IN THE COURT OF THE V ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS ::
TIRUPATI
Present:-M.D.V.N.Sindhura, V Additional Judicial Magistrate of I Class, Tirupati.
Friday, the Twenty- Second (22nd ) day of APRIL, 2022.
C.C.No.340/2013
Between:
State represented by the Sub-Inspector of Police,... Complainant
Tiruchanur Police Station.
And
1) S.Swamydas, S/o S.Naganna, Formerly Panchayat Secretary, Tiruchanur Gram Panchayat.
2) Pathiputturu Jayarami Reddy, Age 57 yrs, S/o late P.Gangi Reddy, Formerly Junior Assistant, Tiruchanur Grampanchayat, R/o D.No.1-52, Padipet Post and Village, Tirupati Rural Mandal. ...A1 and A2
This case is coming before me on 13.04.2022 for final hearing in the presence of Assistant Public Prosecutor for the State, and of Sri K.Purushotham, Advocate for A1 and A2 and upon hearing their arguments and upon perusing the documents available on record and having stood over for consideration till this day, this court delivered the following:
J U D G M E N T :
1.The Sub-Inspector of Police, Tiruchanur Police Station, has filed charge sheet against A1 and A2 in Cr.No.141/2008 for the offence punishable u/Secs.120-B, 417, 468, 477-A and 409 r/w 34 IPC.
2.The case of the prosecution is as follows :
(i) A1/S.Swamy Das is the then Panchayat Secretary of Tiruchanur Gram panchayat while A2 is the then Junior Assitant of the same Panchayat. The District
Panchayat officer, Chittoor namely G.Sankaraiah (hereinafter referred as PW2) upon receipt of a complaint pertaining to misappropriation of Panchayat funds by A1, A2 and Bill collector of Tiruchanur Gram Panchayat namely N.Chandra sekhar Reddy, conducted a detailed inspection of the records and found the tampering of the
Amounts in the panchayat records. He found that there was a misappropriation of an amount of Rs.45,37,546/- relating to the taxes under various heads. He further noticed misappropriation of Rs.2,167/- by the Bill Collector N.Chandra Sekhar
Reddy. PW2 prepared a detailed report to the effect of misappropriation of the
Panchayat taxes by A1, A2 and the Bill collector which he submitted to the District
Collector, Chittoor for further action. After consideration of the report of Pw.2, the
District Collector issued proceedings vide ROC No.2583/2007-A4 (PTS,
dt:16.06.2008) to launch criminal proceedings against A1, A2 and the Bill Collector
for embezzlement of panchayat amount.
(ii) The then Divisional Panchayat Officer, Chandragiri namely S.A.Razaak (hereinafter referred as PW1) lodged the report before SHO, Tiruchanur Police
Station against A1, A2 and the Bill collector on 17.09.2008 at 6.00 pm., The then
Sub-Inspector of Police , Tiruchanur Police Station (hereinafter referred as PW6) registered the said report as case in Cr.No.1141/2008, u/Secs.409, 417, 467 of IPC and investigated into.
(iii) In the course of investigation, PW6 examined Pws.1 and 2, as well as the
Junior Assistant o/o Divisional Panchyat Officer, Chandragiri, namely Alla Giridhar (hereinafter referred as PW3), the District Audit Officer (FAC), Chittoor namely
T.Brahamaiah (hereinafter referred as PW5) and the District Treasury Officer, Tirupati namely K.Srinivasulu (hereinafter referred as PW4).
(iv) Further, PW6 during the course of his further investigation, seized the
Chitta registers, Miscellaneous receipts registers and Treasury registers of the
Tiruchanur Gramapanchayat Office from the concerned. PW6 also obtained the original Challans relating to the tampered figures from the Sub-treasury office,
Tirupati.
(v) Further, PW6 upon verifying the entries in the registers seized, observed that both the accused tampered the numerical figures in Challans, Chitta Registers and Treasury pass book registers. It is observed that A1 and A2 collected a tax amount of Rs 1,96,000/- but generated Treasury Challan No. 74020 dated 31.03.2005 for Rs.96,000/- which they remit to the Treasury department. They defalcated the remaining 1,00,000/- and later altered the numerical figure in Challan adding 1 before 96,000/- so also tampered the numerical figures in both Chitta
Register and Treasury Register. A1 and A2 with the same modus operandi defalcated the amounts mentioned here under.
(vi) The amount remitted under Challan No.61429 dtd. 16.03.2006 was Rs 50,000/- instead of the actual collected amount Rs1,50,000/-. The amount remitted under Challan no.64088 dtd. 27.03.2006 was Rs 70,000/- instead of the actual collected amount Rs1,70,000/-. The amount remitted under Challan no.61880 dtd.
20.02.2007 was Rs 91,000/- instead of the actual collected amount Rs 1,90,000/-.
The amount remitted under Challan no.69024 dtd. 28.03.2007 was Rs 48,000/- instead of the actual collected amount Rs1,48,000/-. The amount remitted under
Challan no.20412 dtd. 23.06.2007 was Rs 32,103/- instead of the actual collected amount Rs1,32,103/-. The amount remitted under Challan no.52577 dtd. 08.10.2007 was Rs 10,000/- instead of the actual collected amount Rs1,00,000/-. The A1 and A2 accordingly tampered the numerical figures in the Challans, Treasury pass book and
Chitta Register afterwards.
