IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

TUESDAY, THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND TWENTY THREE

PRESENT

THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY

CRIMINAL APPEAL NO: 12.15 & ¹⁹ OF 2007, 1741 OF 2006 AND 1750 OF 2006

Between:

N.Dasaradhrami Reddy, S/o Pitabi Reddy, Retired Principal Govt. ITI for Girls, Chettedu, Nellore Dist.

...PETITIONER/ACCUSED No.1

AND

The State of Andhra Pradesh., rep. by its Inspector of Police, ACB Nellore Range, Nellore through the Special. Public Prosecutor, High Court of A.P., Amaravathi

...RESPODENT/COMPLAINANT

Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to prefer the Memorandum of CrI.A., aggrieved by the Judgment of the learned Spl. Judge under the P.C.Act for Speedy Trial of cases of Embezzlement of Scholarship Amounts in Social Welfare Department etc., at Criminal Court Complex, Red Hills, Nampally, Hyderabad in C.C.No.4/05, Dt.21.12.2006.

Counsel for the Appellant :SRI. G VIJAYA SARADHI

Counsel for the Respondents: SRI. ^S M SUBHANI (SC FOR ACB AND SPL PP)

CRIMINAL APPEAL NO: 15 OF 2007

Between:

B.Hanumantha Rao, S/o Late B.Vasudeva Rao, Formerly FAC Principal Government ITI for Girls, Chittedu, Nellore Dist.

...(Accused Officer No.3)/Appellant

AND

The State of Andhra Pradesh., through the Inspector of Police, ACB, Nellore Range, Nellore, rep. by its Spl. Public Prosecutor for ACB Cases, High Court of A.P., Amaravathi.

...(Complainant) / Respondents

Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to present the Memorandum of CrI.A., aggrieved by the Judgment Dt.21.12.06 passed by the learned Spl. Judge under the P.C.Act for Speedy Trial of cases of Embezzlement of Scholarship Amounts in Social Welfare Department etc., at Criminal Court Complex, Red Hills, Nampally, Hyderabad in C.C.No.4/05.

Counsel for the Appellant :SRI. D PURNACHANDRA REDDY

Counsel for the Respondents: S M SUBHANI (SC FOR ACB AND SPL PP)

CRIMINAL APPEAL NO: 19 OF 2007

Between:

P.Visweswara Rao (A-2) S/o P.Ramanaiah, Formerly FAC Principal Govt. ITI for Girls, Chittedu, Nellore Dist.

...Petitioner / Appellant/ Accused 2.

AND

The State of Andhra Pradesh., rep. by Inspector of Police, ACB, Nellore Range, Nellore, rep. by its Spl. Public Prosecutor for ACB Cases, High Court of A.P., Amaravati.

...Respondents

Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to prefer the Memorandum of CrI.A., aggrieved by the Judgment of the learned Spl. Judge under the P.C.Act for Speedy Trial of cases of Embezzlement of Scholarship Amounts in Social Welfare Department etc., at Criminal Court Complex, Red Hills, Nampally, Hyderabad in C.C.No.4/05, Dt.21.12.2006.

Counsel for the Appellant: SRI. D PURNACHANDRA REDDY

Counsel for the Respondents: SRI. ^S M SUBHANI (SC FOR ACB AND SPL PP)

CRIMINAL APPEAL NO: 1741 OF 2006

Between:

V

Sri Zaheer Khan, S/o Shamsheer Khan, Senior Assistant, Govt. ITI of Girls, Chittedu, Nellore District.

...Appellant / Accused

The State rep by , Inspector of Police III, Nellore Range, Nellore through Spl. Public Prosecutor, High Court of A.P., Amaravati.

...RESPODENTS/COMPLAINANT

Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to present this Memorandum of grounds of CrI.A. to this Hon'ble Court against the Judgment of the Spl. Judge under the prevention of Corruption Act for Speedy trail of cases of Embzzlement of Scholarship amounts in Social Welfare Department tec., at CCC., Red Hills, Nampally, Hyderabad, in CC.No. 4 of 2005, dt. 21-12-2006.

