Allowed

Koorapati Yesudas, v. State, rep. by the Inspector of Police

Telangana HC4 Jan 2013CRLA/1713/2005

Case brief

AI extract

What is this about?

Appeal against conviction for corruption and forgery. The High Court quashed the lower court's conviction, ruling that the High Court could not draw a presumption of guilt based solely on the handwriting expert's opinion and the accused's official role. The conviction was unsafe as it ignored witness testimony about proper scrutiny procedures and biased investigation.

What did the court decide?

The conviction and sentence set aside; appellant acquitted; fine, if any, refunded.

Koorapati Yesudas, Vs State, rep. by the Inspector of Police — Corruption | Telangana HC (2013)

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1713 OF 2005

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DATE: 04.01.2013

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BETWEEN:

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Koorapati Yesudas And

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.. Appellant/A1

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State of A.P. rep. by Inspector of Police ACB, Visakhapatnam

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.. Respondent

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1713 OF 2005

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JUDGMENT:

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This appeal is filed against the judgment dated 27.10.2005 passed by the III Additional Sessions Judge-cum- Special Judge for ACB Cases, Visakhapatnam in C.C.No.9 of 1996, whereby and whereunder the appellant/A1 was convicted for the offences punishable under Sections 467, 471, 477-A of IPC and Section 13(1) (c) and (d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act”) and was sentenced to undergo rigorous imprisonment for a period of one year for the offence under Section 467 IPC, rigorous imprisonment for a period of six months for the offence under Section 471 IPC, rigorous imprisonment for a period of one year for the offence under Section 477-A IPC and further sentenced to undergo rigorous imprisonment for a period of one year each for the offences under Sections 13(1) ( c ) and (d) r/w 13(2) of the Prevention of Corruption Act.

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2. I have heard the learned counsel appearing for the appellant/A1 and the learned counsel appearing for the respondent/State.

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3. In all, four accused were put up for trial before the learned Special Judge for ACB Cases, Visakhapanam on the allegation of forging and fabricating the bills relating to the Government B.C. Boys Hostel, Yellamanchili and mis-appropriated the government funds to a

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tune of Rs.57,900/- and they were tried for the charges under Sections 13(2) read with 13(c) and (d) of the Prevention of Corruption Act, 1988 read with 34 and 120-B IPC and 467, 471,

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477-A and 409 IPC read with 120-B of IPC. At the conclusion of the trial, A2 to A4 were acquitted of all the charges by the learned Special Judge on the ground that the prosecution failed to prove the charges against them, but the appellant/A1 was convicted for the aforesaid charges and sentenced to undergo imprisonment as mentioned above. Challenging the said order of conviction and sentence, the appellant/A1 preferred the present appeal.

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4. Briefly stated, the prosecution case is as follows:

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The appellant/A1 was the Warden of B.C. Boys Hostel, Yellamanchili, the second accused was the Senior Accounts Officer, the third accused was the Sub-Treasury Officer, the fourth accused was the Senior Accountant in the Sub-treasury Office, Yellamanchili. It is said that all the four accused conspired together with a common intention to mis-appropriate the government funds relating to B.C. Boys Hostel, Yellamanchili, forged certain bills and also the concerned records and by escalating the figures in various bills on different dates, they drew excess amount of Rs.57,900/- and thereby mis-appropriated the amount. It is specifically mentioned in the charge sheet that A1 to A3 mis-appropriated the amount of Rs.39,100/- and whereas A1, A2 and A4 mis-appropriated an amount of Rs.18,800/-. The misappropriation relates to various bills and was committed on various dates.

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5. To substantiate the afore-mentioned allegations which culminated in the aforesaid charges against A1 to A4, the prosecution

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examined PWs.1 to 9, marked Exs.P.1 to P.47. The appellant/accused did not propose to examine any defence witnesses before the learned Special Judge.

