THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1332 of 2001 JUDGMENT: 1. This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) by the appellant/sole accused, is directed against the judgment dated 20.07.2001 in Calendar Case No.2 of 1994 on the file of the Special Judge for SPE & ACB Cases, Nellore, whereunder and whereby the appellant was convicted of the offence under Section 13(1) (c) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) punishable under Section 13(2) of the Act, and accordingly sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.4000/- in default to suffer simple imprisonment for two months. 2. The brief facts that are necessary for disposal of the present Criminal Appeal may be stated as follows: The accused worked as Junior Assistant in the office of the District Social Welfare Officer (B.C.W.), Chittoor, and he was the custodian and in-charge of Stores for the years 1987-88 and 1988-89 (till 6.9.1989), as per Ex.P1-office order dated 5.4.1986, issued by one N.Chalapathi Rao, who is the then District Social Welfare Officer, Chittoor. On 6.9.1989, the accused handed over the charge of the stores to one Natarajan, Office Superintendent. There were about 49 B.C. Boys Hostels and 13 B.C. Girls Hostels with 3,883 boys and 892 girls during the year 1987-88, and 4,631 boys and 1,147 girls during the year 1988-89. All the boarders were being given two pairs of dresses every year along with other articles, free boarding and lodging. The stock verification of cloth meant for stitching of garments to the hostel boarders was conducted from 17.5.1987 to 3.3.1989. Ex.P5 is the register showing receipt and issue of cloth for the years 1987-88 and 1988-89. As and when stock is received, the District Social Welfare Officer must attest the entries in the register. The stock would be supplied by the Andhra Pradesh Co-operative Society. In pursuance of the letter addressed by the concerned Officer, the Andhra Pradesh State Handloom Weavers’ Co-operative Society Limited supplied 24,360-60 meters of khaki and navy blue cloth; 20,704.80 meters of matty/shirting cloth; 2,946.40 meters of pocket cloth; 8,543.60 meters of langa/skirt cloth; 240.00 meters of body attachment cloth; 2,449.20 meters of jacket/blouse cloth; 4,500.00 meters of voni cloth and 1,298.80 meters of drawer cloth, to the District Social Welfare Officer (B.C.W.), Chittoor. Ex.P5 shows the different dates on which the clothes were received. The accused handed over the charge of stores on 6.9.1989 and handed over only 240.20 meters of mati shirt cloth; 50.15 meters of navy blue cloth; 379.25 meters of pink voni cloth as against 13,849.20 meters of matty shirting cloth; 14,069.30 meters of navy blue and kaki bill cloth; 3,006.45 meters of printed langa cloth; 1,930 meters of merun blouse cloth; 2,228.80 meters of pocket, drawer attachment cloth and 780 meters of pink voni cloth. Therefore, the accused dishonestly and fraudulently misappropriated the cloth to an extent of 35,194.45 meters worth about Rs.4,29,814.34 ps. Ex.P8 is the note submitted to the District Collector regarding the misappropriation. When a memo was issued to the accused, he expressed his inability to hand over the cloth, but he gave explanation. P.W.9-the then Director of B.C. Welfare, A.P., Hyderabad, submitted Ex.P28-report to police. Police registered the case and during the course of investigation, examined witnesses and seized the relevant documents, after obtaining necessary sanction and completion of investigation, the charge sheet is laid. 3. When charges for the offences under Sections 409, 420, 477-A I.P.C. and 13(1)(c) and (d) read with 13(2) of the Prevention of Corruption Act, 1988, were framed, read over and explained to the accused in telugu, they pleaded not guilty. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 10 and got marked Exs.P1 to P36. No oral or documentary evidence was adduced on behalf of the accused. 5. The trial court, after considering the evidence on record, came to the conclusion that the accused committed the offence under Section 13(1) (c) read with 13(2) of the Prevention of Corruption Act, 1988, and accordingly convicted and sentenced him as stated above, while acquitting him of the offences under Sections 409, 420 and 477A I.P.C.. Challenging the same, the present criminal appeal is preferred. 6. During the pendency of the appeal, the appellant died, and his legal representative was brought on record. 7. Now, the point for determination is whether the prosecution established its case against the appellant/accused for the offence under Section 13(1) (c) read with 13(2) of the Prevention of Corruption Act, 1988, and whether the judgment of the trial court is correct, legal and proper ? 