CALENDAR AND JUDGMENT
Calendar Case No. 190 of 2007 tried by Judicial Magistrate of I Class, Amadalavalasa, Srikakulam District. ------------------------------------------------------------------------------------------- Date of offence Prior 23.03.2007 Report 23.03.2007 Apprehension 26.05.2007 Release on bail 16.06.2007 Taken on file 03.12.2007 Commencement of trial 08.10.2010 Close of trial 19.03.2015 Sentence or order02.04.2015
Explanation for the delay:: Non production of prosecution witnesses
Name of the complainant::
The State represented by Sub-Inspector of Police, Sarubujjili Police Station,Sarubujjili Mandal, Srikakulam District.
Name of the accused::
Gedala Satyam, son of Appalanaidu, K.Velama by caste, Gangannapadu village, Terlam mandal,Vijayanagaram District , formerly worked as secretary of P.A.C.S, Kothakota of Sarbujjili mandal.
Crime No.20/2007
OffenceDis honest misappropriated funds and Criminal breach of trust Sec. 403 and 409 of IPC. Finding:
The accused is found not guilty .
Sentence or Order:
In the result, The accused is found not guilty for the offences punishable U/s. 403 and 409 of IPC and he is acquitted for the same under Section 248(1) of Cr.P.C. Bail bonds of the accused and sureties shall continue for a period of six months and stand cancelled after lapse of six months, in case if no appeal is preferred. Un marked case property if any shall be destroyed after lapse of appeal time.
Prl.,Junior Civil Judge, Srikakulam, FAC/Judl. Magistrate of I Class Amadalavalasa. Copy submitted to the Hon'ble I ADJ, Srikakulam, Copy submitted to the Superintendent of Police, Srikakulam.
IN THE COURT OF THE JUDICIAL MAGISTRATE OF I CLASS
AMADALAVLASA
Present:- Smt N.Padmavathi,Prl.,Junior Civil Judge,Srikakulam, FAC/ Judicial Magistrate of 1st Class, Amadalavalasa, Thursday, the 2nd day of April,2015.
C.C.No.190/2007
Between:
The State represented by Sub-Inspector of Police, Sarubujjili Police Station,Sarubujjili Mandal, Srikakulam District.
...........Complainant
And
Gedala Satyam, son of Appalanaidu, K.Velama by caste, Gangannapadu village, Terlam mandal,Vijayanagaram District , formerly worked as secretary of P.A.C.S, Kothakota of Sarbujjili mandal.
....Accused
This case came up on 31.03.2015 for final hearing before me in the presence of Assistant Public Prosecutor for the complainant and of Sri C.Ramesh,smt C.Umamaheswari and B.L.Murthy Advocates for the accused and having stood over for consideration till today, this court delivered the following:
J U D G M E N T
The Sub-Inspector of Police, Sarubujjili Police Station filed charge sheet against the accused U/s. 403 and 409 of IPC in Crime No. 20 of 2007 of Sarubujjili
Police station.
2) The case of the prosecution in brief is as follows:
That prior to 23.03.2007 accused worked as a Secretary in P.A.C.S,
Kothakota Branch from June,1979 to June,2002 . During that period accused has misappropriated an amount of Rs.90,355/- from that branch, by way of non accounting for the loan amount and the same was collected from the member loanees of the society duly issued duplicate receipts and not accounted for in the cash book and concerned records of the society, thereby cheated the P.A.C.S Branch,
Kothakota. On the instructions of Divisional Co operative Officer, Srikakulam,
L.W4-V.Simhachalam Co operative office/Sub Divisional Co operative Officer,Sub -Divisional Co operative Office,Srikakulam conducted inquiry on Primary
Agricultural Co-operative Society, Kothakota Branch on the dates of 26.04.2005,17.05.05,19.05.2005,23.05.2005,28.05.2005,31.05.2005,06.06.2005,10.0 6.2005,15.06.2005,21.06.2005,25.06.2005,02.07.2005,06.07.2005,14.07.2005,25.07.
