BAIL SLIP Crl.Appeal NO.189 of 2004 The Appellant/Accused 3 namely Ravichandran was directed to be released on bail as per the order of this Court dated 13.2.2004 and made in Crl.M.P.No.189/2004. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.07.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Criminal Appeal Nos.189, 170, 215 and 137 of 2004 1.Shanmugasundaram 2.Palanisamy 3.Ravichandran 4.S.Suseela 5.C.Rajeswari .... Appellants in Crl.A.No.189 of 2004 1.Shanmugasundaram 2.S.Susila .... Appellants in Crl.A.No.170 of 2004 1.Palanisamy .... Appellant in Crl.A.No.215 of 2004 1.C.Rajeswari Secretary The Coimbatore Taluk Harijana Co-operative Stores Ltd., C.C.No.2223, Coimbatore .... Appellant in Crl.A.No.137 of 2004 Vs. State, rep.by Inspector of Police CSCID, Coimbatore .... Respondent in all Criminal Appeals Prayer (in all appeals): Appeals filed under Section 374 of the Code of Criminal Procedure r/w 12-AB of Essential Commodities Act, 1955, against the Judgment dated 19.01.2004 and made in S.T.C.No.4 of 2001, on the file of the learned Special Judge (under Essential Commodities Act, 1955) and the Additional District and Sessions Judge, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore. For Appellants : Mr.K.Kalyanasundaram for A2 in Crl.A.No.189 of 2004 Mr.C.S.Dhanasekaran for A3 in Crl.A.No.189 of 2004 Mr.K.V.Sridharan for Mr.S.Samual for A4 & A5 in Crl.A.No.189 of 2004 Mr.K.V.Sridharan for Mr.S.Samual in Crl.A.No.170 of 2004 Mr.K.Kalyanasundaram in Crl.A.No.215 of 2004 Mr.K.V.Sridharan in Crl.A.No.137 of 2004 For Respondent : Mr.A.N.Thambidurai (in all appeals) Additional Public Prosecutor C O M M O N J U D G M E N T Challenges are made in these criminal appeals to the Judgment dated 19.01.2004 and made in S.T.C.No.4 of 2001, on the file of the learned Special Judge (under Essential Commodities Act, 1955) and the Additional District and Sessions Judge, Coimbatore, convicting the accused 1 to 4 under Clause 6(2)(3) and Clause 14(1)(c) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, r/w Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentencing each, to suffer three months of simple imprisonment for each count (three counts) and also to pay a fine of Rs.3,000/-, in default to suffer two weeks of simple imprisonment; convicting the fifth accused under Clause 6(2)(3) and Clause 14(1)(a) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, r/w Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and sentencing to suffer three months of simple imprisonment and also to pay a fine of Rs.3,000/-, in default to suffer two weeks of simple imprisonment. 2. Being aggrieved by the conviction and sentence, accused 1 and 4 have preferred the appeal in Crl.A.No.170 of 2004, 2nd accused has preferred the appeal in Crl.A.No.215 of 2004 and the 3rd accused has preferred the appeal in Crl.A.No.189 of 2004 (Originally the appeal was filed on behalf of accused 1 to 5. When the appeal came up for admission, the learned counsel for the appellants had made an endorsement on the reverse of the memorandum of appeal stating that the appeal in respect of A1, A2, A4 and A5 was not pressed and https://hcservices.ecourts.gov.in/hcservices/ restricted the appeal in respect of A3. In view of the endorsement made by the learned counsel for the appellants, the appeal in respect of A1, A2, A4 and A5 was dismissed as not pressed. The 5th accused has preferred the appeal in Crl.A.No.137 of 2004). 3. All these criminal appeals have been emerged out of one and the same Judgment dated 19.01.2004 and made in S.T.C.No.4 of 2001 and therefore they have been clubbed together and heard in common. Hence, these appeals are being disposed of in this common Judgment. 4. The crux of the facts, which are absolutely necessary for the disposal of these appeals, are as under: 4.1. That on 14.03.1997, at about 10.00 a.m. one Mr.Alexandar Sam Jacob, who was the Assistant Rationing Officer Circle-1, along with the Civil Supplies Police, Flying Squad, Tahsildar, Deputy Tahsildar and others had made a surprise visit to the Fair Price Shop No.62, running by Coimbatore Taluk Harija Co-operative Stores Limited at Puliakulam in Coimbatore and inspected the various records maintained by the shop for the period from February 26th to 14th March, 1997 including the stock register. Whileso, he had found the following irregularities and deficiency in stock. As per the Stock Book (Ex.P8), the following essential commodities must be available in the shop as on 10.03.1997: i. Boiled rice fine quality 18.94 Quintals ii. Boiled rice ordinary quality 6.02 Quintals iii.Extra boiled rice 10.38 Quintals --------------- 35.34 Quintals --------------- 4.2. But, as per the inspection made by the District Collector (C.W.1) on 19.03.1997 at 09.00 a.m., he had found that excepting the kerosene, the other essential commodities were not available. Therefore, the quantity of deficiency in rice was found to be 35.34 Quintals. 