THE HONOURABLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.87 OF 2003 JUDGMENT: 1. This criminal appeal, under Section 374 (2) Cr.P.C., is directed against the judgment dated 10.12.2002 made in C.C.No.15 of 2001 on the file of the Special Judge for C.B.I. Cases, Hyderabad, whereunder and whereby the appellant/sole accused was found guilty for the offences punishable under Sections 409, 477-A IPC and Section 13(2) read with Section 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988, (for short ‘the P.C. Act’) and was sentenced to undergo rigorous imprisonment for one year for the offence under Section 409 IPC; rigorous imprisonment for one year for the offence under Section 477-A IPC; and rigorous imprisonment for one year for the offence under Section 13(2) read with Section 13 (1) (c) & (d) of the P.C. Act and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for three months on each count. (no fine was imposed for the offence punishable under Section 477-A IPC). 2. The case of the prosecution, as depicted by the witnesses during the course of examination on its behalf, may be stated as follows. The accused is an employee of Bharat Heavy Electricals Limited (BHEL), and was working in staff canteen as Cashier-cum- Accountant. There are two canteens run in the BHEL premises. One is for the staff and another is for the workers. The accused used to look after the cash and accounts of the staff canteen. The basic duty of the accused was to maintain books of accounts of staff canteen, which includes purchase registers, cash registers, sale of coupons register, coupons staff register, debtors register and creditors register and other related documents. The functional responsibility of the accused for the staff canteen includes collection of sale proceeds of canteen coupons on daily basis and remit them into the bank on the subsequent day. He has also to collect acknowledgements for the canteen services received by the beneficiaries, prepare the bills and submit the same to the finance department of BHEL, and after processing of the bills, he has to collect the cheques issued by the BHEL and remit the same in the staff canteen’s bank account. The account of BHEL staff canteen is in SBH BHEL Branch at Ramachandrapuram. In the month of April 2000 PW.1 and another conducted audit of the staff canteen accounts and found that total in the cash purchase register was over stated by Rs.10,000/-. They further inspected all other related documents such as Ex.P.1-register for coupons, Ex.P.2- cash book showing the opening balance receipts for the day and closing balance for the day, and Ex.P.3-sundry debtors ledger showing the billing on each debtor and collection, and found that the accused used to collect cheques from BHEL and remit the same into the staff canteen account in the bank, but never used to reflect the collection of cheques in the books of accounts of the staff canteen. He also used to take out identical amounts of cash from the cash chest of the staff canteen on the ground of remitting into the bank, which he never did. The accused used to draw the amount, which is identical to the cheque amount issued by the BHEL, and never used to deposit the cash in the bank, but he deposited only crossed account payee cheques into the staff canteen bank account. The total amount involved for the period of 1996 to 2000, approximately/-, was Rs.8,50,000/-. Then the matter was put forth before PW.5-Dy. General Manager under Ex.P.4. On the basis of the said report PW.5 suspended the accused and ordered for disciplinary enquiry. Ex.P.86 is the office order. The accused accepted the charge of misappropriation and paid Rs.16,69,000/-. On 31.07.2000 Sri M.M. Rao, D.S.P. C.B.I. Hyderabad, registered a case against the accused and issued F.I.R. under Ex.P.95. On 10.08.2000 PW.10-Inspector of Police took over the investigation. During the course of investigation PW.10 collected documents under Ex.P.1 to P.94 from BHEL Staff Canteen, S.B.H. and other departments. He examined and recorded the statements of all relevant witnesses. His investigation revealed that the accused during his tenure at BHEL staff canteen misappropriated the staff canteen amount by falsification of staff canteen records by way of showing the cash deposited in the bank without actually depositing the cash but depositing an identical cheques, which he received from various departments of BHEL, towards their credit canteen facilities. The accused was receiving the cash out of the sale coupons to the employees as well as cash withdrawal from the Bank for incidental expenses of staff canteen. After completion of investigation PW.10 filed the charge sheet. 3. The charges levelled against the accused are that firstly, while functioning as a public servant as cashier-cum-accountant in BHEL staff canteen, Ramachandrapuram, Hyderabad, during the period from April, 1996 to March, 1998, he committed criminal breach of trust and misappropriated the funds of BHEL staff canteen to an extent of Rs.1,30,708/-, which was either entrusted to him or having dominion over such amount, by withdrawing such amount from the cash chest of BHEL staff canteen and wrongly showing as if the amounts were to be deposited in the bank, in 32 similar transactions, and thereby he committed an offence punishable under Section 409 IPC; Secondly, while functioning as above, willfully with an intention to defraud the amounts of BHEL staff canteen he falsified the books of accounts by showing the amounts as if they were being deposited in the bank by making entries “To Bank” in 32 similar transactions and in order to screen the aforesaid illegal act, made supporting entries in the cash book in token of crediting cash in bank, by utilizing the cheques received with bills and vouchers from 12 departments of BHEL, without mentioning the receipt of cheques anywhere in the cash book, and thereby he committed an offence punishable under Section 477-A IPC; and Thirdly, he, dishonestly or fraudulently, misappropriated an amount of Rs.1,30,708/- from BHEL staff canteen entrusted to him, by corrupt or illegal means, and obtained for himself pecuniary advantage by abusing his position and without any public interest and thereby he committed the offence punishable under Section 13(2) read with Section 13(1) (c) and (d) of the P.C. Act. When the charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined PWs.1 to 10 and got marked Exs.P.1 to P.97. