Dismissed

D.Narayana Rao, v. Vepari Mohana Rao

Telangana HC4 Apr 2014CRLRC/2036/2005

Case brief

AI extract

What is this about?

High Court dismissed criminal revisions preferred by a witness-privilege holder against an appellate court order acquitting accused for misappropriation in a cooperative society. The court upheld the acquittal, ruling the trial was barred by limitation under Section 468 Cr.P.C. as the prosecution did not take cognizance within three years of detection.

What did the court decide?

Both Criminal Revision Cases were dismissed as devoid of merits.

D.Narayana Rao, Vs Vepari Mohana Rao — Corruption | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE Nos.2035 & 2036 of 2005

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Date:04.04.2014

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CRLRC No.2035/2005
Between:
D. Narayana Rao
	..... Petitioner.
AND
M. Durga Prasada Rao and The Station House Officer, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
	.....Respondents.
CRLRC No.2036/2005
Between:
D. Narayana rao
	..... Petitioner.
AND
Vepari Mohana Rao and The Station House Officer, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
	.....Respondents.

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The Court made the following :

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THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE Nos.2035 & 2036 of 2005

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COMMON ORDER:

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These revisions are filed against judgment dated 04-08-2005 in Crl.A.Nos.23 & 24/2001 on the file of II Additional District & Sessions Judge (FTC), Srikakulam whereunder judgment dated 14-02-2001 in C.C.No.354/1993 on the file of Judicial First Class Magistrate, Srikakulam was set aside for the offences under Sections 406 & 120-B IPC. Aggrieved by the same, the witness-P.W.11 preferred the present revisions.

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2. Brief facts leading to filing of these revisions are as follows:The accused are employees in Statistical Department of Srikakulam District. They all conspired together and started a Co-operative House Building Society and induced various persons to join as members for getting house sites. In pursuance of the said conspiracy, A1 issued a circular dated 20-03-1986 (Ex.P7) calling for consent letters from the employees by fixing last date as 31-03-1996 to express their willingness to possess a house site near Milk Chilling Plant at Peddapadu. A1 offered to give Ac.0.05 cents for Rs.2,000/- & Ac.0.10 cents for Rs.4,000/and many employees gave their consent letters to the first respondent-accused, thereafter, A1 again issued circular dated 27-7-1986 (Ex.P8) calling all members to pay at the rate of Rs.500/- towards share capital & membership fee and also collected Rs.50,150/- from 188 members towards share capital and membership. Thereafter, accused provisionally registered

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house building society under the name and style of Sri Sai Srinivas Co-operative House Building Society Limited under proceedings in RC.No.2038/86-E, dated

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31-07-1986, before the Divisional Cooperative Officer, Srikakulam and a provisional committee is appointed for a period of three months from 31-07-1986 to manage the affairs of society. During that tenure, an extent of Ac.14-25 cents was purchased in the name of A1 in September 1986 for an amount of Rs.1,68,679/- and after purchasing the land, they have applied for approval of lay-out and got approval for 135 plots. Thereafter, they applied to the Divisional Cooperative Officer at Srikakulam for final registration on 03-07-1987 assuring that all the conditions are complied and on that proceedings in R.C.No.2038/86-C, dated 30-07-1987 were issued appointing A1 as President, A2 as Secretary besides Vice President, Treasurer and five Directors and that the new Board assumed charge on

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13-09-1987. Subsequently, after detecting the fraud, enquiry was conducted under Section 51 of the Cooperative Societies Act and a repot was submitted on 10-02-1991. Prior to that an audit was conducted, which revealed that the accused have manipulated the records and misappropriated Rs.3,46,898/- out of the amount collected from the members towards share capital. After District Collector granted sanction of prosecution in R.C.No.138/90-D, dated 14-05-1991, Divisional Cooperative Officer, Srikakualm (P.W.1) gave a report to the Station House Officer, Srikakulam on the basis of which Crime No.112/1992 was registered and the case was transferred to I Town Police Station on the point of jurisdiction, which was reregistered as

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Crime No.77/92 and investigation revealed that the accused have committed offences under Sections 409, 420 & 120-B IPC. On these allegations, prosecution has examined 18 witnesses and marked 25 documents on behalf of prosecution. On behalf of accused, no witness is examined but Ex.B1 is marked. On a overall consideration of oral and documentary evidence, trial Court convicted both the accused for the offence under Section 406 IPC and sentenced them to suffer three years imprisonment with a fine of Rs.5,000/- each and also convicted them for the offence under Section

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120-B and sentenced them to suffer three years imprisonment with a fine of Rs.5,000/- and aggrieved by the said conviction and sentence, A1 preferred Crl.A.No.24/2001 & A2 preferred Crl.A.No.23/2001 to the Court of Session and II Additional District & Sessions Judge (FTC), Srikakulam on a reappraisal of evidence, allowed the appeals by judgment dated 04-08-2005 by setting aside the conviction and sentence against A1 & A2. Now aggrieved by the judgment of the appellate Court, witnessP.W.11 preferred these revisions.

