THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1306 of 2005 Date: 16.09.2011 Between: 1. Killi Apparao 2. R.S.G. Chiranjeeva Rao … Petitioners/ A.1 & A.2 AND State of A.P., rep.by .P.P. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1306 of 2005 ORDER: The two revision petitioners were charge sheeted before the learned Judicial Magistrate of First Class, Saluru for the offences under Sections 468, 409 and 471 of the Indian Penal Code (‘IPC’ for short). The record disclosed that a charge u/s.409 IPC was read out to the revision petitioners and the revision petitioners pleaded not guilty. However, the trial Court as well as the appellate Court proceeded on the assumption that charges were framed under Sections 468, 409 and 471 IPC against both the revision petitioners. I also proceed on the assumption that the accused were charged for the offences under Sections 468, 409 and 471 IPC and assess the merits of the case. 2. For the sake of convenience, the revision petitioners shall be referred to as the accused and as A.1 and A.2 hereinafter. 3. As many as 29 witnesses were examined and Exs.P.1 to 49 were marked on behalf of the prosecution. The learned trial Judge considered that all the offences were made out against the accused. He convicted both the accused. He sentenced each of the accused to Rigorous Imprisonment (R.I.) for a period of one year for each of the offences under Sections 468, 409 and 471 IPC. He also sentenced each of the accused to a fine of Rs.500/- for the offences under Sections 468 and 409 IPC separately with appropriate default sentences. He directed the sentences to run concurrently. Both the accused preferred a common appeal before the Sessions Court. The learned II Additional Sessions Judge, Parvatipuram confirmed the conviction and sentence recorded by the trial Court. Hence, the revision. 4. Inter alia, it is the case of the revision petitioners/A.1 & A.2 that absolutely no case is made out for any of the offences and that the trial Court and the appellate Court totally misread the evidence. It may be recalled that the revision petitioners/accused were convicted for the offences under Sections 409, 468 and 471 IPC. Section 409 IPC reads: “409. Criminal breach of trust by public servant, or by banker, merchant or agent.-- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 5. Sec.405 IPC defines criminal breach of trust. The relevant portion of Sec.405 IPC is: “Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property 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, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 6. Section 468 forgery is defined by Section 463 IPC as making a false document to support any claim with an intention to commit fraud. Sec.468 IPC provides punishment of committing forgery for the purpose of cheating while Sec.471 IPC provides punishment for dishonestly using a document as a genuine document knowing fulwell that the document is forgery. It is the case of the prosecution that A.1 and A.2 resorted to forgery punishable under Sections 468 and 471 IPC and that in the process they committed criminal breach of trust punishable u/s.409 IPC. A.1 was a leading fireman in the Fire Station at Saluru, Vizianagaram District. A.2 was a fireman in the same Fire Station. During the relevant period from 25.05.1991 till 12.07.1993, A.1 and A.2 were working in the Fire Station as leading fireman and fireman respectively. 7. In 1993, the Divisional Fire Officer (‘DFO’, for short), Visakhapatnam inspected the Fire Station, Saluru. Considering that there were misappropriation and fabrication of ‘fire calls’, the DFO directed PW.1, who was the Asst. DFO, Vizianagaram from 1991 to 1995 to conduct preliminary enquiry. PW.1 conducted a preliminary enquiry to detect misappropriation and fabrication of fire calls. 8. The prosecution alleges: a) PW.1 found 24 fabricated fire calls during 1992. He also found fabrication of 24 fire calls during the year 1993. PW.1 verified the same with reference to Ex.P.29 Logbook (which runs from 01.11.1991 till 19.07.1993) and Ex.P.28 Fire Register. He also found misappropriation of diesel oil, engine oil, ‘C’ oil and incorrect submission of Travelling Allowance (TA) bills by A.1 and A.2. In all, A.1 was found to have committed misappropriation of Rs.12,380.96 paise. A.2 committed misappropriation of Rs.2,978.81 paise in all. b) PW.1 also found TA claims with false recitals and considers that A.1 and A.2 committed forgery of TA bills. A.1 forged the signatures of