IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.09.2010 CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Crl.A.No.286 of 2001 State by Inspector of Police, Vigilance & Anti Corruption, Salem. Rep. by Public Prosecutor, High Court, Madras. .. Appellant/Petitioner Vs. 1. D.Ramadoss 2. P.N.Arumugam 3. R.Sampath 4. R.Venugopal 5. K.Chellappa 6. P.Gajalakshmi 7. P.Karunamurthy .. Respondents/Accused Prayer:- Criminal Appeal filed under Section 378 of Cr.P.C. against the judgment and order of acquittal passed by the learned Special Judge/Additional District Judge-cum-Chief Judicial Magistrate, Villipuram in Spl.C.C.No.3 of 1995 acquitting the respondents/accused herein for the changes framed against them. For Appellant : Mr.A.Saravanan, Government Advocate (Crl.Side) For R-1 : Mr.V.Gopinath, Senior Counsel for Mr.M.C.Swamy For RR-2 to 5 : Mr.L.Chandrakumar For RR-6 and 7 : Mr.R.Sreerangan for Mr.G.Ethirajulu JUDGMENT The respondents herein were the accused 1 to 7 in Spl.C.C.No.3 of 1995 on the file of the learned Special Judge-cum-Chief Judicial Magistrate, Villipuram. The accused Nos.1 to 5 were charged for the offences under Sections 120(B) r/w.167, 477(A), 409 I.P.C. and 5(2) r/w.5(1)(c) and (d) of the Prevention of Corruption Act, r/w.109 I.P.C. and the accused Nos.6 and 7 were charged for the offences under Sections 120(B) r/w.167, 477(A), 409 I.P.C. and 5(2) r/w.5(1)(c) and (d) of the Prevention of Corruption Act, r/w.109 https://hcservices.ecourts.gov.in/hcservices/ I.P.C. and also charged for the offences under Sections 477(A) and 409 r/w.109 I.P.C. The accused Nos.1 to 7 were acquitted by the learned Magistrate from all the above said charges. Challenging the said acquittal, the State has preferred this Criminal Appeal. 2. The case of the prosecution, in brief, is as follows:- The first accused was the Commissioner of Vanur Panchayat Union. The second accused was the Manager, third accused was the Extension Officer, fourth accused was the Accountant and the fifth accused was the Office Assistant of the said Vanur panchayat union. The sixth and seventh accused were the proprietors of Gajalakshmi Steel Traders, Cuddalore and Sri Karunamurthy Stores, Cuddalore respectively. During the period between July 1986 and October 1986 at Vanur Panchayat Union, Tirukoilur Marketing Society and other places in South Arcot District, the accused conspired together and in pursuance of the conspiracy, they instigated the approver Mohan to create false records at Tirukoilur Co-operative Marketing Society as if the pump materials covered by voucher Nos.312/7.8.1986, 471/3.10.1986, and 498/15.10.1986, of Vanur Panchayat Union were purchased by the Co- operative Marketing Society from Gajalakshmi Steel Traders, Cuddalore and from Sri Karunamurthy Stores, Cuddalore and thereafter sold to Vanur Panchayat Union. The Mohan, who was the approver in this case, was the Special Officer of Thirukovilur Co- operative Marketing Society. The price paid to the sixth and seventh accused was higher than the market price and thereby, loss was caused to the Vanur Panchayat Union. When the transaction had directly taken place between Vanur Panchayat Union and Gajalakshmi Steel Traders and Sri Karunamurthy Stores, an excess amount of Rs.66,659.65 was given. The accused have failed to follow the instructions and procedures as per the circulars issued by the Government. 3. In order to establish the case, the prosecution examined P.Ws.1 to 26 and marked Exs.P.1 to P.162. One Dr.Ilanchezhian was examined as a Court witness and two documents were marked as Court Exhibits. The accused were questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances and they denied their complicity. On behalf of the accused, no witness was examined and no document was marked. 4. The Trial Court, after analysing the oral and documentary evidence, acquitted all the accused from all the charges. 