Counsel for the Appellant(s): M/s. D SANGEETHA REDDY

Counsel for the Respondents: SRI. ^S M SUBHANI (SC FOR ACB AND SPL PP)

CRIMINAL APPEAL NO: 1750 OF 2006

Between:

Neeli Venkataiah S/o. Chinnaiah, Aged about 58 years. Deputy Training Officer, Formerly Govt. ITI, Mamnoor, Mahaboobnagar District, Now at Govt. ITI , Bhadragiiri, Vijayanagaram District.

...APPELLANT/A-5

AND

State of Andhra Pradesh, rep by Spl. P.P ACB Cases

...RESPODENTS/COMPLAINANT

Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to present this Memorandum of Criminal Appeal before this

Hon'ble High Court against the conviction and sentence passed in CC.No. 4 of 2005 dt.21.12.2006 on the file of Spl. Judge under the Prevention of Corruption Act for Speedy Trial of Cases sof Embezzlement of Scholarship Amounts in Social Welfare Department , Etc., at Criminal Courts Complex, Red Hills, Nampally, Hyderabad

Counsel for the Appellant :SRI. P RAVI SHANKER

Counsel for the Respondents: SRI. S M SUBHANI (SC FOR ACB AND SPL PP)

The Court made the following: COMMON ORDER

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

Criminal Appeal Nos.l2 of 2007, 15 of 2007, 19 of 2007, 1741 of 2006 and 1750 of 2006

COMMON JUDGMENT:

Since all these appeals arise out of the same judgment dated 21.12,2006 passed in C.C.No.4 of 2005 on the file of the learned Special Judge under the Prevention of Corruption Act for speedy trial of cases of Embezzlement of Scholarship Amounts in Social Welfare Department, etc., Hyderabad, they are being disposed of, by this common judgment.

2. Appellant in Criminal Appeal No.l2 of 2007 is A.0.1; Appellant in Criminal Appeal No. 15 of 2007 is A.0.3; Appellant in Criminal Appeal No. 19 of 2007 is A.0.2; Appellant in Criminal Appeal No. 1741 of 2006 is A.0.4, and Appellant in Criminal Appeal No. 1750 of 2007 is A.0.5, in the aforesaid Calendar Case. For sake of convenience, the parties are hereinafter referred to, as per their array in the Calendar Case.

3. By the impugned judgment dated 21.12.2006, the learned Special Judge found A.Os.l to 4 guilty of the offence under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 (for short, 'the Act, 1988') punishable under Section 13 (2) of the Act, 1988, accordingly convicted them and sentenced to undergo rigorous imprisonment for a

period of one year and to pay a fine of Rs. 1,000/- each, in default to suffer simple imprisonment for one month each. A.0.5 is found not guilty of the offence under Section 13(1 )(d) punishable under Section 13(2) of the Act, however, he was found guilty of the offence punishable under Section 168 IPC, accordingly convicted and sentenced to undergo simple imprisonment for a period of six months and to pay ^a fine of Rs.500/-, in default to suffer simple imprisonment for a period of 15 days.

4. Case of the prosecution is that A.0.1 worked as Principal from 07.06.1997 to 05.10.1997; A.0.2 worked as Principal from 06.10.1997 to 14.12.1997; A.0.3 worked as Principal from 15.12.1997 to 30.06.1998 and A.0.4 worked as Senior Assistant-cum-Store Keeper from 07.06.1997 to 30.06.1998, in Government ITI for Girls, Chittedu, Nellore district. A.0.5 worked as Deputy Training Officer in Government ITI, Mannanoor, Mahaboobnagar from 1993 to 27.10.2003. All the accused come within the category of 'public servant' as defined under Section 2(c) of the Act.

The Government of Andhra Pradesh started improvement and modernization of vocational training programme with the assistance of World Bank in the year 1988 and the same was extended up to The Director of Employment and Training, Andhra 31.12.1997.

Pradesh sent proposals to the Government through his letter dated 28.05.1997 to release additional funds of Rs. 1,436.32 lakhs immediately for the year 1997-98 for implementation of World Bank Scheme. The Government accorded sanction to release additional funds over and above the budget provisions during the year 1997-98 for an amount of Rs. 1,436.32 lakhs vide G.O.Rt.No.l961, Labour, Employment, Training and Factories (Employment) Department, dated 01.07.1997. Out of the said amount, an amount of Rs.1,020.94 lakhs was provided under the Head 190/191 (Machinery and Equipments) and an amount of Rs.65.20 lakhs was provided under the Head 240 (Materials and Supplies). The Director of Employment and Training, Hyderabad allotted the budget to ⁷¹ ms all over the State on 11.07.1997.

