1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 14 OF 2008 Shri Pundalik Ramchandra Khot, the then Phone Mechanic, DTO, Goa Telecom(now BSNL) Mapusa, Goa. R/o. B-3, Telecom Staff quarters, Siolim Telephone Exchange Compound, Siolim, Bardez, Goa. ... Appellant versus S T A T E (Through P.P., CBI) ... Respondent Shri Arun Bras De Sa, Advocate for the Appellant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 28TH OCTOBER, 2010. JUDGMENT This appeal is filed by accused No.3 in Special Case No.7 of 2002, and is directed against Judgment dated 27-2-2008 of the learned Special Judge, Panaji, by which he has been convicted and sentenced under Sections 409 and 477A, I.P.C. and Section 13(2) r/w 13(1)(c) and 2 (d) of the Prevention of Corruption Act, 1988. Accused No.3 has been acquitted under Sections 120-B. Accused Nos.1 and 2 have been acquitted under Sections 120-B, 409, 477-A I.P.C. and Section 13(1)(c) (d) of Prevention of Corruption Act, 1988. 2. The accused No.3/Shri Pundalik R. Khot (hereinafter referred to as A3) was a Phone Mechanic while accused No.1/ Shri Keshav Naik was the Senior Telecom Office Assistant, working as a cashier and accused No.2/Shri Hemant Shirole was also a Senior Telecom Office Assistant, but was in charge of the Department Telegraph Office at Mapusa. 3. The allegation against them was that for the period from 25-2-1998 to 21-12-1998, all the accused entered into a criminal conspiracy with the object of misappropriating Telecom revenue to the tune of Rs.92,000/- which was paid by 31 subscribers towards advance deposit for new telephone connections and Rs.5,040/- which was paid by 12 telephone subscribers towards their telephone bills and in pursuance of the said criminal conspiracy, all the accused dishonestly and fraudulently misappropriated the said amount by falsifying the accounts 3 of the Department Office at Mapusa, and thereby caused undue pecuniary gain to themselves and corresponding loss to the department and also abused their official positions as public servants and entered into a criminal conspiracy with the object of misappropriating Government funds. 4. The case of A3 was that he was only working as a phone mechanic; he did not know anything about this case; he did not sit on the cash counter at any time and did not collect the cash at all. 5. The learned Special Judge(Sessions Judge, Panaji) framed four points for determination and came to the conclusion that the charge was not proved against accused Nos.1 and 2 but was proved against A3. Consequently, A1 and A2 have been acquitted. The learned Special Judge after considering the evidence produced by the prosecution came to the conclusion that the prosecution had proved that it is A3 who though a phone mechanic, had actually worked as a cashier, had collected cash, had issued bogus receipts and had prepared daily lists by not including the said money in them and therefore it had to be presumed that the accused had converted that money into his own use, and, as such 4 proceeded to convict and acquit the accused as aforesaid. As regards the evidence of PW10/Sharad Nikarge, the learned Special Judge observed, that he had stated that the accused was the person to whom he had paid Rs.2000/- and his evidence was not at all shaken in cross-examination, and, therefore it was proved by direct evidence that A3 had received Rs.2000/- from the said PW10/Sharad Nikarge for giving him a new telephone connection and had issued him a receipt which was produced as Exh.68 colly and which was proved by the evidence of PW37/Santosh A. Gad. 6. Shri Arun Bras De Sa, the learned Counsel appearing on behalf of A3 submits that the accused was just a Phone Mechanic with no knowledge of accounts and that it was the duty of A-1 and A-2 to have tallied the accounts which was not the job of the accused and in case accused Nos.1 and 2 were not the conspirators A3 could not have been convicted and ought to have been given benefit of doubt. Learned Counsel points out that the substratum of the case of the prosecution was a joint conspiracy between all the three accused and the prosecution having failed to prove that there was any conspiracy between A-1 and 5 A-2 with A-3, benefit of doubt ought to have been given to A3. Learned Counsel next submits that A3 does not dispute the signatures on the receipts and at no time as a phone mechanic he was entrusted with any money due to the department and at the highest the case against A3 would be one of negligence in not accounting properly the money received. Shri Bras De Sa, learned Counsel has also submitted that the case of the prosecution would not come under any of the provisions of the Prevention of Corruption Act, 1988. 7. On the other hand, Shri C. A. Ferreira, the learned Public Prosecutor has submitted that the prosecution evidence has been meticulously dealt with by the learned Special Judge, particularly in paras 10, 13 and 57 of the Judgment and the evidence referred to therein shows that it is A3 who accepted the amounts on behalf of the department and did not account for the same and on the contrary falsified the accounts. Learned Public Prosecutor has further submitted that A3 has not been convicted under Section 120-B, I.P.C. and only because A-1 and A-2 have been acquitted for an offence under Section 120-B and for offences under other Sections for which they were charged it does not 6 mean that the case against A3 should fail. In this context, Shri Ferreira, learned Public Prosecutor has placed reliance on the decision of the Constitution Bench in the case of Willie(William) Slaney v. State of Madhya Pradesh(AIR 1956 SC 116/CDJ Law Journal 1955 SC 033) and Bimbadhar Pradhan v. State of Orissa(AIR 1956 SC 469/CDJ 1956 SC 091). 