(vii) Further, during the tenure of A1 and A2 as Panchayat secretary and
Junior Assistant of Grampanchayat, Tiruchanur, the amount of Rs 15,000/- collected towards Bus stand tax, was not shown in the Chitta register so also in the Treasury register. The treasury Challan No 26771 was generated on 27.08.2005 pertaining to bus stand tax amount but except Bank seal with date 30.08.2005, the signature of bank officials was not, present on the said Challan.
(viii) There are interpolations and corrections in the Miscellaneous receipts which were not attested by A1. A total amount of Rs.1,91,545/- was collected under the Miscellaneous receipts, but they made entry for only four Miscellaneous receipts amount of Rs.22,300/- in the Chitta register. Out of the 53 miscellaneous receipts,the 49 miscellaneous receipts were not accounted and the amount covered under those 49 miscellaneous in total was Rs.1,69,245/-.
(ix) As per the miscellaneous receipt book No.4869 of the year, 2005 to 2006, the bus stand tax of Rs.2,00,000/- was collected in the name of T.Murali , S/o
Guruvaiah, bus stand contractor, but the said receipt was cancelled at the later point of time for no reason stated in the register.
(x) An amount of Rs.2,51,112/- was granted to the Panchayat towards salary grant vide orders in RC No.1406/2004/A2, dated:21.02.2005 passed by the District
Collector. The said salary grant was not accounted in the Chitta register and the same was adjusted to some other account as per the challans and thereby caused loss to the Grampanchayat to a tune of Rs.2,51,112/-.
(xi) The auctioned deposit amount of Rs.15,000/- accrued from the auction of rooms for the year, 2005-06 was also not accounted as per the Chitta register.
(xii) PW6 during the course of his further investigation came to know that the
District Collector, Chittoor issued proceedings vide ROC No.2583/2007, A2 (PTS,
dt:16.09.2008 and 29.10.2006appointed District Audit Officer (PW5) as Inquiry
Officer to conduct enquiry into the allegations of misappropriation of the Tiruchanur
Panchayat funds and submit his detailed report. In the said proceedings, PW1 was appointed as the presenting officer. PW5 accordingly, conducted the inquiry and submitted a detailed report to the District Collector, Chittoor vide Lr.SA No.883,
dated:11.11.2008. Basing on the said report, the District Collector, vide RC
No.4952/2006-A2 (PTS), dt:10.12.2008 ordered to withdraw the prosecution against the Bill collector N.Chandra Sekhar Reddy as the allegations were not proved against him. In the said report, it is mentioned that A2 in connivance with A1 tampered the treasury challan miscellaneous chitta book, and caused pecuniary loss to Grampanchayt to a tune of Rs.3,04,786/- and misappropriated a total amount of
Rs.11,96,157/-.
(xiii) The Hon’ble High Court of Judicature AP hyderabad while disposing the criminal petition No.7508 of 2008, dated;19.11.2008 has directed the Police not to arrest A2 till filing of the charge sheet. Further, in Crl.P.No.6536 of 2008,
dated:20.11.2008 ordered not to arrest A1 till filing of the charge sheet.
(xiv) On 04.11.2009, A2 was arrested on his surrender at the Police station.
Accordingly, the Investigation is completed and PW6 filed charge sheet against A1 and A2 alleging that they have committed criminal misappropriation of Gram
Panchayat funds and caused loss to the State exchequer and thereby liable for the punishament u/Secs.120-B, 417, 477-A and 409 r/w 34 IPC. Hence, the charge.
3. This court has taken cognizance of the offences u/Secs.120-B, 417, 468, 477-
A and 409 r/w 34 IPC against A1 and A2.
4.The copies of the charge sheet and all its annexures were furnished to A1 and
A2 in strict compliance of section 207 Cr.P.C.
5.A1 and A2 were examined under Section 239 Cr.P.C. Charges u/Secs.120-B, 417, 468, 477-A and 409 r/w 34 IPC, framed against A1 and A2. The accusation leveled against them was well explained to them in their vernacular language for which, A1 and A2 having understood of the same, denied the commission of offence, pleaded not guilty and claimed for trial. A1 and A2 are defended by their advocate.
6. The prosecution in order to substantiate its contention, examined PW1 to PW6 and got marked Ex.P1 to Ex.P23.
7. After closure of prosecution side evidence, A1 and A2 were examined under
Section 313 Criminal Procedure Code during which they denied the incriminating material found against them in the evidence of prosecution and further reported that they have defence evidence and that Dws.1 to 3 were examined and Exs.D1 to D8 were marked on behalf of the accused.
8. Heard oral arguments for the prosecution as well as A1 and A2. In addition to the oral arguments advanced, Written arguments also filed by the learned defence counsel for A1 and A2.
9. Now the point for determination is:
“Whether the prosecution proved the guilt of A1 and A2 for the offence
punishable u/Secs.120-B, 417, 468, 477-A and 409 r/w 34 IPC, beyond all reasonable doubts?”
POINT
10.Thisis a case of the Criminal Misappropriation by the Panchayat staff that took place in the precincts of Tiruchanur Grama Panchayat. According to the case of the prosecution, the A1 being the Panchayat Secretary and A2 being the Junior Assistant of the Tiruchanur Grampanchayat respectively had defalcated the Panchayat taxes collected under various heads and Panchayat Funds to a tune of Rs.15,00,943/-. It was imputed that A1 and A2 have not remitted the whole collected house taxes and misappropriated to a tune of Rs 7,90,000/- and altered the numerical figures in the
Challans, Chitta registers and Treasury registers of the relevant period.