A.Os.l to ³ as Principals of the said m during the relevant period mentioned above, were the Drawing and Disbursing Officer for the purpose of drawing money from the Treasury and A.0.4 as Store Keeper of the said m was assisting A.Os.l to ³ in purchasing the materials for the stores of the m by way of preparing comparative statements and purchase orders. A.0.5 established two firms by name M/s. Vertex Tools and Equipments and M/s.Polygon Tools and Equipments in Mahaboobnagar in the name of his daughter Kum.Priyadarsini and in the name of Cheviku Parshavedi, with an

intention to get purchase orders from including the aforesaid ITI. various ITIs in the State,

It is alleged that A.Os.l to 4, having shared common intention with A.0.5, purchased most of the materials from the aforesaid firms with inflated rates than the prevailing market prices in order to get pecuniary gain for themselves. two A.Os. ¹ to 4 purchased sub standard materials and utilized an amount of Rs.4,47,132/- out of the allotted budget of Rs.4.50 lakhs during the period from 16.06.1997 to 06.03.1998 and intentionally split up the purchase orders to below Rs. 1,000/- to get the same within the purchase power delegated to the Principals.

5. On receipt of reliable information that huge loss was caused to the Government funds in the process of purchasing materials to the stores of Government ITI for Girls, Chittedu, Nellore district, the Deputy Superintendent of Police, ACB, Nellore Range, along with his staff and mediators, conducted surprise check in the stores of the said m and prepared surprise check proceedings, and later ^a case in crime NO.16/ACB-RCO-NLR/2000 was registered. It is revealed during investigation that A.Os.l to 5, having shared common intention with A.0.5, purchased sub-standard materials from A.0.5 and also from local traders with inflated rates than the prevailing market prices and

hurriedly asked for quotations from suppliers. They did not purchase those items on requisition of the concerned Training Officers as per the normal procedure.

P.W. 13-Muni Krishnaiah, Principal, Government m, Tirupati conducted inspection in the Stores and records of Government ITI for Girls, Chittedu, Nellore district on the instructions of the Director, Employment and Training, A.P. and submitted his enquiry report. opining that an excess payment of Rs. 1,37,244/- over MRP rates was made in purchasing the materials.

A.Os.l to 4 purchased the materials with inflated rates in order to get pecuniary gain for themselves and others and caused wrongful loss to the Government. A.0.1, in collusion with A.Os.4 and 5, caused wrongful loss to the Government during his tenure to an extent of Rs.8,168/-; A.0.2, in collusion with A.Os.4 and 5, caused wrongful loss to the Government during his tenure to an extent of Rs.39,250/-; A.0.3, in collusion with A.Os.4 and 5, caused wrongful loss to the Government during his tenure to an extent of Rs.90,826/-, and A.0.4, in collusion with A.Os.l to 3, caused wrongful loss to the Government during his tenure to an extent of Rs. 1,37,244/-, and they obtained the respective amounts as wrongful gain to themselves. Government issued sanction orders to prosecute the Accused Officers. Hence, the charge sheet.

■V V

6. On appearance of AOs ¹ to 5, copies of documents furnished to them were as required under Section 207 Cr.P.C. thereafter, separate charges under Section and, 13(l)(d) of the Act punishable under Section 13(2) of the Act ware framed against A.Os.l to 5, and charge for the offence punishable under Section 168 framed against A.O.5. IPC was When the respective charges were read and explained to the accused officers in Telugu, they pleaded over not guilty and claimed to be tried.

7. To substantiate the charges, P.Ws.l to ¹⁸ were examined and Exs.Pl to P23 were marked, apart from Exs.Pl (a) to Pl(f), P2(a), P5(a) to P5 (c), P6 (a) to P6 (c), P15 (a) to P15 (d), on behalf of the prosecution.

8. After closure of the prosecution evidence, the accused officers were examined under Section 313 Cr.P.C., explaining the incriminating material found against them in the evidence of prosecution witnesses, for which they denied, but did not choose to examine any witnesses on their behalf, however A.Os.l to 4 filed a written statement, was marked on behalf of the defence. Ex.Dl

9. The learned Special Judge, upon proper appreciation of the evidence on record, found the appellants/accused officers guilty of the

charges, as stated supra, vide the impugned judgment. Challenging the same, the present Criminal Appeals are filed.

