Krishnaraj v. State represented by The Inspector of Police, Madurai
2014-09-25
P.R.SHIVAKUMAR
body2014
DigiLaw.ai
Judgment 1. The revision petitioner along with three other persons were prosecuted in Calender Case No.223 of 2000 on the file of the learned Judicial Magistrate No.I, Madurai, which was instituted on a police report submitted after investigation in Crime No.5 of 2006 registered on the file of the Madurai Rural Crime Branch for alleged offences punishable under Sections 120-B, 409 and 420 IPC. After trial, the learned trial Magistrate by a judgment dated 30.09.2004 convicted all the four persons who figured as A-1 to A-4 for all the three offences stated above and each one of them was awarded a sentence of rigorous imprisonment for a period of one year with a fine of Rs.200/- and a default sentence of one month rigorous imprisonment for the offence punishable under Section 120-B IPC; a sentence of rigorous imprisonment for a period of one year with a fine of Rs.200/- and a default sentence of one month rigorous imprisonment for the offence punishable under Section 409 IPC and a sentence of rigorous imprisonment for a period of one year with a fine of Rs.200/- and a default sentence of one month rigorous imprisonment for the offence punishable under Section 420 IPC. The learned Judicial Magistrate directed that the substantive sentences should run concurrently and that the imprisonment pending investigation and pending trial suffered by them should be set off under Section 428 Cr.P.C. 2. As against the conviction and also the sentence imposed on them, all the four accused preferred appeals before the Sessions Court, Madurai. The present petitioner Krishnaraj, who figured as A-1 in the calendar case and one Jayapaul, who figured as A-4 in the calendar case preferred separate appeals as C.A.Nos.230 of 2004 and 235 of 2004 respectively. Murali, who figured as A-2 and Manoharan, who figured as A-3 in the calender case jointly preferred an appeal as Crl.A.No.234 of 2004. 3. Since all the three appeals arose out of the very same judgment pronounced in one and the same calendar case, they were jointly heard by the learned Additional Sessions Judge, Fast Track Court No.1, Madurai to whom the case was made over by the Principal Sessions Judge for disposal of case, according to law.
3. Since all the three appeals arose out of the very same judgment pronounced in one and the same calendar case, they were jointly heard by the learned Additional Sessions Judge, Fast Track Court No.1, Madurai to whom the case was made over by the Principal Sessions Judge for disposal of case, according to law. The learned Additional Sessions Judge, Fast Track Court-1, Madurai allowed the appeals by his judgment dated 31.10.2005 and acquitted all the four accused persons holding them not guilty of any one of the offences for which they were prosecuted before the trial Court. 4. As against the said judgment reversing the conviction and acquitting all the four accused, the defacto complainant, namely Thirumangalam Municipality through its Commissioner, preferred four revisions as Crl.R.C.Nos.56, 57, 58 and 59 of 2006 on the file of this Court. All the four revisions were heard by a learned single Judge of this Court. Another Criminal Revision Case in Crl.R.C.(MD)No.60 of 2006 challenging the judgment of the appellate Court in two other appeals arising out of another calender case (C.C.No.252 of 2008) in which the Krishnaraj and one Sankarganesh alone were the accused was also heard along with the above said four revision cases. By a common order dated 20.08.2010, the learned single Judge of this Court allowed all the revisions and remitted the appeals concerned in those revisions back to the appellate court for fresh disposal. 5. After such remand, the criminal appeal Nos.230, 234 and 235 of 2004 were heard together and disposed by a common judgment dated 30.01.2012. The other two appeals were disposed of separately. Criminal Appeals No.230, 234 and 235 of 2004 were heard together by the lower appellate Judge, namely the Additional Sessions Judge, Fast Track Court-1, Madurai and by a judgment dated 31.01.2012, the learned appellate Judge allowed the criminal appeal Nos.234 and 235 of 2004 preferred by the Murali (A2) and Manoharan (3) and Jeyapal (A4) respectively and acquitted them of all the offences with which they stood charged. However, the learned lower appellate Judge dismissed the appeal preferred by the revision petitioner Krishnaraj (A1), namely Crl.A.No.230 of 2004, and confirmed the judgment of the trial Court convicting him for the offences under Sections 120-B, 409 and 420 IPC and also confirmed the sentence imposed by the trial Court for all the three offences. 6.
