Bail Slip: The Petitioner / Accused No. 2 was directed to be released on bail by the Order of the High Gourt dated 27 -06-2007 in Crl.A.M.P. No. 1008 of 2007 in Crl.A.No. 742 ol 2007 IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY,THE SEVENTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTYTHREE PRESENT THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL Nos : 742 754and1028 OF 2OO7 Crl.A.No. 742 ot 2007 Crl.Appeal Under Section 374 (2) ot Cr.P.C. aggrieved by the Judgment dated 11-06-2007 in C.C.No. 3 of 2003 on the file of the Court of the Special Judge Under Prevention of Corruption Act for Speedy Trial of Cases of Embezzlement of Scholarshrp Amounts in Social Welfare Department Etc., Hyderabad. Between: Uradi Santosh Kumar, S/o Balaiah, DSWO, R/o H.No.3-6-231, Magdhum Margh, Himayath Nagar, Hyderabad ...APPELLANT/ Accused No. 2 AND The State , through Asst. Commissioner of Police,, C.C.S., D.D., Hyderabad, rep. by its Public Prosecutor, High Court of A.P., at Hyderabad. ...RESPODENT/ Complainant Counsel for the Appellant: SRl. ENUGANTI SUDHANSHU RAO Counsel forthe Respondent: THE PUBLIC PROSECUTOR Bail Slip: The Petitioner / accused was directed to be released on bail by the order of the High Court dated 27-06-2007 in Crl.A.M.P.No. 1019 of 2OO7 in Crl.A.no. 754 ot 2OO7 CRIMINAL APPEAL NO: 754 OF 2007 Crl.Appeal Under Section 374 (2) ot Cr.P.C. aggrieved by the Judgment dated 11-06-2007 in C.C.No. 3 of 2003 on the file of the Court of the Special Judge Under Prevention of Corruption Act for Speedy Trial of Cases of Embezzlement of Scholarship Amounts in Social Welfare Department Etc., Hyderabad. Between Kadimi Venkateswara Rao,, S/o. Late K.Maraiah, Superintendent of PAO, R/o. B-93, Madhura Nagar, Hyderabad. ...APPELLANT/ Accused - 4 AND The State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad ...RESPODENT/ Complainant Counsel for the Appellant: SRI. T. PRADYUMNA KUMAR REDDY counsel for the Respondent: THE PUBLIC PROSECUTOR CRIMINAL APPEAL NO: 1028 OF 2007 Crl.Appeal Under Section 374 (2) of Cr.P.C. aggrieved by the Judgment dated 11-06-2007 in C.C No. 3 of 2003 on the file of the Court of the Special Judge Under Prevention of Conuption Act for Speedy Trial of Cases of Embezzlement of Scholarship Amounts in Social Welfare Department Etc., Hyderabad. Between: Kotla Venkata Lakshmana Jayasimha (A-1), S/o. Madhusudhan Rao, Advocate (Civil) R/o. H.No.'l-1-256/8/123, Road No.3, Bapunagar, Chikkadapally, Hyderabad ..Petitioner / Appellant / Accused No.1 AND State of A.P., rep.by Public Prosecutor, High Court of A.P., Hyderabad. ...RESPONDENT Counsel for the Appellant: SRl. D. SANGEETHA REDDY Counsel forthe Respondent: THE PUBLIC PROSECUTOR The Court made the following: COMMON JUDGMENT HONOURABLE SRI WSTICE K.SURENDER CRIMTNAL APPEAL Nos. 742 754 and 1028 of2OO7 COMMO N JUDGMENT: 1. Criminal Appeal No.742 of 2OO7 is frled by A2, Criminal Appeal No.754 of 2OO7 is filed by A4 ald Criminat Appeal No'1O28 of 2007 is frled by A 1 . The appellants are questioning their conviction vide judgmentinCCNo.3of2003datedlL.06.200TpassedbytheSpecial Judge under the Prevention of corruption Act for Speedy Trial of cases of Embezzlement of Scholarship Amounts in social welfare Department etc., at Criminal Courts Complex, Hyderabad. 2. The case of the prosecution is that A1 to A11 entered into a criminal conspiracy to defraud the Government of the money meant for post-metric scholarships for the poor Scheduled castes students. In the said process, all the accused have created false and forged Form 103, post-metric scholarship bills and its enclosures in the nalnes of fictitious and non-existing colleges. The said bills were submitted in the office of Deputy Pay and Accounts Offrce, Masab Tank and managed to pass the said bills. cheques were issued having passed the bills. Bank Accounts were opened in the names of fictitious Principals of non-existing colleges. The said cheques were deposited aI1d monies were withdrawrl or transferred from the accounts. In all an amount of Rs.22.OO Crores, I 2 according to the investigation was falsely claimed towards scholarships amount of Scheduled Caste students. 