Partly allowed

Palle Venkata Ramudu, v. The Station House Officer, Atmakur P.S., Mahabubnagar

Telangana HC19 Dec 2014CRLRC/1335/2007

Case brief

AI extract

What is this about?

In a criminal revision, the court upheld the conviction and sentence under Section 409 IPC for misappropriation of public funds. While affirming the lower courts' findings that the accused was a public servant and guilty, the High Court exercised its discretion to reduce the term of rigorous imprisonment from one year to two months, directing the accused to surrender.

What did the court decide?

Criminal Revision dismissed. Sentence of rigorous imprisonment reduced to two months. Accused directed to surrender to trial court.

Palle Venkata Ramudu, Vs The Station House Officer, Atmakur… — Corruption | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

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Criminal Revision Case No.1335 of 2007

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ORDER:

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This Criminal Revision Case under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (‘the CrPC’ for brevity) by the sole accused is directed against the judgment dated 27.09.2007 of the learned III Additional Sessions Judge (Judge, Fast Track Court), Mahabubnagar at Gadwal, whereby the learned Additional Sessions Judge while dismissing the said appeal of the petitioner/accused had confirmed the conviction recorded and sentence imposed against him for the offence punishable under Section 409 of the IPC vide judgment dated 21.02.2005 of the learned Judicial Magistrate of First Class, Atmakuru in CC.NO.42 of 2002.

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2. I have heard the submissions of the learned counsel for the petitioner/accused and the learned Additional Public Prosecutor representing the respondent/State. I have carefully perused the material record.

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3. Now the points for determination are: -

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1. Whether the prosecution could bring home the guilt of the accused beyond reasonable doubt for the offence punishable under Section 409 of the IPC?

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2. Whether the accused had made out valid and sufficient grounds for his acquittal for the said offence?

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4. POINTS:

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4. (a) The gravemen of the charge and the prosecution case, in brief, are as follows: -

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The accused while working as LDC-cum-Revenue Cashier in the electricity office of A.P. Transco, Atmakur was enjoined with a primary duty of collection of electricity consumption charges from the consumers of all categories namely agricultural, residential and commercial and remit the collected amounts in SBH, Atmakur to a specified head of account and submit the details of such collections and remittances to the bank to his superior officers. While so, during the periods from 14.03.2001 to 24.03.2001 and from 29.03.2001 to 20.04.2001, the accused had collected an amount of Rs.2,97,993/- from various consumers and had misappropriated and utilised the amount for his personal use in stead of depositing the same into the bank and had absconded from duties without informing his superior officers. On the report dated 28.04.2001 of the Assistant Accounts Officer, A.P. Transco, Mahabubnagar, the subject crime was registered by the Station House Officer, Atmakur Police Station against the accused for the offence punishable under Section 409 of the IPC and was investigated into. After abscondance from the duties, the accused had surrendered before the court. On the requisition of the police, custody was given to the police and further investigation was done. On completion of the investigation, the police had laid charge sheet.

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4. (b) The learned counsel for the petitioner/accused would contend that there are material discrepancies, exaggerations, omissions and contradictions in the evidence lead by the prosecution and that the evidence adduced by the prosecution is insufficient to base a conviction and that the prosecution had failed to prove its case beyond reasonable doubt and as required under law and that the prosecution had failed to examine any persons like ryots or any other domestic consumers from whom the accused had allegedly collected the electricity consumption

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charges and that the witnesses examined by the prosecution did not support its case and that the prosecution had, therefore, failed to prove that the accused had misappropriated the amounts collected from the consumers and that in any view of the matter the evidence on record is not sufficient to show that the accused had dishonest intention and that the courts below had failed to consider that the accused is not a public servant as defined under Section 21 of the IPC and that, therefore, the conviction of the accused for the said offence under Section 409 of the IPC is unsustainable and the accused is entitled to a clean acquittal or in the alternative to a reasonable benefit of doubt.

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4. (c) On the other hand, the learned Additional Public Prosecutor would contend that the courts below had considered all the contentions raised before the courts below and had properly appreciated the evidence, which was adduced by the prosecution, and that the concurrent findings of fact that the accused is guilty of the offence with which he is charged are supported by well considered reasons and that none of the contentions now raised by the accused merit consideration and that this revision case is devoid of merit and is liable to be dismissed. He would further submit that the accused having collected a huge sum of the electricity consumption charges from the customers had misappropriated the public money and that he had also filed a writ petition and that in the writ petition he had obtained interim orders to pay the misappropriated money in instalments, but, he has failed to pay any money and has thus caused huge loss to the exchequer of the State.