8. Learned Public Prosecutor has also placed reliance on Ratanlal & Dhirajlal's, The Indian Penal Code page 608, wherein it is stated that it is not essential that more than one person should be convicted of the offence of criminal conspiracy, and it is enough if the Court is in a position to find that two or more persons were actually concerned in the criminal conspiracy. It is also stated therein that though there must be plurality of conspirators, it is not necessary that all should be brought to trial together. One person may be indicted, alone, for conspiring with other persons, who are not in custody, or who are even unknown to the indictors(indicted?). Indeed, some of the conspirators may be unknown to the rest, provided all be acting under the directors(directions?) of one leader. 7 9. There is no appeal filed against the acquittal of accused Nos.1 and 2. 10. To prove the charge of misappropriation of Rs.32,000/- paid by 31 subscribers, the prosecution examined 27 of them whose names are found in para 8 of the Judgment of the learned Special Judge and others who were not examined have been referred to in para 33 of the Judgment. As regards misappropriation of Rs.5,040/- paid by 12 telephone subscribers, the learned Special Judge have mentioned their names in para 25 of the Judgment. 11. As regards misappropriation of Rs.92,000/-, I need only refer to the evidence of three witnesses, to avoid duplication. 12. PW1/Somnath Lotlikar stated that on 17-12-1998 he had applied for the new telephone connection to be installed at his residence at Guirim, and he had paid Rs.3000/-, and he was issued a receipt for having received the amount. He further stated that he had handed over the said receipt vide Memo dated 12-12-2000 to the C.B.I. He had identified his signature on the application for connection dated 8 17-1-2001, on the demand note issued to him dated 17-12-1998 and on the receipt No.41 of Book MH O6 for Rs.3000/- along with the Memo under which the said demand note was issued. In cross-examination, he has stated that only one person was present at the cash counter and the person who had received the cash had also issued the receipt. He had denied the suggestion that he had not paid the cash or that he was not issued the receipt. The said documents produced by him were marked as Exh.30 colly. PW37/Santosh Gad who was working as Telephone Operator has identified the signature of A3 on the said documents, particularly the receipt at Q.38. The specimen signatures of A3 were taken in the presence of PW45/Pundalik Datta Naik on 2-4-2002 and were marked as S-1 to S-85 and were produced at Exh.295, and PW41/Narinder Singh who is the Deputy Government Examiner of question documents has stated that the person who wrote S1-S85 also wrote Q.34 and Q.38 which is the duly signed receipt given to PW1/Somnath Lotlikar by accused No.3 and although learned Counsel on behalf of the accused has stated that the accused No.3 does not dispute his signature, independently of that, the prosecution has proved that PW1/Somnath Lotlikar, in order to obtain a new telephone connection had paid an amount of Rs.3000/- to accused No.3. 9 13. PW3/Suryakant Naik is another applicant for a new telephone connection who had also stated that he had paid cash of Rs.3000/- and was given a demand note and a receipt, both dated 28-9-1998 for having received the said amount. He further stated that he had received a letter from the CBI to produce the documents and accordingly he produced the same and identified his signature on the Memo dated 12-12-2000, the demand note dated 28-9-1998 and the receipt No.294 of Book MHT 06 dated 28-9-1998. He had stated that he had gone personally to the said Office to make the said payment and the person who had received the money at the counter had also issued the receipt and that he got the new connection in the year 2000. In cross- examination by A3 he denied the suggestion that he was not issued any receipt by the concerned clerk who had received the said amount. The aforesaid documents were produced as Exh.37 colly. As already stated, the evidence of this witness is also corroborated by PW37/Santosh Gad, PW45/Pundalik Datta Naik as well as by the evidence of PW41/Narinder Singh who is the Deputy Government Examiner of Question documents. 