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6. The learned Special Judge upon considering the entire evidence on record held that the prosecution failed to prove the involvement of A2 to A4 and accordingly acquitted them of all the charges, but found A1 alone guilty of the entire acts of forgery of records and mis-appropriation of bills and convicted and sentenced him to punishment as mentioned above.

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7. Now the point for determination in the present appeal is whether the order of conviction and sentence passed by the learned Special Judge against the appellant/A1 can be sustained.

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8. PW.1 was the Senior Accountants Officer in the office of the District Treasury Office, Visakhapatnam. His evidence is that he was one of the persons, who was in-charge of scrutinizing the bills and vouchers. According to him, for the bills below Rs.1,000/- vouchers remain with the office and they will not be submitted with the bills. He admitted in his evidence that all the bills Exs.P.2, P.4, P.6, P.8, P.10, P.13, P.14, P.16, P.18, P.20 and P.23 contain his signature disclosing that he scrutinized the bills. According to this witness, the way in which the forgery and mis-appropriation committed was by adding some figures before the actual figures of the bill amount escalating the amount and drawing excess amount by deceitful means. This witness admitted in the cross examination that for the amount which is more than Rs.1,000/- vouchers have to be necessarily enclosed, but at the time of scrutiny of such bills vouchers were not enclosed. He also admitted that there will be periodical reconciliation of their records with

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the records of the treasury every month. However, he explains that due to administrative reasons, the process of reconciliation was not being done regularly. He also admitted that the amounts mentioned in the bills in figures will also be written in words. From this, it has to be necessarily understood that if some figures were added to the original figures in the bills to escalate the amount, the words also will have to be changed necessarily. According to this witness, if one peruses the disputed bills i.e. Exs.P.1, P.3, P.5, P.7, P.9, P.11, P.13, P.17, P.19, P.21, P.22 there is no correction in the amount covered by the bills either for the figures or for the words.

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9. PW.2 was holding full additional charge of Assistant Social Welfare Officer, Yellamanchili. He was also one of the persons, who was in-charge of scrutiny of the bills, but he did not support the prosecution case and he was treated as hostile.

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10. PW.3 is the Superintendent in the office of the B.C. Welfare Office, Visakhapatnam. He also stated in his deposition that he used to scrutinize the bills of B.C. Boys and Girls hostels, Scholarship applications and establishment matters and after scrutiny he would submit the same to the District Welfare Officer, who is competent authority to pass the bills and after passing of the bills he used to return these bills to the respective wardens for presentation. He also stated that Exs.P.1, P.3, P.5, P.7, P.9, P.11, P.13 and P.15, P.17, P.19, P.21 and P.22 are the bills contained his signatures and that he verified Exs.P.1 to P.23.

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11. PW.5 is the handwriting expert. He examined the disputed and admitted hand writings of the appellant/A1 and A2 and gave his opinion. His evidence discloses that specimen writings of A1 sent to

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him along with the disputed writings were found to be identical. Much reliance has been placed by the learned Special Judge on the evidence of PW.5, the hand writing expert.

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12. PW.7 is the investigating officer in this case. Curiously, he is also the informant in this case. A serious contest was put-forth by the accused before the learned Special Judge on the ground that he being the informant, he is not supposed to conduct the investigation and the investigation itself was vitiated. But, the learned Special Judge rejected the contention on the ground that as no prejudice was caused to the accused, the investigation cannot be said to be vitiated.

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13. PW9 is the Senior Accountant in Sub Treasury Office. He spoke about encashing of the government funds on production of bills.

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14. The defence version of the accused as could be seen from the written statement filed by him before the learned Special Judge and also from the tenor of the cross examination of the prosecution witness by his counsel is that LW.7, B.Parthasaradhy and PW.3S.Satyanarayana and PW.6-S.Apparao were insisting upon him to pay an amount of Rs.2,000/- every month by making adjustments in the bills, for which he expressed his inability, whereupon, the District Social Welfare Officer himself developed grouse against him, on one day PW.3 and PW.6 came to hostel, took away some records without issuing him any acknowledgment and kept the records for one year, fabricated them and got a false case filed against him.

