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IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS :: NAIDUPETA
Present:: Smt G.V.L Saraswathi,
Judicial Magistrate of I Class : Naidupet.
Friday, this the 09 th day of March, 2018.
CALENDAR CASE NO.164 of 2015
(Old Case No126 of 2011 on the file of JMFC, KOTA)
1.Name of the complainant:State: Rep. by the Sub-Inspector of Police, Ozili Police Station. 2.Name of the Accused::Kalapati Vasundhara Devi @ Balli Vasundhara Devi, W/o.Sudhakar, aged 46 years, Harijana by Caste, Ex-Sarpanch, Graddagunta Village, Ozili Mandal.
3. Section of Law:Offence Under Section.409 of Indian Penal Code. 4.Plea of the accused :NOT GUILTY.
5. Finding of the court:GUILTY.
6. Sentence or order:In the result, the accused is found guilty for the offence Under Section.409 of IPC and she is convicted under Section.248(2) Cr.P.C for the offence under Section.409 IPC.
This Calendar Case coming on for final hearing before me on 05-02-2018 in the presence of the learned Asst Public Prosecutor, Naidupeta for the State, and of Sri.K.Dasaiah Modaliar - Advocate
for the accused, and upon consideration of the material on record, and the matter having stood over
till this day for consideration, and this court delivered the following:-
J U D G M E N T
1)The Sub-Inspector of Police, Ozili Police Station filed charge sheet against the accused alleging that she committed an offence punishable under Section.409 of Indian Penal Code.
2)The material allegations stemming from the report and the material available on record is :
The accused worked as Surpanch of Graddagunta Grama Panchayat from the year 2001 to 2007 as a Public Servant. During her tenure as Surpanch of the said Grama Panchayth, she undertook development programmers at her Panchayath with the government funds and while discharging herself as a Public serving during the period from 2001 to 2007 as Surpanch misappropriated the government funds on various schemes without completing the said works and the accused committed criminal breach of trust by encashing the excess amount without completing the works and in some cases without performing the works at all under funds of SGRY, XI Finance, SFC and ISL. On receipt of the written representation about the misappropriate of funds by the accused, the District Collector,
Nellore appointed LW.4/Avadhanam Venkata Nageswaram, Divisional Panchayat Officer as enquiry officer to conduct enquiry in this regard and LW.4/A.Venkata Nageswaram along with LWs.2 and 3/B.Mohan Rao and K.Venkateswara Rao enquired into the matter and came to a conclusion that the accused committed misappropriation of government funds to a tune of rs.4,61,083/- under SGRY, XI
Finance, SFC and ISL funds and then the District Collector, Nellore issued instructions to
LW.1/Tottambedu Ramanaiah, MDO, Ozili to take action against the accused. In this connection, on the report of LW.1/T.Ramanaiah MDO, Ozili, LW.6/P.Kishore Babu, SI of Police, Ozili Police Station 2 registered the same as a case in Crime No.46/2009 under Section.409 of IPC and took up investigation. During the course of investigation, it revealed that the accused misappropriated the government funds under total 4 items of a tune of Rs.4,61,083/- and the charge sheet is being filed for one count in respect of one item out of total 4 items in this case for misappropriation of Rs.2,51,394/- as mentioned below and separate charge sheet is being filed for the other count in view of
Section.219 of Cr.P.C. The accused being a public servant worked as a Sarpanch of Graddagunta village committed criminal breach of trust in respect of the following one item out of total 4 items ISL
Scheme. As per the enquiry the accused drawn the rice and material worth Rs.6,40,294/- for total 205 lavatories, but only 197 lavatories are started and they are incomplete stage and the same was estimated for Rs.3,88,900/-. Thus, the accused committed misappropriation of Rs.2,51,394/- and the accused being the public servant committed criminal breach of trust in respect of the above items to a tune of Rs.2,51,394/- Thus, the accused is liable for the offence punishable under Section.409 IPC.
Hence, the Charge.
3). The accused is present and copies supplied U/s. 207 Cr.P.C. to her.
4).Charges under Section.409 of IPC was framed against the accused, read over and explained to the accused in Telugu, U/s 239 of Cr.P.C. and the accused did not plead guilty, she claimed for trial.
5).The prosecution listed 7 witnesses, but examined PWs.1 to 4 and got marked Exs.P1 to P6.
LW.1/Tottambedu Ramanaiah, MDO, Ozili is examined as PW.1. LW.2/Battepati Mohan Rao, Asst.