14. PW10/Sharad Nikarge who is a retired Primary teacher had stated that he had also applied for a telephone connection and at the 10 relevant time there was only one person present in the office. He asked the said person to give him a form and charged him Rs.10/- and that he could not fill the form in English and he asked the person to fill the form and he handed over to him a sum of Rs.2000/- and the said person told him that cash could be paid only during morning hours and called him on the next day to collect the receipt. He identified A3 as the person who was present in the office, who filled his form and told him his name as Khot and when he went on the following morning he was told that Khot had not come to office and he went on the following Wednesday and met A-3 who handed over the demand note and the receipt. He further stated that he did not get connection for almost two years although his number on the wait list was 3189 and he had made inquiries and found that connections were already released upto wait list No.3195, and he was asked to make an application stating that his connection was not released, and thereafter he was given a telephone connection. He stated that he was called to the CBI Office and he handed over the demand note dated 25-2-2008, receipt no.1 of Book No. A-73101, copy of letter dated 13-3-2000 vide Memo dated 16-3-2001 which documents he produced as Exh.68 colly. In cross-examination by A-3 he stated that he was a non-matriculate having done upto standard XI in Marathi medium. In 11 further cross-examination he stated that he did not know the first name of A3 nor his father's name. He denied the suggestion that A3 did not give his name as Khot nor did he hand over the sum of Rs.3000/- to him. This witness has not only identified A3 but his evidence is otherwise corroborated by the evidence of PW37/Santosh Gad as well as the evidence of PW41/Narinder Singh who have independently identified the signature of A3 on the writings of A3 at Q.149 and signature on the receipt at Q.152. It is therefore obvious that it is accused No.3 who had received the amounts paid by the aforesaid three witnesses, like others. It was not the case of A3 that after having received the said amounts he handed over the same either to A-1 or A-2 or accounted the same in the daily list which were prepared or whether he deposited the same into the account of the department. The only inference therefore is that A3 collected the said amounts and misappropriated the same. The evidence of these witnesses has been referred to by the learned Special Judge in para 10 of the Judgment and the learned Special Judge has rightly observed that it is A3 who had received Rs.2000/- from him for giving new telephone connection and had issued him the receipt for Rs.2000/- which was at Exh.68 colly. No reasons have been assigned nor there could be any, to disbelieve, the evidence of the aforesaid witnesses. 12 15. PW8/Ulhas Kamat is the neighbour of A3 and whose families knew each other. The wife of PW8/Ulhas knew the wife of A3 as the former was a primary teacher in New Goa Primary School where the children of A3 were studying and he used to pay their telephone bills through A3 who was working in the Telephone Office at Mapusa by handing over to him the money and the bill and who used to give the receipt after making the payment. He stated that he had handed over to A3 Bill No.7336311 of his telephone along with cash of Rs.324/- for the purpose of making the payment and that A3 after making the payment had handed over to him receipt No.73101 of Book No.10. He stated that he got another bill showing the arrears of previous bill and, therefore he went to the house of A3 and inquired from him as to how the arrears were shown and he showed A3 the said receipt No.73101 whereupon A3 told him that there might be some mistake and promised to verify and PW8/Ulhas Kamat handed over to accused No.3 the said Bill No.9477702 and handed over Rs.313/- to him. He further stated that he received the third bill bearing No.106662666 wherein the arrears of the first bill of Rs.334/- were again shown and he went to Mapusa Post Office paid the amount of Rs.319/- and got a receipt No.166 and thereafter he went to the Mapusa Office and inquired why 13 the amount of Rs.334/- was shown as arrears when he actually paid the same within due date and he showed the telephone bill and the receipt to A2 who promised him that he would look into the matter and he further stated that after some days the wife of A3 handed over to him a receipt dated 16-11-1998 which showed that the amount of Rs.334/- was paid. In cross-examination by A3 he stated that he was working as a Senior Officer(Audit) at Mapusa Urban Bank. He denied the suggestion that he was paying the bills personally. He also denied the suggestion that he had not handed over Rs.334/- along with Bill No.736311 to A3. He also denied the suggestion that the wife of A3 had not handed over to him the receipt Exh.58 dated 16-11-1998 for having paid Rs.334/-. He also denied that he was deposing falsely. The evidence of this witness has been dealt with by the learned Special Judge in para 26 of the Judgment and the learned Special Judge has observed, and in my view rightly, that there was nothing in the cross-examination of PW8/Ulhas Kamat to render his evidence as unreliable as he had no reasons to tell any lies. The only inference that can be drawn from the evidence of PW8/Ulhas Kamat is that A3 initially misappropriated the amount of Rs.334/-, and subsequently paid the same. The evidence of other such witnesses like PW8/Ulhas Kamat, PW9/Tulsidas Naik, PW30/Paul Mendes, PW31/ 14 Eleena R. D'Souza, PW32/Aurora Fernandes and PW33/Sadashiv Anand Rao have also been dealt with by the learned Special Judge in paras 27, 28, 29, 30 and 31 of the Judgment. The evidence of falsification of accounts under Section 477A has been dealt with by the learned Special Judge in para 51 of the Judgment with reference to the evidence of PW37/Santosh Gad who stated that the carbon copy of receipt No.299 of Book No.MHT-01 which was issued towards payment of telephone Bill No.2521179 was Rs.332/- whilst the original receipt produced at Exh.109 was for Rs.3000/-. PW37/Santosh Gad had stated that the original as well as the duplicate receipt was in the handwriting of A3 and he has misused the same. It is not necessary to refer to the further evidence of PW37/Santosh Gad which has otherwise been referred to in para 51 of the Judgment by the learned Special Judge. 