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4. (d) Now it is necessary to examine the evidence on record to find out whether the evidence adduced was sufficient to hold that the prosecution was successful in bringing home the charge against the accused. Admittedly, the accused was an employee of the Andhra Pradesh Transco, Electricity Revenue Office, Atmakur at the relevant time and he was working as an LDC in the above department. The AP

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Transco is a corporate body established by the State Government. The accused being in service of the A.P Transco is therefore a public servant under Section 21 of the IPC as the said section of law says that a person in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 is a public servant. Therefore, the finding of the courts below that the accused is a public servant brooks no interference.

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4. (e) Now the next aspect to be examined from the evidence is as to whether the accused was entrusted with the duties of collection of electricity consumption charges from the consumers and, if so, whether he has a responsibility and a duty to remit the collected revenue to the designated head of account in the State Bank of India. The prosecution had examined PW1 who was the immediate superior authority of the accused at the relevant time. PW1 at the relevant time worked as junior accounts officer from 01.04.2001 to 31.07.2001, which period corresponds and relates to the period during which the accused had allegedly collected the electricity consumption charges from various customers and had failed to remit the same to the account of the department. PW1 testified to the following effect. ‘The accused worked as a bill collector in APSEB, Atmakur during the period from 14.3.2001 to 28.04.2001. The accused had collected amounts from the consumers by issuing receipts and had failed to remit the amount of Rs.2,97,993/- from 21.04.2001 onwards and has also stopped attending to office work. On that he had verified the permanent receipt book. He had found that the accused used to remit amounts to a tune of Rs.3 lakhs each month prior to March of that year, but, that during 14.03.2001 to 28.04.2001 he had remitted only Rs.1.50 lakhs. Therefore, he had immediately contacted the Additional Assistant Manager, Electrical operations, Atmakur and had informed that the collections to be made from all the consumers either

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were not made or remitted, if collected. And, an enquiry was also made as to why the service connections of consumers are not disconnected in case they had failed to pay the bills. PW1 with the Additional Assistant Engineer had approached some of the consumers and made enquiries with them. And, during the course of such enquiries, they had produced receipts to show that they had made payments of consumption charges. Therefore, PW1 had informed to the head office the said fact of misappropriation made by the accused. The Assistant Accounts officer, Mahabubnagar came down to Atmakur and had verified the receipt books, BCRC and PCs till the date of inspection, and, by that time the accused was not attending duties. The Sub-Inspector of bill collector used to watch the performance and the duties of the bill collector. Therefore, PW1 instructed the said SI of bill collector to produce the accused. In the month of May, the accused came to Mahabubnagar head office and appeared before the then Assistant Accounts Officer in the presence of PW1; and on production of the receipt book by the accused, the records were verified with the help of receipt book handed over by the accused. On verification, it was found that the accused had misappropriated the aforementioned amount. The Assistant Accounts Officer approached the then Superintendent Engineer and the acts were informed to the District Collector and it was also stated to the Collector that the accused was having lands at Mulamalalla village. The District Collector issued proceedings under Revenue Recovery Act restraining the accused from selling or mortgaging his properties, if any, and directing the accused to remit the amounts to the electricity department. The accused then approached this court and requested time to pay the misappropriated amount in four instalments and he was directed to pay the same with a direction that the first instalment should be paid within one month from the orders of this court. However, the accused had failed to pay even a single instalment and therefore, the writ petition of the accused was dismissed by this court. The accused was suspended