8. The learned counsel for the appellant contended that the period of alleged misappropriation is not within 12 months, and that the charges of misappropriation spread over to a period of 3 years cannot be tried in one case, and thereby prejudice is caused to the accused by clubbing the offences; that, admittedly, another person was kept in-charge of Stores for certain period, but he was not made an accused; that, the possibility of the alleged misappropriation taking place during the in-charge period of P.W.3, cannot be ruled out. The learned counsel further contended that, before making any indent for supply of cloth, the District Social Welfare Officer has to physically verify the stock with reference to the stock register and thereafter indent has to be placed and that there would audit every year and therefore if any misappropriation taken place, the Auditors would have pointed out the same during audit; that, a false case is foisted against the accused, and hence, he prayed to set aside the conviction and sentence against the appellant. 9. On the other hand, the learned standing counsel appearing for the Anti Corruption Bureau contended that, the evidence of P.Ws. 1 to 3 is very clear that the appellant was kept in-charge of Stores during the relevant period of the misappropriation and though P.W.3 worked for short-time, the stores were not physically handed over to him; that, simply because audit has been conducted every year, that does not mean that there was no misappropriation; that, totally 35,000 and odd meters of cloth meant for students, had been misappropriated by the accused; that, there was no scope or possibility for any other person to mis-utilise the same, except the accused; that, after an elaborate consideration of the evidence on record, the trial Court found the accused guilty and there are no grounds to interfere with the same. Hence, he prayed to dismiss the criminal appeal. 10. The period of misappropriation is spread over from 5.4.1986 to 6.9.1989. It is the contention of the learned counsel for the appellant that, the charges of misappropriation spread over to a period of 3 years cannot be tried in one case, and thereby prejudice is caused to the accused by clubbing the offences. On this aspect, the learned counsel for the appellant placed strong reliance on Section 212 (2) Cr.P.C., which reads thus: “When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219. Provided that the time included between the first and last such dates shall not exceed one year.” 11. Under Section 220(4) Cr.P.C., if several acts, of which one or more than one by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. This Section appears to be an exception to the geneal rule in Section 212 Cr.P.C. It provides that where several distinct offences (of the same kind or of different kinds) are committed by a person in one series of acts so connected with each other to form the same transaction, then he can be charged with and tried for every such offence (irrespective of their number) at one trial. The crucial point for determination would be whether the facts composing the several offences are commenced together in such a way as to constitute a continuous whole i.e. one transaction. 12. Section 23 of the Prevention of Corruption Act, 1988, reads as follows: “Particulars in a charge in relation to an offence under Section 13(1)(c) : Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), when an accused is charged with an offence under clause (c) of sub-section (1) of Section 13, it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219 of the said Code: Provided that the time included between the first and the last of such dates shall not exceed one year.” The above provision makes it clear that without specifying particular items or exact dates, a charge can be framed. In such a case, the period or particulars of misappropriation should not exceed one year. Even assuming for a moment that Section 23 is violated by the prosecution for not charging series of the acts of misappropriation within a period of one year, the accused would have challenged the same at appropriate stage. Unless it is shown that he was misled by the charge or miscarriage of justice has been done to him, he cannot complain that the charge was not in accordance with law. Except saying that the charge caused prejudice, in what manner it caused prejudice to him, has not been explained. Therefore, the plea that the acts of alleged misappropriation were spread over for more than one year would not cause any prejudice to the accused in defending his case. 13. However, the learned counsel for the appellant relied on a decision in State of M.P. v. Indrajeetsingh[1] wherein it is held thus: “In the instant case, trial has taken place in a manner not warranted by the proviso to S.212(2) of the Code which is mandatory. Therefore, it has to be held that the trial is wholly bad irrespective of the question whether or not there was any actual prejudice to the accused and consequent failure of justice. ..” 