10. Learned counsels appearing for the appellants, by relying upon the entire evidence on record, submitted that there is absolutely no material to show that the rates were inflated to the prevailing market rates. No evidence has been adduced to the extent that there is huge difference between the prices for which the College purchased the materials and their market value. Even as per the report submitted by the Enquiry Officer P.W.13, nothing concrete has been culled out to show that there is variance in the prices of the materials that were purchased by A.Os.l to 4 from the traders.

The learned counsel further submitted that in order to show that there is variation in the prices of materials that were purchased by A.Os. ¹ to 4 and the market price, it is essential that the enquiry officer ought to have collected the price list of the materials that were purchased during the relevant point of time or some other evidence to show that there is tremendous variance between the market price of the materials and the price for which AOs ¹ to 4 purchased the materials in the year 1997-98. In the absence of any such evidence. benefit of doubt should go in favour of the accused officers. While relying on the audit report Ex.P18, learned counsel submitted that on a

perusal of the said report goes to show that the price of the materials that were supplied by the traders to the Government m for Giris, Chittedu, Nellore district is exclusive of taxes, freight charges, packing and door delivery charges and credit charges and basing on the same there is no variation in the price of the materials that were purchased by AOs ¹ to 4.

As regards charge under Section 168 IPC is submitted that the said firms M/s. Vertex Tools and as appellant/A.0.5, it Equipments and M/s.Polygon Tools and Equipments in Mahaboobnagar stand name of one N.T.Priyadarsini, and no concrete evidence is placed on record to show that she established the said firms with in the the funds sentences recorded by the learned Special Judge are not tenable in the eye of law. provided by A.0.5, and hence, the convictions and

11. On the contrary, Mr. S.M. Subhani, learned Special Public Prosecutor for ACB, strenuously contended that modus operand! of the accused in purchasing the materials creates any amount of doubt for the reason that price of all the materials that were purchased by them is below Rs. 1,000/- and in purchasing the entire materials from the traders, they did not exceed Rs. 1,000/-, which would certainly come within the pun/iew of misconduct, so as to have a pecuniary gain in the said process. He further submitted that appellant/A.0.5, being a public

servant, established two firms and sold through them the materials at inflated rates in collusion with other accused, and there is no ambiguity in the judgment passed by the learned Special Judge and the present Criminal Appeals are liable to be dismissed.

12. Heard. Perused the evidence on record.

13. Now the point that arises for consideration is whether the prosecution established the guilt of AOs ¹ to 5 for the offences alleged beyond all reasonable doubt.

A.Os.l to ³ worked as Principals of Government m for Girls, 14. Chittedu, Nellore district during the relevant periods mentioned supra and A.0.4 worked as Senior Assistant-cum-Store Keeper of the said m from 07.06.1997 to 30.06.1998. The allegation against the accused is that they purchased the materials for the stores of the Government m at exorbitant rates than the prevailing market rates in violation of the prescribed procedure during the financial year 1997-98 and on account of excess payments made by them for the materials purchased by A.O.l-in collusion with A.Os.4 and 5, the Government sustained loss to a tune of Rs.8,168/-; A.0.2, in collusion with A.Os.4 and 5, the Government sustained loss to a tune of Rs.39,250/-; A.0.3, in collusion with A.Os.4 and 5, the Government sustained loss to a tune of Rs.90,826/-, and A.0.4, in collusion with A.Os.l to 3, the Government

sustained loss to a tune of Rs. 1,37,244/-, and the accused officers in order to get respective pecuniary gain to themselves. did so

15. PW.l is the mediator. He speaks about his of surprise check of the subject Government UI officials and drafting of mediators report Ex.P14. presence at the time on 24.11.2000 by ACB PW.2 worked as Senior Assistant in subject Government m and looked after Accounts branch. He deposed about the tenures of A.Os.l to ⁴ and procedure being followed for purchasing materials. Deputy Training Officer in the subject Government HI and spoke about the procedure being followed in the said ITI for purchasing materials. P.W.4, who was doing business in electrical goods, deposed about market rates of certain materials. the PW.3 worked as he too P:Ws.5 and 6, who worked as Sub Treasury Officer, Vakadu and Senior Assistant in the Sub Treasury Office, Vakadu deposed about presentation contingent bills by the subject Government ITI and other facts. of P.Ws.7 to 10, business persons, deposed about purchase of certain articles from their respective shops by the subject Government ITI. P.W.ll worked as Senior Assistant in the subject Government ITI and deposed about certain supply orders placed by the said ITI during the tenures of accused officers ¹ to 3. P.W.12 was an employee of SETWIN. He deposed about market rates of certain items and about

preparation of a list containing market rates in respect of certain items by him and other facts.