However, the learned lower appellate Judge dismissed the appeal preferred by the revision petitioner Krishnaraj (A1), namely Crl.A.No.230 of 2004, and confirmed the judgment of the trial Court convicting him for the offences under Sections 120-B, 409 and 420 IPC and also confirmed the sentence imposed by the trial Court for all the three offences. 6. As against the judgment of the lower appellate Court insofar as it relates to Crl.A.No.230 of 2004, the revision petitioner has preferred the present revision on various grounds set out in the grounds of revision. 7. The arguments advanced by Mr.M.Mohanasundam, learned counsel for the revision petitioner and Mrs.S.Prabha, learned Government Advocate (Criminal Side) representing the respondent were heard. The impugned judgment and orders of the Courts below and also the order of this Court in the previous Criminal Revision Cases were perused. The materials available on record summoned from the Courts below for reference in this revision were also taken into consideration. 8. Out of the four persons prosecuted for the alleged offence of criminal conspiracy to commit criminal breach of trust and cheating and the substantive offences thereof, the revision petitioner herein who figured as the first accused alone came to be convicted by the appellate Court, while setting aside the conviction of the other three who were prosecuted along with the revision petitioner for the said offences. 9. According to the prosecution case, the revision petitioner worked as Cashier in Thirumangalam Municipality for the period from 20.09.1996 to 06.04.1998 and during the said period, pursuant to the conspiracy with the other three accused, the revision petitioner indulged in committing criminal breach of trust by misappropriating the funds of Thirumangalam Municipality. The total amount allegedly misappropriated came to Rs.1,58,917.30/-. The entire amount was stated to be misappropriated by all the four accused. After trial, in which as many as 14 witnesses were examined and 55 documents were produced as P.Ws.1 to 14 and Exs.1 to 55 respectively and only one document was marked as Ex.D1 without examining any witness on the side of the accused persons, the learned trial Magistrate chose to hold all the four accused guilty of all the three offences and convict them as indicated supra. 10.
10. On appeal, the appellate Judge, at the first instance, on 31.10.2005 allowed all the appeals holding that none of the offences alleged to have been committed by the accused persons was proved by the prosecution beyond reasonable doubt and accordingly acquitted all the four accused persons of the offences punishable under Sections 120-B, 409 and 420 IPC for which they were prosecuted in C.C.No.223 of 2000 before the trial Court. 11. Of course, on a revision preferred by the Thirumangalam Municipality, this Court set aside the common judgment of the appellate Court dated 31.10.2005 made in C.A.Nos.230, 234 and 235 of 2004 and remitted them back to the learned lower appellate Judge for fresh disposal after further hearing. After such remission, the learned lower appellate Judge chose to allow the appeals preferred by A-2 to A-4 and acquit them of all the charges on which they were prosecuted. At the same time, the learned lower appellate Judge dismissed the appeal preferred by the revision petitioner Crl.A.No.230 of 2004 alone and confirmed his conviction for all the three offences punishable under Sections 120-B, 407 and 420 IPC. 12. As against the acquittal of the other accused (A2 to A4), no appeal or revision has been filed. The learned counsel for the revision petitioner pointing out the fact that when all the three accused persons were acquitted of all the charges, including the charge for an offence under Section 120-B IPC, the revision petitioner alone has been convicted, contended that the said fact itself will show the biased approach and the non application of mind on the part of the learned lower appellate Judge.