Engineer is examined as PW.2. LW.6/P.Kishore Babu, Investigating Officer is examined as PW.3.
LW.7/R.S.Kishore Kumar, Investigating Officer is examined as PW.4. Ex.P1 is the Report given by
PW.1 to the police, dt.29-04-2009. Ex.P2 is the FIR in Crime No.46/2009 of Ozili Police Station, dated.01-05-2009. Ex.P3 is the Direction Letter from the District Collector, Nellore to the MPDO
Office, Ozili, dt.05-01-2009. Ex.P4 is the Vigilance Department report in Appraisal Note No.183, dt.28-07-2005 consisting of 6 pages. Ex.P5 is the Report of DLPO, Gudur ie., LW.4 to District
Panchayath Office, Nellore. Ex.P6 is the Proceedings from the District Collector, dt.09-04-2007 consisting of two pages. The evidence of Lw.5/N.Eswaraiah was given up by the learned APP and the evidence of LWs.3 and 4/Kovi Venkateswara Rao and Avadhanam Venkata Nageswaram was closed by the court.
6).After closure of prosecution evidence the accused was examined U/s 313 Cr.P.C explaining the incriminating material appearing against her, for which the accused denied. The accused has not chosen to examine any defense witnesses, but Ex.D1 is marked on her behalf. Ex.D1 is the Some 3
Portion of Section.161 Cr.P.C. statement of PW.2. The accused complied under Section.437-A
Cr.P.C. by producing sureties 30-01-2018.
7)The points for determination are: –
1. Whether the accused being a public servant as a Surpanch committed criminal breach of trust by misappropriating the government funds ie., by en-cashing the excess amount without completing the works and also without performing the works at all under funds of SGRY, XI Finance, SFC and ISL programs in the village?
2. Whether the prosecution has established the guilt against the accused beyond all reasonable doubt ?
8)PW.1 is the informant. PW.2 to 5 is the independent witness. PWs.3 and 4 are the
Investigating Officers.
9) After going through the contents of both parties coupled with the evidence and documents, this court for the better appreciation of the case, it is not necessary to reproduce the entire oral or documentary evidence and it will discuss as and when require to the extent required.
P O I N T No.1 :
10)PW.1/T.Ramanaiah is the informant who worked as MDO, Ozili from the year 2003 to 2005 and subsequently in the year 2008 also. He got acquaintance with the accused as she worked as a
Surpanch in the Graddagunta Grama Panchayat from 2001 to 2006. During his tenure in the 2nd time ie., 2008 to 2009, he received a letter from the District collector, Nellore directing him to lodge a criminal complaint against the accused as she misappropriated the funds pertaining to the
Graddagunta Panchayath in the capacity of Surpanch for an amount of Rs.4,61,083/- and he came to know the accused requested the District Collector, Nellore to grant time to arrange the said amount.
Afterwards she did not fulfill her words, as such the District Collector directed him to lodge a complaint. On the directions of District Collector Nellore he lodged a complaint on 29-04-2009 reporting the accused misappropriated the government funds for an amount of Rs.4,61,083/- from different grants ie., SGRY grants of Rs.90,878/-, XI Finance Commission grant of Rs.1,02.578/-, the
State Finance grant of Rs.16,233/-, Individual Sanitary Latrins grants of Rs.2,51,394/-. He submitted the 6 measurement books, 8 cash books, ISL Individual register, ISL Applications along with relevant record to the police. The SGRY grant shall be drawn only by the Surpanch, at that time the system was, one is rice portion and 2nd one is Cash portion, after satisfaction of the work, the MDO sanctioned the rice portion. The said work was verified by Panchayathi Raj AE and RWS Assistant
Engineer. He is emphatic the misappropriate funds in different grants by accused.
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11)PW.1 cross examined by the defence counsel, who is admitted all the questioned put forth by the defence counsel with regard to release of grants, drawing of the amount and system, verification of the works. He categorically admitted that he did not found any misappropriation in his tenure ie., from 2003 to 2005. Whereas the accused tenure was from 2001 to 2006. Every year the audit was conducted to the funds of the Surpanch, after checking by the Panchayath Raj and Rural
Development, then only the MPDO sanctioned the grants. He did not receive any complaints from the individual under SGRY scheme. He is also further clarify, about drawing of the amounts by the
Surpanch, after completion of work alloted to her and also that should be recorded in the measurement book, which is controlled by various Administrations. Upon the satisfaction of the Asst.