11.Further, it was imputed that, an amount of Rs.15,000/- collected towards bus stand tax was not remitted in the treasury, but generated challan No.26771, from the treasury on 27.08.2005. In the said challan, though the bank seal dated 30.08.2005 was affixed, there was no signature of the Bank official.
12. Further it was imputed that there are interpolations and corrections in the
Miscellaneous receipts which were not attested by A1. A total amount of
Rs.1,91,545/- was collected under the Miscellaneous receipts, but they made entry for only four Miscellaneous receipts amount of Rs.22,300/- in the Chitta register. That out of the 53 miscellaneous receipts,the 49 miscellaneous receipts were not accounted and the amount covered under those 49 miscellaneous in total was
Rs.1,69,245/-.
13.Further it was imputed that, as per the miscellaneous receipt book No.4869 of the year, 2005 to 2006, the bus stand tax of Rs.2,00,000/- was collected in the name of T.Murali , S/o Guruvaiah, bus stand contractor, but the said receipt was cancelled at the later point of time for no reason stated in the register.
14.Further it was imputed that an amount of Rs.2,51,112/- was granted to the
Panchayat towards salary grant vide RC No.1406/2004/A2, dated:21.02.2005 passed by the District Collector. The said salary grant was not accounted in the
Chitta register and the same was adjusted to some other account as per the challans and thereby caused loss to the Grampanchayat to a tune of Rs.2,51,112/-.
15.Further it was imputed that the auctioned deposit amount of Rs.15,000/- accrued from the auction of rooms for the year, 2005-06 was also not accounted as per the Chitta register.
16.Coming to the defence of A1 which was put-forth in the form of suggestions, during his tenure as Panchayat Secretary, One C.R.Rajan was the Sarpanch of the
Tiruchanur Grampanchayat with whom he had enmity. That the tender raised by the follower of C.R.Rajan namely Krishna Murthy relating to the auction of the toll gates at Tiruchanur Private bus stand was canceled basing on his report. Though the
Sarpanch C.R.Rajan and his follower Krishna Murthy approached the Hon’ble High
Court against the order passed by the District Collector for re-tendering of the auction of the toll gates at Tiruchanur private bus stand, but they did not succeed in obtaining favourable order. In that regard, the Sarpanch bore grudge against him.
While thus, A2 committed the misappropriation of the panchayat amounts. The said
C.R.Rajan against whom he filed a criminal case as well, taking advantage of the misappropriation held in the office of Grampanchayat, influenced the police and implicated him in this case.
17.Coming to the defence set up by A2 that put-forth in the form of suggestions,
A1 being the Panchayat Secretary was custodian of all the registers seized by the
Investigation Officer and he did not maintain those registers, as such, he was not responsible for the misappropriation of the tax amounts and Panchayat funds and tampering of the records as well.
18.At the very outset, It is not in dispute that that A1 worked as Panchayat
Secretary of the Gram Panchayat, Tiruchanur from 23.04.2004 to 15.06.2008 and A2 worked as Junior Assistant of Grampanchayat, Tiruchanur from 10.05.1995 to 02.08.2007. It is evident from the defence set up by A1 and A2 in the form of suggestions, though they denied commission of defalcation of the tax amounts and
Panchayat Grants but at the same time, they did not dispute the occurrence of the embezzlement of the amounts of Tiruchanur Grampanchayat during their tenure period. They both attributed the offence against each other.
19.As seen from the evidence placed by the prosecution, PW1 is the Divisional
Panchayat Officer, Chandragiri who in pursuance of the directions of the District
Collector, Chittor issued in the Proceedings dated:16.06.2008 marked as Ex.P2, lodged the Ex.P1 report against A1 and A2 on 17.09.2008. He has no direct knowledge about the alleged involvement of A1 and A2 in the defalcation of the
Panchayat amounts. Since he was holding the office of District Panchayat Officer during the period in which the misappropriation came into light, the District Collector has directed him to lodge the report. Later PW1 handed over the Ex.P3 Chitta register of the year 2004-05, Ex.P4 Chitta register of the year 2005-06, Ex.P5 Chitta register of the year 2006-07, Ex.P6 to Ex.P13 House tax demand registers old and new volumes respectively, Ex.P14 to P17 the miscellaneous receipt books of the years 2004-05, 2005-06, 2006-07 and 2007-08 respectively, Ex.P18 the treasury challans (9 in number).
20.On perusal of the entries in Ex.P3 Chitta Register of the year 2004-2005 with the 1st Challan bearing no 74020 dated 31.03.2005 in Ex.P18, it is visible to the naked eye that the numerical “1” was added before the amount 96,000/-. While the
Ex.P3 Chitta register shows the closing balance including the tampered amounts for the month of March as Rs 6,17,051/-, the actual amount arrived after the calculation is Rs7,14,031/-. So, it is apparent that an amount of Rs 96,980/- was defalcated.
21.Further, as per the Ex.P4 Chitta register of the year 2005-2006, the closing balance including tampered amounts was shown as Rs 8,02,494/- instead of
Rs.9,17,151/-. It is evident that, there is variation of Rs.40,980/- in Chitta of June 2005 where closing balance was shown as Rs 51,223/- instead of Rs 92,203/- and a difference of Rs 73,677/- occurred in Chitta of March 2006. Further the Page no.45 of Ex.P4 Chitta Register corresponds to 3rd challan no.64088 dated.27.03.2006 in
Ex.P18 shows the addition of ‘1” before the amount 70,000/-. Further Page No.43 of
Ex.P4 Chitta Register corresponds to 2nd Challan in Ex.P18 no.61429 dtd 16.03.2006 shows the addition of ‘1” before the amount 50,000/-. Indeed, it is evident that an amount of Rs 3,14,657/- was defalcated.
