PAGE NO.1Cri. MP.No.724/18 in CC 12/2017
IN THE COURT OF Ill ADDL.SPECIAL JUDGE FOR CBI CASES,HYDERABAD
Present: Sri. Dr.T.Srinivasa Rao Ill Addl. Special Judge for CBI Cases, Hyderabad
Dated Tuesday the 29" day of January 2019.
724 of 2018 Cri. M.P.
IN
CC.
12 of2017
Between:
Addagatla Sammaiah, Postal Assistant S/o Narasingam, 58 years R/o H.No.16-3-87 Shantinagar, Karimbad, Warangal..Petitioner/ Accused No.1
Vs.
State Rep. by CBI/Hyderabad.»-Respondent/Complainant
This Petition23.01.2019beforefor hearingin the comingonme presenceof Mr. P.V.Subba Rao Counsel for thepetitioner/AccusedNo.1 and Sri B.Alexandar Lenin Raja, Public Prosecutor for the state and having stood over for consideration till this day, this court delivered the following:
ORDER
This is an application filed by the petitioner/accused A-1 under section 1. 239 of the Code of Criminal Procedure seeking his discharge from the case.
Brief Averments of the Petition:
7The averments in the petition are that CBI filed charge sheet against the petitioner/AccusedMr. A.Sammaiah alleging thatwhile he was working as A1 Treasurer in Warangal Head Post Office in furtherance of criminal conspiracy with A2 and A3 fraudulently exchangedlegal tender cashentrusted to him to a tune of Rs.6,74,000/- between 9.11.2016 and 24.11.2016 for himself andhis known persons by abusing his official position and contravening the directions of postal departmentvide SB order No.12/2016 dated 8.11.2016, even though he was not entrusted with the duty of exchange of WOS (Withdrawn Old Series) notes and made false entries in official records.
PAGE NO.2 (Cri. MP.No.724/18 in CC 12/2017
3
The further contention of the Petitioner is that an order No.12/2016 was issued and marked all to Heads of Circles/Regions,Additional Director General, APS, NewDethi suggesting arrangementsto be made by the Post
offices and the order was in the night of 8.11.2016 after the Prime Minister of
India announced about the demonetization of old currency notes of Rs.500/- and Rs.1000/- denominations taking the country by surprise, which resulted in huge rush of public on banks and Post offices to exchange and deposit the WOS.
notes and exchange or deposit of WOS notes was permitted at bank branches and Head and Sub Post offices. In the order, it was suggested to accord top Priority to provide facility for exchanging/accepting deposits of WOS bank notes andHead Offices will open additional counters to meet the public demandand keep the counters open forextended hoursand if necessary maximum staff should be deployed for this purpose and as per order public can exchange withdrawn old series bank Notes for bank notes having legal tender character at all branches of public sector banks, private sector banks, foreign banks, Regional Rural Banks, Urban Cooperative Banks and State Co-operative Banks,Head Post offices from 10.11.2016 to 24.11.2016 up to an aggregate amount of Rs.4000/- per person against Production of valid identity proof and filing up of a requisition slip as prescribed in Annexure-I.
4.He further contended that document No.2 does not reveal prima-facie commission of any offence by the Petitioner and the investigation conducted by
CBIcouldnot lead to anymaterialagainst the accused that either he misappropriated or exchanged the old series notes and obtained any undue
benefit for the
same for himself or for others and there is no evidence to show
thatcontents of the instructions
were seen by the accused or circulated to any official at Warangal Head Post Office before the exchange of Withdrawn
Old Series currency notes commenced. He further submitted that section 120-B t/w 420, 477-A IPC and Section 13 (2) r/w 13 (1) (d) of PC Act do not attract to
the petitioner, even if all the statements of witnesses are considered at their
face value without cross examination, no criminal offence is made out prima facie against the accused even Presuming intentional contravention of the SB order No.12/2016 dated 8.11.2016 to be true, it will not amount to illegality and prayed that the petitioner may be discharged,
StefAverments
5,Brief Averments of the Counter:
of the Counter:
6.Prosecution filed counter stating that the petitioner/A1 conspired with accused A2 and A3 in the case and in pursuance of their conspiracy fraudulently dishonestly misappropriatedthelegal tender cashavailable inTreasury, exchanged theWOS notes to the tune of Rs.2,01,500/- on non-business
PAGE NO.3Crl.MP.No.724/18 inCC 12/2017 working day ie., 9.11.2016 and further made false entries in treasury cash book (listed as D-6) which shows his clear intention and actedfraudulently and dishonestly and exchangedWOSnotes by making false entries in treasury cash book without collecting Annexure-Il forms and that he exchanged old series notes to the staff in postal department without obtaining their aadhar cards from them on their promise to produce the same for record. If he had no such fraudulent and dishonest intention, why he had not shown the said transactions ‘in the official records and there is prima facie material made against the petitioner/A1. Hence the petition may be dismissed.
