IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD DATE. 24-06-2011. PRESENT HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE NO.13 of 2004 Between: The Tamilnadu Handloom Weavers’ Co-operative Society Ltd., Rep., by its Regional Manager, Ramamandiram Street, Governorpet, Vijayawada-2, Krishna District. Petitioner AND 1. V.Umamaheswara Rao 2. The State of A.P., rep., by its Public Prosecutor, High Court of A.P., Hyderabad. Respondents This Court made the following: HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE NO.13 of 2004 ORDER: This Criminal Revision case is preferred by the petitioner/de-facto complainant challenging judgment dated 19.06.2003 passed by the II Additional Sessions Judge, West Godavari Division at Eluru, in Criminal Appeal No.125 of 2001, whereby and whereunder conviction and sentence imposed in C.C.No.420 of 1996 dated 15.05.2001 by the II Additional Judicial First Class Magistrate, Bhimavaram was set aside. The case of the prosecution is as follows: A.1 being incharge and A.2 to A.4 being salesman of the Co-Optex Emporium, Bhimavaram conspired together to commit misappropriation of credit sales collection and stock of the emporium and committed the alleged offences. Their complicity came to light on 23.11.1992 when a surprise visit was made by its internal audit wing, Hyderabad. In-fact it was found that a sum of RS.1,08,970.90 ps towards credit sales collection during 01.08.1992 to 14.12.1992 was misappropriated. Later P.W.1 Regional Manager deputed P.Ws.4 to 6 viz., Muppala Sitaramayya, Moganti Sanjeeva Rao and V.Radha Krishna Murty to conduct the inspection of the emporium and on the inspection they found that in total an amount of Rs.3,16,891.65 ps was misappropriated by all the accused. Further on a report presented by P.W.6, case was registered and was investigated into by concerned authority. After the completion of the investigation, charge sheet was filed. pThe Respondent No.1 who is shown as A.1 in the trial Court along with A.4 were tried for offences punishable under Sections 120-B, 408, 477(A) and 468 IPC and A.1 was found guilty of committing the offences punishable under Sections 408 and 477(A) IPC and accordingly, he was convicted under Section 248(2) Cr.P.C but he was found not guilty of the offences punishable under Sections 120(B) and 468 IPC and accordingly he was acquitted under Section 248(1) Cr.P.C. Further A.4 was found not guilty of committing all the alleged offences with which he was charged and accordingly he was acquitted under Section 248(1) Cr.P.C. whereas aggrieved by the conviction and sentence imposed against the first respondent herein (A.1) preferred the Criminal Appeal No.125 of 2001 whereby the learned II Additional Sessions Judge, West Godavari Division at Eluru, on the consideration of the material available on record, set aside the judgment of the trial Court and acquitted A.1. Consequently, the petitioner-de-facto complainant has preferred the present criminal revision case. For the sake of convenience, I refer the parties as arrayed before the trial Court. Heard. It is the contention of learned counsel for the petitioner-de facto complainant that the trial Court on the basis of evidence adduced including that of concerned hand writing expert’s opinion marked as Ex.P.48 upheld that Ex.P.18 dated 20.11.1992 and Ex.P.22 dated 10.02.1994 were issued by A.1 and the allegation of criminal breach of trust for an amount of Rs.2,61,891.50 ps was established but on flimsy grounds the appellate Court observed that the prosecution failed to establish the two documents and the alleged payment made by A.1 and accordingly set aside the conviction and sentence imposed against A.1 in the case and acquitted him for the charges leveled against him. Therefore, it is to be mainly examined as to whether the appellate Court properly examined the evidence available with regards to the charges leveled against the A.1 and the findings are tenable or not. POINT: It is observed by the trial Court as follows: “15. The evidence of P.Ws.4 and 6 and their report Ex.P.9 discloses that a sum of Rs.1,51,131.60 ps was