HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2201 OF 2004 Dated 08-03-2011 Between: K. Koteswaramma ……..Appellant And: State of A.P., rep. by PP for ACB Cases, High Court of A.P ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2201 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Judge for SPE & ACB Cases, Vijayawada in C.C.No.13 of 1993 on 17.09.2004. The appellant herein was prosecuted for an offence under Section 13(1)(c ) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, the Act) alleging that she is the President of Sarojini Naidu Mahila Mandali, Pedakonduru, Duggirala Mandal, Guntur District. The Central Social Advisory Board, New Delhi sanctions loans/financial aid through A.P. State Social Welfare Advisory Board, Hyderabad to provide employment for women in the villages through Mahila Mandalies etc. The following are the pre-requisites for any institution to be eligible for financial aid from the Central Social Welfare Board. 1. The Institution should be registered under Societies Registration Act. 2. The Institution should have 3 years experience in the functioning. 3. All the accounts should be regularly audited. The latest 3 years audited statements should be furnished at the time of application. 4. It should have a regularly constituted Managing Committee. The procedure is contemplated for sanction of financial aid to establish the society and the Appellant-accused being the President of the said society and with the assistance of A.P. Social Welfare Advisory Board, Hyderabad applied for sanctioning of loans to its members for purchasing of milch cattle and equipment such as milk van, feeding vessels etc., through the said Mahila Mandali. The Chairman of A.P. State Social Welfare Advisory Board, recommended for sanction of loan to the said Mahila Mandali and as per the said recommendations, the Social Welfare Board has sanctioned an amount of Rs.41,740/- which includes Rs.32,000/- as loan, Rs.3,500/- as working capital and Rs.6,240/- as over-head expenses vide Lr.No.F-5-148(AP)/86-SE, dated 25.2.1987 of the Deputy Director (S.V.). the same was received by the A.P. State Social Welfare Advisory Board on 26.2.1987. The Assistant Project Officer, A.P. State Social Welfare Advisory Board, Hyderabad handed over Demand draft for the said amount to the accused on 2.11.1988. The said demand draft for Rs.38,620/- was deposited in A/c.No.CA 1/98 on the name of Sarojini Naidu Mahila Mandali in the State Bank of India, Tenali Branch on 5.11.1988. P.Ws.1 to 9 who are the beneficiaries of the said scheme, did not receive the amount and having come to know that the accused has withdrawn the said amount from the bank and did not pay the same to them, sent a representation during March, 1989 to the Chairman, Social Welfare Advisory Board, Hyderabad stating that they did not receive any amounts. As they did not get any reply for their representations, P.W.1 reported the matter to the A.C.B., Vijayawada and an enquiry was conducted and basing on the evidence collected, a case was registered in Cr.No.21/ACB-VJA/89 under Sections 120- B, 477-A, 409, 465, 468, 471 and read with Section 13(2), 13(1)(c ) of the Act and investigated into the matter. During the course of investigation, a regular enquiry was conducted and during the enquiry, the accused admitted that she has withdrawn the amount from the bank and distributed the amount to the beneficiaries. Hence, the charge sheet was filed against her. The learned Special Judge has framed the charges under Section 13(1)(c ) read with Section 13(2) of the Act against the accused and the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge against the accused, examined P.Ws.1 to 14 and got marked Exs.P.1 to P.28. The learned Special Judge by taking into consideration of both oral and documentary evidence found the accused guilty of the offence under Section 13(1)(c ) read with Section 13(2) of the Act and convicted and sentenced her to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 13(1)(c ) read with Section 13(2) of the Act against the accused beyond reasonable doubt. The main contention of the learned counsel for the appellant is that the appellant alone is not responsible for withdrawing the amount from the bank and P.W.10 is also jointly responsible for the amount withdrawn from the bank and as such the prosecution has not properly investigated into the case and made her scapegoat at the instance of P.W.10. He further pleaded that she has withdrawn the amount