THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.33 of 2005 Date:26th April, 2011 Between: The State through Inspector of Police, CBI/SPE rep. by its C.B.I., Hyderabad. …Appellant/Complainant and N.Srinivas Rao S/o.N.B.Ramanamurthy …Respondent/Accused *** THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.33 of 2005 JUDGMENT: This Criminal Appeal is directed against the judgment, dated 07.05.2003, passed in C.C.No.313 of 2000 on the file of XXIII Metropolitan Magistrate, Hyderabad, whereby and whereunder the learned Metropolitan Magistrate found accused N.Srinivas Rao not guilty for the offences under Sections 409, 468, 471 and 477-A of IPC and acquitted him accordingly. 2. The respondent is the accused in C.C.No.313 of 2000 on the file of XXIII Metropolitan Magistrate, Hyderabad. He was put on trial for the offences under Sections 409,468, 471 and 477-A of IPC. 3. The prosecution case in brief is:- a) Accused N.Srinivas Rao worked as Cashier in the office of the Chief Commissioner of Income-Tax, Hyderabad from 08.07.1994 to 27.06.1997. As a cashier his duties were: preparation of pay bills, T.A. bills, disbursement of salaries, leave encashment amounts, deduction of profession tax from the salaries of the staff while disbursing pay and allowances, and remitting the collected amounts in Government Account, receiving cash amounts from the welfare section etc. PW.8 Smt. P.B.T.Sundari, worked as Head Clerk in the office of the Chief Commissioner of Income Tax, Hyderabad, at the relevant point of time. She was on half pay leave in the month of September, October, December, 1996 and January, 1997. However, she was paid full allowances during the said period and therefore, she returned the excess amount drawn by her to the accused. The amounts returned by her towards excess payments received are Rs.3,073/- and Rs.4,173/-. The accused being the cashier received the said amounts. He prepared Exs.P2 and P3 challans. PW.8 was given Photostat copies of the challans, which have been exhibited as Exs.P9 and P10. She produced Photostat copies of the challans as proof of remitting excess amount before PW.5 B.Sunil Kumar, UDC/Cashier, for calculating arrears of her pay and allowances in the month of October, 1997. PW.5 verified the challans and found that the amounts covered under the said challans were not credited to the Government account. PW.1 S.S.Kannan, Additional Commissioner of Income-Tax, (Headquarters) (Administration), Income-Tax Department, Hyderabad, conducted enquiry and found that the accused did not credit the amounts received from PW.8 to the Government account and instead the accused fabricated Exs.P2 and P3 challans to cover up the amounts misappropriated by him. His enquiry further revealed that the accused collected certain other amounts from the welfare fund section and the care taker of the guest house and failed to credit the said amounts to the Government account. He presented Ex.P1 report to the Superintendent, Central Bureau of Investigation, Hyderabad. PW.14 J.Vijayasaradhi, Inspector of Police, C.B.I., Hyderabad, received Ex.P1 report and registered a case in RC 1/98 for the offences under Sections 409, 477-A, 471 IPC and Sections 13(2) r/w.13(1)[c] and (d) of Prevention of Corruption Act, 1988 and issued Ex.P15 FIR. He examined PWs.1 to 12 and recorded their statements under Section 161 Cr.P.C. During the course of investigation, he collected Exs.P2 to P10. He corresponded with the Branch Manager, SBI, Chirag Ali Lane Branch, Hyderabad, and received Ex.P14 reply, wherein, it is stated that the amounts covered under Exs.P2 and P3 challans were not remitted to the government account. He collected specimen handwritings and signatures of the accused and sent them to the handwriting expert for his opinion. On receipt of the opinion of the handwriting expert, he filed a charge-sheet before XXIII Metropolitan Magistrate, Hyderabad. b) The learned XXIII Metropolitan Magistrate, Hyderabad, took the charge-sheet on file as C.C.No.313 of 2000. On appearance of the accused and on furnishing the copies of documents to him, the learned Metropolitan Magistrate examined the accused under Section 239 Cr.P.C. and framed charges under Sections 409, 468, 471 and 477-A of IPC, read over and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. c) To bring home the guilt of the accused for the offences with which he stood charged, prosecution examined 14 witnesses as PWs.1 to 14 and proved 17 documents as Exs.P1 to P17. The plea of the accused is one of total denial of the case. On his behalf, he marked 2 documents as Exs.D1 and D2. Ex.D1 is the letter dated 2.2.2001 seeking permission to verify the challans, Ex.D2 is reminder dated 1.5.2001 to Ex.D1 letter and Ex.D3 is portion in 161 Cr.P.C statement of Pw.8. d) The learned Metropolitan Magistrate, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found that the prosecution failed to show that the accused not remitted the amounts covered under Exs.P2 and P3 challans and thereby proceeded to record acquittal of the accused for the offences with which he stood charged, by judgment, dated 07.05.2003. Hence, this appeal by the State. 