3. A1, K.V.L.Jayasimha is a practicing advocate. A_2 U.Sarrtosh Kumar worked as Assistant social werfare oflicer (ASwo) in the ofrrce of Deputy Director, Social Welfare Department, Hyderabad from 1g.5.1993 to 20 'o3 '2oo0 and worked as District Social welfare officer (DSwo) in the same office from 21 .1r .2000 to June, 2002 in Hyderabad District. A-3 Manga Shambhavi worked as DSWO, Hyderabad District from 1.4.1994 to 25.6.1996 and as Deputy Director, Social Welfare Department, Hyderabad District frorn 26.6.1996 to rs.6.2oo2. A_4 K.Venkateshwar Rao worked as Superintendent from Z / lggs to 6/2002 and A-5 Arisetty prasada Rao worked as Assista,t pay and Accounts Officer (APAO) Office, Telugu V.S.Kartikeyan from 4/7996 Samkshema worked as to 7 /7998 in Deputy pay and Accounts Bhavan, Masab Tank, Hyderabad. ,{_6 Chief Manager in Corporation Bank, Hyderabad Branch, Hyderabad from May, 1996 to May 1999. A_7 p.Suri Babu worked as Assistant General Ma_nger in S.B.I, Old MLA euarters Brarrch, Hyderabad from March, 1996 to February, 199g. A-g p.L.N.Rao worked as Ofhcer in S.B.I, Old MLA euarters Brarrch, Hyderabad from August, 1992 to March, 1gg7 . A-g M.BaIa venkata Ramara Rao worked 3 as APAO frorn l/1999 to 7l2OOl, A-10 Tangirala Venkata Sastry worked as Superintendent from 711998 to 8/2OOO in Deputy Pay and Accounts Ofhce, Telugu Samkshema Bhavan, Masab Tank, Hyderabad and A-11 Kambampati Vidya Sagar Ramachandra worked as Superintendent from 4/1997 to 2/L998 in the same Deputy Pay and Accounts Office, Telugu Samkshema Bhavan, Masab Tank, Hyderabad 4. According to the prosecution, the bills prepared and forged were in the names of following colleges, which according to the prosecution did not exist. l) Balagangadhar Tilak Degree College, Narayanaguda, 2) Koumudi Junior College, Narayanaguda, 3)K.M.R.Degree College, Boudha Nagar, Hyderabad, 4) Kusuma Haranath Baba Junior College, Musheerabad, Hyderabad, 5) Sri Vaishnavi Junior College, New Nallakunta, Hyderabad, 6) S.R.R.Degree College, Musheerabad, Hyderabad, 7) Om Sai Degree College, Erramanjil Colony, Hyderabad. 8) Sri Bharthi Degree College, Lwere Tank bund road, Hyderabad, 9) Narmada College of Arts and Commerce, Gemini Colony, Hyderabad, 10) Saraswati Junior College, Narayanaguda, Hyderabad, 11) Veda Vyasa College of Arts and Commerce, Chikkadpally, Hyderabad, l2l Mudrika Graduate College, Barkatpura, Hyderabad, 13) Lokamanya Tilak Law College, Himayatnagar, Hyderabad. I 4 5. A1, according to the prosecution had established bogus institutions, accounts were opened in State Bank of India, Old MLA Quarters, Hyderabad Corporation Bank, Hyderguda Branch and Indian Bank Himayatnagar Bralch. The said opening of accounts was with the assistance of A6 to AB, who were the Mangers in the said Banks. 6. The trial Court, after trial found that A1, A2, A4, A5 and 10 were complicit and convicted them for the offences under Sections 420, 109, 467, 468, 47I of IPC. ,A3 died during pendency of trial, as sr.rch, case was abated against her. A6 to A8 were discharged before examination of witnesses and the case against A9 was split up. A11 was acquitted. SANCTION ORDERS: 7. P.W.37 was examined and Ex.P449 Sanction Order to prosecute A3, was marked. P.W.38 was examined and Exs.P449, p45O, p451 and P453 were marked, which are salction orders of A4, A10, A5 and Al 1 respectively. 