at the instance of P.W.12 and handed over the same to her as she promised to purchase the milk cattle and equipment such as milk van, feeding vessels etc., for distributing the same to the beneficiaries and believing her words she has handed over the said amount to her and as such she has not utilized the said amount personally. The next point raised by the learned counsel for the appellant is that the sanction was obtained for prosecution of the accused under Section 19 of the Act. As such she cannot be prosecuted for the alleged offence without sanction. The learned Standing Counsel for the A.C.B, on the other hand, has pleaded that the learned Special Judge has rightly come to the conclusion basing on the evidence available on record and the defence evidence put forth by the accused itself shows that she has withdrawn the amount from the bank and taken the amount from Tenali to Guntur and according to her she handed over the same to P.W.12 but she could not establish the said fact from the cross-examination of P.W.12 and as such the accused herself has utilized the said amount for her own benefit. The appellant has not disputed about the sanction of the loan to the members of the Sarojini Naidu Mahila Mandali, Pedakonduru, Duggirala Mandal, Guntur District. There is no dispute that the accused is the President of the said Mahila Mandali and P.W.10 is the Secretary of the said Mahila Mandali. It is also not disputed the sanctioned amount is Rs.41,700/- and handed over the demand draft to Mahila Mandali by the Assistant Project Officer, A.P. Social Welfare Advisory Board and the same was deposited to the account No.C/1/88 of State Bank of India, Tenali Branch in the name of Sarojini Naidu Mahila Mandali. The main contention of the learned counsel for the appellant is that for withdrawing the amount, the signature of both the Secretary and the President are required on the cheque and both of them have signed on the cheque and withdrawn the amount as such the Secretary is also responsible for accounting the said amount withdrawn from the bank. Since there is no dispute with regard to sanction of loan and depositing the amount sanctioned in the account of the Sarojini Naidu Mahila Mandali Account there is no necessity to discuss the evidence of P.Ws.1 to 9 who are the beneficiaries. It is necessary to consider the evidence of P.W.10 who is the Secretary of the said Mahila Mandali with regard to withdrawal of the amount from the bank. P.W.10 M. Siva Koteswramma who was the Secretary of the said Mahila Mandali has admitted that Ex.P.12 is the cheque bearing No.646521 dated 8.11.1988 for Rs.10,000/- and another cheque Ex.P.12 bearing No.646523 dated 8.11.1988 for Rs.28,500/- bears her signature. Her signatures are there on the front and reverse pages of Exs.P.12 and P.13 against the column ‘Secretary’. In the cross-examination, she denied that after the amount were drawn under Exs.P.12 and P.13 herself and the accused officer and her husband approached Smt Rajyalakshmi, President of District Mahila Mandali and she denied that she also equally responsible for the said amount withdrawn under the said cheque. P.W.11 is the Deputy Manager of the State Bank of India, Tenali branch as on the date. According to him, Exs.P.12 and P.13 cheques were presented by the Sarojini Naidu Mahila Mandali on 8.11.1988 for an amount of Rs.10,000/- and Rs.28,500/- and the amount was withdrawn and a sum of Rs.7,000/- was credited to the account of the accused under Ex.P.15 and in the cross-examination he admitted that without the signatures of the President and Secretary of the Mahila Mandali, the cheques issued on behalf of the Mahila Mandali cannot be encashed. The next evidence to be considered is of P.W.12, P. Rajyalakshmi to whom the accused said to have handed over the amount. According to her she is the incharge of Guntur District and she stated about sending the proposal to the Central Social Welfare Advisory Board for sanction of the loan for the said Mahila Mandali and according to her the cheque was handed over to the accused and she gave an undertaking Ex.P.20 and when she has gone to Peda Konduru village and questioned the accused and the accused admitted that she has not purchased any she-buffaloes and spent the amount for her needs and promised to purchase she-buffaloes on 6th of the following month. Later she postponed the matter on one pretext or the other. Thereafter she reported the matter to the State Social Welfare Board orally. In