5. The learned Government Advocate (Crl.Side) submitted that the approver Mohan, who was also an accused, had given a confession before the learned Judicial Magistrate and it was recorded under Section 164 of Cr.P.C., which is marked as Ex.P.162 in this case and he was given pardon and made as an approver but during trial, due to some illness, he could not speak and therefore, he was not in a position to give evidence. Though the approver could not give evidence before the trial Court, his confession statement was marked as Ex.P.162. Hence, the trial Court ought to have placed https://hcservices.ecourts.gov.in/hcservices/ reliance on Ex.P.162. The learned Government Advocate further submitted that the trial Court also ought to have held that the price of the materials purchased was higher than the market rate. 6. Per contra, the learned Senior Counsel Mr.V.Gopinath appearing for the first accused and Mr.L.Chandrakumar, learned counsel appearing for the accused 2 to 5 and Mr.R.Sreerangan, learned counsel appearing for the accused 6 and 7 submitted that as the approver was not examined before the trial Court, Ex.P.162 becomes inadmissible and there is no evidence that the accused have conspired together and the evidence available is to the extent that orders were made and bills were prepared promptly and they were all accounted. The cheques prepared were sent to the Co-operative Societies and after deducting 5% for the Co-operative Society, the balance was paid to the traders. It is further submitted that P.W.1 also admitted that 5% commission was used for the development of the Society and not for the personal benefit of the approver Mohan or any of the other officers of the Society. It is also submitted that there is no material to show that the accused 1 to 5 have got any share in the excess amount paid to the traders. 7. This Court has considered the submissions made by the learned counsel on either side and perused the records. 8. The first question which arises for consideration is, whether Ex.P.162, the confessional statement said to have been given by the accused Mohan who was already given pardon as an approver, could be looked into. The approver Mohan has not been examined before the trial Court due to sickness and therefore, he has not given any evidence against any of the accused in this case. But his confessional statement given before the learned Magistrate is marked as Ex.P.162. A confessional statement of co-accused is admissible under Section 30 of the Indian Evidence Act, which is as follows:- "30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession." 9. As per Section 30 of the Indian Evidence Act, a confession statement of an accused is admissible and could be used against the other co-accused only when they are tried together. But the approver Mohan was not tried as an accused along with other accused. He had already been given pardon. In the said circumstances, the confession given by the approver Mohan is not admissible against the accused as per Section 30 of the Indian Evidence Act in the absence of any substantive evidence from the approver. https://hcservices.ecourts.gov.in/hcservices/ 10. The trial Court has given a finding that there is no material to show that the accused 1 to 5 have got any share in the excess amount paid to the traders. The price list marked by the prosecution reveals the price during that year. But it does not indicate the price on a particular date. It was also admitted that the price would change day to day and also the price of the products depends on the make and quality of the products and also vary from company to company. The trial Court also has held that P.W.7 had admitted that the procedure for buying the articles has been followed in this case. The trial Court also has given a finding that the goods received from the sixth and seventh accused were sent to Vanur Panchayat and they have distributed the goods to other Panchayat Unions. Further, P.W.16 had admitted that the goods supplied in this case have been shown in the stock register and they have been distributed to Unions and there is no balance in the stock. This Court does not find any reason to interfere with the well considered judgement of the trial Court. Therefore, this Criminal Appeal is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar jrl To 1. The Special Judge/Additional District Judge-cum-Chief Judicial Magistrate, Villipuram. 2. The Public Prosecutor, High Court, Madras. 3. The Director General of Police, Mylapore, Chennai-4. 4. The District Collector, Villupuram District, Villupuram. 5. The Section Officer, Criminal Section, High Court, Madras. Crl.A.No.286 of 2001 BVN {CO} TP/5.10.2010. https://hcservices.ecourts.gov.in/hcservices/