitioner-accused preferred this Criminal Revision Case inter-alia on the following grounds: a) Both the Courts below failed to appreciate the evidence and other material on record in a proper perspective. b) Both the Courts below failed to consider the relevant facts and circumstances of the case. c) Both the Courts below erred in considering the fact that no independent witness was examined and also erred in convicting the revision petitioner- accused on the basis of own corroborative testimony of official witnesses. d) Both the Courts below have lost sight of the fact that P.W.5, on whose complaint P.W.2 conducted surprise check of fair prices shop of the revision petitioner-accused, has turned hostile. e) Both the Courts below should have seen that P.W.1-Mandal Revenue Officer and his staff refused to receive the records produced by the revision petitioner-accused to prove his bonafides. It is contended on behalf of the revision petitioner-accused that to make an act of a criminal breach of trust under Section 409 I.P.C., the accused must be entrusted with the property in respect of which he has alleged to have committed criminal breach of trust. However, in this case, there is no material on record to show the presence of the said ingredients of entrustment of the property i.e., Food Grains to the accused by the Civil Supplies Department. None of the witnesses has spoken as to the quantity of food grains that were supplied to the revision petitioner- accused. It is contended that the trial Court has committed an error in considering the evidence of P.W.5 in this regard. He is the person who initially complained to P.W.1-Mandal Revenue Office that the revision petitioner-accused was not distributing the food grains properly to the beneficiaries. He being a private person how could he state the facts as to the entrustment of the food grains to the revision petitioner-accused. Moreover, his evidence does not, in any way, disclose that a particular quantity of the food grains was entrusted to the revision petitioner- accused. Therefore, the trial Court has committed an error in relying on the evidence of P.W.5 in considering the compliance of the main ingredients of Section 409 I.P.C. i.e., “entrustment of property”. It is further contended that the trial Court erroneously allowed marking of Ex.P.10 through P.W.2 and that such marking of the said exhibit was protested by the accused stating that when the original stock register is alleged to have seized, the same could have been marked instead of marking a Xerox copy thereof. Therefore, it is contended that marking a Xerox copy of the stock register as Ex.P.10 does not comply with the legal requirement under Sections 64 and 65 of the Indian Evidence Act as Ex.P.10 does not fall in any of the exceptions as mentioned under Section 65 of the Evidence Act. Therefore, it is contended that no value can be attached to Ex.P.10 and consequently, the prosecution cannot be said to have proved the quantity of food grains that was entrusted to the revision petitioner-accused. Unless the entrusted quantity is established, it is difficult or impossible to prove the criminal breach of trust committed in respect of a particular quantity of the commodity since the quantity of the food grains supplied to the revision petitioner-accused is not established. So the quantity of the food grains in respect of which the criminal breach of trust alleged to have committed by the petitioner- accused stands disproved. Moreover, it is further contended that though the original stock register was ceased from the possession of the revision petitioner-accused, it was not produced in the Court and instead, the Xerox copy thereof was produced and the same was marked as Ex.P.10 through P.W.2 which is improper and it can not be admitted as evidence in law and as such, it cannot be the basis for convicting the accused. It was held to the same fact in a decision of the apex Court reported in CHITTARANJAN CHOUDHURY vs. STATE OF BIHAR ([1]). It is also contended that the prosecution has failed to prove the fraudulent dishonest intention on the part of the revision petitioner-accused. None of the prosecution witnesses have spoken that the revision petitioner-accused had indulged in distributing the food grains with fraudulent or dishonest intention for personal gain and he sold part of the food grains in the black market. It is further contended that if at all the revision petitioner- accused had indulged in fraudulent activities by selling the food grains in black market, the concerned authorities ought to have proceeded against him by initiating proceedings under Section 6 A of the Essential Commodities Act, instead, the revision petitioner- accused has been falsely implicated in this case by invoking Sections 409 and 420 I.P.C. However, the petitioner-accused was not found guilty for the offence under Section 420 I.P.C. for which he was acquitted. Now coming to Section 409 I.PC., the prosecution has miserably failed to prove the main ingredient i.e., “entrustment of property” as has already been stated above. Moreover, all the prosecution witnesses are official witnesses except P.W.5 who had initially complained to P.W.1 that the revision petitioner-accused was not properly distributing the food grains. Though he was examined as P.W.5, his evidence does not come to the rescue of the case of the prosecution so far as the ingredient under Section 409 I.P.C. is concerned and as such, the conviction of the revision petitioner-accused by the trial Court and as confirmed by the I appellate Court, cannot be said to be in accordance with law. Per contra, the learned Public Prosecutor submits that the trial Court after considering the pros and cons of the case and having regard to the evidence and other material on record has come to right a conclusion in convicting the revision petitioner- accused for the offence under Section 409 I.P.C. and the I appellate Court also rightly confirmed the same. Therefore, it cannot be said that both the Courts below had committed any error or irregularity in convicting and confirming the said conviction imposed on the revision petitioner-accused as has already been stated supra. As per the instructions of P.W.1-Mandal Revenue Officer, P.W.2-Deputy Tahsildar, verified and found variation in the accounts. The revision petitioner-accused was entrusted with 13.8 quintals of rice and 387 liters of kerosene in respect of Bethapudi Fair Price Shop in the month of June, 2002. In the same month, he was also entrusted with 6.88 quintals of rice and 213 liters of kerosene in respect of Stuartpuram Fair Price Shop. However, the revision petitioner-accused had failed to submit the coupons for the said deficiency. On 25-7-2002, P.W.2 himself along with P.W.3 went to Bethapudi village and picked up P.W.4 and two others in that village and went to the fair price shop of the revision petitioner-accused at 8 A.M., and verified the stock register and made physical verification of the stocks and found that there was a stock of P.D.S. Rice of 13.70 quintals and 67.65 quintals of ‘Food For Work’ programme rice. Thereafter, they went to the Fair Price Shop at Stuartpuram and asked the revision petitioner-accused to handover the records. However, he did not handover the records saying that they were with his father. As his father failed to turn up even after 12 noon, they seized 170 Kgs. Of P.D.S. Rice, 35 K.Gs. Of Sugar under the cover of Ex.P.5 panchanama. P.W.2 has submitted his report to P.W.1 in turn P.W.1-Mandal Revenue Officer submitted the report to the police under Ex.P.1, basing on which the police registered the above crime. Therefore, it cannot be said that the revision petitioner- accused was not entrusted with any quantity of civil supplies and as such, the contention raised on behalf of the revision petitioner- accused that the main ingredients of Section 409 I.P.C. i.e., entrustment of property not complied with, cannot be accepted. Since it is the case of the criminal breach of trust, the police have rightly prosecuted the revision petitioner-accused for the offence under Sections 409 and 420 I.P.C. Therefore, the contention that the authorities ought to have proceeded against the revision petitioner-accused under the Essential Commodities Act is not acceptable. Having regard to the facts and circumstances of the case, it is to be observed that none of the witnesses appeared to have any motive to foist any false case against the revision petitioner-accused even after excluding P.W.5. Therefore, this Court is of the view that the Criminal Revision Case is devoid of merits and it deserves to be dismissed. Accordingly, this Criminal Revision Case is dismissed. _________________________ Justice B.N.RAO NALLA Dated 8-4-2011. Dvs HONOURABLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.295 OF 2005 Dated 8-4-2011 [1] AIR 1987 SC 856