the cross-examination, she denied about the suggestions put to her that on her instructions accused officer has withdrawn the cash in respect of the sanctioned amount and handed over the same to her in the presence of Piratla Pitchi Babu of Peda Konduru village. She also denied that she will distribute the amount as a member and nominee of Central Social Advisory Board. Therefore, P.W.12 has denied about receipt of the amount from the accused officer. P.W.13 who is the Assistant Project Officer, Andhra Pradesh State Social Welfare Advisory Board, Hyderabad has stated about the procedure to be followed for distribution of the loan sanction to the Members of the Mahila Mandali. P.W.14 is the Investigating Officer and according to him, the accused has withdrawn the amount and utilized the same for her own benefit. In the cross-examination, he has stated that he has collected the evidence to show that the accused alone received the cash under Exs.P.12 and P.13 and according to him on the reverse of Exs.P.12 and P.13, the Secretary also signed. Therefore, from the above, it is clear that the Investigating Officer could not collect any material to establish that the accused officer herself has received the amount alone. But the accused officer has examined defence witnesses P. Pitchi Babu as D.W.1 and he has stated in the chief-examination that in the month of November, 1988 on one day at about 10.00 a.m, while he was at Tenali, he was requested by the accused to accompany her to the State Bank of India as she intends to withdraw some amount from the Bank, towards loan. Accordingly, he accompanied her. She withdrew an amount of Rs.38,500/- from the bank. He was further informed by the accused that one Rajya Lakshmi asked her to withdrew the said amount and he was requested by the accused to accompany her to the house of Rajya Lakshmi who is a resident of Kothapet, Guntur and accordingly he accompanied her to the house of Rajaya Lakshmi where she handed over the cash of Rs.38,500/- to the said Rajya Lakshmi in her house. The accused requested Rajya Lakshmi to disburse the amount of Rs.38,500/- to the loanees for which Rajya Lakshmi agreed. Later they left the house of Rajya Lakshmi. In the cross-examination, he stated that he has not accompanied the accused when she opened her account in the bank and so also whenever she deposited the amount. There is no specific reasons for accompanying the accused to the bank in the month of November, 1988. There is no special reason to inform him for withdrawing the amount on the particular day and so also accompanying with her to Guntur to Rajya Lakshmi’s house. He is not in the habit of interfering into the personal affairs of accused. Therefore, from the above defence evidence, it is established that the accused herself withdrawn the amount. According to her she handed over the amount to Rajayalakshmi but apart from the oral evidence of D.W.1, there is no other evidence to establish that she has handed over the amount to Rajalakshmi and the said Rajayalakshmi as P.W.12 has denied about the same in her cross-examination. Therefore, from the above, it is evident that the accused herself has withdrawn the amount and not disbursed the amount to the beneficiaries and utilized the same for her personal uses. Thus, the prosecution could able to establish the offence under Section 13(1)(c ) read with Section 13(2) of the Act against the accused beyond reasonable doubt.. With regard to the quantum of sentence, the learned counsel for the appellant has pleaded that the accused is aged about 65 years and as such she may be left by imposing fine amount. The lower court has convicted the accused and sentenced to undergo imprisonment for 1 year and to pay a fine of Rs.1,000/- for the offence under Section 13(1)(c ) read with Section 13(2) of the Act. In view of the age of the accused, I hold that a lenient view can be taken. As per Section 13(2) of the Act, the minimum sentence prescribed is 6 months. Hence, I impose the minimum sentence of 6 months to the accused with fine of Rs.1,000/-. In the result, the appeal is dismissed confirming the conviction passed by the Special Judge for SPE & ACB Cases, Vijayawada in C.C.No.13 of 1993 dated 17.09.2004, but modifying the sentence from 1 year to 6 months and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment of 3 months. ______________________ P.DURGA PRASAD,J. Date:08.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2201 OF 2004 Dated 08.03.2011 Gk.