* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ CRIMINAL APPEAL No.32 of 2006
%22.04.2014
Between:
Kollapu Paparao (died) Rep by Smt.K. Meri Lalitha Bai. …. Appellant AND State of Andhra Pradesh Rep. by its Special P.P. for ACB, High Court of A.P, Hyderabad …. Respondent ! Counsel for Appellant : Sri A. Hari Prasad Reddy ^ Counsel for Respondent : Sri M.B. Thimma Reddy, Special Public Prosecutor for ACB < Gist:
> Head Note:
? Cases referred:
1) 2002 (1) ALD 443 (SC)
2) 2004(2) ALD (Crl) 371 (AP) THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO CRIMINAL APPEAL No.32 of 2006
JUDGMENT:
This Criminal Appeal is preferred by the Accused Officer (A.O) aggrieved by the judgment dated 28.12.2005 in C.C.No.5 of 1999 passed by the learned Special Judge for ACB cases, Visakhapatnam whereby and whereunder the AO was convicted for the offences under Sections 467, 471, 477-A of I.P.C and 13 (1)(c) and (d) r/w 13(2) of Prevention of Corruption Act, 1988 (for short “P.C. Act”).
a) For the offence under Section 467 of IPC, AO was sentenced to undergo R.I for one year and to pay a fine of Rs.1,000/- and in default to suffer SI for one month; for the offence under Section 471 of IPC, he was sentenced to undergo R.I for six months; for the offence under Section 477-A of IPC, he was sentenced to undergo R.I for one year and for the offences under Sections 13 (1)(c) and (d) r/w 13(2) of P.C. Act, he was sentenced to undergo RI for one year each and to pay fine of Rs.500/- each and in default to suffer SI for one month each. All the substantive sentences were ordered to run concurrently.
b) The AO was acquitted of the charge under Section 409 of I.P.C.
2) Pending appeal A.O died and as per orders in Crl.A.M.P.No.143 of 2007 dated 01.02.2007, Smt.Kollapu Meri Lalitha Bai wife of A.O was permitted to come on record to prosecute the appeal.
3) The facts which led to file the instant appeal can be stated thus:
a) Prosecution case is that Kollapu Papa Rao(AO) worked as Warden, Backward Class Boys Hostel, Islampeta, Visakhapatnam District from 14.06.1992 to 19.09.1993 and he was a public servant within the meaning of Section 2(c) of P.C. Act. The AO with an intention of misappropriating Government funds, falsified the records, forged certain bills and used the said bills and drew an excess amount of Rs.67,368/- from the Government through District Treasury, Visakhapatnam. The AO has forged the vouchers and drawn a total amount of Rs.1,04,185/- from 09.11.1992 to 07.08.1993 as against original bill amount of Rs.36,817/- and thus obtained a pecuniary gain of Rs.67,368/- by forging eight bills.
b) Procedure to purchase materials for the hostels by warden and claims thereof is as follows:
The Wardens are authorised to purchase provisions for maintenance of hostels and they will prepare the bills, produce the bills for payment along with vouchers if the claim is for purchases of more than Rs.1,000/-. The wardens will prepare the voucher in duplicate for all the bills which exceed Rs.1,000/-. One voucher will be enclosed to the original bill and the other voucher will be enclosed to the duplicate bill. The wardens are expected to prepare the bill in duplicate and submit them to the Assistant Social Welfare Officer, who on receipt of the bill, will verify the claim and put his signature and pass on them to the office of the District Backward Classes Welfare Officer, where a Senior Accountant and Superintendent will verify the bills and after necessary scrutiny, send them to District Backward Classes Welfare Officer for passing the bill and after due verification, they will be passed for payment by District Backward Classes Welfare Officer noting the particulars in office copy bill register of concerned hostel and bills will be handed over back to the Warden for encashing them at the concerned treasury which will disburse the amounts to the concerned parties through bank. For this, the Warden has to maintain treasury bill register apart from Cash Book in the hostel in addition to office copy of bills.
c) Procedure for encashment of any bill in the District Treasury is as follows:
Whenever any bill is presented for encashment at District Treasury, it should be presented with due entries in Treasury Bill Register along with it. The attender attached to the District Treasury Officer(DTO) will receive the bill along with Treasury bill register and put the date stamp of DTO and send them to inward section/Token Section. The Senior Accountant in charge of Token Section enters the bill in inward register and issue token number, prepare paper token and sends them to the concerned Sub-Treasury Officer (STO). The Sub-Treasury Officer enters the bill in STO number book, signs on the paper token and handover it to the endorsee of the bill after obtaining his signature in STO’s inward register and the STO signs in Treasury Bill Register and sends them to the Senior Accountant for scrutiny. The Senior Accountant will scrutinise the bill and write the approval on the bill, if it is found in proper order and sends it back to STO who signs on the bill at pass order and sends it to DTO for approval. The DTO/A.T.O approves the bill and sends it to outward section/Bank book section where the concerned Junior Assistant enters the bill in Bank Book register, prepare bank list, put the bills in a sealed box and send them to the concerned banks and a copy of bank list will be exhibited in the notice board. The endorsee of the bill will verify the bank list on notice board, go to the bank by noting the serial number and present the paper token in the bank. The bank clerk obtains the signature of the endorsee on the original bill A.P.T.C Form No.101, on the reverse side of the paper token, receive the paper token and issue metal token to the endorsee. The payment of cash will be made to the endorse at the bank and after completion of payment, the bank authorities will prepare bank scroll and send back the bill along with bank scroll to the DTO who after receipt of the bill from the bank, processes the account and sends to the Accountant General before 17th of next month along with accounts and original vouchers. The paper tokens received back from the bank will be kept for three months and destroyed thereafter by DTO.