8. Even prior to discussing the evidence in the present case, it is necessary that the law laid down by the Honble Supreme Court for appreciating evidence has to be gone into. A reading of the evidence of witnesses and frndings of the learned Special Judge, the basics of admissibility of evidence in crirninal trial have been mostly disregarded 5 and on the basis of inadmissible evidence, conclusions were drawn in the judgment. g . The case is one of circumstantial evidence. The hve golden principles constituting panchsheel to prove a case based on circumstantial evidence were summed up in Sharad Birdhichand Sarda v. State of Maharashtral, which reads as follows: "153. A close analgsis of this decision utould shou.t that the lollouing conditions must be fulfilled before a case against an qccused cqn be said to be fully established: (1) the ctranmstances from tthich the conclusion of guilt is to be dranan should be fulty established. lt maa be noted here that this court indicated that the cirdlnlstances concerned 'must or should" and rlot "mag be' establislad. There is nol only a grammatical but a legal distinction between "mag be proued" and "must be or should be proued" as uas held bA this Court in Shiuaji Salwbrao Bobade u State of Maharashtra l(1973) 2 SCC 793 : 1973 SCC Pn)rcB : 1973 Crl LJ 17831 uhere the obserut ions tuere made: ISCC para 19, p.8O7: SCC @fl p. 10afl "Certainlg, it is a primary pinciple that the acalsed must be and not merelg may be gutltg before a court can convict qnd the mental distance betuteen 'mag be' and,'must be' is long and diuides uagte conjechtres from sure conchtsiorts'" (2) the facts so established should be consistent ontA with the hgpothesis of the gailt oJ tle accused, th(]t is to saA, theV should not be explainoble on ang other hypothesis except that tle acatsed is guiltg, (3) the ctrcumstances should be of a conclusiue nqture and tendencg, (4)they should exclude euery possible hgpothesis except the one to be proued, and (5) tllere must be a chain of euidence so comPlete as not to leaue ang reasonoble ground- for the conclusion consistent u)ith the innocence of the accused and must stnut that in all human probabilitg the act must have been done bg the acqtsed: '(1984) 4 scc 116 I 6 i0. In Neeraj Dutta v. State (Government of NCT of Delhi)2 the Hon'ble Supreme Court held as follows: "52. Agatn, oral euidence can be classtfied as oiginal and hearsag euidence. Origtnal evidence is that uhich <t uilness reports himself to haue seen or heard' through the medium of his orrn senses. I-Iearsag euidence is ctlso called deriuatiue, transmitted, or second hond evidence in u,'hich a Luitness is mereLg reporting not uhat he himself saut or heard, and not what has come under the immediate obseruation of his own bodilg senses, bul uhat he has learnt in respect of the fact through the medium of a third person. Normallg, a hearsag witness uould be inadmissible, but u.'hen tt is conoborated bg substontiue euidence of other uitnesses, it tDould be admissible uide Mukhtiar Stngh lMukhtiar Singh u. State of Punjab, (2017) 8 SCC 136: (2017) 3 SCC (Cri) 607l . 55- Documentary eutdences, on the other hand, are to be proued bg the production of the d.ocuments themselues or, in thetr absence, bg secondary euidence under Section 65 of lhe AcL Furtlrcr, facts showing the existence of anA stale of mind, such as intention, knouledge, good fatttg negligence, or ilt tuilt need not be proued bg direct testimong. lt maV be proued inferenttallg from conduct, sutounding circumstances, etc. (See Sections 8 and 14 of the Euidence Act.) 56. Insofar as orat euidence is concerned, this CoutT in Slate of Rajasthan u. Bobu Meena [State of Roja-sthqn u. Babu Meena, (2013) 4 SCC 206 : (2013) 2 SCC (Cn) 3641 ('Babu Meena") has classified the same into three categories : (i) whollg reLiable; (ii) tuholly unreliable, and; (iii) neither whollg reliable nor uhollg unreliable. While an accttsed can be conuicted on the sole testimong of a whollg reliqble uitness, the unconoborated euidence of a uhollg unreliqble testimonA of a Luitness must result in an acqutttol. 57. Section 60 of the Euidence Act rcquiles that orql eutdence must be direct or positiue. Direct euidence 6 when it goes straight to establish the main fact in issue. The uord "direct" ts used in juxtaposition to deiuatiue or hearsag euidence rahere a uitness giues euidence thet he receiued information from some other person. If that person does not, himself, state such information, such evidence would be inadmissible being hearsay evidence. On the other hand, forensic procedure o-s circunstantial or inferential euidence or presumptiue euidence (Section 3) is indirect evidence. It means proof of other facts frorn uhich the eri.stence of the fact in issue mag be lo@callg infened. In this context, the expression "circumstqntial euidence' is used irt a loose sense as, sometimes, circumstantial euidence mag abo be direct. 