THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.31 of 2005 Date:26th April, 2011 Between: The State through Inspector of Police, CBI/SPE rep. by its C.B.I., Hyderabad. …Appellant/Complainant and N.Srinivas Rao S/o.N.B.Ramanamurthy …Respondent/Accused *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.31 of 2005 JUDGMENT: This Criminal Appeal is directed against the judgment, dated 07.05.2003, passed in C.C.No.315 of 2000 on the file of XXIII Metropolitan Magistrate, Hyderabad, whereby and whereunder the learned Metropolitan Magistrate found accused N.Srinivas Rao not guilty for the offences under Sections 409, 468, 471 and 477-A of IPC and acquitted him accordingly. 2. The respondent is the accused in C.C.No.315 of 2000 on the file of XXIII Metropolitan Magistrate, Hyderabad. He was put on trial for the offences under Sections 409, 468, 471 and 477-A of IPC. 3. The prosecution case in brief is:- a) Accused N.Srinivas Rao worked as Cashier in the office of the Chief Commissioner of Income-Tax, Hyderabad from 08.07.1994 to 27.06.1997. As a cashier his duties were: preparation of pay bills, T.A. bills, disbursement of salaries, leave encashment amounts, deduction of profession tax from the salaries of the staff while disbursing pay and allowances and remitting the collected amounts in Government account, and receiving cash amounts from the welfare section etc. He collected the profession tax of Rs.69,470/- from the employees of the Chief Commissioner of Income-Tax, Hyderabad and made entries regarding the said collection in the cash book. He had shown in the cash book as if the amounts were deposited in the bank. He also collected Rs.225/- from the welfare section of the Chief Commissioner of Income-Tax, Hyderabad, towards sale of newspapers in his capacity as a cashier. He did not remit the said amount to the government account. He made an entry in the cash book as if the said amount had been deposited in the bank. The Chief Commissioner of Income Tax, Hyderabad, received anonymous complaint stating that the profession tax collected from the employees had not been remitted to the government account. The Chief Commissioner of Income-Tax instructed PW.1 S.S.Kannan, Additional Commissioner of Income-Tax, (Headquarters) (Administration), Income- Tax Department, Hyderabad, to enquire into the matter. Thereupon, PW.1 directed the Assistant Commissioner of Income-tax to conduct enquiry on the allegations mentioned in anonymous complaint. The enquiries revealed that the accused had not deposited the profession tax collected from the employees to the government account and instead prepared some challans as if the said amount had been deposited in the bank. PW.1 lodged a complaint with CBI. Ex.P13 is the certified copy of the complaint presented by him. PW.11 J.Venkateswara Rao, Inspector of Police, CBI, received the original of Ex.P13 complaint and registered a case in Crime No.RC.No.1/1998 for the offences under Sections 409, 477-A, 481-A of IPC and Sections 13(2) r/w.13(1)[c](d) of the Prevention of Corruption Act, 1988 and issued Ex.P62 FIR. He examined PW.1 S.S.Kannan, PW.4 Sunil Kumar, G.Johnson (LW.3), PW.2 G.Rajasekhar, Harsha N.Rathod (LW.5), PW.3 K.S.Sai Baba Rao, PW.6 Goli Srinivas Rao, PW.5 Neera Malhotra and recorded their statements under Section 161 Cr.P.C. During the course of investigation, he collected two cash books and profession tax challans, which have been exhibited as Exs.P1 to P5 and P10 to P12. He addressed a letter to the Commercial Tax Office, Profession Tax Wing, Basheerbagh, Hyderead with regard to remittance of profession tax by the office of the Chief Commissioner of Income-Tax, Hyderabad, for the period from 1994 to 1997. Ex.P54 is the copy of the letter addressed by him and Ex.P55 is the reply issued by the Deputy Commercial Tax Officer, Basheerbagh, Hyderabad. He also addressed a letter to the State Bank of Hyderabad, Gun Foundry Branch, Hyderabad, as to confirmation of the challans, which have been exhibited as Ex.P1 to P5 and P10 to P12. Ex.P59 is the reply issued by the State Bank of Hyderabad, Gruhakalpa Branch, Hyderabad. He collected specimen signatures and specimen handwritings of the accused for being sent to the handwriting expert for comparison. PW.8 Narender Singh, Deputy Government Examiner of Questioned Documents, compared the specimen writings with the disputed handwritings appearing on Exs.P1 to P5 and P10 to P12 challans and stamp impressions appearing thereon. He opined that the specimen handwritings of the accused are tallied with the handwritings appearing on Exs.P1 to P5 and P10 to P12 challans. He also opined that the stamp impressions appearing on the challans do not tally with the specimen stamp impressions. Ex.P52 is the opinion expressed by PW.8. Ex.P53 contains the reasons for his opinion. On receipt of the opinion of the handwriting expert and after completion of investigation, PW.11 J.Venkateswara Rao, Inspector of Police, CBI laid charge-sheet before XXIII Metropolitan Magistrate, Hyderabad. b) The learned XXIII Metropolitan Magistrate, Hyderabad, took the