Even if the allegations in the charge sheet and the documents filed in support of the charge sheet and statements of witnesses recorded by the investigating officer, are taken as true and correct at this stage, they would not prima facie disclose using of forged documents as genuine or the offence of cheating or about the criminal conspiracy. Now, can it be said that A.20 and A.21 vicariously responsible for the acts committed by their staff.
44. Vicarious liability is unknown to criminal law, unless statute specifically provides. The condition of mind of an employee is not imputed to the head of the staff so as to make him criminally liable. A.20 and A.21 are not criminally held liable merely because their subordinate staff committed mischief or malicious or fraudulent acts. However, to bring A.20 and A.21 under the purview of vicarious liability, it must be shown that the illegal acts committed by the staff were within the knowledge, or with the consent, of A.20 and A.21. There is no such allegation. Similarly, there were no other circumstances to infer that with the knowledge and consent of A.20 and A.21, the cheque petitions have been ordered, thereby causing loss to the Government exchequer to a tune of Rs. 3.00 crores and odd. Even the District Judge, who enquired into the subject matter, did not state anything about the officers, in the report dated 3.3.2006 submitted to the High Court. The report of the District Judge would go to show that after creation of fake judgments and decrees in several land acquisition cases, they allegedly introduced into the files of land acquisition officials so as to enable them to get necessary funds from the Government, and as and when such funds are released and deposited into the civil court, fake judgments and decrees were inserted into 26 O.P. records of Senior Civil Judge's Court, Karimnagar, and the deposits were withdrawn. The District Judge observed in his report that the two successive Senior Civil Judges had more than one occasion to go through on one and the same date, both the common and individual judgments, still the cheque petitions were ordered without raising any objection. Except making the observation that the two successive Senior Civil Judges had occasion to go through on one and the same date of both common and individual judgments of this Court, there is no other allegation against them that they did so knowingly or intentionally an illegal act. Inspite of an opportunity to notice the same, it may not be possible to notice inconsistency about the existence of common judgment of the same date of the same Judge in respect of same appeal, because they were filed at different dates, but not on the same day. Ultimately, the learned District Judge concluded that a full-fledged enquiry is needed.
Citation: 2009((2))ALT(Cri)161, 2009(2)ALT(Cri)161,2009 CRLJ 3406 SC
IN THE HIGH COURT OF ANDHRA PRADESH
Decided On: 24.03.2009
Appellants: K.V.V. Vijay Kumar
Vs.
Respondent: The State of A.P. rep. by its Public Prosecutor
Vs.
Respondent: The State of A.P. rep. by its Public Prosecutor
Hon'ble Judges/Coram:
K.C. Bhanu, J.
1. These criminal petitions are filed under Section 482 Cr.P.C. by A.20, A.21, A.13 and A.18 respectively, to quash the proceedings in C.C. No. 59 of 2007 on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad.
2. The Deputy Superintendent of Police, Crime Investigation Department (C.I.D.), Hyderabad laid charge sheet alleging that, it is a case relating to the offence of cheating, impersonation, screening of evidence, forgery, conspiracy to create fake appellate judgments and decrees of the High Court of Andhra Pradesh in land acquisition cases on the file of the Senior Civil Judge, Karimnagar relating to Hasnapur village for misappropriating an amount of Rs. 3.09 crores of Government money and for claiming compensation twice by some of the claimants/accused.
3. It is alleged that, A.1, who was working as Typist in Animal Husbandary Department, was the mastermind and instrumental in creation of fake appellate judgments/decrees and for swindling Government money with the connivance of the other accused working in the offices of the Special Deputy Collector, Land Acquisition, LMD, Karimnagar; Special Collector, Srisailam Sagar Project (for short, 'SRSP'), Tarnaka, Hyderabad; Senior Civil Judge's Court at Karimnagar, and Advocates and Government Pleader of Senior Civil Judge's Court, Karimnagar and the beneficiaries, who received the compensation on the basis of fake appellate court's judgments. The accused, knowing the High Court judgments to be fake, got filed cheque petitions and got swindled the Government money through the process of Court. The Special Collector, Land Acquisition, SRSP, SSP & JCR GLIP, Tarnaka, Hyderabad enquired into the news item relating to payment of compensation made basing on the fake appellate court's judgments/decrees and submitted a report to the Government. The Government, in turn, directed the Special Deputy Collector to lodge a complaint before the Additional Director General of Police, C.I.D., A.P., Hyderabad. Basing on the complaint lodged by him, case in crime No. 3 of 2006 was registered. As per the directions of the High Court of Andhra Pradesh, the then District Judge, Karimnagar verified the records of land acquisition cases in the Senior Civil Judge's Court, Karimnagar relating to Hasnapur village and submitted a report dated 3.3.2006 to the High Court of A.P. The High Court, as per the order in Writ Petition No. 11002 of 2006 filed by Registrar (Vigilance), directed the Crime Investigation Department to finalise the case as early as possible.
During the course of investigation, A.1 was arrested and on his confessional statement, Xerox copies of fake judgments in land acquisition cases were seized from his house in the presence of mediators. Thereafter, some of the accused were arrested. The typewriters and fake judgments seized by the investigating agency were sent to the Director of the Forensic Science Laboratory (for short, 'F.S.L.'), and the F.S.L., in its report, opined that the typewriter which was seized from the office of the Assistant Director, Animal Husbandry, Karimnagar, was used for typing fake judgments of the High Court of Andhra Pradesh. Therefore, fake appellate court's judgments typed by A.1, were used for processing land acquisition petitions with the connivance of A.2, A.5, A.6, A.12 to A.14, A.16, A.17, A.22 to A.24 and A.26, for claiming compensation by the beneficiaries/A.27 to A.52 of Hasnapur village causing financial loss to the Government.
