The State Of Maharashtra vs Santoshkumar Avatarkrushna Kaul & Ors.

. The appellant-state has preferred this appeal against the present respondents, who are the original accused Nos.1 to 4 and 6 to 9. Though one Mr. Kamlakar Avdut Patil was also one of the accused, but he died during the pendency of this appeal. The other original accused Nos.5, 10, 13, 15, 16 and 17 had also died during the pendency of trial. The original accused No. 14 was found absconding and the accused No.11 was found to be a fictitious person.

The appellant-state has challenged the acquittal of the accused-respondents for the offences punishable under Sections 420, 409, 467, 468, 471, 477-A, and 120-B read with Section 34, 109 of Indian Penal Code and also under Sections 13(1)(c)(d) read with Section 13(2) of the Prevention of Corruption Act, under the

judgment and order dated 03/08/2018 in Special (ACB) Case No. 5 of 1999, passed by the learned Additional Session Judge, Jalgaon, (hereinafter referred to as the “ learned Trail Judge”).

On going through the impugned judgment, it appears that the allegations against all the respondents-accused are that they conspired with each other to misappropriate funds of Zilla Parishad, Jalgaon by showing fake and bogus additional water supply scheme work in six villages, namely Sangvi, Hirapur, Shevge, Pimpalkotha, Kanhere and Sarve of taluka Parola in respect of Government funds, totaling Rs. 4,06,456/-. It is alleged that the aforesaid scam took place during the period from 1986 to 1988. The said scheme was, in fact, approved by Chairman of construction committee having power to approve the work up to Rs.50,000/-. However, the Executive Engineer S.K. Kaul i.e. accused No.1 approved the tenders valued at more than Rs.50,000/-, despite having authority to approve the tenders only of Rs.20,000/-. It is also alleged that those tenders were called from unregistered as well as fictitious contractors, namely Surendra Patil and Niranjan Saini. The prosecution has claimed that there was no actual work done, but fake records were created to that effect in the Measurement Book No. 2189, showing that the work was completed and also verified. Thus, it is alleged that,

based on those fake records, the accused in connivance with each other, also passed certain bills and cheques for amount of Rs. 4,06,456/- were issued.

Those cheques were in fact issued in the names of fictitious contractors and the same were encashed by other accused persons through fake bank accounts. However, the letter dated 05/04/1990 issued by the Chief Executive Officer was called for initiating an inquiry which was done by the Investigating Officer. Ultimately, it revealed that the Measurement Book No. 2189 was having false entries in the handwriting of Vijay Vishnu Sali, Jr. Engineer, who had resigned on 08/09/1986. No evidence of work was found which was being handed over to the Gram Panchayats. The expenses were made without any approval from Coordination Committee. Thus, the respondents-accused were charge-sheeted, but the learned Trial Judge, after conducting the trial, acquitted all the accused. Hence, this appeal.

The learned APP vehemently argued that there was no requirement of sanction at the time of filing of charge-sheet, since most of the accused were public servants and got retired at the relevant time. She pointed out that the witnesses, who were the villagers, Gramsevak and Sarpanch, have stated that no additional water supply work was actually carried out in their villages and Panchanamas to that effect were also prepared. She also submitted that the concerned documents showing the misappropriation were also seized from Zilla Parishad and entries in bank accounts revealed that payments were made and money was, in fact, withdrawn by the accused persons. As such, she prayed for reversal of judgment of acquittal.

Heard. Learned APP and also perused the impugned judgment as well as notes of evidence.

It is significant to note that the sanction under Section 197 of Cr. P. C., though mandatory for prosecuting public servants for the offences under the Indian Penal Code, but no such sanction is required for retired official. However, such sanction was necessary for prosecution of accused, namely S. K. Kaul and K. A. Patil and therefore, the prosecution against them appears to be invalid from the beginning. It is extremely important to note that the entire case of prosecution is based on the fact that the entries in Measurement Book No. 2189 were false, fabricated and forged. It is not in dispute that, during the course of investigation, the said book was seized. However, despite the examination of so many witnesses in respect of the alleged forgery, no attempt was made by prosecution to prove as to who had made the entries in the said book. The prosecution also did not examine any handwriting expert to establish the fact that entries were made by the accused, as alleged. Moreover, despite seizure of several documents in relation to alleged offence, the prosecution did not produce them before the Court. Furthermore, the contents of the documents which are produced on record, such as diaries, registers and original files, also remained to be proved.

P.W-14 and the other witnesses who are examined regarding the office procedure, have admitted that they had no personal knowledge about the work. Though the villagers stated that work was not done, it has not come on record as to who was responsible for fraud and who actually received the money. There is absolutely no evidence in respect of alleged conspiracy as well as common intention of the respondents-accused. There is no trace of meeting of minds of the accused for committing such misappropriation. The forgery also cannot be established beyond all reasonable doubt on the basis of trustworthy and reliable evidence.

It is now settled that the acquittal can be reversed if there is wrong appreciation of the material on record at the hands of learned Trial Judge. However, on going through the impugned judgment, it is clearly evident that the learned Trial Judge after scrutinizing the evidence minutely, has come to the conclusion that the evidence brought by the prosecution against the respondents-accused was not sufficiently reliable and trustworthy. Under such circumstances, if it is found that the learned Trial Judge has properly considered the evidence on record and has taken possible view, then the second view merely because it was possible, cannot be taken. Thus, considering the limited scope of an appeal against acquittal, we are of the opinion that there is no reason to interfere with the impugned judgment of acquittal. We find that the learned Trial Judge has rightly appreciated the evidence on record and has given benefit of doubt to the accused persons for want of trustworthy and reliable evidence. In view of the same, the appeal stands dismissed.