22.Further, the perusal of Ex.P5 Chitta Register of the year 2006-2007, the page
No.6 reflects remittance of Rs 1,73,860/- vide challan no 20622 dtd 24.07.2006 corresponds to 4th challan in Ex.P18. Further the page no. 17 reflects remittance of
Rs 1,50,903/- vide challan no 56216 dtd.22.01.2007 corresponds to 7th challan in
Ex.P18. Further page 20 reflects remittance of Rs1,91,000/- vide challan No. 61880 dated.20.02.2007 corresponds to 5th challan in Ex.P18. Further page 26 reflects remittance of Rs 1,48,000/- vide challan no.68024 dated.28.03.2007 corresponds to 6th challan in Ex.P18. In the register, the closing balance for the said year including tampered amounts was shown at page No.27, as Rs7,24,862/-instead of 10,25,127/-. Thus, it is evident that an amount of Rs.3,00,265/- was defalcated.
Therefore the total amount defalcated as per Ex.P3 to P5 Registers of the years 2004-05, 2005-06 and 2006-07 was Rs 7,11,902/-.
23.Further the perusal of ExP17 Miscellaneous Register with the Serial No. 4869 issued in the name of T. Murali S/o Guravaiah for Rs 2,00,000/- towards annual Bus stand tax of the year 2005-2006 was canceled. There was no entry relating to the same in the Chitta Register of relevant year and the reasons for the cancellation of the receipt is not mentioned. Further the cancellation of the receipt was not signed by A1.
24.Further the perusal of Ex.P14 to P17 Miscellaneous receipt books of the years 2004-05, 2005-06, 2006-07 and 2007-08 respectively, makes it clear that there is clear tampering of the amounts in 53 Miscellaneous receipts and the corresponding
Chitta registers are entered with the tampered amounts. On calculation of the whole tampered amounts under various receipts, the defalcated amount came at
Rs1,69,245/-.
25. Further perusal of the last Challan No.26771 of Ex. P18, it was generated for an amount of Rs15,000/- . Though it bears the Bank seal, but there is no signature of
Bank personnel to the effect of receipt of the amount. Also, Ex.P3 Chitta Register do not reveals any entry relating to the remittance of the said sum, to the
Grampanchayat Account. Hence, the said Rs 15,000/- was found to be defalcated.
26.Further, as per prosecution case, the A1 and A2 collected house tax by reducing the rate of percentage instead of enhanced rate of 5% tax against the norms fixed in GOMS No.98 dtd. 14.03.2002 and there by caused loss of Rs23,674/- to the Panchayat. The prosecution has not placed the GOMS No.98 dt.14.03.2002 of
Panchayat Raj and Rural Development to verify the rate of enhanced house tax to be collected. However, there is no suggestion put forth by either A1’s counsel or A2’s counsel during cross-examination disputing the collection of reduced house tax instead of enhanced 5% house tax from the villagers against the said Government
Gazette Order.
27.PW2 is the then District Panchayat Officer of Chittoor District and as per his evidence, in the month of 2008, the District Collector instructed him to visit
Tiruchanur Gram Panchayat and make necessary inquiries regarding misappropriation of Panchayat funds on which he issued a notice to A1 calling upon to submit Gram Panchayat records of the period 2004 to 2008. Accordingly, A1 submitted cash book, Sub-Treasury Pass book, Chitta Register, Challans expenditures vouchers, miscellaneous bills relating to the public water supply and electricity bills, house tax demand receipt, building plan approval register of the period from 2004 to 2008. He reconciled the cash book, sub-treasury pass book, challan, and Chitta with the entries made in the bank statements and found variation of Rs.16,45,000/-. On that, he called for the statement of bank account of the
Panchayat lying at SBI, Tirupati main branch and verified the entries in the bank account with the entries in the Sub-treasury pass book and found the variation. He also noticed that the amounts mentioned in 10 or 11 challans were altered in one of the triplicates of the challan, prepared by the Gram Panchayat Office for the remittance. The amounts were altered excessively. He also noticed that the Gram
Panchayat office expenditure exceeds the cealing limit of 20 % in respect to the drinking water, exceeds the cealing limit of 15% in respect of the sensitization and exceeds the cealing limit of 15% in respect to the street lights. The variation of the amount, he noticed was around Rs.29 to 30 lakhs. Basing on his observations, PW2 submitted his detailed report to the District Collector and also submitted a copy of the report to the Commissioner, Panchayat Raj to take disciplinary action.
28. PW3 is the then Junior Assistant, Divisional Panchayat Officer, Chandragiri whose part in this case is, accompanying PW1 to the Tiruchanur police station at the time of handovering the Registers.
29.PW4 is the then District Treasury Officer, Divisional Sub-Treasury Office,
Tirupati whose office has issued Ex.P21 Letter to the Investigation officer. The information furnished in the Ex.P21 discloses that the amounts so remitted to the
Tiruchanur Grampanchayat account were lesser by one lakh under each challan.
The said variation is apparent on perusal of the entries in the Ex.P3 to P5 Chitta
Registers and Ex.P18 Challans.