On verification of the records and registers collected and seized during the course of investigation, from the office of the Special Deputy Collector, the Special Collector, SRSP, Tarnaka; the High Court of Andhra Pradesh; the Senior Civil Judge's Court, Karimnagar, it is established that, in 28 land acquisition cases relating to Hasnapur village, fake appellate judgments and decrees of the High Court were brought into existence by A.1 in conspiracy and with the connivance, of other accused, to claim compensation of Rs. 25,000/- per acre irrespective of category of the lands. In the said spurious judgments, it is mentioned that the appeals filed by the Land Acquisition Officers were dismissed and the cross-objections filed by the claimants for enhancement of compensation, were allowed. Creation of fake judgments was resorted to, by A.1 to swindle Government funds with the connivance of the other accused working in the office of the Special Deputy Collector; court of the Senior Civil Judge, Karimnagar; office of the Special Collector, SRSP and the High Court of A.P.
It is further alleged that, A.5, A.6, A.12, A.13 and A.14 processed the land acquisition cases in respect of Hasnapur village on the basis of fake judgments and circulated them to the office of the Special Collector, SRSP, Tarnaka, and A.16, A.17, A.22, A.23 and A24 working in the office of the Special Collector, in turn circulated the files to Government for sanction of compensation amounts to the claimants. Therefore, it is evident from the record that, the accused/government servants though committed criminal misconduct and abused/misused their official position causing financial loss to the Government resulting in pecuniary gain/advantage to A.1 and other beneficiaries/accused without any public interest. The material collected by the investigating officer establishes that A.1, A.4 to A.9, A.12, A.13, A.14, A.16, A.17, A.22, A.23, A.24, A.25 and A.26 have not only forged/fabricated the public records but also cheated the Government in collusion with the beneficiaries/accused with dishonest and fraudulent intention of causing wrongful loss to the Government exchequer. The charge sheet also contains the specific role played each of the accused.
4. The allegations against A.13, who is the petitioner in Criminal Petition No. 1408 of 2008, are that, he conspired with A.1 and other accused and processed land acquisition cases in the court of the Senior Civil Judge, Karimnagar pertaining to the Hasnapur village and facilitated misappropriation of Government money by the beneficiaries/accused, and when verified, Appeal numbers found in some of the fake judgments do not relate to the land acquisition O.Ps. of the Senior Civil Judge's Court, Karimnagar. A.13 alleged to have processed the following land acquisition cases for sanction of compensation claimed by the beneficiaries/accused.
Therefore, from the above tabular form, out of 10 files, appeals were preferred to the High Court in only two cases. Out of them, one case was dismissed for default, and in other case, judgment of the lower court was confirmed. In other seven cases, no appeals were preferred to the High Court either by the Land Acquisition Officer or the claimants. Appeal numbers found on the fake judgments pertain to the cases of other Districts. In one case, appeal number was not allotted by the High Court of A.P. during the relevant year. When the records were checked, it is found that, against the judgment in O.P. No. 526 of 1992, appeal was preferred by the Special Deputy Collector, Lower Moneru Dam (for short, 'LMD'), Karimnagar to the High Court of Andhra Pradesh and it was disposed of confirming the judgment of the trial Court. The same was processed and compensation was paid to the claimant.
5. Insofar as A.18, who is petitioner in Criminal Petition No. 8581 of 2008, is concerned, it is alleged that A.10 conspired and connived with A.1 and other accused and facilitated commission of the offence of cheating by the beneficiaries/accused, who filed cheque petitions with the connivance of A.15, A.18 and A.19, who are advocates, and abused/misused his official position. It is established that A.15, A.18 and A.19 who are from the same office, knowing fully well that no appeals were filed by either of the parties in seventeen Original Petitions, filed cheque petitions in the court with the connivance of A.10, beneficiaries and court staff, and facilitated the offence of cheating committed by beneficiaries/accused and became instrumental in fraudulent withdrawal of Government money, in several cases.
It is alleged that, A.18 filed cheque petitions in 22 cases basing on fake judgments of the High Court of A.P. though he knew fully well that either appeals by Land Acquisition Officer or cross-objections by the claimants, were not filed, facilitating the beneficiaries/accused to withdraw compensation of Rs. 25,000/- per acre. It is alleged that, he identified the beneficiary and got the cheque of Rs. 13,40,837/- issued by the Court, and also dishonestly filed another cheque petition on behalf of the claimant and paved way for payment of compensation twice causing loss to the Government. It is further alleged that, he filed a cheque petition in O.P. No. 983 of 1982 and received cheque through Court. Suppressing the said fact, he again filed another cheque petition for the same beneficiary and got payment of compensation.
6. Insofar as A.20, who is petitioner in Criminal Petition No. 7821 of 2008, is concerned, it is alleged that, he acted upon false notings/endorsements made by the court staff A.7 to A.9 on the cheque petitions in the land acquisition cases shown below, and allowed them, causing financial loss to the Government. When verified, Appeals found in some of the fake judgments do not relate to the land acquisition cases in the Court.