20056,20.01.2006,20.03.2006 and 21.03.2007 and found certain serious irregularities/lapses and the fraud committed by the accused. Basing on the report of
L.W1-Kagitapalli Narayana, Secretary of P.A.C.S, police registered it as a case in
Cr.No. 20/2007 and investigated into and L.W30 examined the material witnesses and recorded their statements and that after completion of investigation he filed charge sheet against accused u/s 403 and 409 of Indian Penal Code.
3. On 03.12.2007 this Court took cognizance of the case for the offence punishable under Sec.403,407 of IPC against the accused .
4. On appearance of the accused, copies of documents were furnished to him under Section 207 of Cr. P.C.
5.On 17.06.2009 the accused was examined under Sec.239 of Cr. P.C .
Heard on charges . Then the charges framed against the accused for the offences
U/Sec. 403 and 409 of IPC contents of charge was read over and explained to him in Telugu. He pleaded not guilty for the said offences and claimed for trail of the case.
6.During the course of trial, the prosecution examined P.Ws 1 to 30 and got marked Ex.P1 to P 15 .
7. After completion of the prosecution evidence, the accused was examined under section 313 Criminal Procedure Code, he denied the incriminating evidence available on record against him and reported no evidence on his behalf.
8. Heard the arguments of both counsels.
9. Now, the point for consideration is : Whether the prosecution proved the guilt of the accused for the offence punishable under Sections 403,409 of IPC .,beyond reasonable doubts?
10. POINT:
The case of the prosecution is that accused who worked in P.A.C.S
Kothakota from 1992 to 2002 misappropriated the funds of P.A.C.S Kothakota by way of non accounting loanee amounts recovered from the members by issuing fake and duplicate receipts to the loanees for said amounts and the same was not accounted in cash book ,ledger and other concerned records of P.A.C.S Kothakota .
Thereby committed fraud and misappropriated the amount by diverting said amount to his personal use and committed misappropriation of said funds thereby committed the offence punishable under sections 403 and 409 of IPC.
Coming to the evidence adduced by the prosecution, P.W1 who is the Secretary of P.A.C.S of Kothakota and lodged report to the police for initiating criminal proceedings against the accused deposed that its on 21.12.2002 in the presence of president and manager of P.A..C.S of Kothakota and District Co- operative Society Register , he took charge of the post of secretary, P.A.C.S
Kothakota and taken to the custody of records pertaining to this case and basing on resolution passed in the society, he presented Ex.P1 report to the police on 23.03.2007. His evidence goes to show that except presenting report under Ex.P1 to the Police, he do not have personal knowledge about the irregularities occurred in
P.A.C.S Kothakota which lead to initiating the criminal proceedings against the accused herein. His evidence also reveals that by that time, departmental enquiry already conducted against the accused.
P.W2 , the enquiry Officer,basing on whose enquiry report as
Ex.P6 resolution passed in the society so, initiation of criminal proceedings against accused deposed that, it is on receipt of orders from Joint Registrar District Co operative Office,Srikakulam he held an enquiry in respect of irregularities that occurred in P.A.C.S Kothakota for the period of the year 1996, he hold said enquiry by issuing notices to 55 members of the , who committed default in payment of loan amounts ,which were pertaining to the short term loans and long term loans and conducted enquiry with the said members. Out of them, some loanees have shown the receipts issued by accused for payment made by them to the accused towards recovery of loan amounts , but collection of said amount neither revealed in concerned records like ledger, cash book nor credited to the account of society.
Thereby after completion of enquiry he gave his finding and submitted a report against accused holding that he misappropriated amount of Rs. 90,355/- by non accounting the loan recovery amounts made by 33 members vide 49 receipts and got marked receipt books which were available by then as Ex.P4 and P.5 and also got marked pay bill register from 1994 April, to May, 2011 as Ex.P2 where in the signature of the accused was there also got marked the cash book for period from 1992 to December,1992 as Ex.P3.
However, in his cross examination he made a clear admission that all the said records and registers which were perused by him at the time of departmental enquiry, not produced before the court. However, got marked alleged fake and duplicate receipts issued by accused as Ex.P7. He also made a clear admission that he conducted enquiry at different places and for all said occasions, accused not appeared except one or two occasions. He also made admission that it is basing on the statements recorded by loanees, he come to a conclusion that amounts paid by them not accounted for, by accused and that he do not have personal knowledge whether such loanees really paid any such amounts as revealed under receipts marked as Ex.P7 or not.