d) Then, the prosecution case is that AO has manipulated the figure Rs.17,785/- in the bill amount of Rs.12,785/- (Ex.P.1) and drawn excess amount of Rs.5,000/- on 09.11.1992 under head of account 270 Diet in voucher No.378B. The original bill for an amount of Rs.1,400/- (Ex.P.3) was manipulated by changing the figure to Rs.4,400/- and encashed it on 5.12.1992 and thereby the AO has drawn excess amount of Rs.3,000/- under head of account 190 M&S vide voucher No.184B. The original bill for Rs.11,163/- (Ex.P.4) was manipulated to Rs.17,163/- and excess amount of Rs.6,000/- was drawn by AO on 6.2.1993 vide voucher No.281B under head of account 270 Diet. The original bill amount of Rs.6,250/- (Ex.P.5) was manipulated to Rs.16,250/- and excess amount of Rs.10,000/- was drawn by AO on 31.3.1993 vide voucher No.3075B under head of account 270 Diet. The AO has forged the signature of Sri Bommi Parthasaradhi (LW.4), District Backward Classes Welfare Officer (Retired), Visakhapatnam and created forged bill for Rs.13,915/- and encashed it on 9.6.1993 vide voucher No.116B under head of account 270 Diet. The original bill for Rs.5,219/- (Ex.P.6) was manipulated to Rs.15,219/- and excess amount of Rs.10,000/- was drawn by AO on 12.7.1993 vide voucher No.137B under head of account 270 Diet. The AO has forged the signature of the said Bommi Parthasaradi and created two separate forged bills for Rs.16,948/- and Rs.2,505/- and encashed them on 7.8.1993 vide voucher Nos.158B and 159B under head of accounts 270 Diet and 190 M & S respectively.
e) Thus, the AO with a dishonest intention to misappropriate the Government funds, manipulated the records viz., bills, treasury bill book, vouchers and cash book, forged the signature of L.W.4 and misappropriated an amount of Rs.67,368/-. The Government of A.P, Backward Classes Welfare (B2), Department issued G.O.Ms.No.3 dated 23.1.1999(Ex.P.39) to prosecute the AO. Thus, the AO committed the offences punishable under Sections 13(2) r/w S.13(1) (c) and (d) of P.C. Act and 467, 471, 477-A and 409 of I.P.C. Charge-sheet was taken on file for the offences under Sections 467, 471, 477-A and 409 of I.P.C and 13(2) r/w S.13(1)(c) and (d) of P.C.Act and trial was conducted.
f) During trial, PWs.1 to 5 were examined and Exs.P.1 to P.39 were marked on behalf of prosecution. No oral or documentary evidence was adduced on behalf of A.O.
g) The trial Court having relied upon the evidence of prosecution has come to conclusion that the AO has committed the offences for the charges under Sections 467, 471 and 477-A of I.P.C and 13(2) r/w S.13(1)(c) and (d) of P.C. Act and accordingly, convicted and sentenced him as stated supra.
Hence, the appeal.
4) Heard arguments of Sri A.Hari Prasad Reddy, learned counsel for Smt.D.Sangeetha Reddy, learned counsel for appellant/A.O and Sri M.B. Thimma Reddy, learned Special Public Prosecutor for A.C.B (Spl.P.P.).
5 a) Criticising the judgment of the trial Court, learned counsel for the appellant firstly argued that the AO was innocent and he never committed any acts of misappropriation of hostel funds by forging bills and registers and on the other hand, Parthasarathy (LW4) who was the then District Social Welfare Officer (DSWO) and Satyanarayana (PW2) Superintendent in the Office of DSWO conspired together and committed fraud and they implicated him in the case. They used to take Treasury bill register and cash book from AO and they used to make him act as per their dictation and they obtained his signatures on some books and that is how they implicated him in the case. It is further submitted that in fact the defalcated amount of Rs.67,368/- was deposited by PW2 and LW4 but proclaimed as if AO deposited the same. There is no proof that AO has deposited the said amount.
b) Secondly, impugning the correctness of the findings of the trial Court, learned counsel argued that as per the ascription of prosecution, the AO forged eight bills to misappropriate an amount of Rs.67,368/-. However, the prosecution did not produce those eight bills into Court to establish how those bills were forged or overwritten or interpolated. Learned counsel argued, though prosecution took a lame excuse that the original bills were submitted to the office of the Accountant General, the I.O has not made any serious efforts to get back the original bills for scrutiny of the Court. In the absence of the original bills, the trial Court ought to have outrightly rejected the prosecution case since the entire case of prosecution pivots on alleged forgery of those eight bills. He thus vehemently argued that the trial Court erred in convicting the accused in spite of absence of the original bills.
c) Thirdly, learned counsel argued that exhibits P1 and P3 to P6 which are said to be the copies of the original bills would show that the bill amounts are mentioned therein in figures as well as in words. So, the original bills are also expected to contain the amounts in figures as well as in words. That being so, he argued, it will be difficult for AO even if he prefers to forge the document, to manipulate the amounts written in words. He thus submitted that without the presence of original bills, it is not safe to jump into the conclusion that AO forged the bills and drew high amounts. He submitted that the prosecution without producing the original bills tried to prove the case against AO by virtue of the registers maintained by the AO like Treasury Bill Register, Cash Book etc., alleging as if AO mentioned the original bill amounts in those registers though he drew high amounts from the treasury. He argued that in fact PW2 and LW4 seized those records from AO and kept those records with them for some period before handing over to IO and during that period they must have tampered the record to suit their case.