It is the contention of the learned counsel for the revision petitioner that the learned lower appellate Judge committed a grave error in law in confirming the conviction of the revision petitioner for the offence under Section 120-B IPC while acquitting the other three person, with whom he allegedly hatched out a conspiracy to commit other offences, for the simple reason that there cannot be a conspiracy by a person with himself and that to maintain a charge and sustain a conviction for the offence of criminal conspiracy, there should be at least two persons and that the acquittal of all other persons should have automatically resulted in the conclusion that the charge for the offence under Section 120-B IPC as against the revision petitioner also was not proved and was not established. 13. In this regard, learned Government Advocate (Criminal Side) would fairly concede that neither the State nor the victim (Thirumangalam Municipality) has chosen to prefer an appeal against the acquittal of A-2 to A4 in respect of the offences including the offence under Section 120-B IPC. The State would have filed an appeal against the acquittal of those persons under Section 378 Cr.P.C following the procedure contemplated therein. In addition from 31.12.2009, a right of appeal has been provided under the proviso to Section 372 Cr.P.C to the victim. In this case, Thirumangalam Municipality is the victim and it could have very well preferred an appeal against acquittal of A-2 to A-4. For the reasons best known to the victim, no such appeal was preferred against the order of acquittal of A-2 to A-4. 14. In this regard, it is the contention of the learned counsel for the revision petitioner that the petitioner was made as scapegoat while the others who are responsible for handling the funds of the municipality were let off. It is the further contention of the learned counsel for the revision petitioner that in fact, the revision petitioner should have been held not guilty of the offences with which he was charged and if there was any substance in the complaint, the other officials of the municipality should have been held responsible for such lapse.
It is the further contention of the learned counsel for the revision petitioner that in fact, the revision petitioner should have been held not guilty of the offences with which he was charged and if there was any substance in the complaint, the other officials of the municipality should have been held responsible for such lapse. It is the further contention of the learned counsel for the revision petitioner that the petitioner was not the cashier as projected by the prosecution and on the other hand, he was only overhead tank cleaner operating the overhead tank and regulating the supply of drinking water to various areas in the municipality. It is his further contention that he would be fully engaged in such duty and there could have been no spare time for him to be assigned other duties. It is also the contention of the learned counsel for the revision petitioner that the post of Overhead Tank Cleaner is lower in grade and if at all, he was asked to do the job of the Cashier, there should have been an office order placing him in charge of the post of Cashier and remuneration for such in-charge period should have been paid and that there is no scrap of paper to show that he was placed in additional charge of the cashier and was paid additional remuneration for holding such additional post with responsibility. It is the further contention of the learned counsel for the revision petitioner that both the trial Court and the appellate Court committed an error in simply accepting the oral statement of the officials, without the same being supported by documents maintained in the regular course of business of municipality and that the appellate Court totally lost sight of the responsibility of the other employees/officers of the municipality, who were to handle the funds, do the remittances and maintain the accounts. Had the lower appellate court approached the said aspect in proper angle, it would have arrived at a conclusion that the charges of criminal breach of trust and cheating under Sections 409 and 420 IPC against the revision petitioner (A-1) was not proved by the prosecution beyond reasonable doubt and the learned lower appellate Judge would have acquitted the revision petitioner (A1) also - learned counsel for the revision petitioner contended. 15.
15. Per contra, learned Government Advocate (Crl.Side) would contend that so far as the entrustment of the work of collection of tax and remitting of the same into Court was concerned, both the Courts below, on an appreciation of evidence, both the oral and documentary, arrived at a correct conclusion that the revision petitioner had been placed in charge of the post of Cashier and while acting as such he committed criminal breach of trust by remitting the amounts collected with delay, by remitting lesser amount than the amount collected appropriating the balance for his personal use and that thereby cheated the municipality of its funds. However, learned Government Advocate (Criminal Side) would fairly concede that since the other persons, who were prosecuted as co-conspirators, were acquitted of the said offence and no other person is proved to have entered into a conspiracy with the revision petitioner, the conviction of the revision petitioner for the offence under Section 120-B IPC could not be said to be correct. 16. This Court took into consideration the rival contentions made on both sides. The materials available on record were also perused and taken into consideration. 17. As contended by the learned counsel for the revision petitioner and also fairly conceded by the learned Government Advocate (Crl. Side), there is no direct evidence to prove the charge of criminal conspiracy punishable under Section 120-B of the Indian Penal Code. The said charge seems to have been made based on the assumption that without the connivance of the other accused persons, (A-2 to A-4), the revision petitioner Krishnaraj could not have committed the offence of breach of trust by misappropriating the funds of the municipality to the tune of Rs.1,58,917.30 and thereby cheated the municipality. But, one cannot expect direct evidence regarding criminal conspiracy and in most of the cases, criminal conspiracy has to be inferred based on circumstantial evidence and the part played by the persons in committing the offence in pursuance of the common object of the criminal conspiracy and their behaviour subsequent to the commission of the act amounting to the substantive offences. 18. Initially one Sundaramoorthy, who worked as Accountant in the said municipality during the relevant period, was shown as accused No.5 in the first information report. As he died during the pendency of the investigation, charge sheet was filed only against the other accused, namely A-1 to A-4.