Further ,, it is the case of prosecution that the receipts marked under Ex.P7 were fake and duplicate receipts issued by the accused during the period of his tenure, for misappropriating the funds of P.A.C.S ,Kothakota . He also made a clear admission that it is the Bank Branch Manager, who will issue receipt books to the Society and the society is supposed to maintain register disclosing the numbers of receipt books supplied to it by bank, but being inquiry
Officer he did examine Manager who gave receipt books to the society . In such case, how he could able to come to a conclusion that the receipts covered under
Ex.P7 book are fake or duplicate receipts was un explained by him.
However, the evidence given by P.W3, who was ex president of
P.A.C.S, Kothakota makes it clear that basing on the statement given by
P.W3,enquiry Officer came to a conclusion that receipts covered by Ex.P7 are fake receipts which is un reasonable and will not sustain the eye of law. To prove the guilt of accused in a criminal trial. P.W3 Ex president who worked in the year, 1992 and from 1995 to 2011 deposed that it is he ,who said that receipts which were shown to him by enquiry Officer , were not issued by P.A.C.S Society and were not in original and also deposed that corresponding entries pertaining payments made under receipt book (Ex.P7) were not entered in cash book. However, in cross examination he deposed that non of the members of the society gave complaint to him about non accounting for, the loan amounts paid by them to the Society in writing.
He stated that even in the year,2003 said members made oral complaint, but he did not give any written report about the same to the higher officials for which, no such proper explanation was offered by him.
P.W4 who worked as branch manager of District Co operative Central
Bank ,Amadalavalasa from 1992 to 2004 and who alleged to have made preliminary enquiry, about misappropriation of funds funds of the society, deposed that as a
Branch Manager he gave instructions to the Secretaries of varies societies to take action for recovery of loan due amounts from loanee, but secretary of Kothakota
P.A.C.S ie., accused did not initiate any legal action against loanees who were shown to be in due of some amounts to the Society. On that, he made enquiry with the loanees, then he came to know that they were having receipts issued by accused for payments made by them but the said amounts were not shown in registers maintained by P.A.C.S Kothakota and found that no corresponding entries made in registers of the Society.
Then he addressed a letter to the higher Officials, on that departmental enquiry through P.W2 was ordered. After enquiry, he came to know that accused issued duplicate receipts to 32 members and misappropriated the amount of Rs.90,000/-(Approximately). However , admitted that he did not conduct any personal enquiry in respect of funds of P.A.C.S , Kothakota , his evidence goes to show it is because of non making corresponding entries in the registers of P.A.C.S , Kothakota . He addressed letter to the higher officials , but in fact, he did not made any enquiry regarding the person who was at fault for the said misappropriation of the funds in the society.
P.Ws 5 to 10 and P.Ws 12 to 15 and P.W17 to 22 , P.Ws 24 to 27 who were members of the society who obtained loans from the Society at various times and paid loan amounts to the Society deposed that at no point of time they received any such notices from the society that the loan amounts due by them. They appeared before enquiry Officer and some of the witnesses deposed that at time of inquiring they gave receipts, given accused to them to the enquiry officer for the proof of payment of loan amount by them and some of them deposed as if, they gave receipts to the investigation Officer i e., P.W30 and some of the members deposed nothing about issuing of any such receipts by accused and handing over the same neither before enquiry officer nor investigating officer. However their evidence goes to show that till date of initiating the criminal case against the accused, they do not know about the misappropriation the of funds by accused in the said society.
Their evidence also goes to show that prior to examining them by P.W2 or P.W30, they did not give any report against accused and most of them turned hostile to the case of prosecution by deposing that , they were not examined by P.W30 in respect of this case. As such in their cross examination , their 161
Cr.P.C statements marked as Ex.P8 to 10 and P.W12 and P13 out of the said witnesses , some of the witnesses found fault with the negligence of accused regarding non accounting the actual amount paid by them to the Society and some of the witnesses deposed as if , enquiry officer issued notices to them that they committed default in payment of loan amounts by them and some of them deposed that except issuing receipts to enquiry officer or to the Police officer ,they do not know whether said receipts given were fake receipts or not. Adding to it some of them that after showing receipts to P.W2, they retained the same with them then , how fake receipts under Ex.P7 could be secured by P.W2 was also un explained by the prosecution.