d) Fourthly, learned counsel argued that in this case, the investigation was conducted and charge sheet was laid by PW5 who was only of the rank of Inspector of Police, ACB, but whereas under Section 17 of the P.C Act, an offence of this nature has to be investigated by an officer not below the rank of Deputy Superintendent of Police and therefore, the entire investigation and consequently the trial are vitiated. So, the trial Court ought to have acquitted the accused on this sole ground. He thus prayed to set aside the conviction and sentence passed by the trial Court by allowing the appeal.
6 a) Per contra, while supporting the judgment of the trial Court, learned Special Public Prosecutor firstly argued that the prosecution through cogent evidence of PWs.1 to 3 and other documentary evidence has established that the AO has forged the bills and office registers and withdrew an excess amount of Rs.67,368/- and it is futile on his part to contend that he is innocent. Expatiating it, he argued that the bills approved by the Social Welfare Officer would be presented for encashment by none other than the AO and this fact was not controverted by him. That being so, when the registers maintained by the District Social Welfare Office shows lesser amount for the bills presented by the AO for approval and whereas the Treasury and Bank records show higher amounts for the same corresponding bills, it is evident that before presenting the bills, the AO manipulated the original bills and showed higher amounts. Learned Spl.P.P vehemently argued that except the AO there was no opportunity for any other person to manipulate the original bills because the original bills and duplicate bills presented by him for approval of DSWO would, as per procedure, be returned to AO himself for presentation to the Treasury for encashment. Therefore, the responsibility casts upon him to explain the difference in figures. The modus operandi adopted by him was such that out of eight bills, in respect of five bills, he interpolated and corrected the figures in the original bills after they were returned to him from DSWO’s office after approval. For instance in exhibit P1 bill he corrected the amount Rs.12,785/- as Rs.17,785/-. He made such corrections and interpolations in respect of Exs.P3 to P6 also. In respect of three other bills, he created them by forging the signatures of LW4. This aspect was amply established through the oral evidence of PWs.1 to 4 and the supporting documentary evidence. In view of the above facts and evidence, it is preposterous for AO to contend that PW2 and LW4- Parthasarathy conspired and committed fraud and directed him to act according to their tunes. He argued that it is baseless to contend that the defalcated amount was deposited by Parthasarathy. Learned Spl.P.P. contended that if really PW2 and LW4 threatened and directed him to act as per their wishes, nothing prevented him to report to the higher authorities in Social Welfare Department or at least to the District Collector. That he never did so falsifies his theory. He further argued that except contending that the amount was deposited by LW4, the AO had not established this fact by producing relevant material.
b) Secondly, learned Spl.P.P. argued that the contention of AO that without the presence of original bills, the offence cannot be established is untenable because the bill amounts can be known through Budget Watch Register, Contingent Bill Register etc., and therefore non-filing of original bills is not a consequence here. Even otherwise, the original bills as per the procedure were remitted by the District Treasury to the Accountant General’s Office where they were held up and therefore the prosecution cannot be found fault for non production of original bills.
c) Thirdly, learned Spl.P.P. argued that the argument that it is difficult to tamper the words in the original bills is untenable. He argued that after tampering the figures in the bills, the words portion can be struck down and re-written with some initials and since the bill already contain the signature of DSWO, the same might not be suspected in the Treasury.
d) Fourthly, arguing on the competency of the I.O., to investigate the matter, he argued that the trial Court basing on G.O.Ms. No.170 General Administration (SCD) dated 20.03.1968 produced by the prosecution and also relying on the Apex Court’s decision reported in State of
[1]
Punjab vs. Harnek Singh and the decision of this Court in M.China Gopala Krishna v. State of A.P
[2]
, held that PW5 was competent to investigate the case and therefore, AO cannot contend otherwise. He thus prayed to dismiss the appeal.
7) In the light of above rival arguments, the point for determination is:
“Whether the judgment of the trial Court is legally and factually sustainable”?
8) POINT: It is an admitted fact that AO worked as Warden, Backward Classes Boys Hostel, Islampeta, Visakhapatnam District, from 14.06.1992 to 19.09.1993 and he was thus a public servant during the relevant period. Since it is the allegation of the prosecution that he committed misappropriation of Rs.67,368/- in respect of eight bills i.e., by fabricating three bills by forging signature of LW4 and by tampering the bill amounts in remaining five bills, it is pertinent to know the procedure
for passing of the bills relating to Backward Classes Boys Hostel, Islampeta, Visakhapatnam District, where AO worked as Warden.
PWs.1 and 3 have vividly deposed about the procedure relating to the presentation of bills by the Wardens for the purpose of purchase of provisions for the hostel. The procedure as deposed from horses’ mouth of PWs.1 and 3 is relevant and hence, extracted thus:
PW1 deposed thus:
“I worked as Senior Accountant in District Social Welfare Office, Visakhapatnam from May, 1993 to May 1999 and my duties as Senior Accountant of B.C. Welfare Office are to scrutinise the bills presented by the wardens and distribution of budget among the hostels. Sri S.Satyanarayana (PW2) worked as Office Superintendent in District Backward Classes Welfare Office, Visakhapatnam during my tenure except for few months in 1994. LW3 P. Arasavilli Raju, a retired Senior Accountant of District Backward Classes Welfare Office, Visakhapatnam was his predecessor in office.”