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances found against him in the evidence of prosecution witnesses, for which he admitted most of the questions put to him but he stated that he is not responsible for the misappropriation. On behalf of the accused DWs.1 and 2 were examined but no documents were marked. 6. The trial Court upon considering the evidence on record, found the accused guilty of the charges framed against him and accordingly convicted and sentenced him as referred to above. Challenging the same, the accused preferred the present appeal. 7. Now the point for consideration is whether the prosecution proved its case beyond all reasonable doubt against the accused for the offence punishable under Sections 409 and 477-A IPC and Section 13(2) read with Section 13(1) (c) and (d) of the P.C. Act. 8. The learned counsel appearing for the appellant contended that every year there was auditing in the BHEL staff canteen with regard to the accounts and prior to detection of crime there was no misappropriation of funds of the canteen; that the accused became a scrap goat in the hands of one Sri Peri Mohan Rao, who was functioning as a Senior Manager, and who used to maintain the accounts, operate the cash box and take cash to meet his personal expenses; that Ex.P.6-statement was not a voluntary one since he was made to confine in a room, and obtained the statement forcibly, and hence, no reliance can be placed upon Ex.P.6; that the alleged misappropriated amount has been paid by the appellant, and therefore, he prays to set aside the conviction and sentence recorded against the appellant. 9. On the other hand, the learned Standing Counsel appearing for the C.B.I cases contended that the accused was managing the affairs of the staff canteen and used to collect cheques from the BHEL and en-cash the same; that he did not remit the amount into staff canteen account maintained in the bank; that he never reveal the collection of cheques in the books of account of the staff canteen; that he misappropriated an amount of Rs.1,30,708/-, which was under his dominion by withdrawing the amount from the cash chest of BHEL staff canteen and wrongly shown the amount as if it were deposited in the Bank, in 32 transactions, thereby the total amount misappropriated by the accused is about Rs.16,69,000/-; that there is no evidence to show that Ex.P.6-statement was obtained under threat or promise or undue influence or coercion; that in the audit conducted by the auditors, when the misappropriation falsification of accounts have come to the knowledge, the accused himself voluntarily addressed Ex.P.6, which clearly goes to show that he misappropriated the funds of the staff canteen; that remitting the amount after the case is registered would not relieve him of penal consequences and that after elaborate consideration of evidence on record, the trial Court rightly found the accused guilty of the charges framed against him, and hence, there are no grounds to interfere with the same. 10. The first charge levelled against the accused is for the offence punishable under Section 409 IPC. For the offence under Section 409 IPC the following ingredients are required to be proved by the prosecution and they are – 1) The accused should be entrusted with the property or with any dominion over the property; 2) Such entrustment should be in the capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent; 3) He personally misappropriated or converted the property for his own use in violation of law expressly or impliedly. In so far as the offence under Section 477-A IPC is concerned, the following ingredients are required to be proved, and they are – “Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, willfully, and with an intention to defraud, destroys, alters, mutilates or falsifies any book, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with an intention to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular, from or in any such book, paper, writing, valuable security or account shall be punished with imprisonment. As per Section 13 (1) (c) and (d) of the Act if a public servant dishonestly or fraudulently misappropriates, or otherwise converts for his own use any property entrusted to him, or under his control as a public servant, or allows any other person so to do; and by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage, he shall be punishable under Section 13(2) of the Act. 11. The defence of the accused was that he is not responsible for the misappropriation and that he repaid the amount as per the directions of the officials of BHEL. He further submitted that he was posted as office superintendent in staff canteen of BHEL and he had no knowledge in the accounts and the functions of the accountant. He further submitted that he was having one key of the cash box and the other key used to be with Sri Peri Mohan Rao, who was functioning as Senior Manager (Canteen), who used to operate the cash box and