The State of Maharashtra vs Dr. Haribhau Raoji Wawage & Ors

The State Government has filed this appeal under Section 378 (3) of the code of Criminal Procedure, challenging the acquittal of the respondents by Chief Judicial Magistrate, Amravati on 22.06.2015 in Regular Criminal Case No.163/1990 of an offence punishable under Section 409 read with Section 34 of the Indian Penal Code.

The matter was heard for some time yesterday and due to various heads under which misappropriation is alleged, hearing came to be adjourned to today. We have heard at length both the learned counsel i.e. Mr. M. J. Khan, learned A.P.P. for the appellant and Mr. C.A.Joshi, learned counsel for the respondents.

Accused no.1 was about 64 years old when the appeal was filed and is no more. The appeal against him has therefore abated on 16.06.2015. He was incharge of the farm where the alleged offence has taken place. The respondent no.2 was accused no.2, working as Veterinary Officer under him. The respondent no.3 was Junior Clerk working under the respondent no.1.

The learned Chief Judicial Magistrate has framed the points for determination and point no.2 was; whether sanction granted to prosecute the accused on 30.12.1994 is valid or not. In paragraph no.30 that issue has been answered. The sanction was granted for an offence punishable under Section 7, 13 (a) (i) read with section 13 (2) of the Prevention of Corruption Act, 1986. The grant is ex post facto and there is no such sanction for an offence under Section 409 of the IPC. The Chief Judicial Magistrate has found that the State Government sought sanction to prosecute under Section 409 of IPC. However, no such sanction has been produced. Thus, the sanction produced was found to be invalid. These facts are not in dispute before this Court. The learned A.P.P. however has submitted that the findings recorded on point no.1 are also unsustainable.

With the assistance of both the counsel, we have perused the evidence of seven witnesses examined by the prosecution. Ganimiya Jirase (PW1) was supervisor in Sheep and Goat Development Corporation. He has described the position of accused no.1 as Divisional Farm Manager, accused no.2 as Veterinary Officer and accused no.3 as Junior Clerk. He has further stated that accused no.1 was obtaining his signatures to show how many sheep and goats died. His evidence therefore does not in any way implicate any of the respondents. Baban Villhekar (PW2) has also not deposed anything against any of the accused. Sanaullakhan Ibrahimkhan (PW3) also does not bring on record any incriminating material. The evidence of Sharad Thakare (PW4) is also on the same lines.

Babulal Gupta (PW6) was working as Financial Advisor and Chief Accounts Officer. His evidence is mostly against the accused no.1. The appeal against the accused no.1 (respondent no.1) is already abated. In paragraph 12, he has deposed that the respondent no.1 prepared records to show that 77 sheep have died. The post mortem report without signatures were lying on the table and he had seized it. He thereafter deposed that he felt that 77 goats did not die and false post mortem reports were prepared and he seized those reports and he has then pointed out that the respondent nos. 2 and 1 were the only technical experts to prepare such post mortem report. Then he points out that the respondent no.1 issued directions to the respondent no.3 (accused no.3) to make payments. His evidence therefore again does not implicate either respondent no.2 or respondent no.3 in any way. On the contrary, in his crossexamination, an evidence has been brought on record creating doubt about the article "A" which has been produced by the respondentCorporation as Stock Register. This witness has accepted that this register does not have any column about opening balance or closing balance. He has further stated that as per the rules, the respondent no.2 has written the said register. He has stated, in response to a specific question, that article "A" is Stock Register in which sales and purchases are recorded. He was not aware whether it was the duty of the respondent no.2 to sell or receive or distribute the animals of the farm. He has accepted that his audit report was based on article "A". When he was crossexamined by the respondent no.2, he has stated that because of disproportionate weights against the number of animals, he has presumed that there is misappropriation. While answering the question put by accused no.3 (respondent no.3), he accepted that there was a duty list and it was not produced. He accepted that the accused no.3 (respondent no.3) was working as clerk.

Janardhan Patil (PW6) was working as Labour and he does not speak anything material against the respondent nos. 2 and 3. Jagdish Villhekar (PW7) also does not depose anything against the respondent nos. 2 and 3.

The learned A.P.P. has further invited our attention to the statement of accused no.2 on record under Section 313 of the Code of Criminal Procedure. He states that while answering question no.3 about misappropriation of Rs.1,50,852/- this accused has accepted everything and commission of an offence by him. We find Mr. Joshi, the learned counsel for the respondents, right in submitting that that question does not put any misappropriation to accused no.2. Only loss has been pointed out. We further find that none of the witnesses has stated that the unsigned post mortem reports taken in his custody by Babulal Gupta (PW5) were prepared by accused no.2. In this situation, the only position emerging on record has been accepted by the accused no.2 and the answer is not in any way incriminating in nature. Conversion of any property to his own use or advantage by accused no.2 has not been even remotely urged by the prosecution.

In view of this material on record, we find that the learned Chief Judicial Magistrate has correctly recorded a conclusion that there was no material against any of the respondents so as to hold them guilty of an offence punishable under Section 409 of the IPC or of Section 409 read with Section 34 of the IPC. No case is therefore made out warranting interference. The criminal appeal is therefore dismissed.