In O.P. No. 983 of 1982, payments were made to the claimants earlier, but the same file was again processed by A.11 in conspiracy and with the connivance of A.1 and the court staff and advocate, and a cheque petition was filed, which was ordered by A.20 resulting in payment of compensation twice to the claimant. Therefore, the allegation is that, A.20 acted upon the false notings/endorsements made by the court staff and allowed the cheque petitions causing financial loss to the Government to a tune of Rs. 1,57,10,361/-.
7. Insofar as A.21, who is petitioner in Criminal Petition No. 628 of 2008, is concerned, it is alleged that he acted upon false notings/endorsements made by the court staff A.7 to A.9 on the cheque petitions in land acquisition cases and ordered cheque petitions in favour of the claimants/accused causing financial loss to the Government. The cases in which the cheque petitions were ordered by A.20 are as follows:
Out of the above 11 land acquisition cases, appeals were preferred to High Court of Andhra Pradesh, only in 9 cases, and out of the them, six appeals were disposed of with partial enhancement not to the extent of Rs. 25,000/- per acre, two cases were dismissed for default, and in one case, judgment of the lower court was confirmed by the High Court. In the remaining two cases, no appeals were preferred to the High Court either by the Land Acquisition Officer or by the claimants.
When cross checked, the records of O.P. Nos. 617 of 1982, 574 of 1982 and 561 of 1983 in the office of the Special Collector, Tarnaka, Hyderabad, it revealed that appeals were preferred and disposed of by the High Court long back with partial enhancement. Judgment copies in the above petitions were received by the office of the Senior Civil Judge, but, without verification of the case records, A21 acted negligently without due care and caution and allowed the cheque petitions filed by the claimants. Therefore, investigation made by the C.I.D. and the documents collected from the High Court of Andhra Pradesh, established that A.21 is guilty of the omissions and commissions while passing orders on the cheque petitions filed by the claimants/accused and that, he acted upon false notings/endorsements made by the court staff and allowed the cheque petitions causing financial loss to a tune of Rs. 1,23,00,492/- to the Government.
8. Therefore, from the investigation made by C.I.D. and the documents collected by it, it is found that various serious omissions and commissions, as detailed hereunder, were committed by A.20, A.21, A.7 to A.9-court staff, and A.10-Government Pleader.
a) Failed to detect fake judgments, when they contained embossed seal of the High Court of A.P. and stamp of copyist department (original judgment contains only the embossed seal and certified copy contains the copy stamp and the details of delivery).b) If appeals in land acquisition cases were filed, the concerned records have to be forwarded to the High Court and after disposal, the High Court of A.P. would return them along with the copy of judgment, with embossed seal and not with stamp of copyist department. Thus, they failed to verify their own Court records before scrutinizing and considering the cheque petitions.c) They ignored the notorious and glaring circumstances of existence of common and individual Judgment, of same date by the very same Hon'ble Judges in one and the same appeal.d) In spite of an anonymous complaint alleging mischief in these cases, Sri Abbulu (A.21) did not act prudently but acted negligently and allowed the cheque petitions and issued cheques to the beneficiaries/accused without probing into the contents of the complaint.
9. The offences alleged against A.13 are under Sections 120B, 201, 466, 468, 471 & 420 r/w. 109 I.P.C. and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988.
The offences alleged against A.18 are under Sections 120B, 471, 201, 419, and 420 read with 109 I.P.C.
The offences alleged against A.20 and A.21 are Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 and Section 471, 420 read with 120B I.P.C.
10. To quash the same, the present Criminal Petitions are filed by the respective accused.
11. The learned senior Counsel Sri C. Padmanabha Reddy, appearing for A.13, A.20 and A.21 contended that, there is no allegation that the petitioners conspired with any other accused and that even the investigation and charge sheet allegations disclose that, beneficiaries/accused A.27 to A.52 had intentionally conspired and connived with other accused, but not A.20 and A.21, and filed applications making false declaration about sanction of decreetal amount. Insofar as A.20 and A.21 are concerned, the learned senior Counsel contended that there was no occasion for A.20 and A.21 to know that the claim was bogus and the judgments of the High Court were bogus; that, there was no allegation that there was misconduct on the part of the petitioners in passing the orders on the cheque petitions; that, on the other hand, the allegations in the charge sheet would reveal that A.20 and A.21 acted upon the false notings/endorsements made by court staff (A.7 to A.9) on the cheque petitions and therefore even if the allegations are taken as true and correct, they do not make out a prima facie case and hence, continuation of the proceedings against A.20 and A.21 is nothing but abuse of process of Court.
12. In respect of A.13, the learned senior Counsel contended that, an enquiry was conducted by the Special Collector, Land Acquisition, SRSP and he submitted a report on 4.11.2006 to fix up the responsibility and during the enquiry some files were found tampered by G. Laxmi Narayana, Senior Assistant and due to the tampering of the records, no one from the hierarchy could point out double payment and therefore the said Laxmi Narayana, who deliberately misled the higher authorities by removing papers from the file, was responsible for the double payment; therefore, A.13 cannot be held responsible for the illegalities committed by his subordinate staff; that, there is no material on record which would go to show that A.13 conspired with subordinate staff in creating false documents and processed for payments in pursuance of the fake judgments. Hence, he prayed to quash the impugned proceedings insofar A.13 is concerned.