P.W11 one of the mediator, for obtaining statements and signatures and hand writing of the accused by P.W30, deposed that it is in his presence police obtained signatures and writing of the accused under Ex.P11.
P.W23 another mediator for obtaining the writing and signatures of the accused under Ex.P11 also deposed that in the same lines as deposed by P.W11 . However, as submitted by the learned defence counsel ,evidence of P.W11 is silent about the presence of P.W23 and he gave time of obtaining signatures at 11.00 AM on 25.06.2007 . Whereas P.W23 deposed that said proceedings taken place at 1.00 PM on 25.06.2007 and that P.W11 deposed that Ex.P11 consisting four pages . But
P.W23 deposed that standard of signatures and hand writing of the accused were obtained in 8 to 9 pages. Admittedly, as submitted by learned defence counsel, obtaining said signatures and hand writing in the police station by P.W30
Investigating Officer , was not informed to the Court , so it is doubtful whether said signatures and hand writings were actually obtained in the presence of both mediators ie., P.W11 and 23 as contended by the prosecution or not . Because both the mediators not deposed about seizure of Ex.P3 and P4 in their presence , though the said documents reveals as if, they were also seized in the presence of mediators ie., P.W11 and 23 .
P.W28 is Assistant Registrar in credit section wing, Srikakulam deposed in his evidence, that , he can not give any date on which records pertaining to P.A.C.S , Kothakota were seized. The case of the prosecution is that from the office of P.W28 it self P.W30 seized concerned records pertaining present herein case.
P.W29 Assistant Director , RFSL who gave his report under Ex.P14 holding that the person who wrote signature and hand writing under Ex.P7 receipts book also wrote the signature and writing as revealed in Ex.P4 and 5 and other documents filed in this case. Which were marked as .S1 to S 85. However , in his cross examination he deposed that did not receive any questionair from Investigating
Agency.
P.W30 Investigating Officer who registered the case and investigated into deposed about the same thereby supported and strengthened the case of prosecution on all material aspects. However, he deposed in his cross examination that he conducted additional investigation rather than departmental enquiry report given by P.W2 under Ex.P6 . But as submitted by learned defence counsel, some of the members of the society, examined in this case that they were not at all examined by P.W30. Adding to it, according to the statement made by
P.W2 before him , even by date of conducted enquiry by P.W2, some of the registers vide name of registers , admission register, loans books, and charge declaration forms and receipts books, cash books, ledger and pay bills registers were misplaced in P.A.C.S, Kothakota and also admitted that he do not know and did not enquired whether any receipts got printed by the president other than receipt books supplied by Central Bank or not.
Adding to it, he also admitted that , though the case put forth by prosecution against accused is for misappropriating the funds of P.A.C.S,
Kothakota by diverting said funds to his personal use and thereby committed misappropriation. But he do not know, whether any such amounts were actually diverted to his personal saving account or not and whether accused used society amounts for his personal use or not . In this regard plea that was taken by accused is that if any such misappropriation occurred in any society, the president and secretary will be jointly held liable , but held here in this case, after 6 months of his retirement by passing unanimous resolution criminal case initiated against him without giving any opportunity to here him . However, basing on surcharge proceedings issued by the concerned higher officials, he paid the entire amount .
Other discrepancies on which, learned defence counsel drawn the attention of the court, is that , the actually criminal proceedings initiated against accused on the ground that swallowed the amounts to his personal use by way of issuing duplicate /fake receipts covered by Ex.P7 . But to prove the same as contended by the learned defence counsel ,first of all prosecution has established that Ex.P7 actually contains the fake and duplicate receipts only , but to establish the same as contended by defence counsel . Except statement P.W3 ,no cogent evidence could be producedc before the Court like register containing the information regarding actual/original receipt books supplied by District Co operative Central Bank,
Srikakulam.
So, as to cometo a conclusion that Ex.P7 actually contains fake and duplicate receipts as contended by the prosecution.