30. PW5 is the District Auditor. As per his evidence, on 16.09.2008, pursuant to the proceedings of the District Collector, he conducted the Audit of the Tiruchanur
Gramapanchayat accounts and submitted a report to the District Collector. He came to know that PW2 raised 16 allegations in his report submitted to the District
Collector who in turn directed him to verify the accounts in respect to those 16 allegations. During his inquiry, he found an amount of Rs.12,19,831/- was misappropriated by A2 and accordingly, he submitted the Ex.P18 inquiry report to the
District Collector(Ex.P18 was given to two exhibits due to oversight).
31.PW6 is the then Sub-Inspector of Police, Tiruchanur Police Station who conducted the investigation in this case and he deposed in consonance with the prosecution case.
32.Percontra, the A1 to prove his defence that the Sarpanch and his follower
Krishna Murthy implicated him in the case, examined DW1 M.Janardhana Reddy who is the incumbent, Panchayat Secretary of Tiruchanur and he deposed that the minutes books maintained by their Office reveals, the resolution passed on 7.3.2008.
A1 in the capacity of the Panchayat Secretary had issued the proceedings in favour of the highest bidder Krishna Murthy on 7.03.2008. That on 15.03.2008, A1 issued a notice to the said Krishna Murthy calling to pay the balance amount within seven days.
33.Further, A1 pleaded that he was the first person who noticed the
Misappropriation of the Panchayat amounts and in that connection, on 28.09.2007, he issued a official notice to the A2 under reference No.50/2007 wherein, he called for the explanation of A2 over the misappropriation of the Panchayat funds under four heads. The A1 in this regard examined DW2 the incumbent Senior Assistant of
District Panchayat Office, Chuittoor who deposed that Ex.D2 the copy of the memo/notice No.50/2007, dt:28.09.2007 was issued by A1 to the A2 questioning over the tampering of the challans. It is evident that Ex.D2 Memo discloses the reference of the Ex.P18 Challans tampered amounts and Bus stand tax amount.
34. Further, DW2 deposed that on 17.11.2007, the District Panchayat Officer issued a notice to the then Panchayat Secretary of the Tiruchanur Gramapanchayat under Ex.D3 calling for the submission of registers. Further, on 1.12.2007, the then
Junior Assistant of the DPO received back the registers under an acknowledgment receipt. Ex.D4 is the copy of receipt dt:1.12.2007. During cross-examination, he stated that he does not know the quantum of the amount misappropriated by A2 and what action the District Panchayat officer was taken over Ex.D2 receipt.
35.DW3 is the incumbent District Panchayat officer, Chittoor and he deposed that
Ex.D5 is the copy of the Final Order- Cum – Proceedings issued by the District
Collector to A2 wherein A2 received the dismissal orders from the service and a direction to deposit the misappropriation amount of Rs.15,00,943/-. Ex.D6 is the copy of the memo dated:09.03.2009 issued by the District Collector, Chittoor to the
Panchayat Secretary, Tiruchanur vide R.C.No.2583/2007 seeking information whether A2 deposited the said misappropriated amount to the Grampanchayat.
Ex.D7 is the Panchayat Secretary Report on 13.03.2009 stating that A2 did not remit the amount to the Grampanchayat. Ex.D8 is the notice issued by the DPO, Chittoor directing A2 to deposit the amount misappropriated. DW3 deposed that as per the documentary evidence, A2 is held responsible for misappropriation of funds.
Further, he stated that after conducting departmental enquiry, they gave a direction to A2 to deposit the misappropriated amount of Rs.15,00,943/- in the
Grampanchayat account for their remittance.
36.As per the prosecution case, the handwriting relating to the entries in Ex.P3
Chitta register of the year 2004-05, Ex.P4 Chitta register of the year 2005-06, Ex.P5
Chitta register of the year 2006-07, Ex.P6 to Ex.P13 House tax demand registers old and new volumes respectively, Ex.P14 to Ex.P17 the miscellaneous receipt books of the years 2004-05, 2005-06, 2006-07 and 2007-08 respectively, Ex.P18 the treasury challans (9 in number) belongs to A2. Further A2 used to attend the
Treasury remittance duties.
37.In this connection, A2 contended that A1 took the charge from him and also received the cash book, cheque book, treasury passbook, chitta book and house tax demand registers and after the misappropriation came into light, he submitted a letter to the District Panchayat Officer stating that same. Also, the learned counsel for
A2 argued that the handwriting was not sent to Forensic expert to prove that it belongs to A2.
38.In this regard, the observations in Ex.D5 Final Order of the District collector in the Departmental enquiry throw light in arriving to a point. In the said Order, it was clearly mentioned that A2 submitted explanation on 16.11.2007 firstly, wherein he stated that he was unable to make entries in the Chitta Register daily. Later, at the time of proceedings of Departmental enquiry, again he submitted another explanation stating that A1 took charge of those registers from him and he maintained those registers. The District Collector in his Ex.D5 Order negatived the two inconsistent pleas of A2. Further, it is evident that the A2 was the only Junior
Assistant working in the Grampanchayat, Tiruchanur by then and as per the office administration convenience, A2 being the Junior Assistant used to receive the collected amounts from Bill Collector and remit the same to the Panchayat account lying at State Bank of India, Tirupathi through Treasury Challans.
39.It is pertinent to say here that A1 being the Panchayat Secretary was the authorized signatory for issuing the tax receipts and Challans supposed to present
before the Bank towards remittance of the collected amounts to the Grampanchayat
account. But here, the aspect observed is, there are no initials under the alterations and interpolations made in Treasury Challans to say that A1 was also involved in the
Misappropriation.