58. Although the expression "hearsag euiderrce" is not defined under the Evidence Act, tt ts, neuertheless, in constant use in the courts. Howeuer, hearsag evidence is inadmissible to proue a fact which i-s deposed to on hearsaA, bul tt does not '(2023]| 4 Supreme Court Cases 731 1 necessarilV preclude euidence as to a statemeftt hauing been made upon uhich cettain action uas taken or certain results folloued such as eutdence of an informant of th.e cime. 61. Section 62 of tle Euidence Act deJines pimary euidence to mean the dostments itself produced Jor the inspection of the court. If pimary euidence is auailable, it ulouLd exclud.e secondary evidence. Section 63 of the Euidence Act deab with secondary evid.ence and defines uhat it meqns qnd includes. Section 63 mentions fiue kinds of secondary euidence, namelg (t) Certified copies giuen under the provisions hereinafier contained.; (ii) Copies made from the original bg mechanical processes u.thich in them.selues enstre the acqtracg of the copg, and. copies compared with such copies; (tii) Coptes made from or compared with tlle original; (iu) Counteryarts of doanments as against the parties uho did not execute them; and (u) Oral crccounts of the contents of a document giuen bA some person who LLas himself seen it. 69. One of the modes tlvough rthtch a fact can be proued. But, ttnt is not ttLe onlV mode enui.saged under the Evidence Act. Proof of the fact depends upon the degree of probabilitg of it hauing exi.sted.. The standard required for reaching the supposition is thdt of a prudent man qcting in ang important matler concerning hinL" 11. In Sherimon v. State of Kerala3, the Honble Supreme Court held as follows: "17-The gist of the offence of conspiracg is the agreement betueen truo and more persons to do or cause to be done an illegal act or q legal dct bg illegal means. There must be meeting of minds resulting in an ultimate decision taken bg the conspiralors regarding commission of tlle crime." 72. In P.K.Narayanan v. State of Keralaa, the Hon'ble Supreme Court held as follows: '(20 i 1) 10 Supreme Court Cases 768 "(1995) 1 Supreme Court Cases 142 f 8 "9........ An offertce of cortspiracA connot be deemed to haue been established on mere suspicion crncl surmises or inferences u.thich are not supporled bA cogent euidence. 1o. The igredienl.s oJr rhis offetce are that there sfutuld be an agreement betueen the persorts ruho are aLleged to conspire and the said agreement slauld be for doing of an illegal act or for doing bg i egal means an qct which bg itself mag not be illegal. Therefore the essence of ciminal conspiracg is an agreement to do an iltegal act antd such cul ogreement can be proued either by direct evidence or bg circwnstantial eutdence or bg both and it is a matter of common expenence that direct evidence to proue conspiracg is rarely auailable. Tlerefore the circumstances proued before, duing and afier the occurrence haue to be considered to d"ecide about the complicitg of the acatsed. But if those circumstances are compatible also uJith the innocence of the accused person-s th.en it cannol be hetd that the prosecution ho.s successfullg established its case. Euen if some o,cts are proued. to have been commitled it must be clear tlwt theA uere so commttted in pursuance of an agreemettt made belueen the accused who were porties to the alleged conspiracg. Inferences from such proued ciranmstances regarding the guilL mag be dratun only when such ciralntstances are incapable of ang other reosonable explanation. From the aboue rliscussro n it can be seen that some of the ctrcumstances relied upon bA the prosecution are not establtshed bg cogent and relieble euidence. Euen othenr.)be it cannot be soid that those circumstances are incapable of ang other reasonable interpretation." 