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15. LW.7, the District Social Welfare Officer could not be examined by the prosecution as he died pending trial.

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16. From the evidence on record and from the testimony of the

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prosecution witnesses, who were working in the office of the District Social Welfare Office, Visakhapatnam, obviously there was thorough scrutiny of every bill before it was presented to the treasury. In the instant case, after the scrutiny of the bills by PWs.1, 2, 3 and 6, they will be presented before LW.7, the District Social Welfare Officer and after taking his approval only they will be presented in the treasury. However, all the witnesses have stated that the bills will be prepared by the appellant/A1, who was warden in the hostel, but the fact remains that unless the bills are subjected to thorough scrutiny and are ultimately approved by the District Social Welfare Officer, they will not be passed in the treasury. Therefore, the bills will be scrutinized by the officers in the District Social Welfare Office with reference to the relevant records, only after finding them to be genuine, they will pass on them to the District Welfare Officer for approval. In the instant case, PWs.1, 3 and 6 did not state that for any reason the usual procedure was not followed. The fact that the original bills contain signatures of the District Social Welfare Officer as well as the District Treasury Officer and that they did not contain any corrections or additions, is not disputed. All the bills contain the initials of PWs.1, 2, 3 and 6 and also that of LW.7, the District Social Welfare Officer. On the mere ground that the appellant/A1 was in-charge of preparation of bills and considering that no positive evidence showing complicity of A2 to A4 in commission of the alleged crime is made out from the evidence of prosecution witnesses, the learned Special Judge fastened the entire criminal liability on the appellant/A1 and recorded a finding in para xviii of the judgment as follows:

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“(xviii) In view of the above submissions of the learned Advocate for A.O.1. I have carefully perused the original bills and office copies of bills and compared them. A close comparison of the original bills with office copies

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gives a clue from office copies of bills. It is clear therefrom that A.O.1, who prepared the originals and office copies of the bills, cleverly and with an ulterior motive and intention to subsequently prefix figures and write words, left the first line meant for words in the bills blank and subsequently inserted figures and written words in the first line of the original bills after the bills were approved by the District Social Welfare Officer and before presenting the same to the Sub Treasury. The above mischief is apparent on the face of the record. A comparison of original bills with office copies shows the same and it is the only inference that can be drawn by comparing the originals with office copies. The evidence of PW.6 is also the same effect. PW.6 at page 4 deposed that his scrutiny revealed that the then warden of B.C.Boys Hostel Yellamanchili i.e. A.O.1 escalated the figures in the original bills and drew excess amounts from the treasury, that had the change in figures being detected by the officials of the treasury at the time of their scrutiny, they would not have passed the bills and that the treasury day books reflect the escalated figure as bills were passed for the escalated figures. This ingenious act of A.O.1 could be detected by PWs.1 and 6 in the month of July, 1993 at the time of reconciliation and comparison of Treasury Bill Register, Ex.P.7 and cash books Exs.P.28 and P.29. Thus, it is clear that A.O.1 himself forged the bills by pre-fixing/adding figures and filling the first line which was kept blank with words after approval of the bills by the District Social Welfare Officer and before presenting them to the Sub-Treasury. It is thus, clear that the bills were passed by the treasury officials as there was no scope for suspicion in view of the above ingenious act of A.O.1. There was no corrections in the original bills and as such there was no possibility for the treasury officials to suspect at the time of passing of the bills that those bills were fabricated. I therefore, do not see any substance in the above submissions of the learned Advocate for A.O.1.”