the departmental officials on the TA bills. The TA bills were to a tune of Rs.1,575/- for A.1 and Rs.125/- for A.2. PW.1 prepared a detailed preliminary report under Ex.P.1 and submitted the same to the DFO, Visakhapatnam. The First Information Report (FIR) was subsequently lodged under Ex.P.39 against both the accused. The accused thus committed the offences under Sections 468 and 471 IPC as well as u/s.409 IPC. 9. Primarily, the case of the prosecution is built up upon Ex.P.29 logbook. Inter alia, Exs.P.17 to P.19 are TA bills. It is the case of Sri C. Praveen Kumar, learned counsel for the revision petitioners/accused that Exs.P.29 and P.28 logbook and fire register respectively have not been proved and that the prosecution further failed to show that A.1 and A.2 committed forgery of TA bills under Exs.P.17 to P.19. He contended that the trial Court and the appellate Court failed to appreciate the evidence of PW.1 and the evidence of remaining witnesses and reached an erroneous conclusion that the prosecution proved the guilt of the accused beyond reasonable doubt. 10. I shall first deal with the allegation of forgery. Primarily, A.1 and A.2 allegedly forged the signatures of their superiors on Exs.P.17 to P.19 TA bills. It may be recalled that PW.1 deposed that A.1 forged the signatures of departmental officials on TA bills and misappropriated amounts to a tune of Rs.1,575/- and that A.2 misappropriated monies to a tune of Rs.125/-. PW.1 did not depose that A.2 committed forgery of the signatures of the superiors on the TA bills. A reading of the evidence of PW.1 shows as if A.1 alone resorted to forgery of the TA bills. 11. It is deposed by PW.1 that Ex.P.17 was for a sum of Rs.350/- and Ex.P.18 was for a sum of Rs.450/-. Ex.P.19 was for a sum of Rs.996/-. The total of the sum is Rs.1,796/-. I am not able to understand how A.1 committed forgery of a TA bills to a tune of Rs.1,575/- and A.2 committed forgery and misappropriation of TA bills to a tune of Rs.125/- where the total of Exs.P.17 to P.19 is Rs.1,796/-. If it is considered that A.1 committed misappropriation of to a tune of Rs.1,575/-, the balance out of Rs.1796/- would be Rs.221/- and not Rs.125/-. Thus, mathematically there is no agreement between the evidence of PW.1 and Exs.P.17 to P.19. 12. The learned counsel for the revision petitioners/accused, however, did not bother about mathematical incorrectness of Exs.P.17 to P.19. His attack on the TA bills is that it is not proved that A.1 and A.2 resorted to forgery of the signatures of the superiors for an unlawful and illegal gain exposing themselves to liability not only for the offences under Sections 468 and 471 IPC but also u/s.409 IPC. When the prosecution claimed that the accused resorted to the forgery of TA bills, the prosecution must establish the same. While so, curiously the prosecution did not even examine those persons whose signatures were allegedly forged by A.1 and A.2. If the officials, whose signatures were allegedly forged, deposed that Exs.P.17 to P.19 did not contain their signatures, the question of suspecting Exs.P.17 to P.19 as forgery would arise. Even then, if the accused raises a contention that the concerned officials in fact signed the bills, it would be necessary to send the signatures to handwriting experts to determine whether the signatures of the officials were forgery. As rightly submitted by the learned counsel for the revision petitioners/accused, the burden of prosecution would not end even there; it is for the prosecution to further show that the accused or A.1 in connivance with A.2 or independent of A.2 forged the signatures of the officials on the TA bills and that the same was with a view to misappropriate government funds. While so, the prosecution failed to adduce any evidence to show that the signatures of the officials found on Exs.P.17 to P.19 were not the signatures of the officials who were to countersign the TA bills. The question of establishing that A.1 forged those signatures, therefore, does not arise, where the prosecution fundamentally failed to show that the signatures of the officials on Exs.P.17 to P.19 are forgery. 13. Thus, there is absolutely no evidence to show that A.1 and A.2 committed forgery punishable under Sections 468 and 471 IPC. The trial Court and the appellate Court erroneously assumed that the prosecution established that Exs.P.17 to P.19 contained the forged signatures and that A.1 and A.2 committed forgery. The first of these points was not established. The second point as a corollary of the first point has also not been established, so much so, the charges for the offences under Sections 468 and 471 IPC have not been made out by the prosecution. The conviction of the accused for the offences under Sections 468 and 471 IPC are incorrect and is liable to be set aside. 