Engineer of Panchayathiraj and Divisional Engineer on verification of measurement books, they would have addressed a letter to the MRO, then only the MRO released the rice component, but he did not verify the bank cash withdrawal forms or treasury challan forms pertaining to the misappropriation amounts. He further admitted that after completion of constructions of individual lavatories, then only the amount will be released to the Surpanch and Panchayath Secretaries. From the evidence of PW.1 it revealed, he lodged the report on directions of the District collector, Nellore. Though, he is not personally enquiry the matter, but he deposed strongly, the accused misappropriate the funds. With the evidence of P.W.1 the prosecution could elicited report lodged along with relevant record.
12)P.W.2/B.Mohan Rao is worked as Executive Engineer, RWS in Additional Charge of Ozili from 2009 to 2011. He was appointed as a Committee Member in Three member committee to enquiry the matter, wherein himself, LWs.3 and 4 were members appointed by the District Collector, Nellore about the misappropriation funds of the Graddagunta Gram Panchyath by the accused during the period of 2004. In the course enquiry, they went to Graddagunta village accompanying with Panchyath
Secretary by name T.P.Sundaraiah of Graddagunta village. During their enquiry, they visited the individual Sanitary latrine schemes, in the village there are 205 Individual Sanitary Latrines were sanctioned, out of which 197 latrines were not fully completed and they were under different stages.
They were calculated the each which are uncompleted stage and the total worth of Rs.3,88,000/- approximately, but as per the records the accused withdraw an amount of Rs.6,00,000/- and odd from the government, wherein Rs.2,00,000/- approximately was misappropriated by the accused in the said scheme. They were also enquire the remaining three grants by collecting the measurement books through the custodian ie., the Panchayath Secretary by name T.P.Sundaraiah in their enquiry, they found the different types of works were done ie., compound wall for schools, Kitchen sheds for 5 schools and Gravel roads under SGRY grants. All the Measurement Books were prepared by the
Panchayth Raj Department, and they finally found the Panchayath Graddagunta village drew the amount more than the work physically done and as per the measurement books the misappropriated amount is Rs.2,00,000/- to Rs.3,00,000/- approximately. All the relevant records were with the custodian of LW.3. He do not know whether the said record was submitted to the police or not.
Admittedly, the surpanch and Panchayath Secretary are having joint Cheque power to draw the scheme amount from the government.
13)In the cross examination of P.W.2, he is very emphatic and give rational answers put forth by the defence counsel, he is the technical expert among three member committee. The Lavatory cost is
Rs.2750/- or Rs.2950/- which includes the coolie cost of beneficiary. He is very emphatic, apart from the Graddagunta village, he visited and enquired Joshulavari Kandriga village, ST Colony of
Graddagunte village to assess the lavatories. All the assessment was done with the assistance of
Measurements Books. Admittedly, the said measurements books prepared by the Engineers,
Panchayath Raj department, after assessing the work and handed over to the Panchayath Secretary, then only the Panchayath Secretary draw the amount through the bank. Admittedly, the measurement book contained the value of the work and how much work was done by the said person along with the description of the work. He did not state before the police he prepared some of the measurements books pertains to the work of the subject matter and the said portion of Section.1651 Cr.P.C.
statement was marked as Ex.D1. He had no knowledge about the report submitted by DLPO, Ozili to the District Collector, Nellore. No individual was given any complaint while they were roaming in the village for enquiry. The duty entrusted to P.W.2 in three member committee physically verify the work and assess the value, he is no way concerned to the other duties. With the evidence of P.W.2 the prosecution has upgrade their case corroborating with the evidence of P.W.1. However, it is need to proving of misappropriate funds by the accused.
