IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.08.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN Crl.A.No.1316 of 2003 State by Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore. (Crime No.16/AC/87) ... Appellant(Complainant) Vs. 1.K.Renganathan 2.C.Narayanasamy 3.A.E.A.Arumaidoss 4.V.Chinnikrishnan 5.G.Rangasamy 6.L.Vijayaragavalu ... Respondents (Accused) Prayer: Appeal is filed under Section 378 Cr.P.C., praying to set aside the order of acquittal passed by the trial court dated 27.02.2003 and made in Spl.C.C.No.8 of 1997 on the file of the learned Special Judge/Additional District Judge cum Chief Judicial Magistrate, Villupuram. For Appellant : Mr.A.N.Thambidurai Additional Public Prosecutor For 6th Respondents : Mr.D.S Bharatha chakravarthy For M/s.Sai Bharath & Ilan J U D G M E N T 1. The respondents herein were the accused 1 to 6 in the case in Spl.C.C.No.8 of 1997 on the file of the learned Special Judge/Additional District Judge cum Chief Judicial Magistrate, Villupuram and they were acquitted from various charges under the Indian Penal Code and under the provisions of the Prevention of Corruption Act. Challenging the order of acquittal dated 27.02.2003, and made in Spl.C.C.No.8 of 1997 on the file of the learned Special Judge/Additional District Judge cum Chief Judicial Magistrate, Villupuram, the appellant being the State has preferred this appeal https://hcservices.ecourts.gov.in/hcservices/ under Section 378 of Cr.P.C. 2. When the appeal was taken up for hearing, Mr.Sai Bharathilan learned counsel appearing for the respondents has submitted a memorandum along with the xerox copies of the death certificates saying that the 1st respondent K.Renganathan, 3rd respondent A.E.A.Arumaidoss and the 6th respondent L.Vijayaragavalu had passed away. The said memorandum is recorded. The gravamen of the case of prosecution is this; 3. The first respondent Renganathan was functioning as the Panchayat Union Commissioner at Marakanam erstwhile South Arcot District. The second respondent was the Manager (Noon Meal Programme), Marakanam Panchayat Union. The 3rd respondent A.E.A.Arumaidoss, was working as Extension Officer (Accounts)/ Manager, Panchayat Union Marakanam and the 4th respondent V.Chinnikrishnan, had been working as a accountant, Marakanam Panchayat Union whereas the 5th respondent, G.Rangaswamy, was working as Junior Assistant, Marakanam Panchayat Union, and the 6th respondent L.Vijayaragavalu is the Proprietor of Sri Venkatesh Industries, Thiruppapuliyur and as such they are public servants. It is alleged that the respondents 1 to 5 during the period from October 1985 to December 1985, at Marakanam, Villupuram Tiruppapuliyur and other places in erstwhile South Arcot District, along with the 6th respondent and PW 3, Thiru R.Ramanujalu, formerly Cooperative Sub- Registrar/Special Officer, Villupuram Cooperative Stores, Villupuram (Approver) had entered into a criminal conspiracy and agreed to commit and abet one another in the commission of cheating, criminal breach of trust, fabricating of incorrect documents and falsification of accounts and committed criminal misconduct by public servants. 4. During the course of the same transaction the respondents 1 to 5 being the public servants had fabricated and prepared bogus Voucher No.60/11-85 for Rs.39,988/- and another bogus Voucher No.62/11-85 for Rs.8,214/- relating to File No.8853 of 1985 and made false entries in Panchayat Union consolidated Permanent Stock Register Volume-II (page 138 to 145) in a manner which they knew to be incorrect, intending thereby to cause and knowing it to be likely that they may thereby cause injury by way of monetary loss to Marakanam Panchayat Union. 5. In pursuance of the aforesaid criminal conspiracy and in the course of the same transaction during the said period, the respondents 1 to 5 along with the 6th respondent had abetted PW 3 Thiru R.Ramanujalu, Special Officer of the Villupuram Co-operative Stores, Villupuram to fabricate false records at the said Cooperative Stores, as if the plastic cans, drums, gunny bags and other items of articles covered by Voucher Nos.60/11-85 and 62/11-85, were purchased by the said Cooperative Stores from Sri Venkatesh Industries and then https://hcservices.ecourts.gov.in/hcservices/ sold to Marakanam Panchayat Union and as a result PW 3, approver had willfully with intent to defraud, had falsified the records of the Villupuram Cooperative Stores. 6. The 6th respondent, L.Vijayraghavalu, who is the proprietor of Sri Venkatesh Industries, Thirupapuliyur, had willfully and with intent to defraud, had abetted in making of false entries in his Day Book for the year 1985-86 at pages 71,73 and 124 as well as in the Ledger for 1985-86 at pages 29 and 244 relating to the transactions in Credit Sale Bills No.55 dated 19.11.1985 and No.60 dated 21.11.1985 which had actually taken place with Villupuram Cooperative Stores. 