40.Further, though the Miscellaneous receipts were signed by the Panchayat secretary, no signatures of the Panchayat secretary were made at the places where the amounts are corrected. This goes to show that A2 who prepared the receipts has committed the above noted tampering of records and misappropriated the difference amounts without the knowledge of the A2. In view of the afore going discussion, I opine that there is no necessity to seek the opinion of Forensic Expert over handwriting in the Challans and Registers. Further, I find some force in the argument of learned counsel for A1 that, had been A1 was involved in defalcation of the amounts, he would have put his initials underneath the alterations and corrections.
41.Further, it is evident that A1 at the very first instance issued Ex.D2 Official memo to the A2 vide 50/2007, dated:28.09.2007 in respect to the alleged misappropriation of the funds at Tiruchanur Grampanchayat Office. As per the testimony of PW2, in the month of April 2008, the District Collector has directed him to conduct enquiry over the misappropriated occurred in the Accounts of Tiruchanur
Grampanchayat. The Ex.D2 Memo discloses that the copies of the said Official memo was marked to District Panchayat Officer and Divisional Panchayat Officer.
So, it is evident that the defalcation of the Panchayat taxes and funds was unveiled out, in the light of Ex.D2 Official Memo.
42.Further perusal of Ex.D5 Final order in Departmental enquiry, reveals that the
District Collector having come to conclusion that A2 was held responsible for defalcation of the Panchayat taxes and funds imposed Major punishment of dismissal from the Service besides directing to deposit the defalcated amount of Rs 15,00,943/-. DW3 the District Panchayat Officer though was examined by the A1, but he cannot be termed as Partisan witness. He is a Material independent witness in this case. He categorically deposed that, after verifying the documents, A2 alone was held responsible for the misappropriation of the Panchayat amounts.
43.The learned counsel for A2 has argued that the A2 is a Public servant in terms of section 21 of IPC and to prosecute A2 for the alleged misappropriation at office, the sanction under section 197 of CrPC is mandatory. In this regard, the learned counsel has placed his reliance in Case reported in AIR 2000 Supreme Court 3517 and a case held between Mrityunjoyu sinha and Anr Vs Tarapada Das & Anr decided by the Hon’ble Calcutta Court. The learned counsel emphasizing on the cited judgment argued that the prosecution case fails for lacking of sanction proceedings against A2.
44. In this regard, PW1 deposed that the District Collector of Chittoor has issued
Ex.P2 Proceedings wherein a direction was given to initiate the criminal proceedings against A1 and A2 and in pursuance of the said directions only, he lodged Ex.P1
Report against A1 and A2 before the Station House Officer, Tiruchanur Police station.
Thus Ex.P2 Proceedings is itself a Sanction proceedings from the State Government represented by the District Collector for launching the prosecution against A1 and A2 under section 195 of CrPC. As such, the argument of learned counsel for A2 that there was no prior sanction is ruled out.
45.In the light of afore going discussion, I arrived at a conclusion, A1 though was negligent in verifying the Registers from time to time but there was no conspiracy established by the prosecution in between him and A2 with respect to the Criminal misappropriation of the Panchayat tax amounts and Funds. A1 is due negligent in discharging of his duties while A2 taking advantage of the same, misappropriated the tax amounts and panchayat funds and caused loss to the State exchequer. The acts of A1 would not make him liable for penal action. Since A1 alone was involved in the defalcation of the Panchayat amounts, I hold that the prosecution was not able to prove the charges against A1 for the offences under 120-B, 417,477-A and 409 of
IPC r/w 34 of IPC beyond all reasonable doubts.Indeed I hold that the prosecution was not able to prove the charge against A1 for the offence U/sec 120-B of IPC.
46.Further, In the light of my discussion, I arrived at a conclusion that the prosecution proved that A2 intentionally deceives the General public into a belief that the amounts so collected towards taxes under various heads are being remitted to the Gram Panchayat account, which he has not performed in reality and thereby dishonestly induces the General public to pay the taxes. Thus, I hold that the prosecution is able to prove the charge against A2 for the offence under 417 of IPC beyond all reasonable doubts.
47.Further, the prosecution though proved the tampering of numerical figures and words but is not able prove that the A2 has forged the signatures of A1. Even it is not the allegation of the prosecution as per Charge sheet averments. Thus, I hold that the prosecution is not able to prove the charge against A2 for the offence u/Sec.468 of IPC, beyond all reasonable doubts.
48.Further, the prosecution proved that A2 being the Clerk in the Tiruchanur
Gram Panchayat who was deputed to maintain the Treasury Challans and
Corresponding Register, Chitta Registers, Miscellaneous Register and House tax register made alterations of the amounts in those records purposefully, for unlawful gain. Hence, I hold that the prosecution is able to prove the charge against A2 for the offence under 477-A of IPC, beyond all reasonable doubts.
49.Further, the prosecution proved that A2 being the public servant entrusted with the Panchayat tax amounts and Funds in the Gram Panchayat account, has defalcated those amounts for his own and committed Criminal breach of trust.
Hence,I hold that the prosecution is able to prove the charges against A2 for the offence u/Sec.409 of IPC beyond all reasonable doubts.
50.IN THE RESULT, I find A1, not guilty of the offences punishable u/Secs.120-
B, 417,468,477-A and 409 r/w 34 of IPC. Accordingly he is acquitted of the said offences U/sec 248(1) of CrPC. Further I find A2, not guilty of the offences u/Secs.120-B and 468 of IPC. Accordingly he is acquitted of the said offences
U/sec 248 (1) of CrPC. Further I find A2, guilty of the offences punishable u/Secs.417, 477-A and 409 of IPC. Accordingly, he is convicted for the said offences U/sec 248(2) of CrPC.