14)Looking into evidence of PW.3/P.Kishore Babu, Investigating Officer deposed that on 01-05- 2009 when he was in the police station at about 11-00 am PW.1 came and submitted a written report along with relevant records ie., M Books, Cash Books, Acquittance register and applications of individuals pertaining to Sanitary latrines holders, Graddagunta village and he has registered the same as a case in Crime No.46/2009 under Sections.407, 420 IPC and submitted original Fir to the
Court and copies to the concerned, He also examined PW1 in the police station and recorded his statement. Then, he secured PW.2 examined and recorded his statement. Immediately, he left the police station and went to Dagadarthi MPDO Office there he examined LW.3 and recorded his 6 statement. On 02-05-2009 he went to Markapuram, Prakasam District Office DLPO office and there, he secured LW.4 examined and recorded his statement. Later, he handed over the entire case to his successor ie., PW.4. His investigation revealed the accused misappropriated the funds an amount of
Rs.4,61,083/- from the government of SGRY funds, 11th finance commission funds, State Finance
Commission funds and individual Sanitary latrine scheme funds. During that time the accused was surpanch for Graddagunta village. Later he learnt his successor submitted a letter to the concerned authority for securing the relevant record and documents. In his cross examination, PW.3 deposed he hold the post after registering the FIR only one day later he went on medical leave there after he got transferred. He further deposed he has not personally inspected and enquired the works done under the various schemes. The documents which are enclosed by PW.1 along with report revealed no misappropriation happened. But, voluntarily says apart from those documents the misappropriation was done by the accused. He further admitted that he did not shown the then Pnachayth Secretary by name T.P.Sundaraiah (who is no more) as accused as per the statement of LW.3. He has not seized any material objects from PWs.1, 2, LWs.3 and 4. He further admitted that he did not examined the then MRO of Ozili Mandal. He was not verify, the joint enquiry report as he got transferred and in his tenure no one come forward from Ozili jurisdiction for their grievance about the misappropriation of amounts under various schemes.
15) PW.4/R.S.Kishore Kumar, Investigating Officer deposed, after assuming his charge on 10-07- 2009 he visited the MPDO office and requested him for production of the documents related to his case and on 06-02-2010 addressed a letter to MPDO for production of the documents, but he did not respond the same, then on 18-04-2010 addressed a letter to SDPO, Gudur, requesting to submit the relevant records in this case. Then, the SDPO, Gudur ie., LW.3 submitted record, after verification of the record, he filed the charge sheet under Section.409 of IPC along with the original records. Ex.P3 is the letter addressed to the MPDO by the District Collector, Nellore directing him to lodge a criminal case against the accused for misappropriation of funds in various grants described in the letter, dt.05- 01-2009. Ex.P4 is the Vigilance department report in appraisal note No.183,d t.28-07-2005, wherein the charge was proved against the accused about the misappropriation of funds of the Government in the position of Surpanch. Ex.P5 is the enquiry report of DLPO. The Enquiry report revealed the accused misappropriated the government funds of Rs.4,61,083/-. Ex.P6 is the Proceedings of the
District Collector, Nellore dt.09-04-2007 by proving the accused misappropriated the government funds. The investigating of the PW.4 revealed the accused misappropriated the funds.
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16)PW.4 was cross examined by the defence counsel. He categorically admitted that basing on the report submitted by DLPO and MPDO ie., Exs.P3 to P5 he filed the charge sheet. He did not enquiry personally the works conducted by the accused in different schemes. All the documents which are filed before this Court were shown one Panchayath Secretary by name P.Sundariah was draw the amounts jointly with the accused. The said sundaraiah was the custodian of the cheque books and the disciplinary action was taken against him, so that the criminal case was not lodged against him. He further admitted, the report submitted by PW.1 and the documents referred in it, are the documents of exhibited P3 to P6. The prosecution evidence revealed the misappropriated funds are pertains to the year of 2001 to 2006, whereas the charge sheet was filed on 29-11-2010. The defence counsel specifically posed a question to the Investigating Officer, he would have file three charge sheets periodically to save the limitation under Section.219 Cr.P.C. For the sake of argument of the accused counsel. I feel it is necessary to extract Sec.219 for brevity of better appreciation.
“Three offences of same kind within year may be charged together.
(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law: The heading of section itself we understood i.e., three offences of same kind with in year may be charged together.
After assuming charge he did not take any permission either from the Court of Law or ofrom his authorities for filing the delayed charge sheet. He did not collect any record ie., Work order books, agreements, panchayat resolutions and Minutes books pertains to Graddagunta village to shown the accused only did the work. He did not examine R and B Engineers and RWS Engineers, Tahsildars, as well as Vigilance, Qualitive Controller. He further admitted that as per the charge sheet contents the total work amount is Rs.40,000/- (Estimation), whereas the Bill amount is Rs.33,961/-, but the accused drawn amount of Rs.11,769/- and the accused is entitled for the remaining amount of
Rs.22,192/-. The contents of charge sheet does not revealed the excess amount was drawn by the accused than the bill amount. The evidence of PW.4 revealed, as per Ex.P4 is the Vigilance report, there are abstract recommendations to take necessary action against the Panchayat Raj AE and DE,
RWS AE and 8
Panchayath Secretary and also Fair Price Shop dealers. He further voluntarily says because of the accused did not remit the misappropriated amount within time given to her, for that reason only the case was lodged against the accused.