7. Therefore, the respondents 1 to 6 along with PW 3, R.Ramanujalu Special Officer, Villupuram Cooperative Stores, (approver) had committed cheating by dishonestly inducing the Marakanam Panchayat Union to pass the bills for a total sum of Rs.48,202/- covered by Voucher Nos.60/11-85 and 62/11-85 in favour of Villupuram Co-operative Stores, when the transactions had actually taken place between Marakanam Panchayat Union and Sri Venkatesh Industries, Thirupapuliyur and there was an excess payment of Rs.36,494.80 due to the 6th respondent L.Vijayraghavalu, quoting inflated prices for the items supplied under the above vouchers. 8. The respondents 1 to 5 being the public servants had abetted PW 3, Ramanujalu Special Officer, Villupuram Cooperative Stores, (approver) and the 6th respondent L.Vijayraghavalu, who is the proprietor of Sri Venkatesh Industries, Thirupapuliyur and thereby committed criminal misconduct by (i) dishonestly misappropriating the funds of Marakanam Panchayat Union, which were entrusted to them or under their control as public servants, to the amount of Rs.37,102/- (ii)by corrupt an illegal means, and by abusing their positions as public servants, obtaining for themselves and for the said PW 3 and the 6th respondent, pecuniary advantage to the extent of Rs.37,102/- in the circumstances stated above. 9. During the course of investigation PW 3 had expressed his willingness to give a confessional statement. Accordingly, PW 24, Deputy Superintendent of Police attached to Vigilance and Anti- Corruption had preferred an application before the learned Special Judge, to record his confessional statement under Section 164 Cr.P.C. His confessional statement was recorded and based on the application filed by PW 24 under Section 306 of Cr.P.C. (Ex.P33) tender of pardon was also given by the learned Special Judge under Ex.P13. After obtaining sanction of prosecution PW 24 had laid a final report against the respondents under Section 120 B, 167, 477/A 420, 409 of IPC r/w. Section 5(2) r/w 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act 1947 (Central Act 2 of 1997) and under Section 167, 477-A, 109 r/w 477-A, 420, 409 of IPC and Section 5(2) r/w. 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act 1947. https://hcservices.ecourts.gov.in/hcservices/ 10. In order to establish the case, the prosecution had totally examined as nearly as 24 witnesses and during the course of their examination Ex.P1 to P33 were marked. With the evidence of PW 24, the prosecution has closed its side. When the respondents were examined under Section 313 Cr.P.C. With regard to the incriminating circumstances arising out of the testimonies of the prosecution witnesses, they had denied their complicity and replied that this case was foisted against them. One Tirumathi Kasturi (Noon Meal Scheme) was examined as DW 1 and no documentary evidence was adduced on behalf of the respondents. 11. The trial court on appreciation of the evidences both oral and documentary had acquitted the respondents from all the charges. Challenging the order of acquittal, the State stands before this court with this criminal appeal. 12. The learned Government Advocate (Crl. Side) had submitted that PW 3, Thiru R.Ramanujalu (approver) who is also an accused in this case had given a confessional statement before the learned Special Judge and it was recorded under Section 164 Cr.P.C. After considering his confessional statement and on the petition made by the Investigating Officer, the learned Special Judge had tendered him pardon and in consequent thereof, he was made an approver. He has also submitted that though PW 5 and PW 6 had turned hostile, other witnesses had spoken to about the overt act attributed to the respondents and hence, the learned trial judge had miserably failed to look into the incriminating circumstances available in the testimonies of the prosecution witnesses as against the respondents. 12. The learned Government Advocate (Crl. side) has also submitted that the learned trial judge ought to have placed reliance upon the confessional statements gave by PW 3 approver. He has also added that the learned trial judge ought to have held that the price of the material purchased was inflated when compared with the market value which was prevailing at the time of occurrence and that the learned trial judge had miserably failed to evaluate the material evidence available on record to substantiate the charges levelled against the respondents. 