G.N.RAY - (1.) ALL the aforesaid appeals were heard analogously because the criminal proceedings instituted against the appellants in these appeals, being the officers of the State Government of Andhra Pradesh and dealers of fertilizers in the State of Andhra Pradesh related to an alleged scandal in transporting imported fertilisers from the ports of Tamil Nadu and Andhra Pradesh to different destinations in the State of Andhra Pradesh. A tabular statement indicating the numbers of the appeals in this Court, corresponding numbers of the appeals in the Andhra Pradesh High Court and corresponding numbers of the criminal cases in the trial Court out of which the appeals in the High Court arose is given below : JUDGEMENT_333_SUPP3_1995Html1.htm
(2.) IT may be indicated here that the appellants in 11 appeals before this Court namely Criminal Appeals Nos. 308 to 317 of 1989 are the officers of the State Government of Andhra Pradesh and all the appellants in Criminal Appeals Nos. 163, 165,166, 184 and 185 are dealers in fertilisers and in Criminal Appeals Nos. 164 of 1994 some of the appellants are officers of the State Government and others are dealers. The Special Judge for Fertilizers Transport Case (AP) acquitted all the accused in the criminal cases instituted against the officers and dealers. But on appeals by the State of Andhra Pradesh, the High Court of Andhra Pradesh by the impugned Judgments reversed the orders of acquittal and convicted all the appellants. As the Criminal Appeal No. 310 of 1989 was taken up first for hearing and was argued at length as the main appeal and learned counsel appearing for the appellants in the other appeals supplemented the arguments by drawing attention of this Court to the special facts relating to such appeals, we propose to deal with the arguments advanced in Criminal Appeal No. 310 of 1989 at length. Criminal Appeal No. 310 of 1989 has been preferred by accused No. 2 District Agricultural Officer Nandiyal (DAO) and accused No. 3 Assistant Agricultural Officer Nandiyal (AAO). Accused No. 1 who was a dealer in fertilizer was also convicted by the High Court. Both A-2 and A-3 have been convicted by the High Court under Section 120B read with Section 420 Indian Penal Code and sentenced to pay a fine of Rs. 100.00 and in default to undergo rigorous imprisonment for one month. They were further convicted under Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act and sentenced to pay a fine of Rs. 100.00 and in default to undergo rigorous imprisonment for one month. They were also sentenced to imprisonment till the rising of the Court. The dealer accused No. 1 was however convicted under Section 477-A Indian Penal Code and was sentenced to pay a fine of Rs. 100.00 in default to undergo rigorous imprisonment for one month. He was also sentenced to detention till the rising of the Court. It may be indicated here that the Government Officers in the other appeals were sentenced similarly on similar evidence. Accordingly submissions on behalf of such appellants were also more or less on similar terms.
(3.) THE impugned judgments of the High Court reversing the orders of acquittal and convicting the appellants in these appeals have been assailed by the learned counsel for the appellants by contending that although an appellate Court has jurisdiction to interfere with the finding of fact and reverse such finding on proper appreciation of evidence adduced in the trial, as a rule of prudence, Court of appeal should not interfere with the order of acquittal if the trial court's reasoning for basing the order of acquittal are not perverse or against the weight of the evidence adduced in the case and the basis of judgment is founded on a reasoning which cannot be held to be one of the possible views which may be reasonably taken by the Court. THE learned counsel have submitted that the guidelines or the principles justifying interference by the Court of appeal against an order of acquittal have been well settled by a number of decisions of this Court indicating that rules of prudence dictate that unless a very strong case for interference against a well reasoned order of acquittal is made out, the Court of appeal will refrain from making its own assessment of the evidence for taking one of the possible views, different from the view taken by the trial Court. It has been submitted that although High Court has rightly pointed out the principle justifying interference against the order of acquittal it failed to appreciate the facts and circumstances of the cases and the evidences adduced in the trial and has reversed the decisions of the trial Court contrary to the well established principles justifying such interference. THE contention of the learned counsel appearing for the appellants in Criminal Appeal No. 310 of 1989 are to the following effect :- (a) THE High Court in this case has totally ignored the reasons given by the Trial Court and totally overlooked the several admissions made by the prosecution witnesses in their cross-examination which wholly demolishes the value of their evidence in examination-in-chief. Except discussing one aspect, namely that owners of the shops are competent witnesses to identify the handwriting of their clerks who made the entries in the account books, there is no discussion regarding several other reasons given by the Trial Court for not accepting the evidence of the prosecution witnesses. (b) THE High Court has gone by surmises. THE High Court has, in reversing the Trial Courts Judgment of acquittal nowhere found that on the evidence adduced the view taken by the trial Court could not have been taken. THE High Court, sitting in appeal, ought not to have reversed the acquittal without displacing the findings of the Trial Court merely because a different view was also possible. THE High Court has nowhere considered how the officers, A-2 and A-3, could be held guilty of conspiracy without a categorical finding that no fertilizer was received by the AAO (A-3). It has not adverted to the admissions made by the prosecution witnesses in their cross-examination which were referred to by the Trial Court for acquitting