P.W.13, who worked as Principal, Government m, Tirupati, deposed about enquiry conducted by him in the subject Government m and submission of Ex.P18 report. P.W.14 deposed about the issuance of sanction orders Exs.P19 and P20 by the Government to prosecute the A.Os 4 and 5 and Ex.P21-Memo to prosecute A.Os. ¹ to 3.

P.W.15, who worked as Deputy Superintendent of Police, ACB, Nellore Range, deposed about the surprise check conducted by him in the subject Government ITI on 24.11.2000, about registration of FIR and other facts. P.W.16, who worked as Inspector of Police, ACB, Range-III, Nellore deposed about his presence during the surprise check by P.W.15 and conducting investigation, etc.

P.W.17, who worked as Assistant Commercial Tax Officer in the office of the Commercial Tax Officer, Mahaboobnagar, deposed about sending of Ex.P23-letter dated 22.2.2002 by the C.T.O. to the ACB and P.W.18, who worked as Inspector of Police, ACB, Nellore, deposed about his part of investigation in the present case.

16. Learned counsel appearing on behalf of the appellants, while relying upon the evidence of PW.13, submitted that in the report Ex.PlS submitted by PW.13, nothing concrete has been culled out to show that there is variance between the price of the materials that were purchased by the accused and the prevailing market rates. On the other hand, learned Special Public Prosecutor for ACB categorically submitted that the accused were convicted by the learned Special Judge basing on the evidence of PWs.l3, 15, 16 and 18.

17. In the year 1998, the Director, Employment and Training, Hyderabad, issued proceedings directing PW.13 to verify the purchases made by the subject Government ITI during the year 1997-98 and submit ^a report to that extent. Accordingly, PW.13 verified the day book, stock ledgers of materials, tools and equipments and the bills for the materials purchased during the financial year 1997-98 for the subject Government ITI and submitted his report Ex.P18. categorically stated in his cross examination that he did not obtain market rates from anyone under any certificate; that he did not give any requisition to anyone with a request to furnish market rates. At the same time, he did not submit any details to that extent as to what were the rates that were prevailing during the relevant period. No bill was produced along with the report Ex.P18 to show exactly what was He

the value of the materials that were purchased by the accused officers, prevailing at that time. As per Ex.PlS, vide Ex.P2 (a) sanction proceedings issued by A.0.1 for Rs.24,730/-, a sum of Rs.7,825/- was paid in excess to the supplier; as per Ex.P3(a) proceedings issued by A.0.2 for Rs.99,863/-, a sum of Rs.39,250/- was paid in excess to the supplier; as per Ex.P4(a) proceedings dated 11.03.1998 issued by A.0.3 for Rs.2,97,587/-, a sum of Rs.87,729/- was paid in excess to the supplier, and in total, a sum of Rs. 1,37,244/- was paid in excess to the suppliers by A.Os. ¹ to 3. However, no document is placed on record as to how the difference of Rs. 1,37,244/- has been ascertained by PW.13. In the absence of any bills being produced on record, it is highly impossible to draw an inference to that extent that there is difference of aforesaid amount.

18. Learned Special Public Prosecutor for ACB strenuously contended to the extent that the acts of the accused officers in purchasing the materials of less than Rs. 1,000/- under each bill and each bill was far less than Rs. 1,000/- during the period of 1997-98 and paying a sum of Rs. 1,37,244/- in excess to the suppliers towards purchases without seeking any permission from the higher authorities. would clearly come within the purview of misconduct. To the said submission, learned counsel for the appellants drew the attention of

