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At the stage of considering bail, Court to exercise utmost diligence in evaluating the prima facie allegations against the accused- Delhi High Court

Case title: Sunny Alias Ravi Kumar v. State of NCT of Delhi.

Case no: Bail Appln. 3580/2023

Dated on: 29th April, 2024

Quorum: Hon’ble Mr. Justice Amit Mahajan.

Facts of the case:

The present application is being filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) seeking a grant for regular bail in FIR No.255/2023 on 10.03.2023 for offences under Sections 376/354D/506 the Indian Penal Code, 1860 (IPC). It is alleged that the applicant used to stalk the prosecutrix and claimed that he loved her. It was stated that after the prosecutrix rejected the applicant, the applicant had threatened her. It was declared that on 01.12.2021 the applicant had called the prosecutrix at GTB Nagar metro station, the applicant then had threatened the prosecutrix with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. In December 2021 the applicant took the prosecutrix to his friends house in Aadarsh Nagar, and forced her to have sexual relations with him for the first time. It was stated the applicant took the prosecutrix to a hotel named Welcome Hotel 5-6 times and forced her to have sexual relations with him. It is alleged that the applicant took the prosecutrix to Haridwar on April,2022 and allegedly married the prosecutrix there. Later on, the prosecutrix found out that the applicant was married and also had two children. It was also stated that the applicant would demand gifts from the prosecutrix leading her to give him nearly Rs. 1.5 lakhs in cash and many other items. On 07.03.2023, the applicant had called the prosecutrix when he was intoxicated and told her to meet him at Aadarsh Nagar Metro Station from there the applicant took her to the Welcome Hotel and forced her to have unnatural sex with him. A medical examination was conducted of the prosecutrix at BJRM hospital Delhi, and her statement was recorded under Section 164 of CrPC. Chargesheet was filed under Section 376/354D/506 of IPC.

Contentions of the prosecution:

It was alleged that the applicant used to stalk the prosecutrix and also claimed that he was in love with her. It is alleged that after the prosecutrix rejected the advances of the applicant, the applicant threatened her. It was stated that on 01.12.2021, the applicant called the prosecutrix at GTB Nagar Metro Station. When the prosecutrix reached to meet him, the applicant threatened her with suicide due to which the prosecutrix agreed to meet him and have regular conversations with him. It was alleged that in December, 2021, the applicant took the prosecutrix to one of his friend’s house in Aadarsh Nagar, and forcefully established sexual relations with the her for the first time. It is alleged that thereafter, the applicant took the prosecutrix to a Hotel, namely, Welcome Hotel, about 5-6 times, and forced her to have sexual relations with him there. It is alleged that the applicant also took the applicant to Haridwar in April, 2022 for three days and allegedly married the prosecutrix there. Later, found out that the applicant was married and had two children. It is alleged that the applicant used to demand gifts from the prosecutrix and she had allegedly given ₹1.5 lakhs in cash, two mobile phones, clothes and two silver rings to the applicant, and also resorted to violent means when she did not pay heed to his demands. on 07.03.2023, the applicant called the prosecutrix when he was intoxicated and forced her to meet him at the Adarsh Nagar Metro Station, the applicant thereafter took the prosecutrix to the Welcome Hotel and forced her to have unnatural sex and beat her when she refused. A medical examination of the prosecutrix was conducted at BJRM Hospital, Delhi and her statement was also recorded under Section 164 of CrPC. The chargesheet was filed under Section 376/354D/506 of IPC. The Public Prosecutor for the State opposes the present bail, saying that there is a high possibility that the applicant could extend the threats to the prosecutrix’s family, and therefore, the bail application to be dismissed.

Contentions of the applicant:

The case that was filed against the applicant is basically to humiliate, torture him and to harass him and he has been in judicial custody since 10.03.2023. It was stated that there are material differences in the FIR and the statement of the prosecutrix recorded under Section 164 of CrPC. It is also contended that as clear from the contents of FIR, the relationship between the applicant and the prosecutrix was consensual in nature and had continued for two years. It was further submitted that the custody of the applicant is not necessary for the investigation, as there are no chances of the applicant to abscond or flee from justice, and that the promise of marriage is completely absurd and untrue. Lastly, he says that there has been an unnecessary delay in the filing of an FIR which increases the suspicion about the allegations made by the prosecutrix.  

Issue:

Whether the Bail application filed by the Applicant is to be allowed?  

Legal provision: 

Section 376 of IPC- Rape the punishment is not for less than 10years, which may extend to life imprisonment and, a fine.

Section 354D of IPC- Stalking any man who repeatedly follows, contacts, or monitors a woman’s communication despite her clear disinterest will amount to imprisonment for three years.

Section 506 of IPC- Criminal intimidation.