“Sri K Paparao (accused officer) was working as Warden, Government B.C. Boys Hostel, Islampeta by May 1993. We maintain Burden Watch Register’ and whenever budget was allotted by the Commissioner, the corresponding entries will be made in Budget Watch Register.”
“A Warden shall present the original bill as well as the office copy of the bill along with Contingent Bill register. I, being Senior Accountant, verify original bill, office copy of the bill and a warden has to present a bill along with office copy of contingent Bill Register and sub-vouchers. A contingent bill shall contain sub-vouchers and if the amount of the sub- voucher is more than one thousand the said sub-voucher is to be sent to treasury along with the contingent bill register for pass order. After the bill was passed and payment was made, a bill is termed as voucher. All the contingent bills shall be submitted along with sub-vouchers. In token of verification, I put my initials on the original bill, office copy of bill and contingent Bill Register and make an entry in Budget Watch Register. Thereafter, the bill presented by the wardens will be passed by the Office Superintendent and after scrutinizing those bills, he sends the bills to the District Social Welfare Officer for approval of the bills he being the Drawing Officer, and that Sri Bommi Pardhasaradhi (LW4) worked as District Backward Classes Welfare Officer, Visakhapatnam during his tenure who is no more.”
“After approval of a bill by the District Backward Classes Welfare Officer, it will be handed over to the Warden for presentation before the concerned Treasury (District Treasury Officer, Visakhapatnam). The Warden presents original bill along with Treasury Bill Book after making necessary entries in Col.1 to 8 of the Treasury Bill Book. The warden keeps the office copy of the bill with him in his hostel. After presenting a bill along with Treasury Bill book, an entry will be made by the concerned clerk of the Treasury in Token register and assign a token number and issue a paper token to the person who was endorsed on the bill (the person who is authorised to receive payment). After assigning token number, the bill along with Treasury Bill Book will be sent to concerned Sub-Treasury Officer and after making necessary entries in the register (Sub-Treasury Officers Number Book) maintained by the Sub-Treasury Officer, the bill will be handed over to the concerned Accountant along with Treasury Bill Book/Treasury Bill Register. After thorough verification, the concerned Accountant makes a pass order with Red Ink at the appropriate space of the bill and the Accountant will make necessary entries in the Budget Watch Register of the concerned hostel. The said Accountant also makes an entry in col.10 of the Treasury bill Register. Thereafter the original Bill, Budget Watch Register and Treasury Bill Register will be sent to Sub-treasury Officer concerned and he puts an initial against the entry in col.No.10 in Treasury bill Register. He also puts initials at pass order of the bill and the Budget Watch Register. Then the bill will be sent to concerned Treasury officer (either D.T.O. or A.T.O.) for approval of pass order. A register of ‘Bills sent to Bank’ will be maintained by treasury. The concerned clerk will make the necessary entries after final approval of the bill in the said bill. Thereafter the bills along with the list of the bills will be sent in a sealed box to the State Bank of India for arrangement of payments. Before sending the bills to Bank, the concerned Accountant will assign serial number on bill above the pass order. The bank officials after verification and submission of paper token by the endorsee, the payment will be made. The bank official obtains the signatures of the endorsee on the original bill. On the next day the bills (Paid Voucher) and the scroll maintained by the bank will be sent to Treasury. The serial number assigned by the Accountant will be mentioned in scroll. After receiving cash by the endorsee from the Bank, the warden makes an entry in col.12 of the Treasury Bill Register evidencing passing of the bill and receiving of money and thereafter he makes a corresponding entry in Cash Book maintained in Hostel.”
PW3 deposed thus:
“I, being the Senior Accountant, used to attend bills, watching of Budget and completion of Accounts. A Warden of a Social Welfare Department prepares bill and submits to District Backward Classes Welfare Office, Visakhapatnam and the staff members of District Social Welfare Officer scrutinise the bill and after approval of the bills by the District Social Welfare Officer, they will be endorsed to the Warden for presentation before the Treasury. The Warden, after making entries in Treasury Bill Register (Treasury Bill Book) keeping the office copy with him, presents the original bill along with sub-vouchers and Treasury Bill Register for passing of bill. After receiving the bills, date stamp will be affixed on the bill and it will be forwarded to Token Section. The concerned clerk enters the bill in Token Inward Register and assigns Token number. The token number will be entered in Token Inward Register, Treasury Bill Register, Original Bill and on the paper token. Thereafter the bill will be sent to Sub-Treasury Officer concerned. The S.T.O. puts his signature on the paper token and makes necessary entries in S.T.O. Number Book. After taking acknowledgement of the endorsee (Warden) in the S.T.O. Number Book, the paper token will be given to endorsee. The bill will be sent to Senior Accountant and after scrutinizing the bill, the Senior Accountant appends pass order and makes an entry in Budget Watch Register and passes on to the Sub-Treasury Officer. After making entries by the Sub-Treasury Officer in S.T.O. Number Book and Budget Watch Register, it will be sent to District Treasury Officer along with Budget Watch Register. District Treasury Officer, after putting signature in Budget Watch Register, makes pass order (approves pass order). The bill will be sent to Bank Number Book Section. After making an entry. In the outward Register, the list of bills to be sent to the Bank during that day and the bills will be sent to the Bank in a sealed Box. The endorsee enters the serial number on the paper token and approaches the Bank. After payment of cash, the Warden makes an entry in Col.No.12 of Treasury Bill Register. He has to maintain an entry in cash book maintained in the Hostel. We compare the account with the help of Bank scrolls.”