this Court to the Memo No.29306/El/67, dated 18.08.1967, issued by the Directorate of Employment and Training, Hyderabad, delegating purchasing powers to the Principals of UIs and issuing certain clarifications in that regard, wherein it was categorically stated to the extent that the Principal can call for quotations for different items from different firms and place individual orders on different firms on the same day for different items and the total cost of each order should not exceed Rs. 1,000/-. When such is the condition precedent, AOs-1 and 3 ought not to have exceeded to the condition imposed by the Government of AP vide its memo dated 18.08.1967. There is no reference in the said memo to the extent that in order to purchase the materials in bulk, the Principal can obtain sanction from the higher authorities. It is relevant to mention here that the authorities granted students in the a tune of Rs.4.50 lakhs for the subject Government ITI. There is a condition precedent to the extent that the funds in order to purchase materials for the Government ITIs to entire amount should be spent within a period of five (5) months, said amounts were allocated on 11.07.1997 with written instructions to the Principals to utilize the funds hy 31.12.1997 and with instructions not to allow the allotted budget to be lapsed, the material has to be purchased by the Principals in bulk, it is essential that they have to seek sanction from the higher authorities The strict If really,

and it would cause further delay in purchasing the materials from the traders and by virtue of the same the colleges would become ^a stand still without the raw materials for utilization of the students. In view of the aforesaid reasons, the Principals have purchased the raw materials from the local traders for less than Rs. 1,000/-.

19. PW.15 is the Investigating Officer, who registered the above crime and investigated into. According to him, he conducted ^a random check of 16 articles that were purchased and he came to know that the rates of those items were inflated. Except stating that the rates of the items were inflated, nothing was brought on record to show what the prevailing market rates of the items were during the relevant period.

20. It was brought to the notice of this Court that in the earlier years though the budget was received from DET under relevant heads for purchase of stores, budget authorization was not received and because of budget freezing, the Principal faced difficulties to purchase raw materials and tools on credit basis and used to pay and clear the bills after years together. In view of such problems and difficulties, to continue the regular training, the Principals were forced to purchase for the whole amount keeping in view the future training programme. The evidence available on record further shows that the A.Os. ¹ to 4 scrupulously verified all the records and that they followed the

purchase procedure as contemplated and records on the purchase of stores up to the satisfaction, dispute with regard to the fact that all the purchases that maintained necessary There is no were made during the year 1997-98 were completely entered in the daily purchase register as per the bills of purchases. Further, on receipt of stock, all the items were entered in the stock ledgers without any lapse. Even as per the case of prosecution, quotations were called for, from the local firms and on receipt of quotations, comparative statements were made to assess the lowest prices of quotation. A.Os. ¹ to 4 examined and tallied the lowest quotes with the prices of purchases in the earlier year at their ITI and seeing that the lowest quotes are nearest to the previous purchases and after satisfying, approved the lowest duly placing the supply orders to the local firms of lowest quotes, further perusal of the evidence on record goes to show that most of the purchases are nearest to the MRP rates besides taking into consideration all the taxes, forwarding, packing and door delivery and no separate bills were paid for the overhead charges. As and when budget is received, the quoted rates may be somewhat more than MRP quote On a rates takinq into consideration the interest on the credit bills, which appears to be very marginal. Therefore, one can safely infer to the extent that for the raw materials that were purchased by A.Os.l to 4, there can be a marginal variance because of interest, taxes, packing

and door delivery charges. It is pertinent to mention herein that the traders were supplying the raw materials to the College earlier. Though the raw materials were supplied, the colleges were paying the amounts belatedly and because of the said reason, there is every chance that the traders might have collected interest thereupon by quoting the price little higher. The MRP rates do differ when purchased in the local market and in ostentatious market. Moreover, A.Os.l to 4 took the quotation which is lowest and if there is any variation of price in the purchase of raw materials, it is obligatory on the part of either Investigating Officer or the Enquiry Officer to produce exact rates that prevailed during the relevant point of time and submit bills to that extent. In the absence of any such bills being placed on the record, it cannot be said that the procedure adopted by the accused in purchasing the raw materials is arbitrary.

21. The learned Special Judge, by merely relying upon the evidence of PWs.13, 15, 16 and 18 and on a random check of documents. convicted the accused officers. When there are two versions are possible, the one which is in favour to the accused has to be taken into account for the reason that in the absence of any material that has been collected by the prosecution to show that there is tremendous

variation between the price of the materials that were purchased by the accused and its market value.

22. Learned counsel for the appellants relied upon ^a decision reported in Sujit Biswas v. State of Assam^ wherein the Hon'ble Supreme Court held thus.

