IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.08.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN Crl.A.No.1622 of 2002 State by Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore.(Crime No.15/AC/87 ... Appellant(Complainant) Vs. 1.K.Renganathan 2.A.E.A.Arumaidoss 3.V.Chinnikrishnan 4.G.Rangasamy 6.M.K.Kaja Mohideen 7.M.K.Jamal Mohideen ... Respondents (Accused) Prayer: Appeal is filed under Section 378 Cr.P.C., praying to set aside the order of acquittal passed by the trial court dated 15.04.2002 and made in Spl.C.C.No.2 of 1993 on the file of the learned Special Judge/Additional District Judge cum Chief Judicial Magistrate, Villupuram. For Appellant : Mr.A.N.Thambidurai Additional Public Prosecutor For Respondents : Mr.D.S Bharatha chakravarthy 2 to 4 For M/s.Sai Bharath & Ilan J U D G M E N T 1. The first respondent was functioning as the Commissioner of Marakanam Panchayat Union. The second respondent was functioning as the Extension Officer Accounts. The third respondent was working as an accountant whereas the fourth respondent was working as Junior Assistant in the above said Marakanam Panchayat Union office and as such they are public servants. The fifth and sixth respondents are the partners of Villupuram Kasim Hardware Stores. In pursuant to the order of sanction given by PW 4 to launch prosecution against the respondents 1 to 4, PW 22 the Deputy Superintendent of Police https://hcservices.ecourts.gov.in/hcservices/ attached to Vigilance and Anti-Corruption Department had laid a final report against all the respondents alleging that during the year 1985 from the month of September till the month of November, the respondents 1 to 6 along with PW 8 Ramanujalu, who was functioning as the Special Officer, Villupuram Cooperative Stores had entered into a conspiracy to commit criminal breach of trust, cheating, fabrication of false documents and also for making false entries in the relevant registers of the Marakanam Panchayat Union, Villupuram. 2. In pursuant to their criminal conspiracy, the respondents 1 to 4 who were entrusted with the responsibilities of preparing certain documents relating to Marakanam Panchayat Union Office, had prepared vouchers bearing No.506 dated 06.11.1985 for Rs.17,765/- relating to the file 5346/85 and they had also made false entries in page 91 of Marakanam Panchayat Union LF Cash Register and page 59 of the Stock Register knowing fully well that it was false and with the intention of committing misappropriation of funds to the extent of Rs.17,765/-. 3. During the course of the same transaction R1 to R4 with the active assistance of PW 8, Ramanujalu (approver) had purchased electrical articles which were shown in Voucher No.507 dated 06.11.1985 from Villupuram Kasim Hardware Stores, in which the respondents 5 and 6 were partners and supplied the same to Marakanam Panchayat Union Office, after making false accounts and false entries in the related registers viz., purchase and supply register, daily register, Villupuram Cooperative stores, Daily register at page 7 and 8 as well as in the adjustment receipt book bearing receipt No.12273 dated 13.11.1985. 4. Respondents 6 and 7 had also made false entries in the daily register relating to the year 1985-86 maintained in their hardware stores under the name and style of Villupuram Kasim Hardware Stores and also made wrong entry in their ledger folio and in the credit bill No.53. In fact no actual transaction was taken place, but they made it appear as if the transaction was taken place. The respondents 1 to 6 along with PW 8 (approver) had dishonestly with the intention of cheating had passed the bill for Rs.17,765 relating to the Voucher No.506 dated 06.11.1985 wherein it was found that a sum of Rs.10,059.50 in excess. In this regard R1 to R4 had misused their official position as public servants with the intention of making pecuniary advantage to PW 8(approver) as well as to the respondents 5 and 6 to the extent of Rs.10,059.50. Hence, PW 22 had laid a final report against the respondents 1 to 6 under Section 120B r/w. 167, 477(A), 420 and 409 IPC., r/w. Section 5(2) r/w. 5(1)(c)(d) and 5(1)(d) of Prevention of Corruption Act 1947 r/w. Section 109 of IPC. 5. In order to establish the case, the prosecution had examined PW 1 to PW 22 and during the course of their examination Exs.P1 to https://hcservices.ecourts.gov.in/hcservices/ P44 were marked. The respondents were examined under Section 313 of Cr.P.C., with regard to the incriminating circumstances arising out of the testimonies of the prosecution witnesses. While so they had denied their complicity. Neither oral nor documentary evidence was adduced on behalf of the respondents. The trial court on appreciation of both the oral and documentary evidences had acquitted all the accused from all the charges. Being aggrieved by the order of acquittal the state has preferred the present appeal. 