Adding to it, P.W30 being Investigating Officer made admission that even he did not made any enquiry about pertaining receipts books by society if any during relevant period or not. Further, the case of prosecution is that corresponding entries pertaining to the amounts recovered according to the entries under Ex.P7 ,receipts were not entered into cash book and ledger and other concerned registers in P.A.C.S , Kothakota. But admittedly even by the time of departmental enquiry conducted by P.W2 , said crucial documents were misplaced. In such case now
P.W 30 came to a conclusion that corresponding entries of amounts recorded under Ex.P7 were not brought on registers of P.A.C.S, Kothakota was never explained by prosecution . Moreover, P.W2 deposed that during relevant period,audit was held in P.A.C.S, Kothakota but no objections were taken by authorities.
Further, as as shown under Ex.P6 enquiry report, the said enquiry was not conducted in the presence of accused and enquiry Officer herein went to an extent of mentioning that if at all any such enquiry as made in P.A.C.S, Kothakota, the members of the said society may manhandle sub sub ordinate staff of P.A,C,S ,
Kothakota. Which means apart from amounts which were mentioned under Ex,P6 report huge amount of society was misappropriated . Which was not brought on record even by the enquiry officer. Moreover his report goes to show that it is by way of paper publication , he secured the attendance of loanees before him. Which means by the time of enquiry even the registers disclosing its members names are un available to detect names of the persons who committed default of the loan amounts to the Society.
At the same time P.W2 also admitted that the charge declaration forms and other crucial registers including cash book and Ledgers were found misplaced . Adding to it, he admitted that he can not say whether loanees appeared
before him have actually paid the loan amounts to the society as appeared under
Ex.P7 receipts or not . The same fact was even deposed by P.W30. So , in such a case when admittedly concerned registers and records were came into possession of
P.W1 , after enquiry of P.W2 and in the presence of P.W3 at which time accused was already retired from service and even Ex.P2 pay bill register of 2001 seized from
P.W3 in the year,2005. Certainly it is P.W3 who has to explain about possessing said records of past years. Further, even he did not give any explanation for not taking any action and non reporting of oral complaint given by loanees in the year,2003 against accused.
When according to the evidence of P.W4 records reveals that some of the loanees fell in due of loans recovery amounts to P.A.C.S,Kothakota,why no notices were issued to said loanees was also un explained by P.W3 and prosecution. .
When admittedly, the records of bank reveals that loanee did not discharge the loans now they secured loan for 2nd time and what made P.W3 from 1992 till 2002 for non giving any notice to them was also un explained by the prosecution.
Further, in the evidence of P.W2 he deposed that he did enquiry for irregularities in the society pertaining to the period from 1996 to 2000 but receipts under Ex.P7 reveals as if they were pertaining to period from 1992 to 2000 ie., beyond the period for which he was authorized to hold enquiry even for that, no proper explanation given by prosecution. Further evidence given by prosecution witnesses goes to show that , fund disbursed on priority base and 2nd loan was released by the accused from the society even without discharging 1st loan.
For which in the report submitted by P.W2 under Ex.P6, he made a comment that with over confidence, accused recommended for the release of 2nd loan without discharging previous loan. As submitted by learned defence counsel when he taken a plea that the president is also responsible for any irregularities in the society as he has to sign in all concerned registers and records for releasing loans to loanees and has to person about recovery of loan amounts from its members . But here in this case evidence on record reveals that persons who received loan from the society also availed loan for 2nd time without discharge of 1st loan which can not be possible and unless and until president of society ie., P.W3 gives his consent for the same.
In such a case, certainly P.W3 bound to explain the reason behind releasing 2nd loan without discharge of 1st loan by loanees as it leads to decrease the share capital of the society as admitted, by one of the prosecution witnesses in his evidence. It is the look out of the president, to release the loans in the P.A.C.S, Kothakota. Releasing the loan amount without consulting president and obtaining his signature is quite impossible . On the other hand statement of the accused recorded by P.W2 in departmental enquiry as revealed under Ex.P6 goes to show his involvement in the said irregularities. In these circumstances non taking any action by P.W3 against accused, though received oral complaint from members in 2003 it self shakes the veracity of evidence given by P.W3 and creates reasonable suspicion in the mind of court regarding his role in the said irregularities . As such in these circumstances, just because of the reason that receipts contains the signature of the accused in the capacity of secretary under Ex.P7, he can not be held solely responsible for not maintaining said accounts properly in covered registers which were not at all in existence even by the date of enquiry conducted by P.W2. Even no such charge declaration forms filed before the court to show that the said duty entrusted to the accused alone. so, as to held him solely responsible for the said irregularities.