14. The learned counsel for the appellant also relied on decision in P.Venkata Narasaiah & another v. State of A.P.[2] wherein it is held thus: “.. On the other hand the discussion made by the learned special judge would show that he was inclined to believe the evidence cumulatively and held the accused guilty. Thus, framing a single charge had caused prejudice to the accused. If only separate charges had been framed, he would have judged whether the evidence in respect of each charge is sufficient to establish that charge. Apart from that the evidence of P.Ws. 1 to 6 is in the nature of accompline and normally it is not desirable to act upon such evidence without any corroboration. The report, on the basis of which police registered a case and filed the charge sheet, was given nearly one and half months after the commission of offence and the case was registered nearly three months thereafter.. .” 15. The learned counsel for the appellant also placed strong reliance on a decision in Bipin Chandra Maharana v. Republic of India[3] wherein it is held thus: “.. The policy 1 underlying Section 234, Criminal Procedure Code is not to cause undue harassment or confusion to the accused by giving evidence of a large number of items covering over a unduly long period. In proper cases to avoid any prejudice to the accused the Court may insist upon the prosecution to limit itself to a reasonable number of items of misappropriation or the period of time. Whether in a particular case, prejudice is likely to be caused to the accused or not is for the Court to decide. In the present case, however, no question of prejudice can arise as the charges were confined only to a few items and that within a period of about a month or so.” 16. But, in Willie (William) Slaney v. State of Madhya Pradesh[4], a Constitution Bench of the Apex Court held thus: (para 36) “Sections 222 to 224 deal with the form of a charge and explain what a charge should contain. Section 225 deals with the effect of errors relating to a charge. Sections 233 to 240 deal with the joinder of charges. Sections 535 and 537 are in the Chapter that deals with irregularities generally and these two sections deal specifically with the charge and make it clear that an omission to frame a charge as well as irregularities, errors and omission in a charge are all irregularities that do not vitiate or invalidate a conviction unless there is prejudice.” Therefore, from the above decision, it is clear that, if the acts of misappropriation within a period of one year have not been separately charged, at best it amounts to an irregularity, which does not vitiate the conviction and sentence. Therefore, the contention of the learned counsel for the accused on this aspect is untenable. 17. It is not in dispute that, P.W.1 was in-charge of Stores from 5.4.1986 to 6.9.1989. The Stores, which contained the cloth to be supplied to the children, is exclusively under the control of the accused. During that period, for a period of 1 ½ months he was on leave and thereby P.W.3 was kept in-charge. P.W.3 categorically stated that Stores had not been handed over to him by the accused. Therefore, the stores in which misappropriation of cloth took place, is exclusively under the control of the accused only. The accused was relieved from Stores on 6.9.1989. At the time of handing over the charge of stores, there was shortage of 35,194.45 meters of cloth, which was not accounted for, by the accused. Therefore, he was called upon to give explanation as per Ex.P19, for which the accused gave Ex.P22-explanation. The explanation would go to show that Stores was under the control of the Superintendent, who is examined as P.W.2. If really the stores was under the control of P.W.2, there was no need for the accused to take the charge of the stores on 6.9.1989 as per the directions of the District Social Welfare Officer. P.W.2 categorically stated that, in pursuance of the directions given by the District Social Welfare Officer, he took the charge from the accused on 6.9.1989. 18. The evidence of P.W.1 shows that, he made inspection of stock and found that 35,194.45 meters of cloth has not been accounted for. The evidence of P.W.2 is also very clear that Exs.P1 to P24 which contained relevant records relating to receipt of stock, their distribution, inspection of stores, etc., disclose missing of cloth of 35,194.45 meters which have to be routed through P.W.1 and he dealt with these files. Admittedly, stores department is two furlongs away from the District Social Welfare Office. There will be periodical audit. Except giving a suggestion that the higher-ups of accused misappropriated the stock, which was denied, nothing has been elicited in cross-examination of P.W.2, to discredit his testimony. The evidence of P.W.2 is also very clear that the keys will be in the custody of the in-charge of stores and he will open, receive and dispatch stock. The evidence of