4.3. It was also found that on 12.03.1997, the following qualities of rice were found to have been sold in Shop No.62: i. Fine quality boiled rice 24.22 Quintals ii. Ordinary quality boiled rice 3.02 Quintals iii.Extra boiled rice 10.38 Quintals --------------- 37.62 Quintals --------------- https://hcservices.ecourts.gov.in/hcservices/ But, no bills were available for the sale of this 37.62 Quintals of rice in the shop. 4.4. On 12.03.1997, the bills bearing numbers 89667 to 89820 were available in the shop. As per these bills dated 12.03.1997, 956 kgs. of rice, 203 kgs. of sugar, 100 kgs. of wheat were found to have been sold. But, in the chitta sent to the Head Office with receipt pertaining to 12.03.1997, 22.14 Quintals of rice, 203 kgs. of sugar, 100 kgs. of wheat were found to have been sold in the shop No.62. 4.5. In a sheet written to the Head Office, the following essential commodities were found to have been sold: i. Rice 37.62 Quintals ii. Sugar 203 Kgs. iii.Wheat 100 Kgs. iv. Ravai 10 Kgs. 4.6. Correct entries have not been made in the register. It was also found that the essential commodities were sold to non- cardholders as no bills were available. Apart from the original stock register already existing in the shop, another new stock book was found in the shop for the period 01.03.1997 onwards. Discrepancies were found in the accounts available in the stock register as well as in the list sent to the Head Office. 4.7. When the third accused, who was the salesman of the above said shop replied to a question he had stated that the employees of the shop were acting as per the orders of the Director Susheela (A4) and her husband A.Shanmugasundaram (A1). He had also replied that the collected money was given either to the fourth accused or to the first accused, who is none other than the husband of the fourth accused. He has also replied that the first and fourth accused were giving instructions for the list sent to the Head Office every day regarding the commodities sold. He had also disclosed that even if more commodities were sold in a particular day, a lesser account would be sent to the Head Office. 4.8. Only after the inspection of C.W.1, the District Collector on 12.03.1997, the account of the Essential Commodities and cash had been collected as if they were maintaining proper accounts till that day. From the above said facts, it was understood that temporary misappropriations were made by the accused till that day. Though the first accused was not connected to this shop, since he being the husband of the fourth accused, who is the Director of the Shop No.62, he had taken the main role in the above said irregularities along with A4 and two other accused. https://hcservices.ecourts.gov.in/hcservices/ 4.9. On receipt of the complaint under Ex.P1, from the Assistant Rationing Officer Circle-1, Coimbatore, P.W.5, Inspector of Police, Civil Supplies C.I.D. Coimbatore had registered a case in Crime No.133 of 1997 on 14.03.1997 and took up the investigation. He had examined P.W.1 to P.W.4 and recorded their statements. He had verified the ledger folio and daily sales register, sales chit etc., and after the completion of his examination, he had handed over the case records to P.W.6, who is the Inspector of Police attached to the Civil Supplies C.I.D. for further investigation. After the completion of his investigation, and on verification of records and other materials, he had laid a final report against the accused 1 to 5 on 22.06.1998 under Clause 6(2), 6(3) and 14(1)(c) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 r/w Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. 5. The Trial Court on hearing the accused as well as the learned Special Public Prosecutor had framed necessary charges. When the ingredients of the charges were explained and questioned, the accused 1 to 5 had pleaded innocent and claimed to be tried and hence they were put on trial. The prosecution in order to establish it's case, has totally examined six witnesses and during the course of their examination Exs.P1 to P31 were marked. Apart from this, the District Collector, who made a surprise visit to the Shop No.62 was examined as C.W.1. 6. The incriminating circumstances arising out of the testimonies of the prosecution witnesses were explained to the accused 1 to 5 and they were also examined as required under Section 313(1)(b) of the Code of Criminal Procedure. For that they had replied that they had nothing to do with the alleged offences and that this case was foisted against them. Neither oral nor documentary evidence was adduced on behalf of the accused. 