17)The result of Ex.P4 report of enquiry committee, some of the amounts were not remitted to the government and some of the amounts were excess drawn by the Panchayath Secretary,
Graddagunta, the final report revealed the accused misappropriated the funds for an amount of
Rs.94,378/- which was drawn in excess amount from 11th Finance Commission and State Finance
Schemes of Rs.3,00,494/- rice and cash component, from the Individual Lavatories scheme drawn excess amount of Rs.8379/- was not remitted to the Government towards the Sceneries Fee, and the direction was given to the accused to remit the said amount. Admittedly, till day the accused did not remit the amount to the government obviously these types of offences the bar of limitation is not applicable. So the contention of defence counsel in three spells the charge sheets should have filed does not arise. This case is financial matter in these types of cases the documentary evidence is prevail than the oral evidence. The Ex.P4 three member committee clearly give a finding about misappropriation of funds by accused, what more require to the prosecution to uplift their case no doubt there are some technical latches were there but those discrepancies are not vitiate the entire case of prosecution. Moreover, the money involved in this case is public money. No doubt the
Investigating officer filed the charge sheet based on the enquiry report as well as Vigilance report.
For proving the charge under Section.409 of IPC, what more required in the evidence. The Enquiry department and vigilance department are uninterested witnesses and on thorough enquiry only they have filed the report.
The learned APP filed his written arguments and submitted the prosecution proved the case beyond all reasonable doubt with fair trial without any discrepancies. If any minor discrepancies, it may not be a fatal to the prosecution.
The witnesses deposed the about the procedure be followed, as per the questions posed by the learned defence counsel,
But, in the chief examinations the witnesses categorically deposed and corroborated each other along with their section 161 Cr.P.C., statements that, besides all the procedure to be followed, the accused criminally breached the trust while she was surpanch, i.e., as a public servant.
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The evidences of the investigating officers P.W.3 and P.W.4, their investigation categorically revealed that the accused, while she was surpanch misappropriated the government funds for an amount of Rupees four lakh sixty one thousand and eighty three only.
The evidences of the investigation officers corroborated with the evidences of all other witnesses.
As the case deals with white collar offences, documentary evidence plays the main crucial role to prove the case of prosecution where the marked exhibits P3 and P4 reveals that the accused with illegal intention misappropriated the government funds for Rs. 4,61,083/-.
Ex P3 is the direction letter from the District Collector to MPDO office, Ozili in ROC
No.3022/2004-A4 dated 05-01-2009 to launch criminal prosecution against the accused as it is proved a criminal misappropriation against the accused while she was a surpanch for Gradagunta village i.e., misappropriation of funds i.e., SGRY funds for an amount of Rs.90,878/-, 11th finance commission for an amount of Rs.1,02,578/-, SFC funds for an amount of Rs. 16,233/-, ISL funds for an amount of Rs.2,51,394/-. Thus the accused misappropriated the government funds for an amount of Rs. 4,61,083/-. Ex.P4 is the vigilance department report in appraisal note No.183, dt: 28-07-2005, that it is proved the accused misappropriated government funds in the position as surpanch and the same amount shall be remitted by the accused.
The accused never approached the Hon'ble Apex Courts for quashing it, if the said case is alleged false against her.
During the stage of Sec.313 Cr.P.C, 1973., the direct dialogue between Court and the accused never produced any evidence favouring to her and prove that the case registered is false and nothing submitted before this Court except say answer “No”.
To supporting to his arguments he relied on citations
1.Atmaram & Ors Vs State of Madhya Pradesh 2012 Cri. LJ 2882 SC “.............. It is a settled cannot of criminal jurisprudence that every statement of the witness must be examined in its entirely and the court may not rely or reject the entire statement of a witness merely by reading one sentence from the deposition in isolation and out of context.
2.Shivaji Sahebrao Bobade & Anr Vs State of Maharasthra 1973 2 SCC 793
J. Sri VR Krishna Iyer, Stated thus, …............ The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
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The excessive solicitude reflected in the attitude that a thousand guilty man may go but one innocent shall not suffer is a false dilemma.
Only reasonable doubts belong to the accused, otherwise any practical system of justice will then break down and lose credibility with the community”.
3.(a) Miller Vs Minister of Pensions 1947 2 ALL EP 272
(b) Sucha Singh & Anr Vs State of Punjab 2003 7 SCC 643 “............. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability.
Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt.
The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt.
It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man,
Smelling doubt for the sake of giving benefit of doubt is not the law of the land.
“Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence.
A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.