charge-sheet on file as C.C.No.315 of 2000. On appearance of the accused and on furnishing the copies of documents to him, the learned Metropolitan Magistrate examined the accused under Section 239 Cr.P.C. and framed charges under Sections 409, 468, 471 and 477-A of IPC, read over and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. c) To bring home the guilt of the accused for the offences with which he stood charged, prosecution examined 11 witnesses as PWs.1 to 11 and proved 65 documents as Exs.P1 to P65. The plea of the accused is one of total denial of the case. On his behalf, he marked 2 documents as Exs.D1 and D2. Ex.D1 is the letter dated 2.2.2001 seeking permission to verify the challans, Ex.D2 is reminder dated 1.5.2001 to Ex.D1 letter. d) The learned Metropolitan Magistrate, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found that the prosecution failed to show that the accused fabricated signatures of the bank officers on Exs.P1 to P5 and P10 to P12 challans and thereby proceeded to record acquittal of the accused for the offences with which he stood charged, by judgment, dated 07.05.2003. Hence, this appeal by the State. 4. Heard learned Standing Counsel for CBI appearing for the appellant/State and Sri C.Padmanabha Reddy, learned senior counsel appearing for the respondent/accused. 5. Learned Standing Counsel for CBI appearing for the appellant/State submits that the trial Court failed to note that the appellant/accused is the person who received profession tax from the employees and made entries in the cash book. The entries in the cash book revealed that the said amount had been deposited in bank, but on verification, the challans which have been exhibited as Ex.P1 to P5 and P10 to P12 were fabricated to make up the misappropriation of the amounts collected from the employees. He would also contend that the evidence of PW.4 is crystal clear that the respondent/accused accepted the misappropriation of the amount and remitted the same in bank with a deficit of Rs.600/- and subsequently remitted the deficit amount on 30.12.1997. PW.5 Smt.Neera Malhotra, Asst. Commissioner of Income Tax stated that the respondent/accused approached her and informed her of his not depositing the money and sought permission to deposit the money in bank. The evidence of PW.4 and PW.5, according to the learned Standing Counsel for ACB, amply proves that the respondent/accused misappropriated the profession tax amount and subsequently deposited Rs.42,925/- on 29.12.1997 and Rs.600/-on 30.12.1997. Learned Standing Counsel for CBI further contended that the trial Court has misread the evidence of prosecution witnesses and thereby erred in recording a finding that the prosecution failed to substantiate the charges leveled against the respondent/accused. 6. Learned Senior Counsel appearing for the respondent/accused submits that the trial Court considered the evidence brought on record in right perspective and found that the respondent/accused is not guilty for the offences with which he stood charged and the reasons given by the trial Court are quite convincing and therefore, the findings recorded by the trial Court do not warrant interference in this appeal. The learned senior counsel would also contend that the respondent/accused made a request for verification of the challans, but the department refused to accord permission for verification and in which case, it cannot be held with certainty that the amounts covered under Exs.P1 to P5 and P10 to P12 challans are not accounted to the government. Learned senior counsel would further contend that non-examination of the cashier of the bank on the relevant dates is fatal to the prosecution and the trial Court rightly drawn adverse inference for non-examination of the cashier of the bank. Learned senior counsel took me to the findings recorded by the trial Court on this aspect to convince that the said findings are based on sound reasons and therefore, they do not warrant interference in this appeal. Relevant portion in the judgment impugned in the appeal, on which much emphasis has been laid by the learned senior counsel, reads as hereunder: “ PW.9 Syed Hussain Ashrof who was the then Deputy Commercial Tax Officer states that this witness is not examined by the Investigating Officer but this witness is examined by the prosecution and he speaks to the Ex.P54 letter issued by the CBI Inspector and his office gives reply under Ex.P55 to CBI and he speaks to the register produced by him pertaining to year 1995-96 and 1996-97 ledger showing payments pasted in it. Ex.P56 is the attested copy of the ledger page No.178. Ex.P57 is the ledger copy showing page No.178 for the year 1995-96 and 1996-97. This witness also states in his cross that the entries made in the ledger books were based on the challans received from the concerned treasury and he has not made any entries in Ex.P56 and P57 and he states in his cross that if the treasury not sent any challan they will not carry forward in ledger books and it cannot reflect in Ex.P56 and P57 and he states that he did not issue any show cause