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3. Heard both sides.

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4. The main contention of the Advocate for revision petitioner is that the appellate Court failed to notice that a Departmental Enquiry under Section 51 of the A.P. Cooperative Societies Act was concluded on 10-02-1991 holding that both A1 & A2 have misappropriated money of the society and the sanction was obtained on 14-05-1991 and therefore, offence is not barred by time.

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He further submitted that the appellate Court failed to note that

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the entire land of Ac.14-29 cents was purchased in the name of A1 in his personal capacity with the society funds and there is clear evidence of misappropriation and therefore, the judgment of the appellate Court is incorrect. He further submitted that appellate Court having found that A1 registered the land in his name without transferring in the name of society ought to have accepted that there is fraudulent intention on the part of A1 and for these reasons, the judgment of the appellate Court is liable to be set aside. On the other hand, learned Advocate for first respondent submitted that appellate Court mainly acquitted the accused on the ground that appeals are barred by time. He submitted that audit report was submitted prior to 09-01-1990, charge sheet is filed into Court on 17-11-1993 which is clearly barred by time, therefore, the appellate Court has rightly acquitted the accused and that there are no grounds to interfere with the findings of the appellate Court.

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

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6. Point:- Most of the facts are not in dispute. According to prosecution, both accused conspired together and brought into existence a Cooperative House Building Society and induced several employees belonging to State Statistical Department to part with money and they have collected at the rate of Rs.50,150/- from 188 members towards share capital, but the land was purchased in the name of A1 and plots were not registered for the members. To prove the same, 11 witnesses are examined on behalf of prosecution. The main aspect on

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which appellate Court acquitted the accused is limitation. Here, the society was formed in the year 1986 and even according to prosecution case, money was collected in the year 1986 and the audit report was submitted prior to January 1990. Admittedly, charge sheet was filed on 17-11-1993. According to provisions of Section 468 Cr.P.C., Court has to take cognizance within three years from the date of offence. Here according to prosecution, the offence was committed in the year 1986, but it was detected only after submission of audit report. So according to prosecution, the fraud came to light prior to 09-01-1990, but cognizance was not taken within three years form 09-01-1990. As seen from the record, cognizance of the offence was taken on

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17-11-1993, apparently, it is beyond three years period. When the statute provide limitation for taking cognizance, prosecution must see that the charge sheet is filed within time and cognizance is also taken within time. If the charge sheet is filed beyond the period of limitation, they can invoke Section 473 Cr.P.C for extension of time. Admittedly, prosecution has not invoked this provision. In the entire charge sheet, there was no whisper as to the date on which the fraud was detected, but as per investigation report, it came to light only after submission of audit report, which was submitted on 09-01-1990. Learned appellate Judge, considering this aspect, held that the offence of which cognizance was taken by the trial Court is barred by limitation, therefore, the accused cannot be convicted. I do not find any wrong findings in the judgment of the appellate Court and the appellate Court observed that the trial Court failed to notice limitation aspect while convicting the accused. On a

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scrutiny of the material, I am of the view that the appellate Court was right in considering the limitation aspect and rightly acquitted the first respondent in these revisions, who are A1 & A2 and that there are no grounds to interfere with the findings of the appellate Court.

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7. Admittedly, State has not preferred any appeal or revision against the acquittal recorded by the trial Court for an offence under Section 420 IPC and also not filed any appeal or revision challenging the appellate Court judgments acquitting A1 & A2 for the offences under Sections 406 & 120-B IPC. Here, only P.W.11, who was member at that time and present Secretary of society alone preferred these revisions. If really, there was any error on the part of trial Court or appellate Court, the State ought not have left the matter without preferring any appeal or revision. In my view as the state is satisfied that the offence is barred by limitation, they have not preferred any revision or appeal.

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8. For these reasons, I am of the view that both the revisions are liable to be dismissed as devoid of merits.

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9. In the result, Criminal Revision Cases are dismissed as devoid of merits.

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10. As a sequel, miscellaneous petitioners, if any, pending in these Criminal Revision Cases, shall stand dismissed.

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_________________________ JUSTICE S. RAVI KUMAR

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Date:04.04.2014 mrb

D.Narayana Rao, v. Vepari Mohana Rao

Case brief

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D.Narayana Rao, v. Vepari Mohana Rao

Case brief

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