collected under cash receipts book Ex.P.10. Ex.P.10 cash receipt book shows the collection of the said amount by A.1 alone without any dates on them. Thus, from the above said receipts and the evidence of P.Ws.4 and 6, it is clear that a sum of Rs.1,51,131.60 ps was not credited to the Regional Office by A.1 having collected the same, in addition to the sum of Rs.1,08,970.90 ps collected by A.1 to A.3 and also deficit of stock worth Rs.56,789.15 ps under Ex.P.11 statement prepared by A.1 to A.3. P.W.1 further stated that A.1 has given an undertaking letter under Ex.P.18 admitting that he has taken Rs.1,49,595.00 ps from the sale proceeds for his personal use, and that he has also stated that the other accused A.2 to A.4 have not shared in the above sale proceeds. Ex.P.18 is in the own hand writing of A.1. P.W.1 further stated that he has given charge memos to A.1 to A.3 under Ex.P.19, and Ex.P.20 to A.4 i.e. the Carbon copies, and that P.W.1 appointed P.W.7 Mr.D.Balaraju, Advocate as an enquiry officer, to conduct domestic enquiry under Ex.P.21. P.W.7 stated that he conducted enquiry and during the course of enquiry the accused admitted charges leveled against them, and gave letters Exs.P.23 to P.26, and therefore he concluded enquiry and submitted Ex.P.27 report holding that the charges against A.2 is not proved. As A.1, A.3 and A.4 gave letters Exs.P.22, P.23 and P.24 admitting the charges. Ex.P.25 letter is given by A.2 V.Veeraswamy to P.W.7 in which he stated that he is unconnected with the misappropriation, on which A.1, A.3 and A.4 also signed. Ex.P.22 letter is given by A.1 herein admitting that he is responsible for Rs.2,61,891.50 ps out of the misappropriated amount of Rs.3,16,891.50 ps and that A.3 and A.4 are responsible for the remaining amount i.e., Rs.30,000/- by A.4; and Rs.25,000/- by A.3. Exs.P.23 and P.24 are letters given by A.3 and A.4 to P.W.7 in which they admitted that they appropriated Rs.25,000/- and Rs.30,000/- for their personal use. They were signed by the respective accused and counter signed by the remaining accused. It is not known as to why they signed on every letters given by A.1 to A.4. In view of the enquiry conducted by P.W.6, A.2 V. Veeraswamy was discharged from the case. 18. P.W.14 stated that on 05.08.1995 he obtained specimen signatures of A.1 and A.2 and sent them to hand writing expert through this court by filing Ex.P.46 requisition, and Ex.P.47 letter of advice and that this Court sent them through this court with disputed signatures and the admitted signatures of A.1 and A.2 to F.S.L., Hyderabad, and that this Court received Ex.P.48 opinion, which discloses that the signatures of A.1 on the receipts signed by A.1 marked as Q.1 to Q.4 and the admitted signatures of him marked as S.1 to S.6 are written by the same person. The opinion with regard to the signature of A.2 is found in the record and his signatures are proved but A.2 was discharged in view of the enquiry report given by P.W.7 absolving him from the case. Thus, as stated above, A.1 has committed criminal breach of trust for the sum of Rs.2,61,891.50 ps as admitted by him in Ex.P.22.” The trial Court examined the evidence adduced exhaustively and upheld that the charges leveled against the A.1 proved. But the appellate Court failed to properly appreciate the evidence adduced so far as A.1 is concerned. It appears that on flimsy grounds the appellate Court set aside the findings of the trial Court including the conviction and sentence imposed against the A.1. Hence the said findings are not tenable and accordingly they are liable to be set aside and consequently the matter is to be remanded to the appellate Court for fresh consideration. In the result, the Criminal Revision Case is allowed and the matter is remanded to the appellate Court i.e., II Additional Sessions Judge Court, West Godavari Division at Eluru, for fresh consideration of the matter basing upon the material available with regards to the complicity so far as A.1 is concerned un-influenced by the observation made above. ______________________________ JUSTICE G. KRISHNA MOHAN REDDY 24th June, 2011 VJL