notice to the Chief Commissioner for not paying any professional tax and he further states in his cross that if his office not received any challan, it does not mean that the amount is not paid in the treasury office. In view of this evidence it cannot be said that accused failed to remit the amounts under challan. The investigating officer i.e. PW.11 states in his cross that all the challans under which professional tax was remitted in SBI Gruhakalpa should be sent to District Treasury Office, R.R. District and states that he has not examined any staff from the said office and he also states in his cross that he has not verified what is the amount entrusted to the accused from January, 1996 to Sept.1996 and what is the amount remitted by the accused in the bank. In the context that the prosecution failed to prove beyond reasonable doubt, about accused forging signatures of bank officer in challans Ex.P1 to P5 and P10 to P12 I hold that the prosecution failed to establish the charge of forgery against accused, for the offence under Sec.468 of IPC beyond reasonable doubt and failed to prove that accused used the same as genuine and failed to prove that accused willfully with intention defrauded the Chief Commissioner of Income Tax, and the prosecution failed to prove the guilt of the accused as to the falsification of entries made by accused and any mis-appropriation of all amounts entrusted to the accused.” 7. The points that arise for determination in this appeal are: 1) Whether the acquittal of the respondent/accused for the offences under Sections 409, 468, 471 and 477-A of IPC is legal and proper? 2) Whether the prosecution is able to prove the guilt of the respondent/accused for the offences under Sections 409, 468, 471 and 477-A IPC beyond reasonable doubt? 8. Points 1 and 2:- I am conscious of the fact that in an appeal against the acquittal the appellate Court is circumscribed by the limitation that no interference has to be made with the order unless approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such which would not have been possibly arrived at by any Court acting reasonably and judicially and therefore, to be characterized as perverse. It is trite to note that there is no embargo on the appellate Court to review the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread, which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view, which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interference only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by the Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra[1]; Ramesh Babulal Doshi v. State of Gujarat[2]; and Jaswant Singh v. State of Haryana[3]. The principles highlighted in the above decisions have been reiterated by the Supreme Court in State of Rajasthan v. Rajaram’s case.[4] 9. The prosecution case against the respondent/accused is very simple and it is that the respondent/accused having collected profession tax from the employees of the Chief Commissioner of Income-tax, Hyderabad, failed to deposit the same in the bank and misappropriated the same. To cover up the misappropriation, he fabricated Exs.P1 to P5 and P10 to P12 challans as if the amounts had been credited to the government account. It is not in dispute that the respondent/accused was the cashier at the relevant point of time and he received the amounts from the employees towards profession tax. The said amount was required to be deposited in the Bank to the credit of the Government account. Exs.P1 to P5 and P10 to P12 are the challans. The respondent/accused did not dispute the fact of his being the author of contents of Exs.P1 to P5 and P10 to P12 challans. Ex.P14 is the certified copy of the cash book from 28.09.1993 to 31.05.1996. The entries are made by the respondent/accused in his own handwriting. Exs.P15 to P.49 are the relevant entries. The entries in the cash book revealed that the amounts had been deposited in the bank to the credit of the Government account. Exs.P1 to P5 and P10 to P12 are the challans. Indisputably, the amounts covered under challans are not credited to the government account. 10. The prosecution examined 11 witnesses to substantiate the charges leveled against the respondent/accused. PW.1 S.S. Kannan is the Additional Commissioner of Income-tax, Hyderabad. He speaks of receiving of anonymous complaint and directing the Assistant Commissioner of Income-tax to conduct enquiry on the allegations mentioned against the respondent/accused. Basing on the enquiry, he lodged a complaint with the CBI. Ex.P13 is the certified copy of the original complaint filed by him before the CBI. It is elicited in the cross- examination that by the date of lodging the complaint, the respondent/accused paid Rs.43,543/-. For better appreciation, I may refer relevant portion of the cross-examination of PW.1 in his own words, which reads as hereunder: “……My complaint to C.B.I. is based on an anonymous petition and my enquiry. I do not remember whether I have given a copy of the anonymous petition to the C.B.I. Police. It is not true to say that there is no anonymous