them. (c) THE High Court has failed to notice that not a single witness of the prosecution has stated that there was no stock of fertilizers on the day when it was recorded in the stock register by A-3. (d) THE High Court failed to see that up to the date of issuance of the impugned certificates, there was no obligation to verify the registration numbers of the trucks in which the fertilizers were transported. (e) THE High Court failed to consider that the District Agricultural Officer Nandiyal which is in Kurnool District, has neither jurisdiction nor the staff to monitor each lorry transporting fertilizers lifted from Kakinada port which is five districts away at a distance of nearly 600 kms. from his place of posting. He (A-2, DAO) was to take the certificate given by A-3 (AAO) and issue a certificate verifying the distance and reasonableness of rate after verifying the stock which he did. THEre is no evidence to the contrary. (f) THE High Court has erred in noting the DAO's (A-2) contention. It was never argued for A-2 that he had no obligation to verify the stock. (g) THE High Court failed to notice that there is an entry in the stock register of the respective stock on the particular day and A-(3) (AAO) gave the certificate. Prosecution has not examined any witness even to say that no truck came and no fertilizer was delivered to A-2 on that day. (h) No witness was examined to prove that on the day the entry was made, any inspection was done either on that day or within a reasonable time thereafter hold that no stock was received and certificate given by A-2 and A-3 are false. (i) No witness was examined to show that attempt was made to ascertain if any stock was in the godown contemporaneously with the date of the entry in the stock register or the issuance of the certificate; nor was there any specific complaint to this effect. No one was examined to prove that there was no stock on the relevant date. (j) THE High Court totally ignored the evidence of PWs. 13 and 15 who categorically stated that fertilizers were freely available in the market which fact was specifically referred to and relied upon by the Trial Court to acquit the appellant. With the limited jurisdiction of A-2 and A-3 they could only verify the stock brought to them and enter in the stock register. THEy had no machinery to verify whether it was the self same stock which was lifted by A-1 from Kakinada or some other stock. For that purpose A-2 was required only to verify the port documents showing lifting at this port. It is the admitted case of prosecution that Dealer A-1 did lift fertiliser from Kakinada. Hence some fertilizer was delivered to A-2. Even if it was not the same, A-2 and A-3 were bound to issue the certificates. Hence they cannot be held guilty. THEre is no evidence that fertilizer was not delivered at all. When fertilizers were freely available the dealers could even after selling away fertilizers lifted at port could very well have purchased fertilizers locally and delivered it to A-2. Unless this hypothesis, which is highly probable is excluded by positive evidence A-2 and A-3 cannot be found guilty. (k) THE trial Court further held that the alleged sales by dealer (A-1) at Bubbili and Sompeta was not established. THE trial Court also held that the identity of the fertilisers sold is not established. In the absence of such evidence, the trial Court refused to believe that the fertilisers were not transported from Kakinada to Allagadda in Kurnool District. Dealing with this aspect, the High Court has observed that the partner of the shop has been examined and in some cases clerk has been examined and acounts in which the sale transactions are entered are proved and hence sale by A-1 is proved. In coming to that conclusion, the High Court failed to notice that : (i) day books were not filed and only ledgers were filed. (ii) In the ledgers there is no entry of A-1 selling the fertilisers. (iii) THEre is also no entry to identify the fertilisers sold, nor even that it was imported fertiliser taken delivery of at Kakinada by A-1. THE day book in which such entries are said to have been made was not produced. (iv) That the registration number of trucks were not entered in the ledger and are said to have been entered in the day book but that day book was not produced. THE witnesses examined admitted that they did not travel in the trucks which transported the fertilizers purchased by them. (v) THE drivers were not examined. (vi) THE trip sheets of the trucks were not filed. A few filed are loose sheets. Witnesses admitted that they were not maintained for all trips. Referring to the decision in State of Kerala v. Thomas alias Boby, (1986(2) SCC 411) it was contended that trip sheets were not worthy of credence because loose sheets properly maintained and kept not in any book form, have no evidentiary value. No liability can be imposed on the basis of mere entry in the account books and such trip sheets. All these facts were taken note of by the trial Court in holding the sales not proved. (vii) THE High Court in reversing the findings has only made a general reference to the examination-in-chief of those witnesses and wholly ignored the damaging admissions made by each one of the witnesses in cross-examination. (viii) THE High Court has only pointed out that partners of the firm which purchased fertilisers were competent witnesses to identify the signature of the clerks who made these entries. That by itself does not establish the identity of the fertilisers lifted from Kakinada port nor does it establish that A-1 had sold those fertilisers. (ix) THE High Court has placed reliance on entries at the check posts. Judicial notice of the fact could be taken note of that for several trucks moving on road there are no entries in the check posts regions. When these fertilisers are admittedly not liable for sales tax, if no entries are made, no inference adverse to the accused could be drawn. (1) THE ingredients of the offences charged against the appellants have not been established for the following reasons : (a) A-2 and A-3 are charged with the offence of giving false certificates. For