THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1250 of 2007 28-04-2014 BETWEEN:
State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad.
…..Appellant AND Shaik Peda Khasim …..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1250 of 2007 JUDGMENT:
This Criminal Appeal is preferred by the State against the Judgment of acquittal, dated 17.11.2005, passed in Criminal Appeal No.31 of 2002 by the Hon’ble Sessions Judge, Ongole, whereby the learned Sessions Judge set aside the Judgment of conviction recorded by the learned II Additional Judicial Magistrate of First Class, Ongole, in C.C.No.308 of 2000, for an offence under section 409 IPC.
The case of the prosecution is as follows.
The accused was working as Superintendent in District Police Office, Ongole, and the accused was dealing with cash, T.A.Bills, bus bills and was maintaining cash book, welfare fund cash book etc., and also cash of respective funds. The allegation against the accused is that he has misappropriated an amount of Rs.1,76,770/-. It is also alleged that the accused hatched a plan to show as if theft took place in the office room and the above said amount was stolen. The accused lodged a complaint before the Taluk Police Station stating that theft took place in his almirah and it was registered as crime No.189 of 1997. The Inspector of Police took up investigation, visited the scene of offence and in the presence of officials seized paper seal from the iron safe under the cover of mahazar. They observed that the paper seal and key portion of the almirah were intact. The investigation officers came to the conclusion that the accused misappropriated the cash, which was in his possession and put forth a false plea of theft. After completing investigation, charge sheet was filed against the accused.
To substantiate the case of the prosecution, during the course of trial, P.Ws.1 to 29 were examined and Exs.P.1 to P.50 were marked.
No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence, the trial Court convicted the accused for the offence under Section 409 IPC and sentenced him to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000/- (Rupees two thousand only), in default to suffer rigorous imprisonment for a period of nine months. Aggrieved by the same, the accused has preferred an appeal before the lower appellate Court, and the lower appellate Court has acquitted the accused. Aggrieved by the same, the State has preferred the present criminal appeal.
Heard the learned Public Prosecutor and the learned counsel for the accused/respondent.
The lower appellate Court while acquitting the accused by reversing the Judgment of the trial Court, observed as follows.
The accused/respondent herein is the complainant, who lodged the complaint. The evidence adduced by P.W.2, who is co-employee of the respondent herein, clearly stated that one day prior to the commission of theft of money, the said almirah in which the entire cash was kept by the accused was locked and he only put the paper seal and left the place. Further, he deposed that on the next day, he came to know through P.W.1, that the money which was kept in almirah was missing.
The lower appellate Court, in addition to the above, observed the following aspects also.
The earlier investigation conducted on the basis of the complaint given by the accused/respondent herein decided the case that it was a case of theft. It is unfortunate that the investigation agency conducting investigation, has not submitted the statements or materials collected by the earlier investigation agency, to the accused, in spite of request made by him for supply of statements. This certainly cause prejudice to the case of the accused. Further, it is also observed that nothing is recovered from the accused even though complaint is lodged at the very next day regarding theft of the cash and if really the said amount is misappropriated by the accused, the possibility of recovery of money from him by the prosecution cannot be ruled out.
It is true that it is a case of allegation of misappropriation of Government funds. But at the same time, when the crime is so serious in nature, it is the duty of the prosecution to prove the said case with admissible and clinching evidence. In the present case, the lower appellate Court was rightly of the view that the prosecution has miserably failed to establish by way of producing any admissible evidence that the accused has committed the crime and the benefit of doubt was given in favour of the accused.
Considering the findings recorded by the lower appellate Court and the evidence on record, this Court feels that the lower appellate Court has rightly set aside the Judgment of the trial Court and acquitted the accused for the offence under Section 409 IPC. The Judgment of the lower appellate Court does not suffer from any perverse findings and the acquittal recorded by the lower appellate Court needs no interference by this Court.
The Criminal Appeal is accordingly dismissed. Miscellaneous applications, if any pending in this appeal, shall stand dismissed.
JUSTICE RAJA ELANGO 28.04.2014 pln