13. On the other hand the learned counsel appearing for the respondents has submitted that there was no prima facie material available to constitute the offence of conspiracy among the accused. He would submit further that the testimonies of PW 4 to 6,11,12 & 3 had not supported the case of the prosecution, and that the learned trial judge after making meticulous analysis of the evidences both oral and documentary had come to the conclusion that the prosecuting agency had miserably failed to substantiate their case against the respondents and therefore, the learned trial judge had found that the charges were not proved against the respondents and therefore, they https://hcservices.ecourts.gov.in/hcservices/ were acquitted and that the order of acquittal passed by the learned trial judge need not be disturbed. 14. This court has considered the submissions made on behalf of both sides and perused the materials available on record. Based on the case of the prosecution, and the testimonies of the prosecution witnesses as well as the documentary evidences, the prime question to be considered is, as to whether Ex.P11 confessional statement said to have been given by PW 3, Thiru R.Ramanujalu (approver) could be based for maintaining conviction on the respondents. 15. It is manifested that the learned trial judge has observed in his judgment that PW 3 was not only become approver in this case, but was made as approver in several cases and hence no evidentiary value could be attached with his confessional statement under Ex.P11. 16. In this connection, the learned counsel appearing for the respondents has submitted that the confessional statement under Ex.P11 could not be militated against the respondents. 17. Section 30 of the Indian Evidence Act deals with the consideration of proved confession affecting person making it and others jointly under trial for same offence. Section 30 of the Indian Evidence Act 1872 reads as follows; "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession." 18. It is settled principle that as per Section 30 of the Indian Evidence Act, a confessional statement of an accused is admissible and could be used against the other co-accused only when they are tried together. But the approver PW 3 was not tried as an accused along with the respondents. He was already given pardon and under this circumstance, the confession given by the approver PW 3 cannot be initiated against the respondents as per Section 30 of the Indian Evidence Act. 19. In so far as this case is concerned the trial court has given a clear finding saying that excepting the evidence of PW 3 approver, no other evidence is available against the respondents 1 to 6. The trial court has also given a finding that during the course of cross-examination PW 3 had stated that he did not know as to whether the sixth respondent had paid commission to the respondents 1 to 5. The trial court has also found that no material was available to substantiate the fact that the respondents 1 to 6 had availed https://hcservices.ecourts.gov.in/hcservices/ monetary benefits. Apart from this the learned trial judge have also found that the testimonies of PW 8,9,10,14 to 18 and 21 were not adequate to prove the case of the prosecution. Besides this the learned trial judge had also found that based on the intend the materials were purchased from Villupuram Co-operative Store and that there was no adequate evidence to show that the materials were directly purchased from the sixth respondent industries viz., Sri Venkatesh Industries, Thiruppapuliyar by Marakanam Panchayat Union. 20. The learned trial judge has also observed that in the absence of proof to show about the maximum market price of the articles which were said to have been purchased, it could not be construed that the articles were purchased for inflated rates. Ultimately, the learned trial judge has found that the prosecution had miserably failed to prove that the articles were purchased for an inflated rate of Rs.36,484/- and equally the prosecution had also miserably failed to establish the fact that the respondents 1 to 6 had appropriated an amount of Rs.36,102/- for their personal use and caused loss to the Marakanam Panchayat Union. 21. This court has carefully considered the submissions made on behalf of the learned Government Advocate (crl. Side) as well as the learned counsel appearing for the respondents. Having been appreciated the evidences available on record and taking into consideration of the related facts and circumstances, this court deems it fit to endorse the finding given by the learned trial judge and hence this court is of the considered view that the judgment of acquittal recorded by the learned trial judge does not require any interference. Accordingly, this criminal appeal is dismissed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar prm 1.The Special Judge/Additional District Judge, Villupuram. 2.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 3.The Public Prosecutor, High Court, Madras. 1 cc to M/s.Sai Bharath & Ilan , Advocate, Sr.No.49953 Crl.A.No.1316 of 2003 jrg(co) pmk.6.8.2012 https://hcservices.ecourts.gov.in/hcservices/