13. The learned Counsel Sri Venkat Reddy Donthi Reddy, appearing for A.18 contended that, A.18 was not aware of the fake judgments and there is no allegation that he conspired with other accused in filing the fake judgments or that there is conspiracy between this accused and other accused, so as to cause financial loss to the Government exchequer. Hence, he prayed to quash the impugned proceedings against A.18.
14. On the other hand, the learned Public Prosecutor contended that, the material collected by the investigating agency would clearly disclose that A.1, with the connivance of other staff working in the revenue department and A.20 and A.21 and their staff, caused financial loss to the Government to a tune of Rs. 3.00 crores and odd. It is his specific contention that, A.13 along with other accused not only forged and created the public records but also cheated the Government in collusion with the beneficiaries. He further contended that, A.13 processed 10 cases relating to land acquisition for sanction of compensation claimed by beneficiaries/accused and he conspired with A.1 and other accused and facilitated commission of the offence.
15. In respect of A.18, the learned Public Prosecutor contended that the material collected during the course of investigation would clearly establish that A.18 along with A.15 and A.19 filed cheque petitions in 22 cases basing on fake judgments knowingly fully well that no appeals were preferred by either the Land Acquisition Officer or the claimants, and he identified the beneficiary and got the cheque in O.P. No. 983 of 1982, and that, with dishonest intention, he filed another cheque petition again, and therefore, prima facie, case is made out against A.18 for the offences alleged against him.
16. The contention of the learned Public Prosecutor with regard to A.20 and A.21 are concerned, is that they acted upon false notings/endorsements made by the court staff and allowed cheque petitions causing financial loss to a tune of Rs. 3.00 crores and odd to the government exchequer and they have not verified the cheque petitions properly; that, it can be inferred that they have connived with the court staff in causing loss to the Government and they failed to detect the fake judgments and failed to verify the court records before scrutinizing and considering the cheque petitions. He further contended that, inspite of anonymous complaint lodged alleging mischief, A.21 did not act prudently, but acted negligently and allowed the cheque petitions, and therefore there are no grounds to quash the impugned proceedings against A.20 and A.21. Hence, he prayed to dismiss the Criminal Petitions.
17. There cannot be any dispute that, inherent powers under Section 482 Cr.P.C. can be exercised to prevent abuse of process of Court or to secure ends of justice or to give effect to any order passed under this Code. When the allegations in the complaint do not make out a prima facie case for the offences alleged, then only question of quashing the complaint would arise. It is also well settled that, when a prima facie cognizable offence is made out, it is the statutory duty of police to conduct investigation, and the same cannot be curtailed.
18. Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, reads thus:
A public servant is said to commit the offence of criminal misconduct,(d) if he,-(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
19. Section 120B I.P.C. prescribes punishment for the offence of criminal conspiracy. The necessary ingredients to constitute the offence of criminal conspiracy are as follows:
a) Two or more persons agree to do or cause to be done an act;b) The act agreed must be(i) an illegal act, or,(ii)an act which is not illegal but is done by illegal meansc) If the agreement is not to commit an offence then some act besides the agreement is-(i) by one or more parties to such agreement(ii) in pursuance of the agreement.
20. Section 109 I.P.C. deals with punishment for abetment. The necessary ingredients of the offence of 'abetment' as defined under Section 107 I.P.C., are as follows:
A person abets of doing of a thing who-(a) instigates any person to do that thing; or(b) engages with one or more persons in any conspiracy for the doing of that thing provided an illegal act or omission takes place-(i) in pursuance of that conspiracy, and(ii) in order to the doing of that thing; or(c) intentionally aids, by any illegal act or omission, the doing of that thing.
21. Section 201 deals with causing disappearance of evidence of offence, or giving false information to screen offender.
22. The necessary ingredients of the offence of 'Forgery' as defined under Section 464 I.P.C. are as follows:
(a) A person makes any false document or part of a document.(b) His intention is-(i) to cause damage or injury to the public or to any person, or(ii) to support any claim or title, or(iii) to cause any person to part with property, or(iv) to enter into any express or implied contract, or(v) to commit any fraud or that fraud may be committed.
Section 466 I.P.C. deals with forgery of record of Court or of public register, etc. Section 468 I.P.C. deals with forgery for the purpose of cheating. Section 471 deals with using as genuine a forged document.
23. The offence of cheating is defined under Section 415 I.P.C., which reads thus:
(a) A person deceives any person(b) He fraudulently or dishonestly induces the person so deceived-(i) to deliver any property to any person, or(ii) to consent that any person shall retain any property or(c) He intentionally induces the person so deceived to do or omit anything which he would not do or omit if not deceived and which act etc., causes or is likely to cause damage or harm to that person.
Section 419 I.P.C. provides punishment for cheating by personation. Section 420 I.P.C. deals with cheating and dishonestly inducing delivery of property.
24. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention can be inferred from the facts and circumstances of each case. To establish the charge under Section 420 I.P.C., it must be proved not only that he has cheated someone, but also that by doing so, he has dishonestly induced the person who was cheated to deliver any property, etc. A person can be said to have done a thing dishonestly, if he does so with an intention of causing wrongful gain to one person and wrongful loss to another person. Wrongful loss means loss of property to which a person is entitled to, while wrongful gain to a person means, gain to him by unlawful means of property to which the said person gaining is not legally entitled. To constitute the offence of cheating, it is not necessary to prove both wrongful gain and wrongful loss. It is enough to establish existence of either of them. Mens rea is an essential ingredient of the offence of cheating. Dishonest concealment of a fact is deception within the meaning of Section 415 I.P.C.