9) A scrutiny of the procedural aspects as spoken by PWs.1 and 3 which is not disputed would show that three agencies i.e. District Social Welfare Office, Treasury and Bank are involved in the aspect of passing of the bills relating to the Hostel of AO. As rightly contended by learned Special Public Prosecutor, the above procedure will depict that it is the AO who submits the original bills with duplicates along with sub- vouchers and Ex.P2—Office Contingent Register to the District Social Welfare Office and after scrutiny by PWs.1 and 2, and after passing of the bills by DSWO who is the Drawing and Disbursing Officer (DDO), the bills will be returned to the AO for presentation to the Treasury for encashment. The AO presents the original bill along with Treasury Bill Register to the Treasury where, after scrutiny and entry of the bill particulars in the concerned registers like token inward register, STO Number book, budget watch register, a paper token will be issued to the endorsee of the bill (AO in the instant case) for presenting in the bank for payment. In the bank, a scroll will be maintained and amount will be paid to the endorsee on obtaining his signature. The scroll particulars will be remitted to the Treasury. After receiving the cash, the AO has to mention the cash particulars in the cash book maintained by him.
So in the entire process of presenting the bill to DSWO’s office for passing the bill and till collection of the bill amount from the bank, the AO plays a prominent role. So it has now to be seen whether AO tampered some bills and fabricated the others to misappropriate the amounts.
10) In the above context, PW2 narrated how the Exs.P1 and P3 to P6 which are the office copies of the bills were tampered with. So far as Ex.P1 is concerned, his evidence is thus:
“Ex.P1 is the office copy of the bill dated 4.11.1992 for Rs.12,785/- (Rupees twelve thousand, seven hundred and eighty five only) presented by the accused officer along with original and seventeen sub-vouchers. Ex.P1(a) is for Rs.630/-, Ex.P1(b) is for Rs.800/-, Ex.P1(c) for Rs.600/-, Ex.P1(d) is for Rs.980/-, Ex.P1(e) for Rs.900/-, Ex.P1(f) for Rs.825/-, Ex.P1(g) for Rs.725/-, Ex.P1(h) for Rs.800/-, Ex.P1(i) for Rs.630/-, Ex.P1(j) for Rs.950/-, Ex.P1(k) for Rs.900/-, Ex.P1(l) for Rs.800/-, Ex.P1(m) for Rs.525/-, Ex.P1(n) for Rs.880/-, Ex.P1(o) for Rs.800/-, Ex.P1(p) for Rs.900/- and Ex.P1(q) for Rs.140/-. Those sub-vouchers related to diet charges. The bills and the Sub-vouchers bear the initials of the Senior Accountant and Office Superintendent (PW2) and the Drawing Officer, District B.C. Welfare Officer puts full signature on the original bill and initials on the office copy of the bill and vouchers. I can identify the signatures of Late Pardhasarathi (LW4), Sri S. Satyanarayana (LW2) and Sri P. Arasavilli raju (LW3). Ex.P1 and Exs.P1(1) to P1(q) bear the initials of LWs.2 to 4. Ex.P2 is the office copy of Bill Register maintained by the accused officer for the period from June, 1992 to 31.03.1993. Ex.P2(a) corresponds to Ex.P1 bill. Ex.P2(a) at Page No.3 bears the initials of LWs.2 to 4. Ex.P8 is the Treasury Bill Register of April, 1992 to September 1995 maintained by the Accused Officer. Ex.P8(a) corresponds to Ex.P1. As per Ex.P8(a) the bill was passed on 6.11.1992 and cash was received on 9.11.92. The accused officer made an entry in col.12 acknowledging receipt of cash. It is clear to naked eye that the letter ‘2’ in amount of Rs.12,785/- is altered. The bill was originally passed for Rs.17,785/- as per the Reconciliation register maintained by District social Welfare Office. Ex.P9 is the Treasury reconciliation Register from 4/92 to 3/93. Ex.P9 (a) is the relevant entry and as per the said entry, the bill was passed for Rs.17, 785/-. But as per Ex.P1 the amount of the bill was Rs.12, 785/-. It appears that the said alteration in Ex.P8 (a) was made before making entry in Cash Book. Ex.P10 is the cash book for the year 1992-93 maintained by the accused officer. Ex.P10 (a) is the relevant entry at Page 28 and as per the said entry, the amount received was Rs.12, 785/-. Thus there is a variation of Rs.5, 000/-.
11) Thus, the evidence of PW1 would show that so far as Ex.P1 bill is concerned, as per Ex.P2—office contingent register an amount of Rs.12,785/- was claimed under Ex.P2(a) by the A.O while submitting the bill and the same was approved. However, Ex.P23(a) in Ex.P23 budget watch register would show that bill was passed for Rs.17,785/- in the Treasury. If really AO presented bill for Rs.12,785/- only before the treasury, the same amount should reflect in the budget watch register. However, it shows a different figure. In Ex.P9 Reconciliation Register also, an amount of Rs.17,785/- is reflected under Ex.P9(a) entry. So in view of these variations of the same bill amount in different registers, the contention of prosecution that the AO while presenting the bill with the sub-treasury had changed the figures in the original bill can be believed. After encashment of the bill, he manipulated the original bill amount in Ex.P8 Treasury bill register and Ex.P10 cash book. It may be noted that PW1 has deposed in similar fashion about manipulation of other bills covered by Ex.P3 to P6 by AO.