petition and therefore, no reason to make a detailed enquiry. Except a letter to the C.B.I. there is no enquiry report prepared by me. I cannot say the total receipt and disbursement made by the accused during the calendar years 1994 to 1997. By the time of lodging the complaint, a sum of Rs.43,543/- was paid by the accused. There was a departmental enquiry against the accused and I am aware of the charges in that enquiry……” At this juncture it is trite to note the evidence of PW.5. She testifies that the respondent/accused approached her seeking permission to deposit the amount. Thereafter, the respondent/accused deposited Rs.42,925/- on 29.12.1997 and Rs.600/- on 30.12.1997. Exs.P1 to P5 are the challans dated 29.09.1995 and Exs.P10 to P12 are the challans, dated 31.05.1995. It is explicit from the evidence of PW.5 that the respondent/accused though entered in Ex.P14 cash book as if the amounts were deposited in the bank to the credit of government account, had not actually deposited and the amounts came to be deposited after receipt of anonymous complaint i.e.. nearly after two years. PW.5 is a responsible officer. She has no reason to speak false against the respondent/accused. 11. PW.4 Sunil Kumar, worked as UDC/Cashier in the office of the Chief Commissioner of Income-tax, Hyderabad. He testified that he accompanied the respondent/accused to remit an amount of Rs.42,925/- and Rs.600/-. Indisputably, the said two amounts came to be deposited after receipt of the anonymous complaint. Nothing is elicited from the cross-examination of Pw.4 that he is hostile to the respondent/accused. There is no reason for PW.4 to speak false against the respondent/accused. 12. The plea taken by the respondent/accused is that the cashier of the bank on the relevant dates has not been examined to contradict the specimen seal appearing on the challans and initials of the bank official and therefore, non-examination of the casher of the bank on the relevant dates is fatal to the prosecution. 13. The plea appears to be impressive on the first blush, but on close scrutiny of the evidence of PW.10, I do not detain myself long to find that the plea of the respondent/accused has no merit. PW.10 R.Nagendar is the Chief Manager of State Bank of Hyderabad, Gruha Kalpa Branch, Hyderabad. Exs.P60 and P61 are the certified copies of the scrolls of the relevant dates, on which dates the amounts covered under Exs.P1 to P5 and P10 to P12 allegedly deposited. The above referred challans do not find place in the scrolls. The scrolls are maintained during the normal course of business. PW.10 being the head of the branch is competent to speak of the entries in Exs.P60 and P.61 scrolls. In these circumstances, non-examination of the cashier of the Bank on the relevant dates is not much material. 14. The trial Court proceeded as if the respondent/accused denied of his being the author of Exs.P1 to P5 and P10 to P12 challans. The respondent/accused had not disputed of his being the author of Exs.P1 to P5 and P10 to P12 challans. The handwriting expert, who has been examined as PW.8, categorically stated that stamp impressions appearing on the challans do not tally with the specimen stamp impressions of the Bank. The trial Court thoroughly misread the evidence and thereby erred in recording a finding that the prosecution failed to substantiate the charges leveled against the respondent/accused. The finding recorded by the trial Court is not based on sound reasons and the trial Court failed to appreciate the evidence of PWs.4 and 5 in right perspective. In that view of the matter, I find that the prosecution is able to prove the guilt of the respondent/accused beyond reasonable doubt for the offences under Sections 409,468, 471 and 477- A of IPC. 15. Accordingly, the criminal appeal is allowed setting aside the judgment dated 07.05.2003 passed in C.C.No.315 of 2000 on the file of XXIII Metropolitan Magistrate, Hyderabad, and consequently the respondent/accused is convicted for the offences under Sections 409, 468, 471 and 477-A of IPC and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 409 IPC; Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 468 IPC; Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 471 IPC; and Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 477-A of IPC. All the substantive sentences shall run concurrently. The respondent/accused is directed to surrender himself before the trial Court and on such surrender, he shall be committed to the prison for serving the sentence of imprisonments imposed on him for the offences stated above. The sentence of imprisonments imposed under various counts in this appeal shall run concurrently with the sentence of imprisonment imposed on the respondent/accused in Crl.A.Nos.30 and 33 of 2005. ______________________ B.SESHASAYANA REDDY, J. Date:26th April, 2011. Cs THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.31 of 2005 Date:26th April, 2011 [1] (1973) 2 SCC 793 = 1973 SCC (Cri) 1033 [2] (1996) 9 SCC 225 = 1996 SCC (Cri) 972 [3] (2000) 4 SCC 484 = 2000 SCC (Cri) 991 [4] (2003) 8 SCC 180