It appears from the record that a complaint was
5.presentedby Mr.
A.SheshagiriRao,Assistant Post Master General(Vigilance) Telangana Circle Hyderabad against the petitioner and others regarding exchange of legal tender cashtothe extentofRs.11,01,000/-abusing theirthe bypositionsin departmentandby contravening the Directorate instructions issued vide $B order No.12/2016 dated 8.11.2016.Basing on thatCBI Hyderabad registered 30.01.2016andissuedFIR and after
RCNo.03(A)/2017CBI/Hyderabadon
completion of investigation charge sheetis filed.
6. Cognizance was taken for the offence under section 120-B r/w 420, 477-A of
IPC and section 13(2) r/w 13 (1) (d) of PC Act.
7. Pursuant to the service of summons theand other accused petitioner appeared and copies were furnished to them. Now this case is at the stage of framing of charges. Heard learned counsel for the petitioner and the public prosecutor. 8.
Thepoint forconsiderationis whether there is no prima-facie case LF against the petitioner/A1 and if so, he shall be discharged as prayed for?
POINT:
Before going into the merits of the case, the law as settled by the Hon'ble
10. Apex Court with regard to framing of chargeis briefly discussed as under:
The Hon'ble Supreme Court of India in the case of R. S. Nayak Vs. A.R.
reportedin2045has observed after considering the AntulayAIR(1986) provisions of Sections 227, 239 and245 of the Codespeaking the broadly central standard was laid that in case trial court was satisfied that prima-facie case was madeout, chargehastobeframed.
The main contention of the learned counsel for the petitioneris that 11,
therematerialtoshowthatthepetitioner/accused
isnoprima-facie misappropriated or exchanged theoldseries notesand obtainedany undue
PAGE NO.4 Cri. MP.No.724/18 in CC 12/20"?
benefit for the same for himself or for others. On this aspect,| perused the copy of documentNo.1 ie., FIR, which reads as under:
“The said complaint prima facie reveals that the said accused Sri A.Sammaiah,
Treasurer,Sri P.A.Suresh Kumar, Asst. Treasurer, Sri N.Shiva Kumar, SBCC-II and Sri Kedari,SBCC-INl of Warangal HO and unknown others in furtherance of criminal conspiracy have committedmalpracticesof misappropriationof entrusted new currency and exchanged Rs.11,01,000/- of new currency notes with Withdrawal of Old Series (WOS) Notes by abusing their official positions and cheated the department by violation of procedures laid by Directorate”.
A perusal of document No.3 Enquiry report dated 21.12.2016 along with 12. statements of petitioner and accused A2 clearly shows that the treasurer had exchanged the legal tender cash with WOS notes to a tune of Rs.2,01,500/- and he admitted in his statement that he had exchanged the legal tender cash with
WOS notesand also admitted that all the staff members of Warangal HO have taken the legal tender cash WOS notes and the document No.4 bygiving Enquiry report dated17.1.2017 along with statements ofA1 to A3 clearly shows that an amount of Rs.5000/- was shown excess exchanged and also the irregularitiescommittedby the petitionerviz.,insomeapplications the signature of the person who has exchanged the WOS notes have not obtained, and in some applications the amount tendered for exchange is not noted, in respectof some applications theID proof is not enclosed and in respect of some exchanges, onlyIDproofs are available without Annexure-II andin respectof some exchanges both the Annexures and ID proofs are not available. So the document No.4 supports TCB of Treasurer of Warangal HO (document whichshows the No.6)receiptand paymenttransactionsmadethe by petitioner/accusedA1from 8.11.2016 to 24.11.2016 and the document No.4 shows the offence committed by petitioner/A1, A2, A3 and others.