take cash to meet his personal expenses. When the accused confronted him about the missing cash, the said Peri Mohan Rao assured him that he would take care of the internal audit people. He further stated that he came to know that P. Mohan Rao used to pay money to the internal audit people to suppress shortage of money in the staff canteen account. Only after the voluntary retirement of P. Mohan Rao the entire episode came to light and audit was conducted for the period from April 1999 to March 2000. He further stated that he was forcibly confined in the cabin of DGM (canteens) and was made to sign on the statement on assurance of his job. For that reason, he sold away his house and repaid Rs.16,69,000/- in three installments between 22.01.2001 and 14.08.2001. He further stated that he became a victim of the circumstances, for the wrong done by Sri P. Mohan Rao and in the said process he lost his job, his personal property and suffered with all humility. 12. There cannot be any dispute that it is for the prosecution to establish its case beyond all reasonable doubt. It is not in dispute before the trial Court that the accused was working in the staff canteen as a Cashier-cum-Accountant, which includes maintenance of registers, cash registers, sale of coupons registers, coupons staff register, debtors register, creditors register and other related documents. It is also not in dispute that he was Cashier-cum- Accountant during the relevant period of incident, where misappropriation has taken place. It is also not in dispute that the accused had collected cheques under Exs.P.7 to P.44 and remitted into the staff canteen account in the bank but he never show those amounts in the books of account maintained in the staff canteen. Similarly, he used to take identical sums from the cash chest of staff canteen on the ground of remitting into the bank, but he never remitted into the bank. Similarly, he used to draw identical sum, which is identical to the cheque amount issued by the BHEL and never used to deposit the cash in the bank. It is also not in dispute that the total amount involved in this case and in three other cases, for the period of 1996 to 2000 is approximately Rs.8,50,000/-. It is also not in dispute that the accused has paid the entire misappropriated amount in the year 2001. 13. No doubt, the staff canteen is under the supervision of the Deputy General Manager and Work Manager, but the accused was actually working as a Cashier-cum-Accountant of the staff canteen. There are two persons assisting the accused for running the canteen, but admittedly they are not the employees of BHEL. 14. PW.1 has categorically stated that Ex.P.6 is the admission statement made and signed by the accused before the Deputy General Manager, (Personnel) Canteen. Ex.P.6 reads as follows. “Further to my request letter third cited on the subject I would like to submit my detailed explanation as below for your kind perusal and benevolent consideration. 1. I admit the charges levelled against me. 2. I would like to remit the amount Rs.16,69,000/- to the Company soon after disposal of my sole property – the dwelling house – at Chandanagar. 3. in fact, soon after receipt of my suspension order, with a view to remit the amount to the company, I locally proposed for disposal of my only house property at Chandanagar. I have no other source except this. However, since the expected sale proceeds are not offered, I even advertised for disposal of the same through news media and as proof, I hereby submit newspaper cuttings with disposal offer for your kind reference. Therefore, I hereby submit that soon after disposal of my house property at Chandanagar, I remit the amount Rs.16,69,000/- to company. In this connection I humbly appeal to you Sir, that I whole-heartedly confess on the issue and assure you that I change my attitude totally and serve the Company with utmost integrity and serve the organization to the best of my ability and satisfaction of my superiors. Therefore, I request you to be kind enough to give a lenient view on the issue and reinstate me to the service keeping in view of my family position and my children further for which act of kindness I shall be ever grateful to you.” On a perusal of the above document, it is clear that the accused appears to have voluntarily admitted his guilt and he undertook to remit the amount misappropriated by him. But the learned counsel for the appellant contended that it is not a voluntary statement because the appellant was confined in a room and made to admit the guilt as stated under Ex.P.6. 15. The basis for his argument is the admission made by PW.8, who stated that after detection of misappropriation, the accused was called by the officer to his room, bolted the door from inside, to keep the matter secret and he was asked to issue two cheques to save him. The accused obliged for the same. Later, both the cheques were returned to the accused. But bolting the door from inside and keeping the accused along with the official was not for the purpose of committing any offence, but to keep the matter secret. 16. Even assuming that the accused was confined in the room and asked to give two cheques, that does not mean he was confined by threat or coercion to cause influence, since it is not suggested to PW.8, PW.5 to whom Ex.P.6 was given, or to any one of the prosecution witnesses. If really Ex.P.6-statement was not given voluntarily by the accused, he would have denied the same when the prosecution witnesses, particularly, when PWs.1 and 5, were examined. Ex.P.6 is marked through PW.1, but Ex.P.6 was actually addressed to PW.5. No suggestion was given to these two witnesses that Ex.P.6 was obtained by threat or coercion or promise. Once the statement of fact given by a witness was not denied or disputed in the cross-examination, it cannot be said that such a fact is admitted. 