THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.1183 OF 2004 DATED: 20-08-2010 Between Gudivada Srinivas …Petitioner-A1 And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.1183 OF 2004 ORDER: This revision under Sections 397 and 401 Cr.P.C. is directed against the judgment, dated 16-07-2004, in Crl.A.No.16 of 2001, on the file of the VIII Additional Sessions Judge,(Fast Track Court), Vijayawada. 2. Brief facts, that are necessary for disposal of the present revision may be stated as follows: P.W.1 is working as Personnel Manager in UMS Group of Industries, Head Office at Coimbatore and P.W.2 is working as Branch Manager in Vijayawada Branch Officer and under them, A1 is working as Accounts Assistant in UMS Radio Factory, Vijayawada. During the tenure in P.W.1’s branch office at Vijayawada, A1 received huge amounts towards the cost of goods delivered to P.W.6 and several others directly from the dealers and on some occasions from P.Ws. 3 and 4 and another at their convenience. Out of the amounts, A1 misappropriated an amount of Rs.1,22,890/- in cash by depositing only a part of amount on various dates instead of depositing the said amount and A1 had a contract with the State Bank of Mysore, Vijayawada, in which the company is maintaining accounts with A/c No.315. Accordingly, A1 received cost of the goods in cash and shown in the accounts register as DDs and cheques and committed misclassification of accounts. Basing on the bank credit vouchers prepared by A1, A2 to A4 put their signatures and bank seals on the counter foils of DDS and cheques requisition forms, in fact, no cheques were submitted to the bank. A1 filed bogus counter foils of the above said instruments and got the accounts tallied. Thus A1 shared the amounts with A2 to A4. A1 misappropriated cash of Rs.1,65,662/- by way of showing the same as D.D. amounts, which were not actually submitted to the bank. A2 to A4 shared the amounts and in the same manner, A1 misappropriated cash of Rs.81,095/- by way of showing the same as cheques received, which are not actually submitted to the bank and A2 to A4 also shared the amounts. Basing on the report given by P.W.1, police registered a case, investigated into it and after completion of investigation, filed charge sheet. 3. Charges under Sections 477-A, 471, 420 and 408 IPC against A1 and 417 and 420 r/w 34 IPC against A2 to A4 were framed read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 4. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-50. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no evidence. 6. The learned V Metropolitan Magistrate, Vijayawada, after considering the oral and documentary evidence on record, vide judgment, dated 05-02-2001, in C.C.No.417 of 1997, convicted and sentenced A1 to undergo RI for one year and to pay a fine of Rs.1,000/-, in default to undergo SI for month under four counts of the offences punishable under Sections 477-A IPC, 471 IPC, 408 IPC and 420 IPC and further convicted and sentenced A2 to A4 to undergo RI for one year and to pay a fine of Rs.1,000/-, in default to undergo SI for month under two counts of the offences punishable under Sections 417 IPC and 420 r/w 34 IPC. On appeal by A1, the appellate Court, confirmed the convictions and sentences recorded against him. Challenging the same, A1 preferred this revision. 7. Now the point for determination is whether the findings of both the Courts below are legal, proper and correct? 8. Learned counsel appearing for the petitioner-A1 contended that there is no details with regard to amounts received from various customers by the petitioner herein, that the DDs and cheques have not been manipulated in view of the fact that the counter foils have been signed by the concerned bank officials, that there is no fabrication of record or using the forged document as genuine nor caused any loss to the bank, that the trial Court having acquitted A2 to A4 ought not to have convicted the petitioner with the aid of Section 34 IPC and hence, he prays to set aside the convictions and sentences recorded against the petitioner. 9. On the other hand, counsel representing the learned Public Prosecutor contended that the petitioner being the accountant of UMS Group of Industries received certain cash from the customers and instead of depositing the cash, he created bogus DDs and cheques and those cheques have not been realized, that both the courts after elaborate consideration of evidence on record, rightly convicted and sentenced the accused and there are no grounds to interfere with the same. 10. It is not in dispute that the petitioner is working as Accountant in UMS factory from 1989 till the date of lodging the complaint. It is stated that from January, 1992 onwards, cheques and DDS were deposited to current account of UMS group of Industries bearing A/c No.315 and some of the DDS and cheques were not cleared for long time. The account books of the bank would go to show that all the cheques and DDs were deposited in the bank. The allegation is that A1 prepared 15 bogus DDs and 9 office cheques in connivance of A2 to A4. It is in the evidence that counter foils of the cheques and DDs are true and correct and they contain the bank seals. The DDs and cheques alleged to have been fabricated were not filed into Court. It is admitted by P.W.1, who is the Personnel Manager of the UMS group of Industries that whenever any customer paid the amount either by cheque or cash, the same will be entered in the account books. Those account books are the best piece of evidence to show that A1 received the amounts by way of cash from the customers of the company and also with regard to the entries relating to the deposit of cheques or DDs. Even he himself admitted that Exs.P6 to P26 are admitted by bank officials, which pertain to their bank. If the DDs and cheques have not been realized, which according to the prosecution, they were fabricated by the petitioner herein, the prosecution ought to have produced those DDs and cheques into the Court. They should have been sent to the expert for comparison of the handwritings of the petitioner with that of the handwritings found on those DDs and cheques, but the prosecution has not explained as to why those DDs and cheques have not been seized and produced before the trial Court. In the absence of those documents, which allegedly fabricated or created by the petitioner, it cannot be said that there is falsification of record or using forged document as genuine with an intention to cause loss to the UMS factory. These aspects have been completely overlooked. The allegation against all the accused is that all the accused shared common intention with an intention to commit the offences alleged against them. Having acquitted A2 to A4 by the trial Court, the same benefit should have been extended to the petitioner also because one accused cannot be convicted with the aid of Section 34 IPC. For the purpose of invoking Section 34 IPC, there must be two or more persons jointly shared common intention to commit the offence. Such evidence is lacking. The relevant documents, which would reveal about the fabrication or creation of some DDs and cheques have not been seized nor produced before the trial Court. The account books of the company have not been produced to show that the amount covered under Exs.P6 to P26-counter foils have not been realized. Therefore, the findings are not based upon proper appreciation of evidence on record. Hence, the petitioner is liable for acquittal. 11. Accordingly, the Criminal Revision Case is allowed setting aside the judgment, dated 16-07-2004, in Crl.A.No.16 of 2001, on the file of the VIII Additional Sessions Judge,(Fast Track Court), Vijayawada. The petitioner-A1 is found not guilty of the offences with which he was charged and accordingly, he is acquitted of the same. Bail bonds of the petitoner-A1 shall stand cancelled. Fine amount, if any, paid by the petitioner-A1 shall be returned to him. ------------------------------- JUSTICE K.C.BHANU DATED:20-08-2010 Hsd