13. In Jethsur Suranghai v. State of Gujarats, the Honbie Supreme Court held as follows "9. Hauing gone through the Judgment of the High Court......ln our opinion, the contention raised bg the coutl.sel for the appellant is uell-founded and must preuail. With due respecl Luhat the High Courl seems to haue missed is that in a cose like this uhere there wes seious defalcation of the properTies of the Sangll unless the prosecutron proued that there LUas q close cohesion and collusion between all the accused which lormed the subject matter of a collspiracg, tt would be dtfficttlt to proue the dual chorges particularlg agaist the appellant (A-1)- The charge of conspiracg hauing fai\ed, the most moteial and integral part of the prosecution story against the appellant disappears.. .." 14. ln State of U.P. v. Wasif Haider6, the Hon'ble Supreme Court held as follows ' 198a (Supp) Sirpreme Court Cases 207 9 '22- ln the instant appeals before us, the prosecution hns foiled to link the chain of circttmstances so as to dbpel the cloud of doubt about the culpabitity of the respondent-a.cused. It is a uell-settled pinciple that q suspicion, houteuer graue il mag be cannot take ptace of proof i.e. there i.s a long di-stance behDeen "mag be" and 'must be", uhich must be trdversed bg the prosectttion to proue its case begond reasonable doubt [see Narendra Singh v. State of M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699 : 2004 SCC Pd 18931 l. 23. This Court tn Kaila.sh Gour v. fiate of Assam [Kailash Gour u. State of Assam, (2012) 2 SCC 34 : (2012) 1 SCC Pd 714 , has heldthat: (SCC pp. 5O-51, p@ra 44) *44- The prosecution, it is aciomatic, must establish its ca.se against the accu.sed bg leading evidence that i.s occepted bg the standards that are knoun to ciminal Jurisprudence regordless of uhether the cime is committed in the course of communal d.ishtbances or othentise. In short, there can onlg be one set of ruIes and standards when it comes to tials and judgment in ciminal ccses unless the statute prouides for anAthing spectallg applicable to a parlicular case or class of cases.' 24. In the present cose, the cumulatiue effect of the aforesaid inuestigatiue lapses has fortified lhe presumption of innocence in fauour of the resPondent-accused- In such cases, the benefit of doubt qrising out of a fauttg inuestigation accntes in fauour oJ tle accused." 15. In Ramnivas v. State of Haryana7, the Hon'ble Supreme Court held as follows: '2O. It is settled lqu.) that the suspicion" houeuer strong, it mag be, cannol take the place of proof begond reasonoble doubt. An accused cannot be anvicted on tlw ground. of suspicion, no malter hottt strong it is. An ocarced ts prestmed to be innocent unless proued guilty begond a reasonable doubt. 21. In the preset c(lse, lDe find tlat tle prosecution hos utterlg failed to estctblish the chtin of euents tthich can be said to exchtsiuetg lead to the one and only conclusion, i.e., tle Wilt of the qcatsed...." In A.Srinivasulu v. State rep. by the Inspector of Polices, the Hon'ble Supreme Court held as follows: 16 " (2ot9l2 SCC 303 '(Criminal Appeal No.25 of 2OI2 dated 1I.O8.2O221 r 10 "5O. But the aboue contentiotl in our opinion is far-fetched. The obserualions contained in paragraph 50 of the dectsion in Parkash Singh Badal (supra) are too general in naltLre and cannot be regarded as the ratio flotting out of the said ca-se. U bA their uery nature, the offences under sections 42O, 468, 471 and 1208 cannot be regardt'd as hauing been commitled bg a public seruant while octing or purpotTtng to act in the dischllrge of offi.cia[ dutg, the same logb would apply with much ntore utgour in the case of offences under the PC Act. Section 197 of the Code does nol carue out anA group of offences that wit fctL outside its puruiew. Therefore, the obsentotions contained in para 5O of the decision tn Parkash