4. Heard learned Standing Counsel for CBI appearing for the appellant/State and Sri C.Padmanabha Reddy, learned senior counsel appearing for the respondent/accused. 5. Learned Standing Counsel for CBI appearing for the appellant/State submits that the trial Court failed to appreciate the evidence of PW.5 and PW.8 in right perspective and thereby erred in recording acquittal of the respondent/accused for the offences with which he stood charged. He would also submit that Exs.P2 and P3 challans are prepared by the respondent/accused after receiving the amounts from PW.8 and the said challans do not bear the signatures of any of the bank officials acknowledging the receipt of the amount covered therein, in which case, it is to be inferred that the respondent/accused misappropriated the amounts paid by PW.8 and to cover up the misappropriation, he fabricated Exs.P2 and P3 challans and furnished Photostat copies of the same, which have been exhibited as Exs.P9 and P10, to PW.8. The learned Standing Counsel took me to the evidence of PW.5 and PW.8 very extensively to convince that the conclusions recorded by the trial Court are perverse and therefore, they are required to be set aside and consequently, the respondent/accused is to be found guilty for the offences with which he stood charged. 6. Learned Senior Counsel appearing for the respondent/accused submits that the trial Court considered the evidence brought on record in right perspective and found that the respondent/accused not guilty for the offences with which he stood charged and the reasons given by the trial Court are quite convincing and therefore, the findings recorded by the trial Court do not warrant interference in this appeal. The learned senior counsel would also contend that the respondent/accused made a request for verification of the challans, but PW.7 refused to accord permission for verification and in which case, it cannot be said with certainty that the amounts covered under Exs.P2 and P3 challans are not accounted for to the government. Learned senior counsel would further contend that non- examination of the cashier of the bank on the relevant dates is fatal to the prosecution and the trial Court rightly drawn adverse inference for non- examination of the cashier of the bank on the relevant dates. Learned senior counsel took me to the findings recorded by the trial Court on this aspect to convince me that the said findings are based on sound reasons and therefore, they do not warrant interference in this appeal. Relevant portions in the judgment impugned in the appeal, on which much emphasis has been laid by the learned senior counsel, reads as hereunder: “ PW.8 Smt.Sundari states in her evidence that she was given Exs.P9 and P10 by Srinivas, UDC, Zonal Accounts Office. PW.9 D.Vinod Kumar categorically admits in his cross-examination that he can not say without verifying the records as to which duty he performed during their period and specifically during January and March, 1997 and he states that there is record to show all the remittances made through challans on the given day. PW.11 Subbarayudu evidence is that he addressed a letter under Ex.P14 to the CBI police stating that challan for the amounts of Rs.3,073/- and Rs.4,132/- were not credited in to Head of account and this witness also in his cross-examination states that there is record in his bank to show who was the cashier on a particular day and he also admits that he was not hand over any record to the police and he has not shown the scrolls of cashier on 25.1.1997 and 27.3.1997. In the context of the evidence of PW.9 and PW.11 as rightly submitted by the defence counsel, prosecution would have brought on record the official record of the bank which would have categorically shown who was cashier on relevant period i.e., on 25.1.1997 and 27.3.1997 and as rightly submitted by the defence counsel there is no other effort made by investigating agency so as to obtain the signatures and handwritings of the cashier on the relevant day and the comparing of said signatures of cashier obtaining on Ex.P2 and P3. The evidence of PW.10 handwriting expert as rightly submitted by defence counsel, is not useful to the prosecution because, what all he states is that he has compared specimen signatures of accused which are marked S1 to S9 and S73 to S114 on Ex.P11 with the disputed writings which are Q22 and Q23 and Q52 to Q57, because admittedly the writing on challans would be in the hand writings of the accused and what is required to be proved by the prosecution is that the alleged signatures on the challans alleged to be that of bank officials are not that of bank officials and were infact made by accused and accused created fake challans. The evidence of PW.10 is not useful to the prosecution for that aspect and the oral evidence of PW.9 and PW.11 that there is no signature of bank officials