"6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that will be proved'. In ^a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between ' may be' and ' must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ' may be' true and ' must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon

2013 (3) ALT (CRI.) (SC) 316 (DB)

a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."

23. On a perusal of the aforesaid judgment goes to show that the suspicion, however grave it may be, cannot take the place of proof. In the present case on hand, there may be a marginal variation between the MRP rates of the raw materials and the price of materials that were purchased by the accused. In the absence of exact values of the materials at relevant point of time, this Court cannot concur with the opinion of the learned Special Judge.

24. As regards the conviction of A.0.5 for the offence punishable under Section 168 IPC, M/s. Vertex Tools and Equipments and M/s.Polygon Tools and Equipments in Mahaboobnagar are in the name of daughter of A.0.5-N.T.Priyadarsini. It is the case of the

prosecution that A.0.5 established the said firms in the name of his daughter. The prosecution failed to substantiate the allegation by adducing convincing evidence. The Special Judge observed that it is not the case of A.0.5 that his daughter had her own funds and with her own funds she established the firms, and hence, had drawn inference against A.0.5 that he was trading in the name of said firms. It is settled proposition of law that the prosecution has to prove its case against the accused beyond all reasonable doubt, the accused to disprove the case of prosecution. an It is not for No convincing evidence has been adduced to substantiate its case that A.0.5 was trading in the name of his daughter by establishing the said firms M/s. Vertex Tools and Equipments and M/s.Polygon Tools and Equipments in Mahaboobnagar. Therefore, the finding of the learned Special Judge drawing an inference against A.0.5 that he was trading in the name of said firms, simply because it is not the case of A.0.5 that his daughter had her own funds and with her own funds she established the firms, is untenable. It is for the prosecution to establish its case beyond all reasonable doubt by adducing positive evidence. In the absence of the same, the conviction and sentence recorded by the Special Judge against A.0.5 for the offence punishable under Section 168 IPC are liable to be set aside.

25. In view of the aforesaid reasons, this Court comes to a conclusion that the prosecution faiied to establish the guilt of appellants/AOs ¹ to 5 beyond all reasonable doubt and as such the learned Special Judge erred in convicting and sentencing the appellants herein solely based on the evidence of PWs.l3, 15, 16 and 18, which does not establish the culpability of the accused in commission of the offence. Hence, the convictions and sentences passed by the learned Special Judge in the impugned judgment against the appellants/ accused officers are liable to be set aside.

/

26. In the result, the Criminal Appeals are allowed. The convictions and sentences recorded against the appellants/AO-1 to AOS in the judgment dated 21.12.2006 passed in CC No.4 of 2005 on the file of the learned Special Judge under the Prevention of Corruption Act for speedy trial of cases of Embezzlement of Scholarship Amounts in Sociai Welfare Department, etc., Hyderabad, are set aside. appellants/AOs ¹ to 5 are found not guilty of the charges leveled against them and are accordingly acquitted of the said charges and are set at liberty. The fine amount, if any, paid by them shall be refunded to them. The

Consequently, miscellaneous petitions, if any, pending in these

Criminal Appeals shall stand closed.

' SD/- P VENKATA RAMANA JOINT REGISTRAR

\ //TRUE COPY// ^V SECTION OFFICER

To,

• 1. The Special Judge, Under Prevention of Corruption Act for Speedy Trail of Cases of Embezzlement of Scholarship amounts in Social Welfare Department etc, at Criminal Courts Complex, Nampally, Hyderabad, Telangana.
• The Inspector of Police, ACB Nellore Range, Nellore 2.
• One CC to Sri. G Vijaya Saradhi Advocate [OPUC] 3.
• One CC to Sri. D Purnachandra Reddy Advocate [OPUC] 4.
• One CC to Sri. P Ravi Shanker Advocate [OPUC] 5.
• One CC to M/s. D Sangeetha Reddy Advocate [OPUC] 6.
• One CC to Sri. S M Subhani (SC for ACB AND SPL PP) Advocate [OPUC] 7.
• The Section Officer, Criminal Section, High Court of A.P. at Amaravati. 8.
• Three CD Copies 9.

PR

vna

HIGH COURT

DATED:21/11/2023

ORDER

CRIMINAL APPEAL NO: 12,15 & 19 OF 2007.1741 OF 2006 AND 1750 OF 2006

ALLOWING THE CRLA'S