HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1705 OF 2009 DATE:06.08.2010 Between: Ch. Nageshwar Rao …… Petitioner. And: The State of AP., rep. by PP, High Court of AP …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1705 OF 2009 ORDER: 1. This revision petition is filed by the petitioner/A-6 against order dated 22.09.2009 passed by the Principal Special Judge for SPE and A.C.B Cases, Hyderabad in Criminal MP No.284 of 2009 in C.C.No.31 of 2008 by which the lower court dismissed the petition filed by A-6 under Section 239 Cr.P.C refusing to discharge him. 2. The petitioner/A-6 worked as finance officer in A.P. Health, Medical, Housing and Infrastructure Development Corporation (in short, the Corporation). The case relates to the alleged fraud in purchase of stores including medicines by the Corporation and issuing of cheques after processing bills therefor. According to A-6, the alleged instances of fraud stated in the charge sheet took place during the year 1999-2000 when he did not join in the Corporation and therefore he is not liable to be proceeded with criminally in this case and no charge can be framed against him. There is no dispute that the petitioner joined in the Corporation on 29.05.2000. Apart from filing charge sheet containing about 45 pages, the Special Public Prosecutor filed a lengthy counter for discharge petition in the lower court, running to 13 pages. In that counter as well as in the charge sheet, it is stated that A-6 is connected with items (described as charges) 2, 6 and 7 of the charge sheet and that he is punishable under Section 13(1)(d)(ii)/13(2) of the Prevention of Corruption Act (in short, the Act) and Section 120-B IPC for abusing his official position and for showing peculiar advantage to the suppliers. 3. No doubt, in Soma Chakravarthy v. State[1], the Supreme Court held that at the time of framing of charges, probative value of the material on record cannot be gone into and that some material is enough to frame charges. In State of U.P. v. Uday Narayan[2], the Supreme Court held that the High Court cannot scan and scrutinise evidence and material produced by the prosecution in a revision against dismissal of discharge petition, as if the High Court was sitting in appeal against an order of conviction. In Palwinver Singh v. Balwinver Singh[3], the Supreme Court further held that appreciation or marshalling of evidence is not permissible at the time of framing of charges and that even strong suspicion is enough to frame charges. In State v. P. Suryaprakasam[4], the Supreme Court held that at the stage of framing of charges, the court is required to consider only police report and documents appended with it under Section 173(3) Cr.P.C and that the High Court is not justified in looking the documents filed by the accused and rely upon them to conclude that no offence was committed by the accused. 4. In the light of the above pronouncements made by the Supreme Court, this Court proposes to peruse only contents of the charge sheet/final report filed along with its enclosures and decide whether there i s prima facie case or whether there is semblance of any material against the petitioner/A-6 for framing charges. The petitioner, apart from contending that all the instances of alleged fraud covered by item Nos.2,6 and 7 occurred in the Corporation prior to he joining in that Corporation as Finance Officer, produced copy of G.O.Rt.No.624 dated 15.07.2002 of Health, Medical and Family Welfare (VC.1(II)) Department, Government of Andhra Pradesh which is a relevant as well as undisputable document. The Special Public Prosecutor also did not dispute G.O.Rt.No.624, but contended that even after the said G.O, the Anti Corruption Bureau (in short, the ACB) collected further material and came to the conclusion that A-6 is also liable to be charge sheeted. G.O.Rt.No.624 dated 15.07.2002 reads as follows: “The investigating agency of the Govt. have submitted a report vide letter read above on the allegations of corruption against Sri Ch. Nageswara Rao, Finance Officer, APHMHIDC, Hyderabad. 2. Govt. after careful examination of the discreet enquiry report of the investigating agency hereby drop further action against the above said Officer as the allegations are not held substantiated.” The investigating agency of the government mentioned in that G.O. is none other than the ACB. That G.O. also reads letter dated 15.04.2002 of the Director General, ACB, Hyderabad. It is contended by the Senior Counsel appearing for the petitioner/A-6 that in spite of the said GO, ACB filed this charge sheet against A-6 after waiting till his retirement, so that no sanction for prosecution under Section 19 of the Act is necessary when once the accused retired from service. Charge sheet in the lower court was filed after retirement of A-6 and without any sanction order for prosecuting A-6. Neither in the charge sheet nor in counter filed by the Special Public Prosecutor in the lower court, any instance of passing a single bill by the Corporation after 29.05.2000 is alleged. When the petitioner joined in the Corporation on 29.05.2000, he cannot be responsible much less criminally responsible for the alleged activity which took place in the Corporation prior to he joining in that Corporation. Neither bills relating to Antibiotics nor bills relating to I.V. Fluids were passed by A-6. The cheque for I.V. Fluids to the extent of Rs.32,74,869/- was issued on 29.03.2000. The alleged payment of value of drugs to the suppliers together with taxes and failure to make the payment excluding sales tax and failure to remit sales tax separately, happened prior to A-6 joining in the Corporation. Even with regard to the programme relating to eradication of malaria, the budget and expenditure thereof was in financial year 1999-2000. A-6 was not working in the Corporation during that financial year. The Special Public Prosecutor could not point out single instance of A-6 processing any bill during his working in the Corporation from 29.05.2000 on words much less payment by way of cheque to any supplier. In the absence of any participation for the petitioner/A-6 in the alleged fraud causing loss to the Government, it cannot be said that A-6 conspired with other accused in that regard. Thus, after considering allegations in the charge sheet/final report along with its enclosures and considering averments in the counter to the discharge petition filed in the lower court, this Court is of the view that there is absolutely no semblance of material showing complicity of A-6 in the alleged fraud causing loss to the Government. It is only for that reason and after getting report from ACB, the Government was pleased to drop the proceedings against A-6 and issued G.O.Rt.No.624 dated 15.07.2002. The lower court did not even make any attempt to find out whether there is prima facie case against the petitioner/A-6 for framing charges against him. 5. In the result, the criminal revision petition is allowed discharging the petitioner/A-6 from proceedings in C.C.No.31 of 2008 on the file of Principal Special Judge for SPE and ACB Cases, Hyderabad. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:06.08.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1705 OF 2009 Date:06.08.2010 Gk. [1] 2007(2) SCC (Crl) 514 [2] 1999(4) Crimes (SC) 287 [3] 2009(2) Supreme Court Cases (Crl) 850 [4] 1999 Supreme Court Cases (Crl) 373