“Proof beyond reasonable doubt is a guidelines, not a fetish”.
4.Rammi @ Rameshwar Vs State of Madhya Pradesh 1999 8 SCC 649 enumerates,
It is only the serious contradictions and omissions which materially affect the case of prosecution but not every contradiction or omission.
It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trust worthiness.
5.Yogesh Singh Vs Mahabeer Singh & Ors
Criminal appeal No.1482 of 2013
6.Dalip Singh Vs State of Punjab AIR 1953 SC 364 1 1
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
7.Yogesh Singh Vs Mahabeer Singh & Ors
Criminal appeal No.1482 of 2013
C. Muniappan and Ors Vs State of Tamilnadu 2010 9 SCC 567 elucidates ..........., It is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omission or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded.
Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth.
Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
The defence counsel vehemently submitted there are no misappropriation to the some of the items shown in the Ex.P4. But on perusal of Ex.P4 the final finding is the accused misappropriate funds. He further submitted P.W.1 admitted in his tenure no misuse of funds by the accused. As already above discussed in these types of cases documentary evidence is more value than the oculary evidence.
19)In view of the above discussion, the prosecution had uplift his case against that accused with a minor discrepancies, which cannot be vitiate the entire case of the prosecution and proved the guilt of the accused for the offence under Section.409 of IPC beyond all reasonable doubts. Hence the point is answered affirmatively in favour of the prosecution. POINT NO.2 : 20).In the result, the accused is found guilty for the offence Under Section.409 of IPC. Accordingly the accused is convicted under Section.248(2) of Cr.P.C. for the offence under Section.409 of Indian Penal Code.
Dictated to the Stenographer Grade III, transcribed by her, corrected and pronounced by me
in the open court, this the 09th day of March, 2018.
Judicial Magistrate of I Class
Naidupet 1 2
Date : 09-03-2018 :
Quantum of Sentence :
When questioned about quantum of sentence the accused submitted as mentioned below: The accused heard under Sec.248 (2) of Cr.P.C with regard to quantum of sentence that shall be awarded to him for the offence under Secs. 409 of IPC. The accused pleaded mercy as she is suffering with fits and she is aged about 64 years and her husband also suffering with ill health except her no one lookafter him. In view of the nature of the offence committed by the accused, this court is of the view that it is not a fit case to invoke the benevolent provisions of either under Section 360 of Cr.P.C of provisions of the Probation of Offenders Act. Having regard to the facts and circumstances of the case and the nature of the offences committed by the accused and also upon considering the plea of mercy pleaded by the accused, this court is of the view that if the accused is/are sentenced to undergo certain period as imprisonment and certain amount as fine, the ends of justice would be melt. Accordingly, the accused is sentenced to undergo S.I for a period of three years and shall also to pay a fine of Rs. 10,000/- in default of fine amount suffer S.I for a period of six months for the offence under Sec. 409 IPC. The period of remand, if any, already undergone by the accused shall be given set off under Sec. 428 of Cr.P.C. The accused is/are informed his right of prefer appeal as against this judgment. The free copy of judgment copy furnished to the accused on receipt of acknowledgment. Typed to my dictation by the Stenographer Grade III, corrected and pronounced by me in the open court, this the 09th day of March, 2018.
Sd/- G.V.L.Saraswathi
Judicial Magistrate of I Class
Naidupet
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For prosecution: For Defence: PW1: T.Ramanaiah - NONE - PW2: B.Mohan Rao PW3: P.Kishore Babu, Investigating Officer PW4: R.S.Kishore Kumar, Investigating Officer
DOCUMENTS EXHIBITED FOR PROSECUTION
Ex.P1 : Report given by PW.1 to the police, dt.29-04-2009. Ex.P2 : FIR in Crime No.46/2009 of Ozili Police Station, dated.01-05-2009. Ex.P3 : Direction Letter from the District Collector, Nellore to the MPDO Office, Ozili, dt.05-01-2009. Ex.P4 : Vigilance Department report in Appraisal Note No.183, dt.28-07-2005 consisting of 6 pages. Ex.P5 : Report of DLPO, Gudur ie., LW.4 to District Panchayath Office, Nellore. Ex.P6 : Proceedings from the District Collector, dt.09-04-2007 consisting of two pages.
DOCUMENTS EXHIBITED FOR DEFENCE
Ex.D1 : Some Portion of Section.161 Cr.P.C. statement of PW.2.
MATERIAL OBJECTS
NILL.
Sd/- G.V.L.Saraswathi
Judicial Magistrate of I Class
Naidupet