16. Admittedly, A3 has not been convicted for any criminal conspiracy, and in fact has been acquitted under Section 120-B, I.P.C. In my view, there can be no principle of law to say that because accused Nos.1 and 2 have been acquitted of criminal conspiracy the acquittal of A3 should follow. The evidence led by prosecution shows that it is A3 alone who received the money and did not account for the same and in 15 doing that there was no agreement between them to commit the offences. 17. The case of Bimbadhar Pradhan v. State of Orissa(AIR 1956 SC 469/CDJ 1956 091) was a case where the appellant was the only person who was convicted under Section 120-B, amongst the five persons placed on trial. The case shows that the accused was also acquitted under Sections 409 and 477-A, I.P.C. The Court held that it is not essential that more than one person should be convicted of the offence of criminal conspiracy. It is enough if the Court is in a position to find that two or more persons were actually concerned in the criminal conspiracy. If the Courts below had come to the distinct finding that the evidence led on behalf of the prosecution was unreliable, then certainly no conviction could have been based on such evidence and all the accused would have been equally entitled to acquittal. 18. The Constitution Bench in Willie(William) Slaney v. State of Madhya Pradesh(AIR 1956 SC 116) was set up to find out whether there was any conflict of view between Nanak Chand v. The State of Punjab((1955) 1 SCR 1201) and Suraj Pal v. The State of U.P.((1955) 1 SCR 1332) and if there was one to determine it. 16 19. In the first case(Nanak Chand), it was held that where there was a charge against an accused under Section 302 r/w Section 149, if Section 149 of I.P.C. was held inapplicable to the facts the omission to have specific charge under Section 302 amounted to an illegality. In the second case(Suraj Pal), the view was that it was a mere irregularity, curable if no prejudice was caused to the accused. The Constitution Bench then held that there cannot be any broad proposition that where there is no charge, the conviction would be illegal, prejudice or no prejudice. The Apex Court observed that on the other hand, it was suggested that the wording of Section 535 of the Code of Criminal Procedure was sufficiently wide to cover every case of 'no charge'. It was said that it applies also to the case of a trial in which there has been no charge of any kind even from the very outset and Their Lordships held that they were unable to agree that Section 535 of the Code of the Criminal Procedure is to be construed in such an unlimited sense, and observed that this group of sections relating to absence of a charge, namely, sections 225, 226 and 232 and the powers exercisable thereunder, are with reference to a trial which has already commenced or taken place. They would, therefore, normally relate to errors or omissions which occur in a trial that has validly commenced. There is no 17 reason to think that Section 535 of the Code of Criminal Procedure is not also to be understood with reference to the same context. There may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code. In such case the trial would be illegal without the necessity of a positive finding of prejudice. By way of illustration the following classes of cases were mentioned:- (a) Where there is no charge at all as required by the Code from start to finish – from the Committing Magistrate's court to the end of the Sessions trial; the Code contemplates in section 226 the possibility of a committal without any charge and it is not impossible to conceive of an extreme case where the Sessions trial also proceeds without any formal charge which has to be in writing and read out and explained to the accused (section 210(2) and section 251(A) (4) and section 227). The Code requires that there should be a charge and it should be in writing. A deliberate breach of this basic requirement cannot be cured by the assertion that everything was orally explained to the accused and (by?) the assessors or jurors, and there was no possible or probable prejudice. (b) Where the conviction is for a totally different offence from the one charged and not covered by sections 236 and 237 of the Code. On a charge for a minor offence, there can be no conviction for 18 a major offence, e.g. grievous hurt or rioting and murder . The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality. Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention, and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant. 20. The Apex Court also stated that the omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases, it would be so serious that by itself it would vitiate a trial 19 and render it illegal, prejudice to the accused being taken for granted. In the main, the provisions of Section 535 would apply to cases of inadvertence to frame a charge induced by the belief that the matter on record is sufficient to warrant the conviction for a particular offence without express specification, and where the facts proved by the prosecution