Typed to my dictation, corrected in my laptop and pronounced by me in open court, on this 22 nd day of APRIL, 2022.
Sd/- M.D.V.N.Sindhura
V Addl.Judl. Magistrate of First Class, Tirupati.
A-2 is questioned with regard to quantum of sentence and he submitted that he is suffering from chronic kidney ailments and he is under constant medication. He also further submitted that he is more than 70 years old and he is suffering from old age ailments as well. Hence, pleaded for lenient view.
The acts of the A2 caused loss to the State Exchequer and the amount misappropriated was a huge sum. In view of the gravity of the offence and the impact of the sentence in this kind of offences on the society, I feel, it is not a fit case to invoke the benevolent provisions of Probation of Offenders Act or Sec. 360 of
Cr.P.C. However, considering the age and different ailments of A-2, I opined that, the following sentence would meet the ends of justice.
Therefore, A-2 is sentenced to undergo rigorous imprisonment for a period of
Eight months and shall also sentenced to pay a fine of Rs.1,000/- IDSI, one month for the offence u/Sec.417 of IPC.
Further, A2 is sentenced to undergo rigorous imprisonment for a period of
Eight months and shall also sentenced to pay a fine of Rs.1,000/- IDSI, one month for the offence punishable 477-A of IPC.
Further, A2 is sentenced to undergo rigorous imprisonment for a period of
Eight months and shall also sentenced to pay a fine of Rs.1,000/- IDSI, one month for the offence punishable 409 of IPC.
All the sentences imposed against A2, shall run concurrently.
The remand period that A-2 have undergone from 04.11.2009 to 10.11.2009 shall be set off U/s.428 of Cr.P.C.
A-2 is appraised of his right to prefer an appeal against the conviction and sentence passed by this court. A-2 is further appraised of his right to get legal assistance in preferring the appeal, if he so requires, through District Legal Services
Authority, Chittoor.
Total fine amount of Rs.3,000/- (Rupees three thousands only).
Typed to my dictation, corrected in my laptop and pronounced by me in open court, on this 22 nd day of APRIL, 2022.
Sd/- M.D.V.N.Sindhura
V Addl.Judl. Magistrate of First Class, Tirupati.
APPENDIX OF EVIDENCE
witnesses examined
Complainant:Accused:
P.W1:S.A.Rajak, Divisional Panchayat DW1:M.Janardhan Reddy
Officer
P.W2:G.Sankaraiah, District Panchayat DW2:K.Jayakumari
Officer
P.W3:Alla Giridhar, Junior Assistant, DW3:K.L.Prabhakar Rao
Office of Divisional Panchayat Officer,
Chandragiri
P.W4:K.Sreenuvasulu District Treasury
Officer,
P.W5:T.Brahmaiah, Assistant Audit Officer,
Chittoor
P.W6:V.Bhaskar, the Sub-Inspector of Police,
Tiruchanur
DOCUMENTS MARKED
For Prosecution:
Ex.P1Proceedings of the District Collector – cum – District Magistrate
dt.16.06.2008.
Ex.P2Report of PW1, dt:17.09.2008
Ex.P3Chitta Register for the year 2004-05 maintained by A1 and A2.
Ex.P4Chitta Register for the year 2005-06 maintained by A1 and A2.
Ex.P5Chitta Register for the year 2006-07 maintained by A1 and A2.
Ex.P6House Tax Demand Register Volume – I (Old)
Ex.P7House Tax Demand Register Volume – I (New)
Ex.P8House Tax Demand Register Volume – II (Old)
Ex.P9House Tax Demand Register Volume – I (New)
Ex.P10House Tax Demand Register Volume – III (Old)
Ex.P11House Tax Demand Register Volume – III (New)
Ex.P12House Tax Demand Register Volume – IV (Old)
Ex.P13House Tax Demand Register Volume – IV (New)
Ex.P14Miscellaneous receipt book three in number for the years 2004-2005
Ex.P15Miscellaneous receipt book three in number for the years 2005-2006
Ex.P16Miscellaneous receipt book three in number for the years 2007-2008
Ex.P17Miscellaneous receipt book three in number for the years 2008-2009
Ex.P18Amount deposit challans in Government Treasury by Panchayat
Secretary, Gramapanchayat, Tiruchanur (9 in number)
Ex.P18Enquiry Report, dt:11.11.2008
Ex.P20First Information Report in Cr.No.141/2008, dt:17.09.2008.
Ex.P21Letter produced by the Sub-Treasury Office, Tirupati dt:20.12.2008.
Ex.P22Proceedings issued by the District Collector, dt:20.12.2008
Ex.P23Orders of the District Collector, Chittoor dt:28.08.2009.
For Defence:
Ex.D1Attested copy of resolution was passed by the Tiruchanur
Panchayathi for the Tourism Bus Stand Auction dt:07.03.2008.
Ex.D2Attested copy of the memo/notice No.50/2007, dt:28.09.2007.
Ex.D3Attested copy of the notice, dt.17.11.2007 vide reference
No.2583/2007A2 (Panchayathi).
Ex.D4Attested copy of the receipt dt:01.12.2007.
Ex.D5Attested copy of the proceedings issued by the District Collector,
Chittoor to the A2/Jayaami Reddy by dismissing him from service
U/R.24 (1) of AP Service Pondure, 1991 and directed the A2 to
deposit Rs.15,00,943/- in the acount of the Tiruchanur panchyat. dt.