6. The learned Government Advocate (crl. Side) while advancing his arguments has submitted that the learned trial judge had failed to appreciate the evidences and the exhibits and hold the charges against the accused as proved. The finding of the trial court saying that the evidence of PW 8 Ramanujalu who had turned as approver in this case was an approver in 35 cases and the he was facing departmental enquiry and that his confessional statement under Section 164 Cr.P.C. could not be considered to maintain conviction on the respondents. He would further submit that despite the testimonies of Pws.3, 5 and 6 were found in harmony with the evidence of PW8 (approver), the trial court based on the decision reported in 1997(1) Madras Weekly Notes (Crl) Pages No.29 and 1998 Supreme Court 139, had wrongly concluded that the approver's evidence was unsafe to maintain the conviction on the respondents. 7. He has also submitted that though the testimonies of PW 18 and 19 had supported the case of the prosecution, the trial court had unfortunately not considered their evidences. He has also maintained that PW 8 approver, was not having animosity to depose against them. 8. He has further submitted that the trial court has also wrongly found that Ex.P35, the price list of Saravanabhava Co- operative Stores, Cuddalore pertaining to the year 1985-86 which was marked through PW 12 was not containing the name of the manufacturing company of the products which were purchased. But in fact PW 12 and PW 14 had categorically deposed that after perusing the price fixation register for the year 1985-86, they had prepared Ex.P35 in this case. He has also submitted that it could be visualized from Ex.P18 wherein the private dealers had prepared a bill of Rs.17,765/- after deducting commission payable to the society as per the terms of the conspiracy and balance of Rs.16,877/- was shown to be the net amount due to them and in turn in the society's bill Ex.P17 the commission had been added and the entire amount of Rs.17,765/- was claimed from the Panchayat Union. 9. He has also submitted that if really the society, as a business concern had purchased the goods for sale, the society alone would have fixed the sale price by adding its profit and it was not for the private traders to fix the Society's profit, and this circumstances alone would clearly prove the conspiracy between the accused persons and the approver. https://hcservices.ecourts.gov.in/hcservices/ 10. On the other hand the learned counsel for the respondents has submitted that the trial court had given a clear finding saying that from the evidence on record it could not be concluded that the accused 5 and 6, only had supplied the goods and that the prosecution had failed to prove the actual value and as such there was no proof that the goods were supplied for inflated value. He would submit further that the finding of the trial court did not warrant interference and the confessional statement of approver PW 8 Ramanujalu could not be taken into consideration, since he was not tried as a co-accused along with the respondents in this case. 11. It is pertinent to note here that PW 8 who was the Special Officer of Villupuram Cooperative Stores had turned as an approver was given tender of pardon by PW 19, the learned Chief Judicial Magistrate. He had also given his confessional statement before PW 18, the learned Judicial Magistrate under section 164 Cr.P.C. Under this circumstance, a prime question is arisen as to whether the confessional statement of a co-accused can be militated against the remaining accused to maintain conviction ? 12. In this connection it may be appropriate to take the assistance of Section 30 of the Indian Evidence Act. Section 30 of the Indian Evidence Act deals with the consideration of proved confession affecting person making it and others jointly under trial for same offence. Section 30 of the Indian Evidence Act 1872 reads as follows; "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." 13. 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 PW 8 was not tried as an accused along with the respondents. Therefore, the confessional statement of PW 8 Ramanujalu cannot be militated against the other accused as contemplated under Section 30 of the Indian Evidence Act to maintain conviction. The trial court has given a clear finding saying that there is no material available on record to connect the respondents to the alleged commission of offences. The trial court has also found that the prosecution had miserably failed to bring home the guilt of the respondents beyond all reasonable doubts. 14. This court has also carefully gone through the testimonies of the prosecution witnesses as well as the documentary evidences https://hcservices.ecourts.gov.in/hcservices/ available on record. Having been taken into consideration of the related facts and circumstances and on considering the submissions made on either sides, this court is of the considered view that the judgment of acquittal passed by the trial court does not require any interference. Accordingly this criminal appeal is dismissed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar To 1.The Special Judge/Additional District Judge, Villupuram. 2.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Cuddalore. 3.The Public Prosecutor, High Court, Madras. 1 cc to M/s.Sai Bharath & Ilan , Advocate, Sr.No.49951 Crl.A.No.1622 of 2002 jrg(co) pmk.6.8.2012 https://hcservices.ecourts.gov.in/hcservices/