(a) With regard to Ex.P3, he deposed thus:
“Accused officer presented Ex.P3 bill dated 3.12.1992 for Rs.1,400/- along with original bill. It bears the initials of Lws.2 to 4 and Ex.P2(b) corresponds to Ex.P3 bill at page No.60. The bill relates to soaps and oil. Ex.P2(b) bears the initials of Lws.2 to 4. Ex.P8(b) corresponds to Ex.P3 bill. The said bill was passed on 4.12.92 and cash was received on 5.12.1992 by the accused officer as per the entry in col.No.12. It appears that Figure ‘1’ in amount of Rs.1,400/- is altered in column No.10. So also the figures in column No.3 and 4. Ex.P10(b) is the entry in cash book which corresponds to Ex.P3. As per Ex.P9(b), the entry in the Reconciliation Register at page 187 the cash received was Rs.4,400/-. Thus there is a variation of Rs.3,000/-. The alteration in Ex.P8(b) appears to have been made before making entry in cash Book i.e. Ex.P10(b).”
(b) with regard to Bill under Ex.P4, he deposed thus:
“Ex.P4 is the bill for Rs.11,163/- presented on 4.2.1992 by the accused officer towards diet charges. It bears the initials of Lws.2 to 4. It contains 18 sub vouchers. Ex.P4 (a) for Rs.45-/-, Ex.P4(b) for Rs.715/-, Ex.P4(c) for Rs.756/-, Ex.P4(d) for Rs.700/-, Ex.P4(e) for Rs.830/-, Ex.P4(f) for Rs.800/-, Ex.P4(g) for Rs.800/-, Ex.P4 (h) for Rs.620/-, Ex.P4(i) for Rs.300/-, Ex.P4(j) for Rs.690/-, Ex.P4(k) for Rs.872/-, Ex.P4(l) for Rs.750/-, Ex.P4(m) for Rs.350/-, Ex.P4(n) for Rs.750/-, Ex.P4(o) for Rs.320/-, Ex.P4(p) for Rs.800/-, Ex.P4(q) for Rs.300/-, Ex.P4(r) for Rs.300/-. Ex.P4(a) to Ex.P4(r) bear the initials of Lws.2 to 4. the sub-vouches also bear the signatures of the accused officer indicating receipt of stock. Ex.P4 corresponds to the entry in office copy bill register at page 6. Ex.P2(c) is the said entry and it bears the signatures of Lws.2 to 4. Ex.P8(c) corresponds to Ex.P4. The said bill was passed on 5.2.93 and cash was received on 6.2.93 by the accused officer as per the entry in col.No.12 made by the accused officer. It appears that Figure ‘1’ in amount of Rs.11, 163 in thousand is altered in column No.10. So also the figures in col.4 Ex.P10(c) the entry in cash book, corresponds to Ex.P4. As per Ex.P9(c) the entry in the Reconciliation Register at Page No.237, the cash received was Rs.17,163/-. Thus, there is a variation of Rs.6,000/-
. The alteration in Ex.P8(c) appears to have been made before making entry in cash Book ie.Ex.P10(c) at Page No.56.”
(c) with regard to Ex.P5, he deposed thus:
“The accused officer also presented a bill dated 29.3.1993 for Rs.6,250/- towards rice transportation charges along with seven sub-vouchers. Ex.P5 is the office copy of the said bill and it bears the signature of LWs.3 and 4. Ex.P5(a) for Rs.800/-, Ex.P5(b) for Rs.850/-, Ex.P5(c) for Rs.900/-, Ex.P5(d) for Rs.900/-, Ex.P5(e) for Rs.900/-, Ex.P5(f) for Rs.950/-, Ex.P5(g) for Rs.950/-. They also bear the initials of LWs.3 and 4. Ex.P5 corresponds to Ex.P2(d) at Page 9. Ex.P8(d) corresponds to Ex.P5. The said bill was passed on 31.3.1993 and cash was received on 31.3.1993 by the accused officer as per the entry in col.No.12 made by the accused officer. The said bill was passed for Rs.16,250/- as per Ex.P9(d) the entry at Page No.289 of Ex.P9. As per Ex.P10(d) in cash book at Page No.76, the cash received as Rs.6,150/-. Thus there is variation of Rs.10,000/-. It appears that the correction was made in the original bill and presented for Rs.16,250 instead of Rs.6,250/- after receiving the bill from the Head Office by the Warden.”
