Partly allowed

Vallam Muni Prabhakar, v. The State of Andhra Pradesh,]

Telangana HC4 Apr 2014CRLRC/1073/2007

Case brief

AI extract

What is this about?

The High Court allowed the revision filed by the second appellant against his conviction for misappropriation of postal funds. Relying on Supreme Court precedent, the court held that revision continues after an accused's death. Finding insufficient evidence against the second appellant beyond departmental rule violations, the court acquitted him while confirming the conviction of the first accused

What did the court decide?

Revision allowed for the second appellant, acquitting him; conviction and sentence for the first appellant confirmed.

Vallam Muni Prabhakar, Vs The State of Andhra Pradesh,] — Corruption | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE S. RAVI KUMAR

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CRIMINAL REVISION CASE No.1073 of 2007

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Date:04.04.2014

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Between:

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Vallam Muni Prabhakar & others.

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..... Petitioners.

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AND

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1. The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.

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.....Respondent.

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The Court made the following :

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THE HON'BLE SRI JUSTICE S. RAVI KUMAR

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CRIMINAL REVISION CASE No.1073 of 2007

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ORDER:

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This revision is preferred against judgment dated 27-07-2007 in Crl.A.No.100/2005 on the file of Special Judge For Trial Of Offences Under SCs & STs (POA) Act 1989cum-V Additional District & Sessions Judge, Nellore whereunder judgment dated 21-05-2005 in C.C.No.434/1999 on the file of II Additional Judicial First Class Magistrate, Nellore was confirmed.

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2. Brief facts leading to filing of this revision are as follows:Sub-Inspector of Police, Central Crime Station, Nellore filed charge sheet against three accused alleging that A1 worked as temporary Section Writer in District Treasury Office, Nellore during 1988-89, whereas A2 & A3 are the postal staff to Head Post Office, Nellore. The State Government in order to distribute landless widow agricultural pension amounts through postal money orders, obtained D.Ds in the name of Head Postmaster, Nellore and dispatches the same to the office of Head Postmaster from the District Treasury Office. Similarly, District Treasury Office, Nellore obtains demand drafts in the name of Head Postmaster through his post office. In the year 1988-89, A1 was deputed to attend the work of D.Ds intended for distribution among the landless agricultural pensioners by way of money orders. As the D.Ds stand in the name of Head Postmaster, Nellore, the postal staff was entrusted with the job of receiving D.Ds and dispatching the amounts to concerned beneficiaries by way of money orders, after scrutinizing each and every draft and compare them with the list of demand drafts furnished by the D.T.O., Nellore. All the accused developed an evil idea to misappropriate certain demand drafts and convert the amounts to their own and for this purpose, A1 opened S.B Account in the post office. Prior to 28-08-1989, P.W.1 obtained D.D bearing No.OL/A/48.557308 for Rs.75,600/- from S.B.I Main Branch and handed over the same to P.W.3 who subsequently given it to A1 to carry it to the Head Post Master, Nellore and

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on 28-08-1989, A1 presented the said D.D at Head Post Office, Nellore and also gave a payslip to convert the D.D amount to his personal S.B Account and in view of their earlier conspiracy, A2 and A3 knowing that it is a Government D.D, the contents which cannot be adjusted to the personal account of A1, prepared records and adjusted the D.D amount to the personal S.B Account of A1. This amount of Rs.75,600/- was withdrawn by A1 from his personal account, after transfer of D.D. amount to his account. Thus, A1 misappropriated Rs.75,600/- and A2 & A3 facilitated A1 to withdraw this amount due to their conspiracy. Police registered Crime No.360 & 580/1989 and investigation revealed that A1 committed offences punishable under Sections 120-B, 409 & 420 IPC. A2 & A3 are liable for punishment for offence under Sections 120-B, 409 & 420 read with 114 IPC and also under Section 477-A IPC. During trial, P.Ws.1 to 8 are examined and documents Exs.P1 to P20 are marked on behalf of prosecution. On behalf of accused, no witness is examined and no document is marked. On an over all consideration of oral and documentary evidence, trial Court found A1 to A3 guilty for the offences under Sections 120-B & 409 IPC, A1 is found guilty for offence under Section 420 IPC, A2 & A3 are found guilty for the offence under Section 420 read with 114 IPC & Section 477-A IPC. Trial Court sentenced accused with imprisonment of six months and fine of Rs.1,000/- on each count and aggrieved by the said conviction and sentence, they preferred appeal to the Court of Sessions, Nellore and

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V Additional District & Sessions, Nellore dismissed the appeal by confirming conviction and sentence. Now aggrieved by the same, A1 & A2 preferred present revision. During pendency of the revision, A2 died but his L.Rs were brought on record as per orders in Crl.MP.No.1716/2013, dated 14-06-2013.

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3. Heard learned Advocate for A2 and learned Public Prosecutor representing the State.

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4. Advocate for second accused submitted that entire evidence would show that A1 misappropriated the money covered by D.Ds and A2 who is a employee of postal department has no role. He submitted that A1 has got postal S.B Account in the post office and the allegation against the second accused is that he abetted A1.