18. Initially one Sundaramoorthy, who worked as Accountant in the said municipality during the relevant period, was shown as accused No.5 in the first information report. As he died during the pendency of the investigation, charge sheet was filed only against the other accused, namely A-1 to A-4. There is no evidence to show that the revision petitioner Krishnaraj (A-1) and the said Sundarmooprthy alone conspired to commit the offences of criminal breach of trust and cheating. Be that as it may, when two or more persons are prosecuted as persons, who entered into a conspiracy and all except one among them are acquitted of the offence of criminal conspiracy punishable under Section 120-B IPC, the resultant position shall be that the agreement contemplated under Section 120-B shall stand not established against the remaining accused who is single. It is common sense that one cannot be said to have entered into an agreement with himself. It is also not the case of the prosecution that the revision petitioner entered into such an agreement with any other person, who may be an absconding accused. The case of the prosecution is that the revision petitioner Krishnaraj (A1) entered into a conspiracy with Murali (A-2), Manoharan (A-3) and Jeyapaul (A4). When all the other three accused are acquitted of the said offence holding that they did not commit the offence of entering into a conspiracy with the revision petitioner, Krishnaraj (A-1), holding the revision petitioner Krishnaraj (A-1) alone to have committed the offence of criminal conspiracy punishable under Section 120-B IPC shall be perverse. Therefore, this Court comes to the conclusion that the conviction of the revision petitioner for the offence punishable under Section 120-B IPC by the trial Court and its confirmation by the lower appellate Court cannot be sustained in law in view of the fact that the other alleged conspirators, who are three in number, have been acquitted by the lower appellate Court and no appeal has been preferred either by the State under Section 378 Cr.P.C or by the victim, namely the Thirumangalam Municipality, under the proviso to Section 372 Cr.P.C. 19. The above said finding shall take the Court to the other aspect as to whether the conviction of the revision petitioner for the offences punishable under Sections 409 and 420 IPC can be sustained. 20.
The above said finding shall take the Court to the other aspect as to whether the conviction of the revision petitioner for the offences punishable under Sections 409 and 420 IPC can be sustained. 20. From the evidence it could be ascertained that during the relevant period one N.S.Prema was functioning as Commissioner of the Municipality of Thiirumangalam. Where such large scale financial irregularities are found to have been detected, the Chief Administrative Officer, namely the Commissioner of the Municipality, also should have been held responsible for the same. For the reasons best known to the prosecution, she was spared and the others alone were prosecuted for the alleged offences of criminal breach of trust and cheating punishable under Sections 409 and 420 IPC of the Indian Penal Code. 21. Murali (A-2) functioned as Assistant in the said municipality during the relevant period, whereas Manoharan (A3) functioned as Junior Assistant and Jeyapal (A-4) was the Manager. One Sundaramoorthy was functioning as Accountant, whereas the revision petitioner Krishnaraj (A-1) was the Pump Operator/Overhead Tank Cleaner. However, he was said to have functioned as acting Cashier. P.W.1, in his evidence admits that chitta entries regarding collection of taxes and water charges were counter signed by the Commission N.S.Prema. It is also the admission that the scrolls for remittance of the amount into the bank were signed by the Manager. In A-16 and 17 chitta entries have been signed by Murali (A-2) for the Commissioner. Similarly in A-15, Chitta entry was signed by Manoharan ( A-3) for the Commissioner. P.W.1 would have stated that he was working as Commissioner of Thirumangalam Municipality from 06.04.1998 and he preferred a complaint and on 07.04.1998 he placed the revision petitioner Krishnaraj (A1) on suspension. From his evidence, it is evident that the very next day on which he assumed charge as Commissioner of Thirumangalam Municipality, he was able to fix the revision petitioner, Krishnaraj (A-1) for the irregularities and placed him under suspension. However, during cross examination he admitted that Murali, the second accused, was functioning as nutritious meal accountant and he took charge as Superintendent in charge on 03.06.1997 with the consent of the Commissioner. However, he would plead absence of knowledge as to whether any order in writing was issued. He also admitted that, at that point of time, he was not in charge of the post of Commissioner in Thirumangalam Municipality.
