Krishnamurthy vs Srinivasa @ S.S. Vasan and State

M.N. Moorthy, J.—The two revision petitions arise out of a common judgment passed by the learned Sessions Judge, Madras Division in

C.A. Nos.446 and 447 of 1976 setting aside the order of the learned Tenth Metropolitan, Magistrate, Madras, convicting the accused for an

offence under S. 408 of the I.P.C. and sentencing him for two years, rigorous imprisonment and to pay a fine of Rs. 1,000 and for the offence

under S. 477A of the I.P.C. and sentencing him to suffer rigorous imprisonment for two years.

Aggrieved by the order of acquittal passed in both the cases by the lower appellate Court, P.W. I examined in the said cases, has preferred

these two revisions against the acquittal.

The case briefly for the prosecution for both the cases is as follows:- The accused was employed under Balussery Benefit Chit Fund Private

Limited at No. 3, Singaracbari Street, Triplicane, as a clerk-cum-typist. He was maintaining a postage stamp register, Ex. Pl. P.W. I is the

Manager of the Chit Fund. P.W. 2 is the head-accountant and was working as a clerk during the relevant period. P.W. 3 is the Director-cum-

Secretary of the Chit Find. P.W. I used to pay the accused amounts as and when required for the purchase of stamps. He has to make entries in a

rough petty cash register, Exs. P2 and P3. The accused used to make a note for the same as and when he received at the margin of Ex. Pl, which

is described as ''''outward register"". He was noting sums like this till January, 1973 in Ex. Pl. Thereafter, he ceased to make similar notes. He used

to hand over vouchers for the expenses incurred on various dates to P.W. 1 in the beginning of every month for the previous month.

While so, in the first week of April, 1974, the accused demanded a sum of Rs. 1,000 from P.W. I which made P.W. I suspect and he asked

P.W. 2 to verify the vouchers under Ex. Pl. On verification P.W. 2 found, there were variations. When this was conveyed to P.W 1 it was

reported to P.W. 3, the Director-cum-Secretary of the Chit Fund. The internal auditors were asked to examine Ex. Pl and other vouchers. On

24th April, 1974 the Company received an application for leave from him for 25th April, 1974. When the accused was asked to explain and when

he failed to do so, a complaint, Ex. P75, was lodged to P.W. 4, the Sub-Inspector of Police, who registered a case. P.W. 5 is the D.D.I., Ice

House Police Station, who took up the investigation. The accused was not available. His house was searched by P.W. 5. On 19th June, 1974 he

surrendered before the Fourteenth Metropolitan Magistrate. P.W. 6, the D.S.I., took up further investigation and examined P.Ws.2, 3, and 4 and

one Vaithilingam. Investigation revealed, from August, 1972 to the end of June, 1973, misappropriation of a sum of Rs. 3,459.84 and for the

period from July, 197J to April, 1974 a misappropriation of Rs. 5,773.80. After completing the investigation the charge-sheet was laid.

4.1 When the accused was questioned on the evidence appearing against him, he accepted the inflated figures in totaling the daily entries in Ex. P1

and also the vouchers marked as Exs. P4 to P76 in one case and Exs. P4 to P64 in the second case. According to him, he was not receiving any

cash from P.W. 1 but he was only supplied with stamps. The inflated figures were written by him only at the instance of P.W. I on a particular day,

P.W. 1 met him at a Coffee House in T. Nagar and persuaded him to admit that he has misappropriated the amount and to admit in a letter so that

P.W. 1 could make good the amount later on by deductions from his salaries. Ex. P/9 was written by him on the persuasion of P.W. 1 and on his

dictation. He did not send the same, as he was afraid it would implicate him. It was seized by the police from his house subsequently. He examined

his parents, D.Ws. 1 and 2 to rebut the evidence of P.W. 3. He has also filed a written statement.

Exs. PI to P3 were not maintained in the regular course of business and were not written daily and much reliance could not be placed on it, is

borne out by the prosecution evidence itself.

The main point for consideration in this case is, whether the accused has written the entries in Ex. PI as well as the debit vouchers at the benest

of P.W. I. It is also a matter of importance to be considered whether Ex. P79 was written by the accused at the instance of P.W. 1.

The complaint to the police was registered on 13th May, 1974 Ex. P77, a letter, dated 21st May, 1974 from the Chit Fund was sent to the

accused asking for an explanation. Having given a complaint against the accused why Ex. P77 was sent to the accused is not understandable. The

prosecution case is that all the account books were taken by the police in the month of June, 1974 itself but in Ex. P3 we find an entry made at

page 142 on date 4th July, 1974 by P.W. 1. This is also a matter throwing doubt on the veracity of P.Ws. 1, 5 and 6.

As far as entrustment of sums of money by P.W. 1 to the accused is concerned, the prosecution evidence is not satisfactory. Though there were

some entries showing entrustment by P.W. 1 to the accused, the accused had denied having received any amount from P.W. 1. In Ex. PI, the

entries found are in different ink. Curiously there are no corresponding entries for such payments in Exs. P2 and P3 registers, maintained by P.W.