14. For the offence u/s.409 IPC, the basic allegation is that the accused fabricated the records in the logbook and fire register (Exs.P.29 and P.28). Ex.P.29 logbook maintains the amount of oil consumed by the fire engine. It also contains the number of fire calls together with the time at which the fire engine left to attend the fire call and the time at which the fire engine returned to the Fire Station. Inter alia, it is the case of the prosecution that as many as 24 fire calls during 1992 and identical number of fire calls during 1993 till 12.07.1993 were not really made and that these fire calls were fabricated by the accused. It also is the case of the prosecution that diesel was not purchased for the fire engine and the records were fabricated to show as if diesel was purchased for the fire engine. The false fire calls and the intake of oil by the fire engine indeed are interconnected. 15. Smt. Zarina Afsar, learned counsel representing the learned Additional Public Prosecutor contended that fire register and the logbook (Exs.P.28 and P.29) would establish the fabrication and forgery as well as the misappropriation by A.1 and A.2. 16. I may point out that the allegation of misappropriation is not aimed at A.2. The allegation is confined to A.1. A.2 is facing trial for the alleged forgery of TA bills. Indeed, the charges read as if the allegations are made against both the accused for all the three offences. However, a reading of the evidence of PW.1 shows that allegation against A.1 is not only for forgery but also for misappropriation, whereas such an allegation is not made against A.2. 17. It is the case of PW.1 that the general diary of Fire Station is maintained by the leading fireman. One B. Papa Rao (PW.3) is said to be the leading fireman. PW.1 claimed that the first accused was the officer in- charge and that the second accused was the assistant of the first accused. Albeit the learned counsel for the revision petitioners/accused claimed that A.1 was the leading fireman, it would appear that it is incorrect. From the evidence of PW.1, it can be gathered that A.1 was the officer in-charge while PW.3 was the leading fireman. 18. The question is whether there was any manipulation, fabrication or forgery of the fire register and the logbook. At the outset, I may point out that there is no allegation that Exs.P.28 and P.29 were forged by either A.1 or A.2. 19. There is confusion between the evidence of PWs.1 and 3 as to who was the leading fireman and who was the officer in-charge. According to PW.1, who conducted enquiry into the alleged misappropriation, PW.3 was the leading fireman and A.1 was the officer in- charge. He also deposed that it was the duty of the leading fireman to maintain general diary. On the other hand, PW.3 deposed that he was station in-charge of the fire station, Saluru from 04.05.1993 till 06.09.1993. He claimed that the fabricated fire calls prepared by the accused were not entered in the general diary. The question is as to who was responsible for the preparation of the general diary. From the very admission of PW.1 that PW.3 was the leading fireman and it was his duty to maintain the general diary, I am afraid that benefit of doubt should accrue to A.1 exonerating him from liability for improper maintenance of the general diary. 20. For the purpose of the case, I may go further and assume that A.1 was the leading fireman and it was his duty to maintain the general diary. Even if this assumption is true, the prosecution should establish that spurious fire calls were fabricated in the fire register and the logbook. The learned counsel for the revision petitioners/accused was emphatic in pointing out that the relevant entries in Exs.P.28 and P.29 were not put to PWs.1 and 3 and were not exhibited to establish that the accused fabricated those entries in Exs.P.28 and P.29. 