24.01.2009
Ex.D6Attested copy of memo, dt.09.03.2009 issued by the District
Collector, Chittoor to the panchayat Secretary, Tiruchanur gram
panchayat vide R.C. No.2583/2007 A2 (P) for information with
regard whether A2 remitted amount to the Gram panchayat or not.
Ex.D7Report submitted by the Panchayat Secretary Tiruchanur,
dt.13.03.2009 he did not remit the amount to the gram panchayat.
Ex.D8Notice was issued by the then DPO, Chittoor for deposit of
misappropriate amount to the gram panchayat, Tirucharur, of
dt.25.05.2009.
MATERIAL OBJECTS MARKED
-Nil-
Sd/- M.D.V.N.Sindhura
V Addl.Judl. Magistrate of First Class, Tirupati.
// true copy //
V Addl.Judl. Magistrate of First Class, Tirupati.
IN THE COURT OF THE V ADDITIONAL JUDICIAL MAGISTRATE OF I CLASS ::
TIRUPATI
CALENDAR AND JUDGMENT
C.C. No.340 of 2013
Date of offencePrior to 09.06.2008 Date of filing17.09.2008 Date of taken file01.10.2010 Date of apprehension (appearance)05.12.2011 Date of commencement of trail18.12.2012 Date of close of trail13.04.2022 Date of Judgment18.04.2022 ComplainantState represented by the Sub- Inspector of Police, Tiruchanur Police Station. Name and address of the accused
1) S.Swamydas, S/o S.Naganna, Formerly Panchayat Secretary, Tiruchanur Gram Panchayat.
2) Pathiputturu Jayarami Reddy, Age 57 yrs, S/o late P.Gangi Reddy, Formerly Junior Assistant, Tiruchanur Grampanchayat, R/o D.No.1-52, Padipet Post and Village, Tirupati Rural Mandal.
Nature of offenceParty to a criminal conspiracy other than a criminal conspiracy of death, life or rigorous imprisonment for two years, cheating, Forgery for purpose of cheating, falsification of accounts, Criminal breach of trust by public servant, or by banker, merchant or agent with common intention. Section of Lawu/Secs.120-B, 417,468,477-A and 409 r/w 34 of IPC FindingA1, not guilty of the offences punishable u/Secs.120-
B, 417,468,477-A and 409 r/w 34 of IPC.
A2, not guilty of the offences punishable u/Secs.120-
B and 468 of IPC.
A2, guilty of the offences punishable u/Secs.417, 477-
A and 409 of IPC. Sentence or order: IN THE RESULT, I find A1, not guilty of the offences punishable u/Secs.120-B, 417,468,477-A and 409 r/w 34 of IPC. Accordingly he is acquitted of the said offences U/sec 248(1) of CrPC. Further I find A2, not guilty of the offences u/Secs.120-B and 468 of
IPC. Accordingly he is acquitted of the said offences
U/sec 248 (1) of CrPC. Further I find A2, guilty of the offences punishable u/Secs.417, 477-A and 409 of
IPC. Accordingly, he is convicted for the said offences
U/sec 248(2) of CrPC.
A-2 is questioned with regard to quantum of sentence and he submitted that he is suffering from chronic kidney ailments and he is under constant medication. He also further submitted that he is more than 70 years old and he is suffering from old age ailments as well. Hence, pleaded for lenient view.
The acts of the A2 caused loss to the State
Exchequer and the amount misappropriated was a huge sum. In view of the gravity of the offence and the impact of the sentence in this kind of offences on the society, I feel, it is not a fit case to invoke the benevolent provisions of Probation of Offenders Act or
Sec. 360 of Cr.P.C. However, considering the age and different ailments of A-2, I opined that, the following sentence would meet the ends of justice.
Therefore, A-2 is sentenced to undergo rigorous imprisonment for a period of Eight months and shall also sentenced to pay a fine of Rs.1,000/- IDSI, one month for the offence u/Sec.417 of IPC.
Further, A2 is sentenced to undergo rigorous imprisonment for a period of Eight months and shall also sentenced to pay a fine of Rs.1,000/- IDSI, one month for the offence punishable 477-A of IPC.
Further, A2 is sentenced to undergo rigorous imprisonment for a period of Eight months and shall also sentenced to pay a fine of Rs.1,000/- IDSI, one month for the offence punishable 409 of IPC.
All the sentences imposed against A2, shall run concurrently.
The remand period that A-2 have undergone from 04.11.2009 to 10.11.2009 shall be set off
U/s.428 of Cr.P.C.
A-2 is appraised of his right to prefer an appeal against the conviction and sentence passed by this court. A-2 is further appraised of his right to get legal assistance in preferring the appeal, if he so requires, through District Legal Services Authority, Chittoor.
Total fine amount of Rs.3,000/- (Rupees three thousands only) was paid by A2 on 22.04.2022.
The sentence of A2 has been suspended by this Court till 23.05.2022 as per orders in
Crl.M.P.No.1345/2022, dated 22.04.2022.
Sd/- M.D.V.N.Sindhura
V Addl.Judl. Magistrate of First Class, Tirupati.
// true copy //
V Addl.Judl. Magistrate of First Class, Tirupati.
Sd/- M.D.V.N.Sindhura
V Addl. Judl. Magistrate of I Class,
Tirupati.
// true copy //
V Addl. Judl. Magistrate of I Class,
Tirupati.