7. On evaluating the evidences both oral and documentary, the Trial Court has found the accused 1 to 5 guilty and sentenced as aforestated. 8. Being aggrieved with the conviction and sentence imposed on them by the Trial Court, they have approached this Court by way of these appeals. 9. Heard Mr.K.Kalyanasundaram, Mr.C.S.Dhanasekaran, Mr.K.V.Sridharan, Mr.S.Samual, learned counsels for the appellants and Mr.A.N.Thambidurai, learned Additional Public Prosecutor for the https://hcservices.ecourts.gov.in/hcservices/ respondent. 10. It appears from the records that one Mr.Alexandar Sam Jacob, who was the Assistant Rationing Officer Circle-1, had set the law in motion by lodging the complaint under Ex.P1. It was brought to the notice of this Court, when the appeals were taken up for hearing, that he had passed away even prior to the commencement of the trial and therefore he was not able to be summoned and examined. It is pertinent to note here that P.W.5, who is the Inspector of Police, attached to the Civil Supplies CID., would depose that when the complaint under Ex.P1 was lodged, the statements of the first and third accused were enclosed along with the complaint. The Trial Court in Paragraph No.15 of the Judgment has observed that since Mr.Alexandar Sam Jacob had passed away, the alleged statements recorded from the first and third accused were left unproved and as such the alleged statements said to have been recorded from A1 and A3 were not able to be countenanced. 11. P.W.1 Mohan and P.W.2 Venkatachalam were working as Supply Assistance in Coimbatore Co-operative Sales Society. P.W.1 would state that on 26.02.1997, he had supplied forty eight bags of rice, nine bags of rice, three bags of wheat, two bags of ravai and two bags of maida to the Puliakulam Co-operative Harijan Fair Price Shop No.62, through the lorry bearing registration No.MDM 2507. Though he had stated that he had supplied the above said commodities through CCS invoice, no such invoice were produced. He has also deposed that the above said commodities were delivered to A3 Rajendran and obtained his signature towards the acknowledgement. But, this was not also not produced. 12. It is revealed from his cross-examination that as per the order of Sub-registrar of Coimbatore Co-operative Sales Societies he had delivered the said commodities. But, the order has not been produced here. Again, he would state that one Special Officer Rajamanickam had ordered to supply the above said commodities to Puliakulam Co-operative Harijan Fair Price Shop. But, this order has also not been produced. 13. It is also revealed from his evidence that necessary allotment should have been made by the Taluk Supply Officer and then only the commodities could be delivered to the particular shop. 14. P.W.4 is the Sales Assistant of the Coimbatore Co-operative Sales Societies. He would state that on 10.03.1997, when he was in employment, he had delivered 14 Quintals of sugar, 30 Quintals of boiled rice, 7 Quintals of wheat, 4 bags of maida and one bag of ravai with the assistance of one Mr.Krishnan, who was the driver of https://hcservices.ecourts.gov.in/hcservices/ the lorry bearing registration No.MSW 5286 to A2 Palanisami, who was the measurer of the Puliakulam Harijan Co-operative Fair Price Shop No.62 through invoice No.282/2000 under Schedule No.0111320. But, no evidence was forthcoming from the side of the prosecuting agency to establish the fact. P.W.2 has also not admitted this fact. 15. P.W.3, Jayaraj, was working as a driver in the Coimbatore Co-operative Sales Society. He was stated that on 05.03.1997, at about 05.30 p.m., he had taken 32 bags of boiled rice weighing about 24 Quintals from the Poosaripalayam Civil Supplies Godown and delivered to the Puliakulam Harijan Co-operative Fair Price Shop No.62. The above said bags were received by the first accused Shanmugasundaram and got the acknowledgement also. No satisfactory legal evidence was led to establish this fact. 16. P.W.4 was also working as a driver. He would state that he was called by the movement clerk Mohan, P.W.1 over telephone and asked to come to Poosaripalayam Civil Supplies Godown. From there, he had taken 34 Quintals of boiled rice, 14 Quintals of raw-rice, 9 Quintals of sugar, 3 Quintals of wheat, 1 Quintal of ravai and 1 Quintal of maida in the lorry bearing registration No.MDM 2557 and delivered to the third accused Ravichandran, who was present at Shop No.62 at Puliakulam. The evidence of P.W.4 has also not been satisfactorily established. In his cross-examination, he would state that one Muthiah, Supervisor had prepared bills for the laden of 62 bags from the above said godown. The supervisor Muthiah was not examined here. Such bills were also no produced. 