13.Therefore, there is prima facie to show that the SB order No.12/2016
dated 8.11.2016
isgrossly violated.Therefore, there no forcein the is contention of the learned counsel for the petitioner that he exchanged old series notes as per directions.
14.Now the short question that falls for the determination is whether the
Petitioner obtained any pecuniary advantage by corrupt or illegal means for himself or for any other person.
15.Onthis aspect(LW1) stated Mr.SeshagiriRaoin his statement that petitioner/A1 on 9.11.2016 exchanged WOS notes to a of Rs.2,01,500/-
PAGE NO.5Crl.MP.No.724/18in CC 12/2017 with legally tender cash and the staff on duty on that day have also exchanged this amount.further admitted that onhe exchanged A111.1.2017legally tender cash available with him with the WOS notes of 28 staff members of
WarangalHOand neighbouringSOs, between 10.11.2016 and 24.11.2016 as the office staff requested for exchange of their WOS notes and that he violated the instructions/rulesand this was supported by Mr.P.Venkateshwara Rao (LW2). Therefore, thereisprima facie material to attract the ingredients of section 13 (2) r/w13 (1) (d) of P.C.Act, 1988.
Now coming to section 120-B r/w 420 of IPC is concerned,LW1
16.and 2 in their statements stated that petitioners/A1tofurtheranceof their A3in criminal conspiracy exchanged the legal tender currency with WOS notes to the staff members and SOs, and did not enter the same in the Treasury book and thereby conspired to commit offence of cheating and accordingly section120- B r/w 420 of IPC attracts.
17. In so far as section 477-A of IPC is concerned, document No.6 clearly shows.
that entries made irregularly by violating SB order No.12/2016 and failed to obtain aadhar cards and annexure-lI forms properly from the public to whom
theyexchanged thetender currencywithnotesbutmade
legalWOS falsification of records. Therefore, section 477-A of IPC attracts.
18.In so far as, Criminal Breach of Trust is concerned for public servant section 409 ofIPC reads as under:
“whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of thatpropertyin violation of any direction oflaw prescribing themode in whichsuch trustis to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust”.
In the instant case, the petitioner isa person to whom the property was 19. entrusted and he could not discharge the duty of exchange ofWOS notes with legal tender notes as per the order, as such the trust was breached and it attracts section 409 of the Indian Penal Code. Though no cognizance was taken under this provision, the Court can frame a charge under this provision also.
20.At this stage, the learned counselfor the petitioner submitted that there is no loss to the public or to the institution. But the very purpose of criminal justice system in any society has something vital to do with the issue of what this given society expects to accomplish through categorizing conduct.
Cr. MP.No.724/18in CC 12/20°~ PAGE NO.6 as criminal.Besides this, the very purpose of demonetization is to fight black money,corruption, and terror funding was not. achieved to the maximum level and a private survey saysthat black moneyentered in the form of legal tender
cash. The furthercontention of the learned counsel for the petitioner that the
petitionerhas not seen the circular, has no force as ignorance of law is no excuse.Anyhow this aspect can be decided at the stage of final judgment but not at this stage.
taking into considerationandthe
when the circumstances are
21.So, during investigation,shows that there is material collected byrespondent/CBI primafacie material on the role of petitioner and at the stage the prosecution though that suspicion againstthe petitioner is trying to establish a strong suspicion howevergreat cannot take the place of proof. What is required to be considered in a petition under section 239 of Cr.P.C is that if the material raises a strongsuspicion placed bythe prosecutionnamelyrespondent/CBI thequestionof itsufficient.Atthisstage, thepetitioner,is against exonerationfromthe chargesor acquittal of the accused cannot be looked into nor do suchquestions arise for consideration.