21. It is nobody’s case that the entire fire register under Ex.P.28 and the entire logbook under Ex.P.29 were created by A.1 independently or in connivance with A.2. It is the case of the prosecution that only 24 calls during 1992 and 24 calls in 1993 were the fabricated calls. At the outset, it is the duty of the prosecution to show what calls are claimed to be fabricated according to the prosecution. The best person to point out the same is PW.1. Perhaps, PW.3 could corroborate PW.1. Neither PW.1 nor PW.3 was examined with special reference to the alleged fabricated calls. A sweeping statement was made by PWs.1 and 3 that the accused (perhaps meaning both the accused) fabricated fire calls. It was not even mentioned that the fire calls as noted in Ex.P.28 were fabricated by the accused much less pointing out each of the manipulated fire calls. 22. I agree with the contention of the learned counsel for the accused that an omnibus statement by PW.1 that the accused fabricated a specified number of fire calls would not be sufficient to throw onus upon the accused to establish that the alleged fire calls were not spurious or fabricated calls. The prosecution must first establish beyond reasonable doubt that the fire calls in Ex.P.28 are fabrications. There is another dimension with reference to the fire calls. On receipt of fire calls, the fire engine with staff leaves the Fire Station to put off fire at the place of calamity. Each fire call should bear a corresponding entry in the logbook as to the number of fire calls and as to the distance the fire engine travel in response to the fire call. Ex.P.29 recites the number of fire calls in red ink. However, it is for the prosecution to co- relate the fire calls from the fire register under Ex.P.28 with the fire calls as shown in Ex.P.29 logbook to show that the specified fire calls were not genuine. Where the prosecution failed to pin point the fabricated fire calls from Ex.P.28, the question of co-relating the same with Ex.P.29 logbook does not arise. In fact, the prosecution did not even establish that A.1 was maintaining fire register and the logbook in view of the evidence of PW.1 that leading fireman maintains general diary and that PW.3 was the leading fireman. There was no reference as to who maintains the logbook and the fire register. 23. The general diary for four periods were marked as Exs.P.23 to P.26. However, the prosecution failed to show the concerned entries in Exs.P.23 to P.26 and co-relate the same with the fire calls in Ex.P.28 and the travel of the fire engine as shown in Ex.P.29 logbook. PW.3 did not even whisper that the entries under Exs.P.23 to P.26 were maintained by A.1. I am afraid that the evidence of PW.1 does not establish that A.1 and A.2 fabricated fire calls. Both the accused cannot be found guilty for the alleged forgery of the fabricated fire calls. 24. The prosecution examined 29 witnesses. Out of them, PWs.12 to 15, 17 and 22 did not support the prosecution story. They were considered to be hostile. The learned Assistant Public Prosecutor was accorded permission by the learned trial Judge to put leading questions to these witnesses. Despite leading questions, nothing could be elicited either in favour of or against the accused from the evidence of PWs.12 to 15, 17 and 22. Apart from these witnesses, PWs.2 to 11 are employees of the Fire Department. 25. PW.2 was the Driver-cum-Operator of the Fire Station. He deposed that he did not attend to any of the fabricated fire call nor did he claim TA bills for such fabricated calls. He, however, candidly admitted that he could not state what were the true calls and what were the fabricated calls. Further, he was not confronted with Ex.P.28 fire register or general diaries under Ex.P.23 to P.26. 26. PW.3, as already pointed out, was either leading the fireman or the station in-charge of the Fire Station, Saluru during part of the relevant time. He claimed that he did not attend fabricated fire calls and that the fabricated calls were not entered in the general diary. He was also not confronted with Exs.P.23 to P.26 and P.28. PWs.4 to 11 also spoke in similar terms. None of them were confronted with Exs.P.23 to P.26 and P.28 to establish that some of the calls were fabricated. Where there is no proof that some of the fire calls were fabricated, the accused could not be found guilty for tampering with the official records and for resorting to forgery or using tampered records as genuine records knowingly. The offences under Sections 468 and 471 IPC prima facie could not be made out against the accused in this background. 