17. Similarly, PW.2 also specifically stated that the accused admitted his mistake and promised to repay the amount. Ex.P.5 is the document, showing the misappropriated amount and the accused signing thereon before him. His evidence would also go to show that the accused used to personally maintain the accounts. 18. From the evidence of PWs.1 and 2, it is clear that the accused used to withdraw and deposit the amounts and the cheques signed by him, and the other contents of the cheques were also used to prepare by him. The accused signed voluntarily on Ex.P.85. Ex.P.85 goes to show that an amount of Rs.13,98,557/- was drawn from BHEL staff canteen cash chest and not deposited in the bank. PW.2 also stated that he did not induce the accused to sign on Ex.P.85. 19. The evidence of PW.3 is not of much help to the prosecution case because he did not say anything against the accused except stating that the accused was working as canteen supervisor. 20. The evidence of PW.4 would go to show that he used to receive coupons in the morning, and while leaving the office in the evening he used to handover the cash by way of sale of coupons, remaining coupons and Tiffin to the accused. Whenever the accused used to entrust the work of depositing the cash in the bank, he used to attend, but most of the times the accused used to look after the deposit of cash in the bank. 21. It is also not in dispute that regular departmental enquiry was conducted against the accused. Ex.P.89 is the enquiry report, and under Ex.P.86 the accused was dismissed from service. The accused, in all, paid Rs.16,69,000/- in the year 2001 in three installments. No doubt, the accused has paid the entire amount misappropriated by him, but that does not relieve him of the penal consequences. 22. PW.10 is the investigating officer, who collected all the documents and examined the witnesses. Ex.P.7 to P.44-cheques would clearly reveal that they were presented into the Bank, but they have not been shown in the account books. Ex.P.45 to P.76 are counter foils of remittance made by the accused, and Ex.P.77 to P.84 are delivery challans of coupons. Therefore, from the oral and documentary evidence, particularly Exs.P.6 and P.85, it is established beyond all reasonable doubt that the accused misappropriated the amount. The contention that the accused has not been entrusted dominion over the property cannot be countenanced. 23. The Supreme Court in Om Parkash v. State of U.P.[1] held as under. “We now proceed to consider whether the two sections are identical in essence, import and content and in our opinion the argument on behalf of the State carries much force when it is suggested that by enacting the Amending Act of 1952 and creating sub- section (4) to Section 5 the legislature specifically stated that the offence under Section 5(1) (c) is different from any previous existing offences under any penal statute and there can, therefore, be no scope for speculation about repeal. The words used in sub-section (4) “any other la” made the position quite clear and explicit. Other law does not mean identical law in which case the word ‘other’ will have no meaning. At an earlier stage of this judgment we have already tabulated the different elements constituting the two offences and a clear comparison and contrast of these elements would show that an offence under Section 405, Penal Code is separate and distinct from the one under Section 5(1) (c). There are three points of difference between Section 405, Penal Code and Section 5(1) (c). the dishonest misappropriation contemplated in Section 405, Penal Code is different; whereas that under Section 5(1) (c) is either dishonest misappropriation or fraudulent misappropriation. The latter section is much wider in amplitude than the former. In Section 405, Penal Code the words used are “In violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied”. There are no such expressions in Section 5(1) (c). It is clear, therefore, that whereas under Section 405, Penal Code there are three essential ingredients to constitute the offence; each one of them being separate and distinct, in Section 5(1) (c) there are only two. Now considering Section 5(1)(c) there are certain matters in it which are absent in Section 405, Penal Code. The words ‘dominion’ and ‘entrustment’ connote two different things. The word ‘dominion’ is not in Section 5(1)(c. We have already stated that the word ‘fraudulently’ is not present in Section 405 and in Section 5(1)(c) the gist of the offence can also be made out if the offender allows any person so to do, i.e., allows any person to derogate from the law as contemplated in the earlier portion of the section. The meaning put on the word ‘allows’ would certainly be different from ‘dishonest misappropriation’ by the offender himself. It may be that the word can mean allowing by negligence or without any volition on the part of the offender. It’ may also mean that there is some kind of positive and tacit acquiescence necessary to bring home the offence. In any event, allowing other persons so to do does not find a place in Section 405, Penal Code though this section also contemplates “willfully suffering any other person so to do”. There is an essential difference between “allowing” a person and “willfully suffering” a person to do a certain thing.” From the above decision, it is clear that the offences under Section 409 IPC and under Section 13(1) (c) and (d) of the Act are separate and distinct. In view of the fact that the cheques issued by the BHEL were handed