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by the superior authorities of PW1 along with the sub inspector of bill collector and their monetary benefits were stopped. The pension of PW1 was also stopped as he had failed to supervise the duties of the accused and the said sub inspector of bill collector for not discharging supervisory duties during his tenure of office.’ In the cross examination it was elicited that two persons are appointed for each Mandal to collect the bills from the customers and that both the collectors used to remit the amounts in the Atmakur bank as well as at Mahabubnagar and that the accounts officer will issue programmes of bill collectors and that the accused was appointed as bill collector of Atmakur Mandal along with one Qutubuddin, but he cannot give the names of the villages which were allotted to the accused and the Qutubuddin as he was not having records with him and that the consumption charges from the customers will be remitted to the account no.’3’ of APCPDCL, SBH, Atmakur. When it was suggested to him that the accused had remitted all the amounts collected, he had denied the said suggestion as ‘not true’ and had added that exhibit A1 shows the amounts collected by him as per the receipts in the book which is under his control; and that it is in his own hand writing and signatures. It was further elicited in his evidence that occasionally lineman and also the head office people collect bill amounts from the consumers. When it was suggested to him that as there was a difference in the amount a false case was filed against the accused he had denied the said suggestion as ‘not true’. It was further elicited in his cross examination that the bill collector has to remit all the remittances on the day that falls after three days after collection. PW2, at the relevant time, is the sub inspector of bill collector i.e., revenue inspector at Atmakur from 2000 to 2001 and he was also the sub inspector revenue collection, Mahabubnagar during that period. His evidence is to the following effect: “PW3 used to work under him at that time and there were five bill collectors at Atmakur and eight bill collectors at Mahabubnagar district under him. The accused worked under him as bill

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collector for Atmakur Mandal during that period. In the month of April 2001 he had verified the accounts and had found that the collection of accused as bill collector was very less and that Rs.2,97,993/- was not remitted by the accused even after collections were made from consumers as a bill collector and that he had then informed PW3/the then Assistant Accounts Officer about the misappropriation of funds by the accused. He along with PW3 and PW1 went to the Divisional Engineer’s office and reported the matter by producing the accused and on that the Divisional Engineer granted two days time for remittance of the balance, which was not remitted by the accused as per the collections and that the accused escaped from the office and had absconded for a period of six months and that on 29.04.2001 a report was lodged with the police. In his cross examination he had admitted that he is the verifying officer over the accused and that as per his duties he used to verify the work of the accused after every fifteen days or one month and that on 13.03.2001 he had verified the records and bill books and had found that as on that day that there was no misappropriation and that on 20.04.2001 on verification of records and receipt books he had found misappropriation of Rs.2,97,993/- relating to two books and that on the same day he took custody of the two books and then he had handed over the said two receipts books to PW3, the then Assistant Accounts Officer. However, he stated that he cannot give the names of the consumers from whom the amounts were collected and not remitted by the accused. He further stated that the accused is the sole bill collector for Atmakur Mandal and that AE is competent to appoint any other officer during camps as bill collectors and lineman and that lineman also used to collect amounts whenever there is a programme. They had obtained bank sheet to show the remittances done by the accused during the periods of March and April, 2001.” He admitted that he was suspended from service on the allegations of misappropriation of funds in the year 1984 and he was reinstated after paying the misappropriated amounts

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and that in this case also he was suspended along with the accused. PW3 is the then Assistant Accounts officer in Electricity Revenue Office, Mahabubnagar from 31.12.1998 till July 2001. He had testified that during that period the accused worked as a bill collector cum revenue cashier at Atmakur Mandal and that after April 20^th 2001 when he had verified the records, he had found that the accused had remitted lesser amounts in the account pertaining to the electricity consumption charges in a sum of Rs.2,90,000/- and that on 28.04.2001 he had lodged complaint before the police under exhibit P2 and that in the meanwhile the accused absconded from the office. He had exhibited exhibit P3 which are consumer payment receipts during march 2001 to April 2001 which are 42 in number and also exhibit P1 and computer list of exhibit P3. When it was suggested to him that exhibit P3 is created, he had denied the said suggestion. However he had admitted that exhibit P3 does not disclose the names of the consumers, but had added that it discloses service numbers of the consumers as names of the consumers will not be entered. He had also admitted that names are visible on some receipts under exhibit P3 and in some of the receipts the names are not visible. He had also stated that exhibit P3 receipts are duplicates as the originals were issued to the consumers. He had admitted that he did not mention in exhibit P2 specifically as to how much amount was collected from each consumer and how much was not remitted. P W 4 a consumer turned hostile to the case of the prosecution. In his cross examination, he produced exhibit P6-consumer copy issued by the accused and exhibit P7 electricity bill issued by the authority concerned but had stated that exhibits P4 to P7 were not issued by the accused. PW5 a panch witness also turned hostile to the case of the prosecution. PW6 another consumer had also turned hostile to the case of the prosecution. PW7 is the SI of police who received the complaint from PW3 under exhibit P2 and registered the subject crime and issued exhibit P10-FIR. According to his evidence, he had recorded

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the statements of PWs1 to 4 and 6 and having come to know that the accused had surrendered before the court had obtained police custody of the accused and interrogated him in the presence of panch witnesses and recorded the statement of the accused under exhibit P8 in the presence of PW5 and another panch witness and laid the charge sheet. He had admitted in his cross examination that he did not collect the original documents from the bank and that he had examined the consumers.