Apart from these discrepancies in this case prosecution , as stated supra, to prove the guilt of the accused for the offences punishable under sections 403 and 409 of IPC. First of , prosecution has to establish that the alleged misappropriated amounts were diverted to his personal use, to held him responsible for the offence of misappropriation of funds of the society. But here, in this case, as admitted by P.W30, he did not made any enquiry regarding personal accounts and savings accounts of the accused . Even the report given by P.W2 under Ex.P6 is silent on that . The said report reveals that because of reason that the said amounts mentioned in Ex.P7 were not brought into cash book and other concerned registers, he was found guilty holding that accused swallowed the said amounts . But such a finding given in a departmental enquiry is not at all sufficient to prove the guilt of the accused in a criminal case where the standard of proof that is required is "Proof beyond reasonable doubts" whereas, P.W2 himself made a clear admission that even the records perused by him during departmental enquiry for finding guilt of accused were not produced before the court. Hence, for the as discussed supra as prosecution failed to produced very crucial documents before the court which are essential to prove the guilt of the accused, I hold that accused is entitle for the benefit of doubt.
Accordingly, point is answered in favour of accused and against prosecution.
13. In the result, accused is found not guilty for the offence punishable U/s. 403 and 409 of IPC and he is acquitted for the same under
Section 248(1) of Cr.P.C. Bail bonds of the accused and sureties shall continue for a period of six months and shall stand cancelled after lapse of six months, in case, if no appeal is preferred. Un marked case property if any shall be destroyed after lapse of appeal time.
Dictated to typist , corrected by me and pronounced by me in the open court,
this the 2nd day of April,2015.
Prl.,Junior Civil Judge, Srikakulam, FAC/Judl. Magistrate of I Class Amadalavalasa.
APPENDIX OF EVIDENCE
Oral Evidence
FOR PROSECUTION FOR DEFENCE
P.W1:B.VijayamNone was examined P.W2:V.Simhachalama P.W3:S.Nageswararao P.W4:S.Venkatasatyanarayana P.W5:K.Narayana P.W6:K.Appanna P.W7:M.Appamma P.W8:K.Balakrishna P.W9:K.Dalinaidu P.W10:S.Satyam P.W11:Ch.Dalappanaidu P.W12:K.Venkayya P.W13:L.Vijayabhaskararao P.W14:L.Eswaramma P.W15:S.Suryanarayana P.W16:L.Appalanaidu P.W17:L.Satyam P.W18:B.Sanyasi P.W19:P.Adinarayana P.W20:P.Sriramulu P.W21:N.Suryanarayana P.W22:K.Venkiti P.W23:N.Sudhakararao P.W24:G.Apparao P.W25:S.Venkatamma P.W26:K.Suryanarayana P.W27:Y.Simhachalam P.W28:K.Domodhararao P.W29:K.Vaniprasadarao P.W30:D.Mohanarao
Documentary Evidence
FOR PROSECUTION
Ex.P1: Report of P.W1 dt.23.03.2007 Ex.P2: Pay bill register from April, 1994 to May,2001 Ex.P3:Cash book from 1992 to December,1992 Ex.P4:Receipt book from No.066201 to 066308 Ex.P5:Receipt book from 16700 to 46700 up to 46800 Ex.P6: Enquiry report Ex.P7: 42 receipts in different names Ex.P8:161 Cr.P.C statement of P.W5 Ex.P9:161 Cr.P.C statement of P.W6 Ex.P10:161 Cr.P.C statement of P.W7 Ex.P11:specimen signature of the accused Ex.P12:161 Cr.P.C statement of P.W25 Ex.P13:161 Cr.P.C statement of P.W26 Ex.P14:F.S.L. File Ex.P15:First Information Report dt.23.03.2007
FOR DEFENCENo documents were marked.
Nil Prl., Junior Civil Judge, Srikakulam, FAC/Judl. Magistrate of I Class Amadalavalasa.