The petty cash book where these transactions are alleged to have been written is not before the Court. There are a few entries in Ex. P3 by

pencil made by P.W. I. Exs. P2 and P3 registers are not maintained in a regular manner. For instance, in Ex. P3 in page 74 the accused is shown

to have been paid some amount on 11th August, 1973, but it is admitted, the accounts were written only upto 9th August, 1973. In the entry dated

9th August, 1973 P.W. 1 has written for the amount paid on 11th August, 197J and 21st August, 1973. Exs. P2 and P3 make it abundantly clear,

P.W. I was atleast on some occasions writing inflated figures. It is not easily understandable why some of the entries alleged to have been

entrustment of money to the accused by P.W. 1 are made in ink and some in pencil. The entries in Exs. PI and P2 for the amount on 13th

December, 1972 does not also tally. P.W. 1 had admitted in Ex. P3 for the month of February, 1974, entries were made only at the end of the

month. How it is possible to write the accounts at a stretch at the end of the month is beyond explanation. Under these circumstances, a register

like P3 cannot be straightly relied on. Even regarding the procedure of the accused submitting vouchers for the postal expenditure, there is variation

in the evidence of P. Ws. 1 and 2. The lower appellate court was correct in finding it is not safe to act on the entries in the account book as they

were not properly maintained and the amounts paid to the accused were not written in a regular manner. P.W. l''s evidence has correctly been not

relied on. As far as an offence under S. 477A of the I.P.C. is concerned, it is admitted by the accused that he has written the inflated figures in Ex.

PI and also in the vouchers at the instance of P.W. I. Ex. P79 is a letter seized from the house of the accused by the police on 3rd June, 1974. It is

a letter incriminating the accused. As the evidence of P.W. 3 to probabilise the contents of Ex. P9 is rejected by the lower appellate court as too

artificial and as also Ex. P79 contains several corrections and interlineations which are not in the hand-writing of the accused and as the

prosecution failed to establish the charge of entrustment, it is not safe to convict the accused under S. 477A of the I.P.C. the order of acquitting the

accused for the said offences cannot be assailed.

Learned Counsel for the petitioner cited before me a decision reported in Abdul Karim v. The State AIR. 1951 Kutch 81 . That is a case where

the accused had admitted entrustment of amounts, but stated he suffered others to misappropriate it. In the instant case the accused has created

false entries so as to cover up the misappropriation of money by his superior officers. In the present case there are only false entries so as to cover

up the misappropriation of the money by the superior officers. As the entrustment is denied in this case, the above said decision has no bearing on

the facts of the present case.

Next, reliance was placed on a decision reported in Doraiswami Reddiar v. State 1951 M.W.N. Crl. 112 for the proposition, even if false and

fraudulent entries are made in the account book from fear under the orders of superior officers, (sic) the accused is not exonerated from criminal

liability. Reliance is placed in Abdul Azees v. State 1953 M.W.N. Crl. 260, on the observation, preparation of entirely new documents containing

false information can be correctly described as a false document and act of preparing such a false document is a falsification of document. Reliance

was also placed on a decision reported in R.K. Dalmia Vs. Delhi Administration, , for the contention, if a false document is made to conceal a

fraudulent or dishonest acts which have been previously committed, S. 477A, I.P.C. is applicable. The offence of falsification does not depend on

immediate or remote connection with the commission of breach of trust. Lastly, Learned Counsel for the petitioner argued, the interference of the

lower appellate court in the order passed by the trial court convicting the accused was not justified as the prosecution has proved the case beyond

reasonable doubt against the accused. He submitted on the strength of the decision of the Supreme Court report in K. Chinnaswamy Reddy Vs.

State of Andhra Pradesh, that this is an eminently fit case where retrial or rehearing of the appeal may be ordered,

Learned Counsel for the respondent accused submitted, the order of acquittal on the evidence let in by the prosecution is correct and warrants

no interference in revision against acquittal by a private party. According to him, the prosecution relies for a conviction more on the weakness of

the defence-rather than on its own strength. Much reliance is placed only on Ex. P79, a letter seized from the house of the accused. He contended,

on the strength of a decision of their Lordships of the Supreme Court reported in Bkagirath v. State of M.P. 1976 II S.C.J. 66, the prosecution

should succeed by substantially proving the very case it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the

defence nor can the Court on its own make out a new case for the prosecution and convict the accused on that basis.

He vehemently urged that the conduct of P.W. I is not above board. Exs. P2 and P3 show that P.W. I was in the habit of writing inflated

figures, that some of the entries found in Ex. Pl do not find a place in Exs. P2 and P3 registers, maintained by P.W. I. His admission of not

maintaining the registers, properly added to the other circumstances in the case are enough to substantiate the finding of the lower court that a

responsible employee of the Chit Fund, P.W. I, is not speaking the truth. The falsification of accounts was only to shield superior officer like P.W.

I. A decision in Public Prosecutor v. Raju 1968 L. W. (Crl.) 39 is relied on to show, it is necessary for the court to decide who among the persons

involved in the offence is responsible for the offence by their coming to the conclusion of guilty.

There is considerable force in the contentions of the Learned Counsel for the respondent-accused that this is not a case where an acquittal is to

be interfered in a revision. After carefully considering the arguments of both Learned Counsel, I am of the view, this is not a case where the interest

of public justice requires interference in a revision against acquittal as I find, there is no manifest illegality or a miscarriage of justice. The revision

jurisdiction is not ordinarily invoked in an acquittal merely because the lower court has taken a wrong view of the law or misappreciated the

evidence on record. I am not able to find, the lower appellate court had erred in appreciating the evidence or erred in law. Applying the principles

as laid down by their Lordships of the Supreme Court in Mahendra Pratap Singh Vs. Sarju Singh and Another, I do not think this is a case where

my interference is warranted in a revision against acquittal by a private party and where the State has not chosen to file an appeal. The criminal

revision petition is dismissed.