25. Insofar as A.18, who is petitioner in Criminal Petition No. 8581 of 2008, is concerned, the offences alleged against A.18 are under Sections 120B,471, 201, 419, and 420 read with 109 I.P.C. It is alleged that he filed cheque petitions in 22 cases basing on fake judgments of the High Court of Andhra Pradesh in respect of land acquisition cases knowing fully well that no appeals have been filed by either the Land Acquisition Officer or the claimant, and thereby facilitated the beneficiaries/accused to withdraw compensation of Rs. 25,000/- per acre. It is further alleged that, A.18 filed the cheque petition in O.P. No. 983 of 1982, duly identifying the beneficiary and got the cheque bearing No. 899423, dated 5.12.1997 issued of Rs. 13,40,837/- by the Court. He dishonestly filed another cheque petition on behalf of the same claimant/accused in I.A. No. 1169 of 2002 dated 1.12.2002 and paved the way for payment of the compensation twice, causing huge loss to the Government.
26. It is specifically alleged that A.10 conspired and connived with A.1 and got filed cheque petitions through A.18 causing loss to a tune of Rs. 2,96,67,992/- to the Government exchequer. It is further alleged that, A.18 knowing fully well that no appeals were filed by either of the parties in seventeen land acquisition cases, filed applications in the Court of the Senior Civil Judge, Karimnagar with the connivance of A.10, the beneficiaries and the Court staff, and committed the offence of cheating and became instrumental in fraudulent withdrawal of the Government money through process of court.
27. A.18, being an Advocate for some of the claimants, would be in a position to know whether any appeals were filed before the High Court. In one case viz. O.P. No. 983 of 1982, having suppressed the factum of receiving of cheque towards compensation, he again filed another cheque petition on behalf of the same person. Unless A.18 connived with A.1 and A.10, he would not have filed the second cheque application for the amount already received. Therefore, there is prima facie material to show that A.18 connived with A.1 and A.10 and he filed cheque petitions in twenty two cases, knowing fully well that no appeals have been filed before the High Court of A.P. by either of the parties. A prima facie case for the offences of conspiracy with A.1 and A.10 and cheating, has been made out insofar as A.18 is concerned. Similarly, a prima facie case is made out with regard to abetment or using forged document as genuine for gaining benefit. Therefore, in view of the fact that the allegations in the charge sheet and statements of witnesses coupled with the material collected by the investigating agency, would clearly establish a prima facie case against A.18 for the offences alleged against him. Hence, the question of quashing the complaint insofar as A.18 is concerned, does not arise. Hence, Criminal Petition No. 8581 of 2008 is liable to be dismissed.
28. Coming to A.13, who is petitioner in Criminal Petition No. 1408 of 2008, is concerned, the offences alleged against A.13 are under Sections 120B,201, 466, 468, 471 & 420 r/w. 109 I.P.C. and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988. A.13 was working as Special Deputy Collector, Land Acquisition, Karimnagar at the relevant period of offence. It is alleged that, he conspired with A.1 and other accused and processed land acquisition cases of the Senior Civil Judge's Court, Karimnagar; that, he processed ten cases for sanction of compensation claimed by beneficiaries/accused, but, out of the ten cases, in seven cases, no appeals were preferred; that, in respect of O.P. No. 526 of 1992, the appeal preferred has been disposed of confirming the judgment of the lower court, and the same was processed and compensation was already paid to the claimant; that, suppressing that fact, A.13 again processed the same file, inserting fake judgment and facilitated payment of compensation twice to the claimant/accused, and thereby caused loss to the Government to a tune of Rs. 1,14,60,061/-.
29. As seen from the allegations in the charge sheet, there is absolutely no allegation against A.13 to show that he conspired and connived with A.1 or with any other accused. The conspiracy alleged against A.13 is based upon no material collected by the investigating agency, except mentioning that A.13 connived with A.1.
30. There cannot be any dispute that, criminal conspiracy postulates an agreement between two or more persons to do or caused to be done, an illegal act, or an act, which is not illegal, by illegal means. Agreement is gist of offence of conspiracy. Since it is impossible to adduce direct evidence to prove conspiracy, the offence can also be proved largely from the inferences drawn from the acts or the alleged omissions committed by the conspirators in pursuance of the common design. Once such conspiracy is proved, the act of one conspirator becomes the act of another. Now, it has to be seen whether there are any acts or illegal omissions, so as to infer that there was conspiracy between A.13 and A.1 or some other accused.
31. There is no material to show that A.1 and A.13 met together prior to producing the fake documents or that A.13 was seen with A.1 while processing the files or that he inserted the fake judgments in any one of the land acquisition cases. Except alleging that A.13 conspired and connived with A.1 and other accused and thereby facilitated commission of offence of cheating and caused loss to the Government to a tune of Rs. 1,14,60,061/-, there are no other circumstances to infer how A.13 conspired and connived with A.1.