17. On careful appreciation of the testimonies of the prosecution witnesses, this Court finds that the whole prosecution case hinges around the evidence of P.W.5. It is manifest that he had registered the case and taken up the investigation. From the conduct of P.W.5, this Court finds that he had played dual role. As seen from the evidence of P.W.5, based on Ex.P1 complaint, as on 10.03.1997, the following essential commodities must be available in the shop: i. Boiled rice fine quality 18.94 Quintals ii. Boiled rice ordinary quality 6.02 Quintals iii.Extra boiled rice 10.38 Quintals --------------- 35.34 Quintals --------------- But, he would state that as seen from Ex.P8 stock register no such quantity was found as on 10.03.1997. He would state further that during the course of his investigation, he came to know that on 12.03.1997 the Civil Supply Head Quarters was informed through documents stating that as per the bill 956 Kgs., of rice and as per https://hcservices.ecourts.gov.in/hcservices/ sales chit 2,214 Kgs of rice were sold out. 18. In this connection, he would state that there was a lot of differences between the particulars sent to the Civil Supply Head Quarters and the particulars seen from the stock register (Ex.P8). Apart from this, he would state that on the instigation of A1 and A4, A3 had created a duplicate stock register under Ex.P10 apart from original stock register Ex.P8. He would state further that opening stock was not found in Ex.P10 duplicate stock register and subsequently by way of final stock, it was found to have been stated that 3,000 Kgs of rice was found in stock. The relevant entry, in this connection, was marked as Ex.P29. 19. In his cross-examination, he would state that in the fair price shop, the salesman would be looking after the day-to-day affairs of the shop and he would be maintaining the daily accounts of the shop. He has also admitted that the essential commodities would be weighed by the measurer in fair price shop. To answer for a question in his cross-examination he had stated that he did not know that the sale proceedings of the essential commodities would be collected by the third accused and directly entrusted with the special officer. 20. He has also admitted in his cross-examination that the family card numbers of the cardholders have not been specified in this case. He would go one step further and admitted that he had not produced any evidence to show that the essential commodities were sold to the non-cardholders. 21. He has also answered to a question in his cross-examination when he was in the witness box that he could answer only after seeing the bye-law of the fair price shop as to whom the commodities would be entrusted? He has also recovered and produced the bye-law of the fair price shop No.62. Exs.P6 and P7 are the trip sheets pertaining to the G.V.R. Goods Vehicle bearing registration No.MDM 2507 and MW 5286. 22. As discussed earlier, neither the family cardholders nor the non-cardholders were examined by P.W.5 so as to substantiate the case of the prosecution. 23. From the evidences of the prosecution witnesses and documentary evidences, this Court is able to find that no case is made out against the second accused. Further, P.W.5 himself has admitted in his cross-examination that no indictment was made in the complaint under Ex.P1 against the fifth accused. https://hcservices.ecourts.gov.in/hcservices/ 24. The Coimbatore District Collector was examined as C.W.1. From his evidence, it is revealed that he had visited the Puliakulam Harijan Co-operative Fair Price Shop No.62 on 10.03.1997, while he was on the way. He would state further that when he was proceeding by that side, he happened to find a crowd in front of the shop and he got down from the car and enquired the people. Whileso, he was informed that the essential commodities were not properly distributed to the public and he was also able to find that the kerosene was not distributing to the public properly. To that effect, he had also made an entry in the inspection report, which was marked as Ex.P13. 25. In Ex.P13, he has stated that on 10.03.1997, he had visited the shop at 09.00 a.m. While so, the shop keeper was absent. Though the shop was opened, the cash etc., in the drawer. Kerosene was distributed at two points. At one point, cut-drum was not present and the other point for the cut-drum was not present. He had also stated that no other stock was available in the shop. He had also made an entry to that effect that one Shanmugasundaram A1, had stated that C.C.M.S., which was supposed to lift and supply, a stock was not actually supplied though the money was remitted. 