(d) With regard to Ex.P6, he deposed thus:
“The accused officer also presented a bill for Rs.5,219/- on 5.7.1993 towards diet charges along with 9 sub-vouchers. Ex.P6 is the said bill and it bears my initials and the signatures of LW2 and Assistant Social Welfare Officer and LW4. Ex.P6(a) for Rs.600/-, Ex.P6(b) for Rs.540/-, Ex.P6(c) for Rs.105/-, Ex.P6(d) for Rs.980/-, Ex.P6(e) for Rs.984/-, Ex.P6(f) for Rs.800/-
, Ex.P6(g) for Rs.480/-, Ex.P6(h) for Rs.430/-, Ex.P6(i) for Rs.300/-. It also bears my initials and the initials of LWs.2, 4 and the Assistant Social Welfare Officer. Ex.P6 corresponds to the entry dt. 5.7.1993 at Page 2 of O.C.Bill Register 1993-94. Ex.P7 is the O.C. Bill register for the year 1993-94 and Ex.P7(a) is the relevant entry. Ex.P7(a) corresponds to Ex.P6. Ex.P7(a) bears my initial and the initials of LWs.2, 4 and the Assistant Social Welfare Officer. Ex.P8(e) corresponds to Ex.P6. The said bill was passed on 12.7.93 for Rs.5,219/- and cash was received on 12.7.93 by the accused officer as per the entry in col.No.12 made by the accused officer. It appears that figure ‘1’ in amount of Rs.15,219/- is erased in column No.10 of Ex.P8. the said bill was passed for Rs.15,219/-
. The corresponding entry in the reconciliation Register at Page No.53 shows an amount of Rs.5,219/- originally approved by the District Backward classes Social Welfare Office. Ex.P11 is Reconciliation register for the year 1992-94. The relevant entry is Ex.P11(a). After reconciliation it came to light that there is differential amount of Rs.43,500/- including the above difference amount of Rs.10,000/- between the departmental figures and treasury figures due to fraudulent drawals made by the Wardens of the government Hostels including the accused officer. The corresponding note was made at Page 65 of Ex.P11 i.e. Ex.P11(b). Ex.P12 is the cash book maintained by the Accused officer for the year 1993-94 and the corresponding entry of Ex.P6 is Ex.P12(a). As per Ex.P12(a) the amount received was Rs.5,219 and not Rs.15,219 drawn by the accused officer fraudulently. Ex.P8(e) appears to have been altered after passing of the bill and receiving cash and before making entry in Ex.P12 cash book and thus the accused officer fraudulently withdrew Rs.10,000/-.”
12) Then regarding creation of three forged bills covering amounts Rs.13,915/-, Rs.16,948/- and Rs.2,505/-, he deposed as follows:
“Ex.P7 Contingent Bill register does not contain the entry for Rs.13,915/-. So also Ex.P8 Treasury Bill Register and Ex.P12 Cash Book. However, a bill for Rs.13,915/- was passed and cash was received as per the entry at Page No.37 in Ex.P11. The said entry is Ex.P11©. It shows that the accused officer received cash of Rs.13,915/-. Ex.P13 is the Bank Number Book of the year 1993 maintained by the Treasury. As per token No.1152 at Page 62, the bill was passed by the treasury for arranging payment by the Bank. The said entry is Ex.P13(a). Ex.P14 is the Banks Scroll for the month of June, 1993 and as per Ex.P14(a) a payment of Rs.13,915 was made on 8.6.1993. As per Ex.P13(a) and P14(a) without making an entry in Treasury Bill Register, the token was assigned and payment was made. Thus the accused officer fraudulently received Rs.13,915/-”.
Similarly an amount of Rs.16,948/- and Rs.2,505/- were drawn by the accused officer fraudulently without making entries in Contingent Register, Cash register and treasury Bill Register. Therefore, the Treasury Authorities made an endorsement at Page 92 of Ex.P11 with Red Ink. It is Ex.P11(d). Basing on Ex.P11(d) an office note dt. 3.11.1993 was made at Page 93 in Ex.P11 i.e. Ex.P11(e). Ex.P15 is Bank Scroll for the month of August, 1993 and as per the token No.608 for Rs.2,505/- and 607 for Rs.16,948/- was received on 7th August, 1993. The relevant entries are Ex.P15(a) and Ex.P15(b) respectively. Thus the accused officer fraudulently received Rs.2,505/- and Rs.16,948/-.”
13) So a close scrutiny of the evidence of PW1 would show that unless PW1 mentioned different amounts while submitting the original bills in the treasury, there is no possibility of appearing different figures in the treasury records and bank records. Apart from PW1, PW3 who is the Senior Accountant in District Treasury has deposed that Ex.P16 to P19 token inward registers and Exs.P20 to P22 STO Number book and Ex.P23 to P26 Budget Watch Registers and Ex.P26 and P27 Bank Number Books and Ex.P28 to P31 Bank Scroll books are showing different figures than the ones mentioned in Ex.P1, P3 to P6 and Ex.P2 contingent bill registers. PW4 confirmed Ex.P28 to P32, P14 and P15. So from the cogent evidence of PWs.1 to 4 it can be said that the AO has corrected and interpolated some bills and forged the other bills and misappropriated to a tune of Rs.67,368.
14) Now, the contentions raised on behalf of the appellant have to be looked into.
a) The first argument is that AO was innocent and PW2 and LW4 conspired together and obtained from him cash book and treasury bill register and they made him sign on some books and they implicated him. The defalcated amount was also deposited by them but not by him. As already discussed supra, the facts and evidence would show that it was the AO who was submitting the bills to DSWO Office on one hand and presenting the bills to treasury for encashment on the other.
Therefore, in this case, the AO was the prominent person in dealing with the eight bills projected by the prosecution. Except approving the bills, neither LW4 nor PW2 who belong to District Social Welfare Office have had no other role. It is nobody’s case that after presenting the bills by AO to DSWO’s office, the rest of the things up to encashment will be dealt with by the DSWO’s office. If that is the case, there may be some possibility for PW2 and LW4 to manipulate the figures and draw higher amounts. However, that is not the case and it was the AO alone presenting the bills with treasury for encashment. Therefore, he alone is squarely responsible for differences. He cannot blame PW2 and LW4 for his fault. Though AO claimed that the amount was deposited by LW4 and PW2, the same could not be substantiated by him. Therefore, his pretended innocence cannot be believed.
b) The second argument of the AO is that original bills, some of which were tampered and some were forged are not produced by the prosecution and in their absence the alleged guilt of the accused cannot be established. It is further argued that in the original bills like in the copies, the bill amounts are mentioned both in figures as well as words in which case it will be difficult for anybody to tamper the words though figures may be corrected. So unless the original bills are filed, it is not possible to establish the guilt.