32. The other allegation against A.13 is that, though the compensation was already paid to the claimants in O.P No. 526 of 1992, A.13 suppressed the fact and again processed the file for payment of compensation twice by inserting fake judgment. It is not in dispute that the Government, vide memo dated 16.4.2007, requested the Special Collector, SRSP Project, to enquire as to the involvement of A.13 with regard to forgery of High Court judgments and with regard to double payment. The Special Collector, after conducting enquiry, submitted a report in May, 2007, fixing responsibility on A.5 and A.6 alone, and that basing on the notes put up by them, A.13 processed the file. There is absolutely no allegation that the A.13 was in any way responsible for fabrication or creation of any documents or judgments of the High Court. A.13 was holding the additional charge of the post of the Special Deputy Collector at the relevant point of time of the incident. Therefore, the allegations in the charge sheet, even if accepted as true and correct, at best, they may amount negligence in discharge of his duties. The report submitted by the Special Collector in the month of May, 2007 shows that, the preliminary investigation conducted by him would reveal that the involvement of lower level staff was suspected, and with regard to double payments, one G. Laxmi Narayana, Senior Assistant was responsible for the double payments and he misled the higher officials intentionally and deliberately by removing sanction orders from the file by tampering the relevant records. Therefore, when the departmental officials conducted enquiry, it clearly revealed that the Senior Assistant tampered the records and intentionally misled the higher officials.
33. The relevant portion of the report dated 4.11.2006 submitted reads by the Special Collector (Land Acquisition), SRSP, Tarnaka, Hydeabad, reads thus:
As such, the proposals for sanction of decretal amount were submitted to this office by the then Section Asst. (G. Laxmi Narayana) as reported by the SDC vide his letter No. E/1315/05, Dt. 20.10.2006 is intentionally and deliberately mis-leading the higher authorities by removing the papers from the file through which the sanction and deposit of decretal amount was made first time and by tampering the other records such as Cash Book, etc. and also by not complying the endorsement of SDC to verify about the part amount deposited previously. Hence, he is the only responsible person for double payment and to the Dist. Collector, Karimnagar is being addressed to initiate disciplinary action against him under CCA rules, as the District Collector is appointing authority and competent for taking department action against the concerned, besides, initiating action for recovering of double paid amount under RR Act. The Department action shall be initiated without prejudicious to the investigation by the C.I.D.
The enquiry conducted by the Special Collector, Land Acquisition is a detailed enquiry pertaining to the records of the office of A.13.
34. The illegalities allegedly committed by A.13 are that he along with others inserted fake judgments and they failed to cross-check the relevant records and that the accused had knowledge about the fake judgments. There is no other material collected by the investigating agency to show that A.13 had connivance with A.1 or some other accused in inserting fake judgments in the file and knowing fully well about the fake judgments, he processed the file for release of the amount from the Government. There is absolutely no material to infer that A.13 had knowledge about the fake judgments and knowing fully well that the judgments are fake, he processed the file. Similarly, there is no allegation that the fake judgments were typed in the office of A.13. On the other hand, the type-writer from the office of the Assistant Director, Animal Husbandary, Karimnagar, and another from Vidyarthi Type-writing Institute, Karimnagar, allegedly used by A.1 for typing the fake judgments, were seized. Another type-writer was seized from the court of the Senior Civil Judge, Karimnagar by police during the course of investigation. The Forensic Science Laboratory opined that the typewriter, which was seized from the office of the Assistant Director, Animal Husbandary, Karimnagar was used for typing the fake judgments of the High Court of A.P. Except the allegation in the charge sheet that the fake judgments, which were typed by A.1, were used for processing the land acquisition petition with the connivance of A.13, there is no other material to infer that A.13 had connivance and conspiracy with A.1. The allegation in the charge sheet would go to show that creation of the fake judgment was resorted to, by A.1 to swindle funds with the connivance of other accused working in the office of the Special Deputy Collector; court of the Senior Civil Judge, Karimnagar; office of the Special Collector, SRSP; High Court of A.P., but not with the present petitioner, who was admittedly Special Deputy Collector, in- charge of SRSP at the relevant point of time of the incident.
35. No doubt, under Article 5 of the A.P. Finance Code, the fact that a Government servant has been misled or deceived by a subordinate will in no way mitigate his personal responsibility, since every Government servant should be familiar with the financial rules laid down by the Government and exercise a specially strict and close control over his subordinates, in regard to the use of public funds and the maintenance of proper accounts.
36. Similarly, under Article 273 of the same Code, the Government will hold a Government servant personally responsible for any loss sustained by the Government through fraud or negligence on his part and also for any loss sustained through fraud or negligence on the part of the Government servant to the extent to which it may be shown that he contributed to the loss by his own action or negligence.
37. Therefore, a Government servant should exercise due diligence and care in respect of all expenditure from the public funds under his control as a person of ordinary prudence. It cannot be said that there was negligence or fraud committed by A.13 because the factum of issuance of earlier cheque was suppressed by one of his staff members and the records were tampered with. When the record is tampered with, by removing the relevant file, it may not be possible for A.13 to know about issuance of the cheque on earlier occasion. Though, at best, it can be said that A.13 has violated Article 5 of the Finance Code, because even if the subordinate staff deceived him it will no way mitigate his personal responsibility, but that does not mean that he can be prosecuted for the offences under the Indian Penal Code. Therefore, the allegations against A.13, even if taken as true and correct, they do not reveal about cheating or using of forged document or criminal conspiracy with the other accused or screening of evidence or abetment. Hence, continuation of the proceedings against A.13 is nothing abuse of process of Court, and the same are liable to be quashed.
38. Coming to A.20 and A.21, who are petitioners in Criminal Petition Nos. 7821 of 2007 and 628 of 2008 respectively, they worked as Senior Civil Judges, Karimnagar during the relevant period of time. The allegations in the charge sheet would go to show that they have acted upon the false notings/endorsements made by the court staff and allowed cheque petitions causing financial loss to the Government exchequer. The offences alleged against these two accused are under Sections 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, and Section 471, 420 read with 120B I.P.C.