on Ex.P2 and P3 is not sufficient, when the evidence of PW.9 and PW.11 is categorical that there would be documentary evidence on record to show that who was the cashier on that day. Even as rightly submitted by defence counsel the prosecution also should eliminate the doubt, as to there is any chance of amounts not being credited to the account though the challans Exs.P2 and P3 have been presented in the bank. PW.14 who is investigating officer states in his cross that Exs.P2 and P3 are bearing rubber seal of SBI, Chiragali lane Branch and they are dated 25.1.1997 and 27.3.1997 and PW.14 Investigating Officer states that he has not investigated as to who was cashier on 25.1.1997 and on 27.3.1997 and he clearly admits that he has not collected the specimen signatures of the bank officials of SBI or office of the Chief Commissioner of Income Tax and he also states he has not collected cashier scroll of SBI Chiragali Lane dated 25.1.1997 and 27.3.1997 and he also states in his cross that he has not collected any seals of S.B.I. and also rubber stamps of Asst. Commissioner of Income Tax, Hyderabad which appears on Ex.P2 and Ex.P3.” 7. The points that arise for determination in this appeal are: 1) Whether the acquittal of the respondent/accused for the offences under Sections 409, 468, 471 and 477-A of IPC is legal and proper? 2) Whether the prosecution is able to prove the guilt of the respondent/accused for the offences under Sections 409, 468, 471 and 477-A IPC beyond reasonable doubt? 8. Points 1 and 2:- I am conscious of the fact that in an appeal against the acquittal the appellate Court is circumscribed by the limitation that no interference has to be made with the order unless approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such which would not have been possibly arrived at by any Court acting reasonably and judicially and is therefore, to be characterized as perverse. It is trite to note that there is no embargo on the appellate Court to review the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread, which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view, which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court while considering the appeal against the judgment of acquittal is to interference only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by the Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra[1]; Ramesh Babulal Doshi v. State of Gujarat[2]; and Jaswant Singh v. State of Haryana[3]. The principles highlighted in the above decisions have been reiterated by the Supreme Court in State of Rajasthan v. Rajaram’s case.[4] 9. The prosecution case against the respondent/accused is very simple and it is that the respondent/accused having received the money paid by PW.8 towards excess drawal of the emoluments during her half pay leave period failed to credit the amounts to the government account and instead he fabricated Exs.P2 and P3 challans as if he credited the amounts to the government account. It is not in dispute that PW.8 returned the excess amounts drawn by her during the half pay leave period to the respondent/accused. It is also not in dispute that the respondent/accused was the cashier in the office of the Chief Commissioner of Income-Tax, Hyderabad at the relevant point of time. Exs.P2 and P3 are the challans whereunder the amounts were stated to be credited to the government account. Exs.P2 and P3-challans are in the handwriting of the respondent/accused. PW.8 categorically stated in her evidence that she returned the excess amounts drawn by her during her half pay leave period to the respondent/accused who was the cashier at the relevant point of time. It is apposite to extract the evidence of PW.8 in her own words and it is thus: “I have been working as Inspector of Income Tax, Ayakar Bhavan, Hyderabad since August, 2001. Earlier I worked as a Head Clerk in the office of the Chief Commissioner of Income-Tax, Hyderabad, during the period from 1995 to 1998. I was on half pay leave during the period from 9-9-1996 to October, 1996. Instead of half pay, I was paid full pay for that period by the office in November, 1996. I have paid the excess amount of Rs.3,073/- to the accused, who was the Cashier at that time. I was again paid full for the months of December, 1996 and January, 1997 during which time, I was granted half pay leave. I paid back the excess amount of Rs.4,173/- in the month of March, 1997. Mr.G.Srinivas UDC in Zonal Accounts Office has given me Xerox copies of challans. Exs.P9 and P10 are the said Xerox copies. C.B.I. Inspector examined me. Cross-Examination: I have been paid full pay for the months of September and October, 1996. I have not stated the date to the police when I returned the excess payment. It is not true to say that I did not say to CBI police that I was paid full pay during December, 1996 and January, 1997. I do not know what is the excess amount paid to me during September and October, 1996. There was no necessity for me to inform the cashier not to calculate the pay