bringing home the charge of 120-B read with 420 against A-2 and A-3, the prosecution in this case must establish that they had conspired with A-1 to cheat. THEre is no direct evidence on this aspect. Of course, it can be established by circumstantial evidence. THE most essential ingredient of the offence of cheating is deceiving any person and inducing that person to deliver any property. In this case there is no proof of non delivery of fertiliser. THE certificate issued by A-2 and A-3, could be said to be false only if no fertiliser was received by A-3 and yet A-3 entered in the stock register and issued the certificate. THEre is no finding of the High Court that the stock of fertilisers was not received. It may be noted that there is no duty cast upon A-3 to certify that a particular type of fertiliser has been received or imported fertiliser has been received or the very same stock lifted from Kakinada port was received by him. A-3 was only to certify the quantity of fertiliser received. It was not within the power of A-3 to monitor the transport all the way from Kakinada to Allagadda over a distance of 600 kms. His jurisdiction is limited to one of the several talukas of the district while the fertiliser was to be transported over 5 districts. When fertiliser was freely available in the market, it may very well be that A-1 disposed of the fertiliser lifted from Kakinada at Kakinada or at any other place nearby, purchased other fertilisers freely available in the market and delivered to A-3 and A-3 who having received the same entered in the stock register and issued the certificate. THE certificate so issued could not be said to be false or given to deceive anyone unless it is established that no fertiliser at all was received on the particular day a certificate issued cannot be said to be false. THEre is no such evidence; hence A-3 cannot be held guilty. (b) A-2, DAO, issued certificate certifying the distance from Kakinada to Allagadda and the reasonable rate which could be paid per ton of fertiliser per km. It is not the case of the prosecution that the certificate of distance and reasonable price is false or untrue. THE case is that the fertilisers were not transported at all and that no fertiliser was received on the day when it was entered in the stock register. A-3 was to give the certificate certifying the distance and the rate for transport after verifying the stock after obtaining the certificate issued by A-3. If the certificate issued by A-3 is not false, as submitted above, when there is no evidence that DAO A-2 has not verified the stock, A-2 also cannot be held guilty. Even assuming that A-1 has disposed of the fertiliser lifted from Kakinada at any other place and did not actually transport it to Allagadda, so long as it is not established that on the day when the entry is made in the stock register, there was no stock received by A-3 neither A-2 nor A-3 can be held guilty. THE prosecution has failed to prove positively that there was no fertiliser on the relevant date. THE prosecution however wants the Court to draw an inference against the accused on the evidence of sale of certain fertilisers by A-1 the dealer, at some other place. THEre is no basis for such an inference especially when plenty of fertilisers were freely available in the market and even after disposing of the fertilisers at a different place, the dealer (A-1) could have purchased fertiliser from the nearby market and delivered the same to A-3. A certificate issued by A-3 on receiving such fertilisers cannot be said to be falsely issued with an intent to deceive the government to secure benefit for A-1. A-2 also could not therefore be found guilty. THE prosecution, however, says that in the circumstances only negative evidence could be adduced that fertiliser were disposed of elsewhere and positive evidence of fertiliser not having been delivered on the relevant date to A-3, could not be adduced. This contention cannot be accepted for several reasons. (i) THE evidence of anyone who inspected the godowns as they are expected to be inspected periodically could have been adduced. Not a single witness has been examined by the prosecution to prove this. (ii) Evidence of persons of the locality where the godown was situated could have been adduced to show that no trucks came and no fertilisers were received at that godown on that day or a day or two earlier or later. (iii) A-3 had certified that A-1 dealer has taken delivery at Kakinada as per port documents and that he has delivered certain quantity of fertiliser. (iv) THE conspiracy is said to be of the DAO (A-2) and AAO. (A-3) with the dealer (A-1). THE conspiracy is not between any officer above the level of DAO and yet none of those higher officers have been examined to show that in or about the relevant date, these fertilisers were not available in the godown. (v) While the offence is alleged to have taken place in October 1968. FIR was registered on 24-6-1970 and the charge sheet was laid in 1973. THE charge sheet does not say that any Officer higher in hierarchy to A-2 was involved. Yet none of them has been examined to prove that fertilisers were not in the godown on the day when they were purportedly received by A-2. It has been very strongly contended by the learned counsel for the appellant that the prosecution pleaded an excuse for not leading better evidence to establish all the ingredients of the offence on account of inordinate delay in making proper investigation and filing the charge sheet and contended that adverse inference should be drawn against the accused. The learned counsel for the appellants has contended that such contention being against all canons of criminal jurisprudence should not have been accepted by the Court. It was the unfailing obligation of the prosecution to lead convincing and unimpeachable evidence to prove the charges levelled against the accused. Failure of the prosecution to establish such charge for any reason whatsoever cannot but ensure to the benefit of the accused particularly when the delay in investigating the case and filing chargesheet was not attributable to the accused.;