39. As regards the offence under Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988, there is no allegation that A.20 and A.21 abused or misused their office. There is also no allegation that they obtained, by abusing their position for themselves or any other person, any valuables or pecuniary advantage. The allegation is that they acted upon the false notings/endorsements made by court staff. There is no allegation that they connived with the court staff viz. A.7 to A.9, so as to cause pecuniary advantage to the claimants. Therefore, there is absolutely no material to show that a prima facie case for the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988, is made out against A.20 and A.21.
40. The other offence alleged against A.20 and A.21 is punishable under Section 471 I.P.C. i.e. using as genuine a forged document. Whoever fraudulently or dishonestly uses a genuine any document which he knows or has reason to believe to be a forged document, comes within the mischief under Section 471 I.P.C. There is no allegation that these accused fraudulently or dishonestly used as genuine any document which they knew or has reason to believe that it is a forged document. The allegation is that, they failed to detect the fake documents and they failed to verify their own court records before scrutinizing and considering the cheque petitions and that they also ignored the notorious and glaring circumstance of existence of common and individual judgment of same date by the very same judges in one and the same appeal.
41. When a cheque application is filed into court, concerned bench clerk will process the same and after calling for the records from the Record Room and the judgment of the appellate court, if any, and considering the factum of depositing any amount to the credit of the petition and obtaining endorsement from the concerned Accountant, and after hearing the Government Pleader, normally the petition will be ordered. When the fake judgments were produced, they look and appear to be genuine one to the naked eye. Therefore, at no point of time, an occasion arose for these two officers to doubt the judgments of the High Court as fake or forged. As a Senior Civil Judge, number of applications and number of cheque petitions would be filed before him. Unless the concerned scrutiny staff of the Court brings to the notice of the officer, it may not be possible for the officer to doubt the genuineness or otherwise of the judgment of the High Court. Therefore, a prima facie case for the offence under Section 471 I.P.C. has not been made out against the A.20 and A.21, even if the entire allegations in the charge sheet are taken as true and correct.
42. Coming to the offence under Section 420 I.P.C., if the two officers have done an act or thing dishonestly with an intention to cause wrongful gain to one person or wrongful loss to another person, then the offence of cheating can be said to be prima facie committed . Some of the beneficiaries gained wrongfully by virtue of the fake judgments, thereby causing wrongful financial loss to the Government. There cannot be any dispute that, mens rea is an essential ingredient of the offence of cheating. An act does not make a criminal unless there be also a criminal intention. The essence of a crime is the felonious or criminal intention with which the act has been committed. What would be criminal if the intention was present, might not be so if that intention did not exist. External acts reveal the internal secret purpose, or more shortly, the acts indicate the intention. Intention in a case can mainly be inferred from the acts of the person committing the crime. Therefore, to make A.20 and A.21 criminally responsible for an offence committed by an employee or some staff members, it must be shown that there has been some act or illegal omission on the part of the officers whereby they shared common intention to commit an offence or they had conspired with them or they shared common object in committing the offence. These two officers cannot be held criminally responsible for the acts of their staff unless those acts can be shown to have been done with their connivance or under their authority. There is no material on record or circumstances to infer that these two officers can be held responsible for the acts committed by their staff. There is no allegation that these two officers connived with the staff or that the illegal acts committed by the staff are within the knowledge of these two offices, or that, with their consent, the staff committed illegal acts or omissions.
43. Even if the allegations in the charge sheet and the documents filed in support of the charge sheet and statements of witnesses recorded by the investigating officer, are taken as true and correct at this stage, they would not prima facie disclose using of forged documents as genuine or the offence of cheating or about the criminal conspiracy. Now, can it be said that A.20 and A.21 vicariously responsible for the acts committed by their staff.
44. Vicarious liability is unknown to criminal law, unless statute specifically provides. The condition of mind of an employee is not imputed to the head of the staff so as to make him criminally liable. A.20 and A.21 are not criminally held liable merely because their subordinate staff committed mischief or malicious or fraudulent acts. However, to bring A.20 and A.21 under the purview of vicarious liability, it must be shown that the illegal acts committed by the staff were within the knowledge, or with the consent, of A.20 and A.21. There is no such allegation. Similarly, there were no other circumstances to infer that with the knowledge and consent of A.20 and A.21, the cheque petitions have been ordered, thereby causing loss to the Government exchequer to a tune of Rs. 3.00 crores and odd. Even the District Judge, who enquired into the subject matter, did not state anything about the officers, in the report dated 3.3.2006 submitted to the High Court. The report of the District Judge would go to show that after creation of fake judgments and decrees in several land acquisition cases, they allegedly introduced into the files of land acquisition officials so as to enable them to get necessary funds from the Government, and as and when such funds are released and deposited into the civil court, fake judgments and decrees were inserted into 26 O.P. records of Senior Civil Judge's Court, Karimnagar, and the deposits were withdrawn. The District Judge observed in his report that the two successive Senior Civil Judges had more than one occasion to go through on one and the same date, both the common and individual judgments, still the cheque petitions were ordered without raising any objection. Except making the observation that the two successive Senior Civil Judges had occasion to go through on one and the same date of both common and individual judgments of this Court, there is no other allegation against them that they did so knowingly or intentionally an illegal act. Inspite of an opportunity to notice the same, it may not be possible to notice inconsistency about the existence of common judgment of the same date of the same Judge in respect of same appeal, because they were filed at different dates, but not on the same day. Ultimately, the learned District Judge concluded that a full-fledged enquiry is needed.