However, he would plead absence of knowledge as to whether any order in writing was issued. He also admitted that, at that point of time, he was not in charge of the post of Commissioner in Thirumangalam Municipality. It is obvious from his evidence that he was deposing after perusing the records. Though he would assert that except the Cashier, no one would have remitted the amount on behalf of the municipality into bank, he pleaded ignorance when a suggestion was put that on several occasions, a person employed as accountant had made the remittances on behalf of the municipality into bank. There is also a clear admission by P.W.1 that all the amounts collected in the municipality and the amounts remitted in the bank shall be checked by the Manager and the chitta entries should be initiated by him. 22. A perusal of the testimony of P.W.1 would show that there is no document relating to the collection of taxes and water charges and remittance of amount into bank containing the signature of the revision petitioner/A-1 in his capacity as in charge cashier. P.W.3's evidence does not implicate the revision petitioner/A-1. However, P.Ws. 2 and 4 have deposed as if the revision petitioner/A-1 was working as Cashier. P.W.2 does not state that the revision petitioner Krishnaraj was Pump Operator (Overhead Tank Cleaner) and he was acting as Cashier. However, he would state that while he was working as Revenue Assistant in the said municipality, the revision petitioner Krishnaraj (A-1) was working as Cashier and that he did not disburse the salary of P.W.2 and on the other hand, the revision petitioner himself took the amount for himself. Though Ex.P.2 would have been produced to show that the signature of P.W.2 found in Ex.P2 was forged, there is no proof that the said signature was not that of P.W.2. Moreover, there is no evidence to fix the revision petitioner to have committed the forgery of the signature of P.W.2 in the said document. On the other hand, PW4 was a driver in the said municipality and he would state that several persons worked as Cashier in rotation and the revision petitioner also worked as Cashier and that he (PW4) also received his salary from him (the revision petitioner). 23.
On the other hand, PW4 was a driver in the said municipality and he would state that several persons worked as Cashier in rotation and the revision petitioner also worked as Cashier and that he (PW4) also received his salary from him (the revision petitioner). 23. Excepting the bald statement of the witnesses, there is no documentary evidence to prove that the revision petitioner was acting as Cashier. Though P.W.5 would have projected as a witness to show that the revision petitioner was acting as cashier in-charge and at 02.30 p.m on a particular day at 2.30 p.m two years prior to the examination of P.W.5 in the Court, he entrusted the job of looking after the cash account to P.W.5 and left the office without even counting the cash and handing over the same to him; that hence the amount had to be counted in the presence of Commissioner and Manager and that during such counting a sum of Rs.1073/- was missing. However, P.W.5 would admit, during cross examination, that the said particulars were not revealed by him to the police and he was not at all examined by the District Crime Branch Police. 24. P.W.6, who was the Secretary of the Municipal Council, gave evidence to the effect that in 1997-1998 he took a contract for collecting the entry fees for the bus stand and he paid a sum of Rs.34,666/- under Ex.P.17 receipt to the revision petitioner, who was the Cashier. However, in the cross examination, there is an admission that there is a difference in the writings of Ex.P.17 and the xerox copy of the challan for the remittance of the amount in the treasury which was marked as Ex.D.1. P.W.7-Revenue Assistant also gave a statement that on 19.01.1998, a sum of Rs.750/- collected by him as vacant land tax was given to the revision petitioner who was functioning as cashier. Though he would state that the receipt for the same was signed and sealed by the revision petitioner, he has admitted that the document, namely Ex.P12 produced in proof of the same was not subjected to audit. 25. In this regard, the evidence of P.W.8 is very much material. From his evidence it is obvious that whenever amounts are paid into the bank, the manager should verify the same on the next day.