P.W.1 with regard to conducting of inspection is complete one and his evidence would also go to show that the stock register revealed that the accused, who was the Junior Assistant in-charge of stores, handed over only some extent of clothes and he categorically stated that the accused misappropriated the entrusted cloth to an extent of 35,194.45 meters. To show that the accused was handling registers, Ex.P5-stock register has been filed. P.W.1 categorically stated that the accused entered the receipt of stock item-wise and issues of cloth in Exs.P5, and Ex.P10 is the statement of invoice showing supply of clothes during the year 1987-88 and Ex.P11 is the statement showing supply of cloth during the year 1988- 89. It is suggested to him that the accused never received the clothes and all the deliveries and receipts were effected by the accused in the presence of the District Social Welfare Officer or the Superintendent of the office, but the same is denied. In view of the voluminous documentary evidence coupled with the evidence of P.Ws. 1 and 2, it is clear that it is the accused and none else, who misappropriated the cloth to an extent of 35,194.45 meters supplied to the District Social Welfare Office, Chittoor. The evidence of P.W.4-the then Warden of Girls Hostel, also shows that the accused was in-charge of the stores and he used to visit stores and hand over the stocks. 19. From the evidence of P.W.5-the then Superintendent in the office of the District Social Welfare Officer (B.C.W.), Chittoor, it is clear that from the date of taking charge of stores, the accused was completely in- charge of it and it is the duty of the accused to maintain stock register. According to the stock register, the stocks received have been clearly mentioned. As per Ex.P2- charge list, only certain extent of cloth was handed over to Natarajan and still the accused is responsible to account for the missing of 35,194.45 meters of cloth. It is suggested to him that the accused was not keeping godown keys with him after office hours, but the same is denied. Nothing has been elicited to discredit the testimony of P.W.5. 20. P.W.6, who worked as Assistant Accounts Officer in the office of Director of Backward Classes Welfare, Hyderabad at the relevant time of incident, visited the District Social Welfare Office, Chittoor. He also personally inspected the records relating to the supply and issue of cloth and prepared Ex.P26-preliminary report. As per the inspection report, the balance cloth which would be available in the stores was 35,864.05 meters, but the actual cloth in the stores was only 669.60 m e te rs . His evidence practically remained unchallenged. Conducting inspection by P.W.6 and the finding of non-availability of stock as per the stock register, remained unchallenged. 21. The evidence of P.W.7 who is the then Matron in Government Girls Hostel (B.C. Welfare), Chittoor, shows that the appellant was in-charge of the stock and during that period no theft had been taken place. P.W.8 speaks about sanction orders issued to prosecute the accused. P.W.9 is the then Director of B.C. Welfare, A.P., Hyderabad, who lodged the complaint to police. His evidence is clear that he sent P.W.6 to the office of the District Social Welfare Officer, Chittoor, to ascertain how much extent of cloth was found missing, and accordingly, he submitted Ex.P26-report. His evidence remained unchallenged. 22. Therefore, from the above evidence, it is clear that the accused was the custodian of stores during the relevant period of the misappropriation. As a matter of fact, all the receipts and dispatches of the stock have been mentioned in stock register. On physical verification of the stock, thousands of meters of stock was found missing and it was not accounted for by the accused. It is not the case of taking place of theft in stores during the period the accused was in-charge of the stores. Considering these aspects, the trial Court right found the accused guilty of the offence under Section 13(1) (c) of the Prevention of Corruption Act, 1988, and the impugned judgment does not suffer from any infirmities so as to call for interference by this court. 23. In the result, the conviction of the accused of the offence under Section 13(1) (c) read with 13(2) of the Prevention of Corruption Act, 1988, recorded by the trial Court is confirmed. As regards sentence, since the accused is died during pendency of the criminal appeal, the appeal is abated, insofar as sentence is concerned. 24. The Criminal Appeal is, accordingly, dismissed. ------------------- K.C.Bhanu, J. 26.8.009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1332 of 2001 DATED: 26.08.2009 M.Mukthar (died, rep. by LR.) Smt. Mothi …Appellant And State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent [1] 1987 CRI.L.J. 348 [2] 1993(2) ALT (Crl.) 264 [3] 1964(1) Cri. L.J. 688 (Vol.68 C.N.207) [4] AIR 1956 SC 116