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He submitted that A2 is only a clerk he has to act according to the instructions of A3 who is the officer of the post office. He submitted that during trial, A3 died and A2 is convicted without any material. He further submitted that a departmental enquiry was held against A2 for violation of administrative instructions and he was found not guilty in the departmental enquiry and this aspect is not considered by both trial Court and appellate Court. He submitted that from the evidence of P.W.4, it is clear that A2 has not done anything beyond his power and official duty, therefore, convicting him for an offence of criminal conspiracy and also abetment is not correct and both the trial Court and appellate

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Court have committed error. He submitted that on account of his conviction, family of A2 are denied of family pension and other statuary benefits. On the other hand, learned Public Prosecutor submitted that the allegation against A2 is that he helped A1 in withdrawing money from his S.B Account. He further submitted that though charge of falsification of account is also levelled against the second respondent, there is no positive material in support of this charge and this allegation was the subject matter of the departmental enquiry, where A2 was found not guilty. On considering these aspects, appropriate orders may be passed. No arguments are advanced on behalf of first accused.

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5. Since the second accused died during the pendency of revision, Advocate for A2 is heard with regard to continuance of this revision by the L.Rs for which he relied on a decision of Supreme Court reported in Pranab Kumar Mitra v. State

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of W.B and anothe r^[1] , wherein the Hon’ble Supreme Court held as follows:-

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“The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under S.250 of the Code to pay compensation to an accused person upon his discharge or acquittal. Whether it was an accused person or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be heard and determined in accordance with law, whether or not the petitioner in the

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High Court is alive or dead, or whether he is represented in Court by a legal practitioner. In hearing and determining cases under S.439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications.”

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6. In that decision, Hon’ble Supreme Court while considering revisional powers of High Court held that the provisions applicable to abatement of an appeal may not apply to the cases of revisional applications. So in view of the above dictum, continuance of revision by the L.Rs of A2 is maintainable and they are entitled to challenge the conviction and sentence.

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7. Now the point that would arise for my consideration is whether the judgments of the Courts below are legal, proper and correct?

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8. Point:- Here revision petitioners are A1 & A2 and the main allegation is against A1. Entrustment of D.D and misappropriation of money is only by A1. From the evidence, it is clear that A1 has got S.B Account No.536520 in Head Post Office, Nellore and on 28-08-1989, he presented D.D for Rs.75,600/- with a payslip to transfer the said amount in to his S.B Account. Allegation is that since it is a Government D.D only because of their conspiracy, A2 to A4 have adjusted this amount to the credit of S.B Account belonging to A1. According to prosecution, A1 subsequently withdrawn this amount from his S.B Account and that A2 to A4 facilitated A1 in doing this mischief. From the entire

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evidence of the prosecution witnesses, there is no allegation against A2 to the effect that he had knowledge and intentionally allowed A1 to withdraw the D.D amount of Rs.75,600/- for his personal gain. Both trial Court and appellate Court held that when such a huge amount of Rs.75,600/- was withdrawn on the same day, it cannot be possible without the connivance of A2. On this presumption and assumption, both trial Court and appellate Court have convicted second accused, but in fact there is no evidence of any kind showing involvement of A2. Further, as seen from material on record, this A2 is only a clerk and his job is only to comply the instructions of A3 who is Deputy Postmaster at the relevant point of time. P.W.4 who worked as Assistant Superintendent of Post Office at relevant point of time deposed that one Brahmmanandam who was Post Master General, Vijayawada Region at that time conducted enquiry into the charges levelled against A2 in respect of the same alleged misappropriation and he gave a clean chit to A2 & A3.

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He further deposed that according to their record, A2 & A3 violated business rules relating to adjustment of D.D amount and National Savings Certificate amount to the S.B Account, and the person who has given the report with regard to alleged misappropriation is not examined. So from the evidence of P.W.4, it is clear that A2 has only violated business rules for which a departmental action was initiated in which he was found not guilty. It is not the case of prosecution that the amount withdrawn by A1 was shared

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with the other accused. Simply because, the business rule is violated, it cannot be said that the said act amounts to an offence punishable under I.P.C, unless the fraudulent intention and motive for violating such business rule is duly established. In this case, prosecution has not produced any evidence for the alleged conspiracy between A1 & A2 and the entire evidence on record is against A1 only. There is no evidence against A2 for the alleged manipulation of accounts, which is conceded by Public Prosecutor himself. The only suspicious circumstance against A2 is that he allowed withdrawal without adjustment of D.D amount into the account, but according to criminal law, the suspicion, however, strong it may be that cannot be a ground to convict a person unless that suspicion is supported and corroborated with cogent and convincing evidence. From the evidence of P.W.4, it is clear that the act committed by A2 is violation of business rules and in the departmental enquiry, he was found not guilty as he is not the officer who has to pass payment in respect of withdrawal. This A2 is only clerk who has to carryout the orders of his superior i.e., Deputy Superintendent.

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The entire evidence is against A1 and even the report of F.S.L is also against A1 and as rightly contended by the Advocate for A2, there is absolutely no evidence against the second accused for the alleged conspiracy, misappropriation, abetment and falsification of accounts.

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9. For these reasons, I am of the view that both trial Court and appellate Court have committed error in convicting A2

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for these offences and the judgments of Courts below are liable to be set aside to the extent of A2.

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1 0 . In the result, revision is partly allowed dismissing revision in respect of A1 by confirming conviction and sentence and revision in respect of A2 is allowed by setting aside the conviction and sentence. Consequently, he is acquitted of the charges levelled against him and fine amount paid by him shall be refunded to his L.Rs.

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11. The trial Court shall take steps for apprehension of accused-A1 for undergoing unexpired portion of the sentence, if any.

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12. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand dismissed.

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_________________________ JUSTICE S. RAVI KUMAR

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Date:04.04.2014 mrb

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[1] AIR 1959 SUPREME COURT 144

Vallam Muni Prabhakar, v. The State of Andhra Pradesh,]

Case brief

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Vallam Muni Prabhakar, v. The State of Andhra Pradesh,]

Case brief

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