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17. The learned Special Judge seems to have arrived at the said finding by physically verifying the bills. There is absolutely no evidence either direct or circumstantial showing that the appellant/A1 resorted to forgery and falsification of bills in the said fashion and misappropriated the amount. From the evidence on record which was discussed in the foregoing paragraphs, it is obvious that the bills will not be presented in the treasury without the scrutiny at various places in the hands of PWs.1, 2, 3 and 6. Ultimately they will be placed before the District Social Welfare Officer (LW.7) who would pass the bills. The scrutiny of the bills must be with reference to the relevant records. At the time of scrutiny, certainly the genuineness of the bills can be found out by the officials, who were in-charge of the scrutiny. If as stated by the learned Special Judge, the appellant/A1 with ulterior intention to prefix the figure and left the first line meant for words in the bills blank, it would have been certainly noticed by PWs.1, 2, 3 and 6 and they would have objected for not writing the amount in words. The learned Special Judge in my view is not at all justified in drawing such a presumption of guilt against the appellant/A1 without there being any direct or circumstantial evidence to that effect. Therefore, unless there is connivance of the other officials in the office of the District Social Welfare Office, Visakhapatnam and some of the officials in the subtreasury Office, Yellamanchili, there is no scope for mis-appropriation of the amount relating to the government boys hostel, Yellamanchili. The learned Special Judge on the same evidence acquitted A2 to A4, but convicted A1 on the mere ground that the evidence of the handwriting expert-PW.5 discloses that the disputed and admitted handwritings sent to him for examination are identical and they are found to be as that of the appellant/A1. The evidence of hand writing expert is only opinion evidence and no decision can be based on his

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evidence.

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18. Further, as rightly contended by the learned counsel appearing for the appellant/A1, from the facts and circumstances of the case and the way in which the investigation was proceeded in this case, certainly the case of the appellant/A1 has been prejudiced as the informant and investigating officer are one and the same person. The investigation, therefore, in the instant case, according to him, is vitiated as PW.7, the Inspector, ACB, who is the informant also subsequently, conducted the entire investigation. There is any amount of force in the contention and this Court is of the view that the case of the appellant is prejudiced.

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19. Another crucial aspect requires to be mentioned in this context is the charge against A1 to A4 was that all of them conspired together, committed falsification of bills and other documents and misappropriated an amount of Rs.57,900/-. Out of the total amount, the prosecution came forward with a specific case that A1 to A3 misappropriated an amount of Rs.39,100/- and A1, A2 and A4 misappropriated an amount of Rs.18,800/-.

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20. To substantiate the aforesaid accusation, the prosecution examined the same witnesses against all the accused, but the learned Special Judge believed the evidence of the prosecution witnesses, insofar as it was against the appellant/A1, but rejected the same as against A2 to A4. In view of the uniform version of PWs.1, 3 and 6 as to the scrutiny of the bills and approval of bills and passing of the bills in the Sub-Treasury Office, the learned Special Judge in my view ought to have given benefit of doubt to the appellant/A1 instead of drawing inference of guilt by mere physical comparison of the

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signatures of the appellant on the bills.

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21. For the foregoing reasons, I am of the considered view that the conviction and sentence recorded by the learned Special Judge against the appellant/A1 cannot be sustained and the appellant is entitled for acquittal.

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22. Consequently, the conviction and sentence passed by the III Additional District and Sessions Judge-cum- Special Judge for ACB Cases, Visakhapatnam in C.C.No.9 of 1996 against the appellant/A1 are set aside and the appellant/A1 is found not guilty of the charges with which he stood charged and accordingly, he is acquitted. The fine amount, if any, paid by the appellant shall be refunded to him. The appeal is allowed.

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_________________ R.KANTHA RAO,J

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Date: 04.01.2013 Kvrm

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HON’BLE SRI JUSTICE R.KANTHA RAO

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CRL.A.NO. 1713 OF 2005

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DATE: 04.01.2013

Koorapati Yesudas, v. State, rep. by the Inspector of Police

Case brief

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Koorapati Yesudas, v. State, rep. by the Inspector of Police

Case brief

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