25. In this regard, the evidence of P.W.8 is very much material. From his evidence it is obvious that whenever amounts are paid into the bank, the manager should verify the same on the next day. He has also made it clear that whenever bill collector remits the amount to the cashier, the cashier would make an entry in the chitta and get the signature of the manager in it and that after the amount was remitted into the bank, the manager would cross-check the particulars of remittance with entries found in chitta and then sign it. He has also admitted that as per the municipal manual, the chitta should be completed daily and the manager should check the entries and put his initial. He has admitted that in all the chitta entries a signature is found affixed for the Commissioner. He has also admitted that from 28.07.1997 and 08.02.1998, Sundaramoorthy was functioning as Accountant and the chitta entries came to be made by a number of persons. When a suggestion was put to him that in the audit report of the year 1998-99, it had been noted that the Commissioner alone was responsible for the lapses, he would simply state that he did not see such report. He has also admitted that it was the responsibility of the Commissioner for the custody of the cheques and that the cheques would not be valid, if the Commissioner fails to sign it. P.W.9, who was Inspector of audit, has clearly admitted that for the irregularities found by them during the audit of the account of Thirumangalam Municipality, the then Commissioner N.S.Prema was responsible. P.W.10 was the Senior Manager of Canara Bank, Thirumangalam during the relevant period. He simply stated that two accounts were maintained in the name of Thirumangalam municipality with their bank. But he was not able to give any other particulars. Though he was treated hostile and cross examined by the Prosecutor, nothing useful to the prosecution case implicating the revision petitioner (A-1) was elicited from him. 26. P.W.11 is Investigating Officer, who conducted the initial investigation. In his evidence in the cross examination he had admitted that he did not recover the duty allotment register and produce the same in the case to show that the revision petitioner was acting as cashier.
26. P.W.11 is Investigating Officer, who conducted the initial investigation. In his evidence in the cross examination he had admitted that he did not recover the duty allotment register and produce the same in the case to show that the revision petitioner was acting as cashier. It is also his admission that all the chitta entries were made by the accountant and the manager. P.W.12, is none other than the Investigating Officer who completed the investigation and submitted the final report. Excepting the factum of his submitting final report, nothing useful to the prosecution case has been elicited from him. P.W.13 was the then Executive Zonal Director of Municipalities. In his evidence, he has stated that the revision petitioner Krishnaraj (A-1) was working as Pump Operator (Overhead Tank Cleaner), but he was also acting as cashier based on which action was taken against him and that in departmental enquiry conducted against the revision petitioner and other persons, he gave a letter on 06.09.1999, stating that he could not give any explanation for the charges levelled against him as a case regarding the same was pending in the court since such explanation would be detrimental to his cross examination of the prosecution the witness in the Court. However, he would say that the revision petitioner Krishnaraj (A-1) while acting as cashier in charge was found to have been misappropriated a sum of Rs.20,000/-. All other amounts were alleged to have been misappropriated not by the revision petitioner but by the other persons. During cross examination, PW13 has made a clear admission that under Section 8 of the District Municipalities Act, 1920, whenever a person is to be placed in charge of another post, the order should be in writing. But no such order placing the revision petitioner in charge of the post of cashier has been produced. 27. P.W.14, who became the Commissioner of Thirumangalam Municipality subsequently, speaks about the nature of works allotted to the Pump Operator (Overhead Tank Cleaner). It is his clear admission that Ex.P.50, the office order No.23/97-C1, dated 13.06.1997, the various works allotted to the employees of the municipality have been noted. The work allotment orders were marked as Exs.P.50 and 51.