arrears in full for September and October, 1996. There will not be a copy of Challan meant for the party. I handed over the Xerox copies of Challan given to me to the Cashier Mr.Sunil. I can definitely say that the Xerox copy of the challan given to me for Rs.4,173/-. I have not stated to the CBI Inspector as in Ex.D2 part of 161 Cr.P.C. statement. Exs.P9 and P10 show for which period excess pay and allowances were recovered. I have not stated in my 161 Cr.P.C. statement the name of the Cashier to whom I paid the amount.” Nothing is suggested to this witness that the accused was not the person who received the amounts covered under Exs.P2 and P3 challans, Photostat copies of which have been marked as Exs.P9 and P10. The trial Court did not assign any valid reason for discarding the evidence of PW.8. The only reason assigned by the trial Court is that there is no consistency in the evidence of PW.5 and PW.8 with regard to excess amount of emoluments drawn by PW.8 during the half pay leave period. There is no dispute that PW.8 received excess emoluments during her half pay leave period and later she returned the same to the respondent/accused for being credited to the government account. It is the respondent/accused who prepared Exs.P2 and P3 challans. 10. PW.5 worked as a U.D. Cashier in the office of the Chief Commissioner of Income-Tax, Hyderabad. He verified the records with regard to the credit of amounts covered under Exs.P2 and P3 challans to the government account and found that the amounts covered under Exs.P2 and P3 challans were not credited to the government account. PWs.5 and 8 have no motive to speak false against the respondent/accused. They are the colleagues of the respondent/accused and their evidence is cogent and convincing. The prosecution is able to place on record clinching evidence that it is the respondent/accused, who received the amounts covered under Exs.P2 and P3 challans. 11. At this juncture, it is apposite to refer the evidence of PW.9 and PW.11. PW.9 D.Vinod Kumar was the Cashier-cum-Clerk in S.B.I., Chirag Ali Lane Branch, Hyderabad, during the relevant period. He categorically stated that Exs.P2 and P3 do not contain his signatures. Even as a matter of fact, Exs.P2 and P3 do not contain the signature of any of the officials of the bank except they bear the stamp of the Bank. PW.11 D.Subba Rayudu was the Branch Manager, SBI, Chirag Ali Lane Branch, from August, 1996 to the end of October, 1998. He categorically stated that Exs.P2 and P3 do not contain the signatures of any of his staff. When the evidence of PW.9 and PW.11 is consistent to the fact that Exs.P2 and P3 do not contain the signatures of any of the staff of the bank, the trial Court went on discussing that non-production of bank scrolls maintained by the cashier on the relevant dates is material. When Exs.P2 and P3 do not contain the signatures of the staff of the bank evidencing the receipt of the amounts covered therein, non-production of the cash scrolls maintained by the cashier in the bank is immaterial. The appreciation of the evidence of PWs.5, 8, 9 and 11 by the trial Court can be categorized as perverse and therefore, findings recorded by the trial Court basing on such appreciation cannot be sustained. The evidence brought on record clearly established that it is the respondent/accused, who received the amounts from PW.8 and failed to credit the same to the government account and instead he fabricated Exs.P2 and P3 challans to cover up the amounts misappropriated by him. Therefore, the prosecution is able to establish the guilt of the respondent/accused for the offences under Sections 409, 468, 471 and 477-A IPC. 12. Accordingly, the criminal appeal is allowed setting aside the judgment dated 07.05.2003 passed in C.C.No.313 of 2000 on the file of XXIII Metropolitan Magistrate, Hyderabad, and the respondent/accused is convicted for the offences under Sections 409, 468,471 and 477-A IPC and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 409 IPC; Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 468 IPC; Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 471 IPC; and Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence under Section 477-A of IPC. All the substantive sentences shall run concurrently. The respondent/accused is directed to surrender himself before the trial Court and on such surrender, he shall be committed to the prison for serving the sentence of imprisonments imposed on him for the offences stated above. The sentence of imprisonment imposed under various counts in this appeal shall run concurrently with the sentence of imprisonment imposed on the respondent/accused in Crl.A.Nos.30 and 31 of 2005. ______________________ B.SESHASAYANA REDDY, J. Date:26th April, 2011. Cs THE HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Criminal Appeal No.33 of 2005 Date:26th April, 2011 [1] (1973) 2 SCC 793 = 1973 SCC (Cri) 1033 [2] (1996) 9 SCC 225 = 1996 SCC (Cri) 972 [3] (2000) 4 SCC 484 = 2000 SCC (Cri) 991 [4] (2003) 8 SCC 180