Singh Badal cannot be taken as caruing out an exception judtcially, to a statutory presciptton. In fact, Parkash Sngh Badal cttes uith approval the other dectsions (authored bg the uery same leqmed Judge) uhere this Courl made a distinction betlueen an oct, tltough in excess of the dut!1, uas reasonablg connected with the discharge of olficial dutg and an act uhich utas merely a cloak for doing the objectionable acL InlerestinglA, the proposition lqid doun in Rakesh Kumqr Mishra (supra) tuas distinguished in paragraph 49 of the decision in Parko,sh Singh Badal, before Lhe Court made the obseruations in paragraph 50 ertrocted aboue. 51. No public seruqnt b appointed Laith a mandate or authoity to commit on offence. Therefore, if the obseruations contained in paragraph 50 of the decbion in Parkash Singh Badat are apptied, ang act uhich constitutes an offence under ang statute witl go otLt of the purutew of an act in the discharge of official dutg. The reqliremetlt of a preuious sqnction uill thus be rendered redundanl by such an interp retation. " 17. In Teni Yadav v. State of Biharg, the Hon'ble Supreme Court held as follows "11. ...... Tlrc burden is atwags on the prosecution to proue its case begond reasonable doubl on the bosis of legallg admissible eui.dence and when the offence charged is gntesome or diabolic, much highe4 degree of assurance is required to infer the Wilt of the qccused. Thts pinciple is succinctlg explained bg the Hon&# 39;ble Supreme Court in Mousam Singhq RoA u- State of W.B. repotTed. in (2OO3) 12 SCC 377, paragraphs 27 and 28 of which reads as under:- "27. Belore ue conclude, ue must place on record the fact that we qre not unaloare of the degree of agony ond frustration thqt maq be caused to the societA in general and the farnilies of the vtctims in particulaL bg the fact that a heinous crime hke ,his goes unpunished, but tlen the lq.w does not pemit the courts Lo '2023 SCC Online SC 900 "2023 SCC OnLine Pat2239 lL punish the accused on the bo-sis of morat conviction or on suspicion alone The burden of proof in a crLmtnal trial neuer sfufls, and it is aluags the burden of the prosecution to proue its cQse begond rectsonable doubt on the basis of acceptable euidence. In the similo:r ctrcumstance this Court in the co'se of Sarwan Singh Ratlan singh u. state of ttmjab (AIR 1957 SC 637) stated thus (AIR p.645,para 12) 'It is no doubt a mqtter of regret that a foul cotd-blooded and cntel murder shoutd go unpunished.. There mag also be an element of truth in the prosealtion story against the qccused. Considered as a whole, tte prosecution story mag be true; but betueen 'mag be true' and. 'must be true' there is ineuitably a long distaace lo trauel qnd the uhole of this distance must be couered bg the proseantton bg tegal, reliable and unimpeachable euidence before an accused cqn be canubted' 28. It is atso a settled pinciple of criminal lurisprudence that ttle more seriaus the offence, lhe sticter the degree of prooJ, since a higher degree of <tssurance is required to conuict the acansed." 12. Similar is the observation of the Hon'ble Supreme Coun in Shivaji Sahebrao Bobde u. State of Maharashtro ((1973) 2 SCC 793 : AtR 1973 SC 2622) uthether it is held. that certainlA il is a primdry pinciple th(lt the acansed 'must be' and not merelg 'mag be' guiltg behre a court to conuict and the mental distance betlueen 'mog be' ctnd. 'must be' b long and diuides uarye conjunctures from sure conchtsions." BOGUS COLLEGES: 18. P.W. 14, who worked as Secretary, A'P'State Council of Higher Education was exarnined, who stated that he had addressed a letter to the Registrar, osmalia university, rega-rding the 13 colleges. Ex.P149 is the Ietter dated 06.03.2002, which was sent by the Registrar, osmania University. In response, Ex.Pl49 is the letter addressed regarding 10 colleges not being afhliated to osmania university, which a-re as follows: 1) Balagangadhar Tilak Degree College, Narayanaguda, 2) K'M'R'Degree College, Boudha Nagar, Hyderabad, 3) Kusuma Haranath