27. P.W.14, who became the Commissioner of Thirumangalam Municipality subsequently, speaks about the nature of works allotted to the Pump Operator (Overhead Tank Cleaner). It is his clear admission that Ex.P.50, the office order No.23/97-C1, dated 13.06.1997, the various works allotted to the employees of the municipality have been noted. The work allotment orders were marked as Exs.P.50 and 51. There is also a clear admission that there is nothing in the said documents to show that the revision petitioner was allotted the work of the Cashier in-charge in addition to the post of Pump Operator (Overhead Tank Cleaner). He has candidly admitted that whenever such office orders allotting the works are issued, the signatures of the employees who are allotted such works, shall be obtained. It is also his admission that the revision petitioner should watch the filling of the over head tank with a capacity of 7 Lakhs litre and thereafter, should open the valve for supply of water to the public. It is also his admission that there were 7 zones in Thirumangalam Municipality and the water should be supplied to those zones one by one in rotation and that for supply of water to one zone alone it would take 1½ hours to 2 hours. He has also admitted that he cannot give the particulars as to the time at which supply of water to each zone was made. He is not in a position to state what are the works done by the employees of the Thirumangalam Municipality during the relevant period. 28. The cumulative effect of the admissions made by the prosecution witnesses regarding the nature of duty of the Overhead Tank Cleaner/Pump Operator and the absence of any office order or any other instructions in writing placing the revision petitioner/first accused in charge of the post of Cashier, will make it clear that for the financial irregularities committed in the municipality higher officials of the municipality, who were responsible for handling the cash and accounts alone were responsible and that the Courts below have on a wrong assumption that the revision petitioner was responsible, arrived at an erroneous conclusion that the charges under Sections 409 and 420 IPC were also proved beyond reasonable doubt against the revision petitioner and accordingly, convicted the revision petitioner for the said offences also.
Proper marshalling of the evidence and evaluation of the same in the light of the infirmities found in the evidence of the prosecution witnesses indicated supra, will not lead to a conclusion that the charges of committing criminal breach of trust and cheating punishable under Sections 409 and 420 IPC were proved beyond reasonable doubt. Such a conclusion could not be arrived at even on preponderance of probabilities. It is well known principle in criminal jurisprudence that the proof required on the part of the prosecution is the proof beyond reasonable doubt and not proof by preponderance of probabilities. In this case, the evidence adduced on the side of the prosecution are not even enough to prove the prosecution case regarding the said offences even on preponderance of probabilities. 29. The learned lower appellate Judge, having chosen to acquit all other accused persons against whom stronger evidence have been adduced, has committed an error in confirming the conviction of the revision petitioner/A1 alone for the offences punishable under Sections 120-B, 409 and 420 IPC in the absence of proof by production of documentary evidence that he was placed in charge of cashier post during the relevant period. The nature of duty of the revision petitioner, who was admittedly, the Overhead Tank Cleaner/Pump Operator would consume about a total time of 10 ½ hours to 14 hours per day. If such is the nature of his duty, he could not have been signed the additional duty of being in-charge of the cashier post. This improbability has not been adverted to either by the trial Court or by the appellate court. 30. In the earlier part of this order, this Court has pointed out the vital discrepancy in the judgment of the lower appellate Court in convicting the revision petitioner alone for an offence of criminal conspiracy under Section 120-B, while acquitting all other accused persons of the said charge, for the simple reason that one cannot enter into an agreement with himself, in other words enter into a criminal conspiracy with himself. Such a conviction is totally unconscionable. Similarly, the learned lower appellate Judge has committed an error in holding that the charges under Sections 409 and 420 IPC against the revision petitioner/A1 were proved beyond reasonable doubt and in convicting the revision petitioner for the said offences holding him guilty of the said offences.
Such a conviction is totally unconscionable. Similarly, the learned lower appellate Judge has committed an error in holding that the charges under Sections 409 and 420 IPC against the revision petitioner/A1 were proved beyond reasonable doubt and in convicting the revision petitioner for the said offences holding him guilty of the said offences. As indicated supra, the charge against the revision petitioner for the offences under Sections 409 and 420 IPC have not been proved beyond reasonable doubt and there is also absence of proof of such charges even on preponderance of probabilities. Hence, this Court does have no hesitation in coming to the conclusion that the conviction of the revision petitioner for the offences punishable under Sections 409 and 420 IPC is erroneous and that the revision petitioner is entitled to be acquitted of all the offences with which he stood charged. 31. In the result, the Criminal Revision Case is allowed. The conviction of the revision petitioner/A-1 by the trial Court in C.C.No.223 of 2000, by its judgment dated 30.09.2004 for the offences punishable under Sections 120-B, 409 and 420 IPC which was confirmed by the lower appellate Court in C.A.No.230 of 2004, by its judgment, dated 31.01.2012 is set aside. The revision petitioner/A-1 is acquitted of all the offences with which he stood charged. The fine amount, if any, paid by him shall be refunded. As it is reported that the revision petitioner/A-1 is on bail, the bail bond shall stand cancelled.