27. The prosecution took great pains in examining several villagers of various villages to show that there was no fire accident in the concerned villages during the relevant time and also to show that the fire engine did not visit their villages during that period. Unless the same is co-related to the fire calls and the general diary, mere evidence of PWs.18 to 21 and 23 to 27 is of no value. At any rate, the prosecution primarily failed in showing that A.1 and A.2 maintained the general diary and the fire register and they had fabricated fire calls. Consequently, the prosecution failed in establishing the offences under Sections 468 and 47 IPC for fabricating fire calls. I have already pointed out that the offences under Sections 468 and 471 IPC for forging the signatures of the superiors on the TA bills by A.1 and A.2 has not been established. Thus, the prosecution failed to prove the case against A.1 and A.2 for the offences under Sections 468 and 471 IPC either for forging the signatures of superiors on the TA bills or for fabricating the fire records. The accused are liable to be acquitted for the offences under Sections 468 and 471 IPC in this background. 28. The forte of the prosecution is the alleged confession of A.1 and A.2 before PW.1. PW.1 did not claim that he recorded the confessions of A.1 and A.2. On the other hand, he deposed that he examined several departmental witnesses in the process of enquiry and that he examined A.1 and A.2 also in the process of enquiry. In their statements, A.1 and A.2 allegedly confessed various commissions and omissions resorted to by them. 29. It may be recalled that PW.1 conducted enquiry into the fabricated fire calls, various TA bills and other misconduct by the employees of the Fire Station, Saluru. In the process, he recorded the statements of several employees including A.1 and A.2. Exs.P.3 and P.4 are the statements of A.1 and A.2. It is the case of the prosecution that Exs.P.3 and P.4 are the confessional statements of A.1 and A.2. 30. A.1 referred to the fabricated fire calls, spurious fire visits and manipulated fire reports as created by A.2 and claimed that A.1 subscribed his signature to the same. Indeed, it was not stated in Ex.P.3 that A.1 was not aware of the contents of documents signed by him when produced by A.2. Thus, in Ex.P.3, A.1 primarily attributed misconduct of A.2 and claimed that A.1 was a tacit partner of the misconduct. 31. Ex.P.4 is the alleged confession of A.2. In Ex.P.4, A.2 claimed that he fabricated fire visits and fire reports upon the instructions of A.1 and that he was innocent of any misconduct. Thus, so far as A.2 is concerned, Ex.P.4 is not a confessional statement. In the extreme, A.2 deposed that he consciously prepared false statements and that he did so at the instructions of A.1, who was his superior. On the other hand, through Ex.P.3, A.1 contended that it was A.2 who prepared the false statements and that A.1 merely endorsed the fabricated record, albeit he was aware that the record was fabricated. Thus, both the alleged confessions under Exs.P.3 and P.4 are more exculpatory admissions and not inculpatory confessions. 32. I agree with the contention of the learned counsel for the accused that there is no evidentiary value for such exculpatory statements by A.1 and A.2 before PW.1 and that Exs.P.3 and P.4 cannot be sole ground to convict A.1 and A.2. 33. A more important dimension of Exs.P.3 and P.4 assuming that Exs.P.3 and P.4 are confessions is that both the accused retracted from Exs.P.3 and P.4. They did not admit to committing any misconduct and did not admit to making statements to PW.1 under Exs.P.3 and P.4. 34. However, admittedly, there is no enmity between PW.1 on the one side and A.1 and A.2 on the other side. There is no need for PW.1 to fabricate record to establish the misconduct of A.1 and A.2 only. Unless A.1 and A.2 made such statements before PW.1, the possibility of PW.1 recording the same does not arise. Further, it is not as though PW.1 recorded the statements of A.1 and A.2 only. He recorded the statements of several persons in Exs.P.3 to P.16. He was more acting in discharge of his functions as a preliminary Enquiry Officer. I, therefore, am not prepared to hold that Exs.P.3 and P.4 are manipulated. However, what is the evidentiary value of Exs.P.3 to P.4 and whether the accused can be convicted on the strength of Exs.P.3 and P.4 is the question. 35. It is the case of PW.1 that he examined several department officials and recorded their statements and the statements under Exs.P.3 and P.4 are as much as the statements under Exs.P.5 to P.16 recorded from various officials. A.1 and A.2 are also officials of the Fire Department working at the Fire Station, Saluru. It