45. As a matter of fact, the District Judge was examined as P.W.1 in the regular departmental enquiry against A.20, A.21 and other staff members, in RoC 1908/2005-Vigilance Cell, wherein he categorically admitted as follows:
Only the details with regard to previous payments made to claimant in a particular OP are brought to the notice of the Presiding Officer of the Court, it will not be possible for the Presiding Officer to know about the earlier payments. It is true that in I.A. 1169 of 2002 in O.P. 983 of 1982 no mention is made in the office note about earlier payment. It is true that in view of absence of either a cheque petition or D-Form in respect of earlier payments, it is not possible for the Presiding Officer to know about earlier payments.
46. Therefore, it may not be possible for the Presiding Officer to know about the earlier payments made to the claimants, unless the office note is made available the previous record with regard to the earlier payments. A.20 and A.21 became the victims of the acts of the subordinate staff working in the Court and staff members who were dealing with the branch of land acquisition cases with regard to issuance of the cheques.
47. It is not in dispute before this Court that whenever a cheque petition is filed in the office, it will be placed before the Presiding Officer along with an office note. The office note is for the purpose of assisting the Presiding Officer and if there are any objections they will be mentioned in the office note. Admittedly, the office has not raised any objection with regard to the amount paid to the claimant. After the concerned clerk put up the office note, it will go to the Chief Ministerial Officer and after checking the Head Clerk of the Court will certify about the deposit of the amount giving details of the date on which amounts are deposited to the credit of respective petitions. After the endorsement of the Head Clerk, the cheque petitions will be placed before the Presiding Officer. The office note and the cheque petition reveal that the notice was given to the Government Pleader. Admittedly, there was endorsement on the cheque petitions that the concerned petitioner was present and verified and issued the cross cheque accordingly. Similarly, in the office note of the two cheque petitions, it would show about the existence of two appeal judgments in the case.
48. Admittedly, L.W.10-the District Judge did not make any enquiry as to whether there was any collusion between the Presiding Officers and the staff. He also stated that the Presiding Officer is not expected to function with premonition that there is likelihood of fraud, and all the cheque petitions were filed after deposit of the cheques, but prior to their adjustment. At the time of ordering the cheque petitions, the amounts were lying to the credit of the respective original petitions. Even the statement of L.W.10-the District Judge, would not reveal that A.20 and A.21 connived with the court staff in ordering the cheque petitions or that knowing fully well about the filing of the fake judgments, they ordered the cheque petitions. Similarly, his report dated 3.3.2006, even if taken as true and correct, at this stage, no prima facie offence of cheating or conspiracy or using a forged document as genuine, is made out against A.20 and A.21. Similarly, the report does not show that the illegal acts of the staff were done with the co-operation of A.20 and A.21 or under their authority or knowledge or consent. Even the officer, who conducted the preliminary enquiry, noticed the mischief played by staff members in the court of the Senior Civil Judge, Karimnagar. No witnesses stated before the police about the alleged illegal acts or commissions committed by A.20 and A.21.
49. Further allegation against A.21 is that he received anonymous complaint and inspite of the same, cheque petitions were ordered by him. It is not in dispute that A.21 was on leave from 6.2.2005 to 8.3.2005. During the said period, the Senior Civil Judge, Peddapalli was kept full additional charge of the post of the Senior Civil Judge, Karimnagar. On 9.2.2005, nine cheque petitions were ordered. Likewise, on 23.2.2005, he ordered cheque petitions in four cases. On 23.2.2005, while directing issuance of cheques in three cases, it was further directed that the matter may be placed before the regular officer. Thereafter, A.21, on return from leave on 9.3.2005, directed to issue cheques as per the orders of the in-charge Senior Civil Judge. No doubt, on 9.2.2005, in eight cases, cheques prepared by the office, were ordered to be cancelled in view of the anonymous complaint against issuance of the cheques. Thereafter, when A.21 returned from leave, the cheque petitions were placed before him and he directed issuance of the cheques as ordered by the in-charge Senior Civil Judge. Therefore, it cannot be said that, knowingly he ordered for issuance of the cheques. There is no occasion for him to verify the truth or otherwise of the judgments because by the date of issuance of the cheques, the cheque petitions were already ordered by the in-charge Senior Civil Judge, Peddapally.
50. Even if the uncontroverted allegations in the charge sheet and the statements of witnesses recorded by police during the course of investigation and the documents relied on by the prosecution, do not make out a prima facie case which appears to be sufficient to establish offences alleged against A.20 and A.21. From the above discussion and as per the material on record, it can be said that for the mischief played by court staff, A.20 and A.21 became scapegoats. In view of the foregoing discussion, continuation of the impugned proceedings against A.20 and A.21 is nothing but abuse of process of Court.
51. In the result, Criminal Petition Nos. 7821 of 2007, 628 of 2008 and 1408 of 2008, are allowed, quashing the proceedings in C.C. No. 59 of 2007 on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad, insofar as A.20, A.21 and A.13 are concerned. Criminal Petition No. 8581 of 2008 filed by A.18, is dismissed.
No comments:
Post a Comment