26. It is apparent from his cross-examination that on the basis of the entry, under Ex.P13, he being the Collector of Coimbatore District, had not initiated any action. In sofar as P.W.6 is concerned, he had just laid the final report on the basis of the investigation conducted by P.W.5. 27. The testimonies of P.W.5 and P.W.6 are not sufficient to bring home the guilt of the accused. The Trial Court has found that there are a lot of contradictions and conflictions between the entries of the registers made in Exs.P8, P10, P14, P15, P16, P17, P18 and P20. As adumbrated supra, this Court has gone through the Judgment of the Trial Court completely and is of view that the Trial Court has not approached the facts in issue in this case with proper perspective. Though several witnesses have been named by the prosecution witnesses, P.W.5 being the investigating officer has not examined and recorded their statements, so as to substantiate the case of the prosecution. 28. In this connection, the learned counsel for appellants in Crl.A.No.189 of 2004 have contended that the prosecution witnesses were not competent to give evidence because they had not produced their authenticity with regard to the designation. He has also urged that the non-examination of the ration cardholders in respect of Shop No.62 has shaken the very root of the prosecution case. Further, he would submit that no reliance could be placed by the prosecuting agency and therefore the findings of the Trial Court and the https://hcservices.ecourts.gov.in/hcservices/ conviction and sentence imposed on the appellants have to be necessarily set aside. 29. The learned counsel for the appellants (A1 and A4) in Crl.A.No.170 of 2004 would contend that the fourth accused was the Director of the Co-operative Societies and that the first accused being her husband was allowed to work in the ration shop during the relevant period. He had also submitted that the Tahsildar and other officials, who had inspected the shop along with the complainant were not examined as a witness by the prosecuting agency for the reasons best known to them. He would submit further that P.W.1 to P.W.4 were the departmental witnesses and as such no credence could be attached with their testimonies. 30. In sofar the instant case is concerned, the prosecution has alleged that the appellants have violated the clauses viz. 6(2), 6(3) and Clause 14(1)(c) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, r/w Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. 31. Clause 6(2) and 6(3) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 enacts as follows: Clause 6 (2): The authorised dealer with whom the family card is registered shall on production of such card by the holder, make necessary entries in the card and supply the scheduled commodities not exceeding the quantities for which he is eligible. Clause 6 (3): The authorised dealer shall not supply the scheduled commodities against any family card not registered with him or to non-card holder. It is significant to note here that P.W.5 had himself admitted that neither the family cardholders nor the non-cardholders were examined in this case. 32. Clause 14(1)(a)(c) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 enacts as follows: 14. Further condition to be observed by the authorised retail shops- (1) Every authorised dealer shall - (a) be held responsible for all the acts of commission and omission of his partners, agents, servants and other persons who are allowed to https://hcservices.ecourts.gov.in/hcservices/ work in the shop. (b) ............... (c) always maintain adequate stocks of the scheduled commodities. 33. It is also more relevant to refer Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, which enacts as follows: 7. Penalties (1) If any person contravenes any order made under section 3,- (a) he shall be punishable,- (i) ............... (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term not less than three months. 34. With regard to the entries made in various registers, which were marked in this case, the learned counsel has taken umbrage to the proviso to Section 34 of the Indian Evidence Act, 1872. Section 34 of the Indian Evidence Act, 1872 reads as follows: S.34. [Entries in books of account, including those maintained in an electronic form] when relevant.- Entries in books of account, including those maintained in an electronic form regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. 35. In this connection, the learned counsels for the appellants have placed reliance upon the decision in Central Bureau of Investigation vs. V.C.Shukla and Others, 1998 SCC (Cri) 761. In this case, a Full Bench of the Hon'ble Supreme Court has held that the entries in books