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4. (f) Thus, I have carefully gone through the evidence on record. The entire evidence on a careful perusal would show that it is sufficient to come to a safe conclusion that the prosecution proved its case.

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4. (g) Coming to the duties with which the accused was enjoined at the relevant time, not only the positive evidence of the witnesses but also the suggestion given to PW1 in the cross examination done for the accused that the accused remitted all the amounts he had collected would show that he was enjoined with the duties of collection of revenue and remitting the same. Therefore, the non examination of the consumers to show that the accused was entrusted with the duty of collection of electricity consumption service charges from consumers is not fatal to the case of the prosecution. Even PW4 who was a consumer, and who had not supported the case of the prosecution had paid electricity bills regularly in respect of service connection number 1849 and he had admitted that on 02.04.2001 he paid Rs.4,091/- towards electricity bill and he had produced exhibits P4 to P7 which are nothing but consumer copies issued by the accused. Though it was brought out in the evidence that the police officer had failed to collect bank record, in the light of the evidence available on record and in the light of the legal position that actual mode of misappropriation need not be proved once entrustment is proved and that it is for the accused to explain as to how

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the property was dealt with when the entrustment is proved, this court finds that non collection of record from the bank by the investigating officer is not sufficient to dislodge the prosecution case. Further, the conduct of the accused in filing a writ petition seeking instalments for payment of the misappropriated money and his further conduct in failing to pay the same having obtained an order from this Court and the resultant dismissal of his writ petition by this court is also a circumstance which would fully corroborate the case of the prosecution that the accused is guilty of the offence with which he is charged. The subsequent conduct of the accused in not paying the amount having obtained orders to pay in instalments coupled with the other substantive evidence on record and his abscondance from duties after the misappropriation had come to light and his surrender before the trial court after a period of about six months would cumulatively show that the accused had committed the offence and that the ingredients of the penal provision of criminal breach of trust are attracted to the case on hand.

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4. (h) Viewed thus, this court finds that there is no illegality or impropriety in the orders of the court below in finding the accused guilty of the offence with which he is charged. Therefore, the points are answered in favour of the prosecution and against the accused.

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5. Coming to the quantum of sentence, the learned counsel for the accused had alternately contended that the accused is removed from service and that on account of non payment of the misappropriated amount pursuant to the orders of this court in the writ petition, the properties of the accused were brought to sale by the revenue authorities and that at that time the accused had paid the amount to save his property as per the instructions received by the learned counsel and that in view of the fact that the accused had lost his job in a Government company and that he had already paid the misappropriated amounts due as per the instructions received, a lenient view may be taken and the

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accused may be let off by reducing the sentence to one already undergone. It is also submitted that the accused is having wife and children and that he is now doing a petty job and is eking out his livelihood and that in case he is sentenced to a long term of imprisonment he and his family would suffer serious hardship.

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6. I have bestowed my attention to the mitigating circumstances brought to the notice of the Court and the explanatory statement made on behalf of the accused. Considering the fact that public money was misappropriated to a tune of about Rs.3 lakhs, this court is of the well considered view that the sentence of less than a fortnight, which is said to have been undergone by the accused, is not commensurate to the gravity of the offence. However, considering the explanatory statement, this Court is satisfied that the sentence of rigorous imprisonment for one year can be modified and be reduced to two months.

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7. In the result, the Criminal Revision Case is dismissed. However, the sentence of rigorous imprisonment is reduced from one year to two months rigorous imprisonment while maintaining the fine amount. The accused is entitled to the benefit of set off under Section 428 of the CrPC. It is stated that the accused is at large being on bail; therefore, the accused is directed to surrender before the trial Court within two weeks from the date of the receipt of a copy of this order. On failure of the accused to do so, the trial Court shall take steps for his apprehension and send him to prison for serving the remaining sentence.

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As a sequel thereto, miscellaneous petitions, pending if any, shall stand closed.

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____________________ M.SEETHARAMA MURTI, J

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19^th December 2014 Vjl

Palle Venkata Ramudu, v. The Station House Officer, Atmakur P.S., Mahabubnagar

Case brief

What is this about?

What did the court decide?

Palle Venkata Ramudu, v. The Station House Officer, Atmakur P.S., Mahabubnagar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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