The above argument though apparently looks sound, but cannot be accepted. IT is true that the prosecution has not produced the original bills. Ex.P1, P3 to P6 are the office copies of the original bills. So far as original bills are concerned, in the evidence of PW1 we will find that after passing of the bill by the DSWO, the original bill and office copy will be returned to the AO. The AO will retain the office copy in the hostel and present the original bill along with Treasury bill book for payment of the cash. After verification of the bills at Treasury, the bills will be sent in a sealed box to the State Bank of India for arrangement of payments. Then at bank, the bills will be verified and the bank officials will obtain the signature of endorsee on the original bill and makes the payment and on the next day, the bill (paid voucher) and the scroll maintained by the bank will be sent to the treasury. The treasury in turn sends the original bills to the Accountant General. Then PW2 in his cross examination stated that the office of DSWO addressed a letter to Accountant General for return of original bills along with sub-vouchers. So the evidence of PWs.1 and 2 would show that original bills were held up at the Accountant General’s office. PW2 deposed that basing on the Budget Watch Register, the amount for which the bill was approved can be known even in the absence of the original bill. Not only the Budget Watch register but also Ex.P2 Contingent Bill register depicts the amount for which the bill was approved. Therefore, the absence of original bills cannot be considered as fatal to the prosecution case.
c) The other argument of the AO regarding impossibility of tampering with the words in the bills is concerned, it must be said that out of eight bills, three bills for the amounts Rs.13,915/-, Rs.16,948/- and Rs.2,505/- are forged bills and they were not sent to DSWO office for approval. Hence, the question of re-writing the words on those bills does not arise. Of the remaining five bills, Ex.P5 bill is concerned, the amount of Rs.6,250/- was tampered as Rs.16,250/-. The tampering of the word 6 as 16 will not pose any difficulty. The other three bills covered by Exs.P1, P3 and P4 are concerned no doubt some words have to be struck down and different amounts have to be mentioned therein. However the same also cannot be considered as difficulty because those bills already contain the approval of LW4 and mere striking down some portion and re-writing some new words and putting initials underneath, may not create suspicion to the treasury officers. So at the outset it cannot be said that merely because the bill amounts are written in words they cannot be tampered. Therefore, the arguments of AO cannot be accepted in this regard.
d) The next argument is that the I.O being the Inspector, ACB was not competent to investigate the case in view of the bar under Section 17 of the Prevention of Corruption Act. As per Section 17(c) of the Prevention of Corruption Act, an offence of the present nature has to be investigated by an officer in the rank of DSP, ACB, where as the present IO (PW5) during the relevant period was only an inspector. However, before trial Court the prosecution relied upon G.O.Ms.No.170 General Administration (SCD) dated 20.03.1968 and argued that inspector of police is competent to investigate the case. The trial Court basing on th e Apex Court’s decision reported in State of Punjab vs. Harnek Singh (1 Supra) and also the decision of this Court reported in M.China Gopala Krishna v. State of A.P (2 Supra), held that Inspector of Police is competent to investigate into the case.
In M. China Gopala Krishna’s case (2 Supra), the learned Judge of this Court observed thus:
(Para 16):
“ The Government of Andhra Pradesh issued a notification through G.O. Ms. No. 170 General Administration (SC.D) Department dated 20-03-1968 authorizing Inspectors of Police of Anti-Corruption Bureau to conduct investigation of offences under Prevention of Corruption Act, 1947. In 1988 the Amendment Act came into force. In 1999 the Government of Andhra Pradesh issued a notification through G.O. Ms. No. 10, General Administration (SC.E) Department authorizing the Inspectors of Police of Anti-Corruption Bureau to conduct investigation of offences under the Prevention of Corruption Act, 1988. The learned Public Prosecutor relied on these two notifications and submitted that in pursuance of the above notifications issued by virtue of proviso to Section 17(c) it shall be treated that the Inspector is competent to investigate.”
xxxx (Para 20):
“In the light of the above legal position, I am convinced that the Government is competent to authorize the Inspectors of Police of A.C.B. to conduct investigation by virtue of the notification issued under the old Act and the Inspector of Police is competent to do the investigation in this case. I therefore, do not find any force in the contention of the appellant, and this point is held against the appellant.”
13) In view of it, I see no substance in the arguments of the AO.
On a conspectus of facts and evidence on record, I find that the trial Court rightly convicted and sentenced the AO for the offences under Sections 467, 471 and 477-A of IPC and Section 13(1) (c) and (d) read with 13(2) of P.C. Act.
14) In the result, I find no merits in this Criminal Appeal and accordingly, the same is dismissed by confirming the judgment of the trial Court.
As a sequel, miscellaneous petitions if any, pending in this appeal shall stand closed.
U. DURGA PRASAD RAO, J Date: 22.04.2014
Note:
L.R Copy to be marked: YES / NO ksm / scs
[1] 2002 (1) ALD 443 (SC)
[2] 2004(2) ALD (Crl) 371 (AP)