Thus, on acareful consideration of the entire material produced by 22. respondent/CBI,it cannot be stated that it is not prima facie making out the charges set out againstthe petitioner. They did indicate the role of petitioner and the larger gamut of criminal conspiracy alleged by respondent/CBI in the whole process involving all the accused, should also be borne in mind in this context.
The learnedcounsel for thepetitioner relied on the decision reported in 23. 2002 Supreme Court Cases (Crl) 310 wherein it was observed that; “At the time of framingofcharge,the Court cannot act merely as a post is to consider thebroad of the prosecutionbut office or amouthpiece
probabilitiesof thecase,the total aspect of the evidence and the documents
in the caseand so produced before the Courtandbasic infirmities any
"isnothand in view ofthe
applicable tothe facts of the case on ‘on. decision reportedin 2010 SC Crl.L.J.1427 as there is grave suspicion in the case and in the decision it was held that “ If two views are possible and one of them givesrise to suspicion only, as distinguished from grave suspicion, the accused can be discharged. It is settled law that at the stageof framing of charge, probative value 24. of the materials onrecord cannot be gone into; the materials brought on record by the prosecutionhas to be accepted as true at that stage.”
Cri. MP.No.724/18 in CC 12/2017 PAGE NO.7
A view was taken by theHon'ble High Court in the case of Subhadra Vs. 25. State reported as1996 JCC 665 that : *scssss At the stage of framing of charge, the Court hasnot to apply the samestandard of test, which is applied at the time of judgment and recording finding ofguiltor otherwise. At the stage, the Court has to see whether there {s ground for presumingthat the accused has committed the offence...."
L. J. CBI reported in 1997 Crl. Further in the caseof L.K.AdvaniVs. 26. 2559 it has been held that:
Chargecan be framed by the court against the accused if the
;
suspicionthat the accusedhas placed before it raises astrong material committed anoffence. In other words, the court would be justified in framing the charges againstthe accused if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a fullfledgedtree of conviction later on...
the
reliedupon oftheirallegations prosecutioninsupport
27.The to4 and6 collectedduring to4 and documents statementsofLWS11 investigationshow that the petitioner violated the rules of SB order No.12/16
dated8.11.2016 and also falsified the accounts in his official duty.
thatthe
by theshows prosecution abovematerialplaced
28.The was possible.Whether the commitmentof offence by the petitioner/accused petitioner /accusedcommitted the offence or not can only be decided in the trial in view of the decision reported in Soma Chakravarthy Vs. State (the CBI) reportedin 2007 AIR SCW 3683. Because at this stage, the trial court cannot as towhichis appreciatethe material on record and reach aconclusion or can be relied upon in view of the decisionreportedin Ajay acceptable, Kumar ParmarVs. State of Rajasthan reported in AIR 2013 SC 633.
So, theabove material shows that there is prima facie case to show that 29. A3 and the common AZ and amongthe petitioner/A1, thereisconspiracy objectis to cheat the postal department by falsifying the accounts and this is sufficient groundto proceed further against the petitioner/A1forframing chargefor the offence punishable under sections 120-B r/w 420, 409, 477-A of
P.C. Act, 1988.Hence, theIndian Penal Code section 13 (2) r/w 13 (1) (d) of thecontention of the petitioner that there is no material against him to frame chargeis not tenable.
| do not find any meritsin this petition; hence the petition is
29.Therefore, be dismissed.
Crl.MP.No.724/18 inCC 12/207_
PAGE NO.8
In the result, the petition is dismissed. 30.
Directly typed to my dictation by the Stenographer Gr., corrected and pronounced by me in the open court, on this 29"day of January 2019. ‘ \ \
Ill ADDL. SPECIAL JUDGECBI CASES, HYDERABAD Special Judge For CBI Cases Hyderabad.