Section 164 of CrPC- empowers a magistrate to record a person’s testimony or confession regardless of whether or not he has the jurisdiction.  

Courts analysis and judgement:

The Court, while considering the application for bail, has to consider the nature of the offence, severity of the punishment and prima facie involvement of the accused. The Court is now not required to enter into the detailed analysis of the evidence. The bail is not to determine the guilt but it’s only a safeguard to ensure the accused’s right to liberty, pending trial. The court needs to maintain balance between securing the complainant’s interest and safeguarding the accused’s right. In the present case, the allegations levelled is that the Applicant had established forceful physical relations with the prosecutrix on multiple occasions on the false pretext of marriage. It is not denied that the prosecutrix had known the applicant for a long time. The alleged incident, for the first time, is said to have taken place in the month of December, 2021, however no complaint was made at the time. Thereafter, the prosecutrix continued to have sex on several occasions and even then, no complaint was made by her. The prosecutrix got FIR registered on 10.03.2023, that is, almost after fifteen months from the first alleged incident The Hon’ble Supreme Court Apex Court, in Meharaj Singh (L/Nk.) v. State of U.P. (1994) 5 SCC 188, held that Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story…” The prosecutrix has not mentioned date or time of the alleged incidents. The prosecutrix was a major and hence the consent of the prosecutrix whether vitiated by a misconception of fact arising out of a promise to marry can be established only at the time of trial. The averment of the applicant that there are discrepancies between the FIR and Section 164 CrPC statement is also a matter of trial. At this stage, no evidence has been adduced to show that the applicant had made forceful relation with the prosecutrix or has issued any threats of making viral her photographs or has demanded money, mobile phones from the prosecutrix. It is apparent that the prosecutrix was meeting the applicant for quite some time before filing the complaint and wanted to continue their relationship despite knowing that the applicant is a married man. The decision to continue with the relationship points towards her consent. The actions at this stage, does not suggest passive acquiescence under psychological duress but implies towards her consent which is devoid of any kind of misconception. The Hon’ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra: (2019)SCC 608 has laid out as to when a “promise to marry” is a “false promise” or a “breach of promise”. The Supreme Court held that two propositions must be established to establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry ie the promise of marriage must have been a false, given in bad faith and with no intention of being adhered. The false promise must be of immediate relevance or bear direct nexus to the woman& 39 decision to engage in the sexual act. At the stage of considering bail, it is neither appropriate nor feasible for the court to draw conclusion, as to whether a promise of marriage made to the prosecutrix was false and in bad faith with no intention to adhere. This issue can be determined after an assessment and evaluation of evidence. It is imperative on the part of Court to exercise utmost diligence in evaluating the prima facie allegations on cases to case basis especially when there are contentious issues of consent and intent. Further, it is not in dispute that the antecedents of the applicant are clean. The applicant, is aged about 34 years and is in custody since 10.03.2023 and has a wife and two minor children to take care of. Keeping the applicant in jail will not serve any useful purpose. 
In view of the above, the applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹25,000/- with two sureties of the like amount, subject to the following conditions: a. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case; b. He shall not contact the complainant other witnesses; c. The applicant shall not travel out of the country without prior permission; d. The applicant shall not tamper with evidence nor indulge in any unlawful act or omission which would prejudice the trial. The applicant to appear before the learned Trial Court as and when directed. The applicant shall not visit the locality where the prosecutrixy resides. The applicant to provide the address where he would be residing and shall not change the address without informing the concerned IO/ SHO; h. The applicant to give his mobile number to the concerned IO/SHO and shall keep his mobile phone active and switched on at all times. In the event of any FIR/ DD entry/ complaint lodged against the applicant, State can seek redressal by filing an application for cancellation of bail. The observations made in the present order are for the purpose of deciding the only the present bail application and should have no bearing on the outcome of the Trial and shall not be taken as an expression of opinion on the merits of the case. The bail application is accordingly, allowed.  

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Judgement reviewed by- Parvathy P.V.   

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Fraud under Section 23(1) of Senior Citizens Act Limited to Violation of Transferor’s Upkeep Condition, Cannot Extend to Civil Law Fraud: Karnataka High Court

Case title: Jayashankar and the Assistant Commissioner and Ors. 

Case no: Writ appeal No. 339 of 2023 (GM-RES)

Dated on: 24th April, 2024

Quorum: Hon’ble Justice Mr. N.V. Anjaria and Hon’ble Mr. Justice Krishna S Dixit.

Facts of the case: 
Under Section 4 of the Karnataka High Court Act, 1961 the writ appeal was directed against a judgement and order of a learned counsel dated on 03.03.2023 passed in a writ petition No. 12226 of 2020, dismissing the petition. There was an order passed under 23(1) of the maintenance and welfare of parents and senior citizens Act, 2007. The tribunal had declared that the registered gift deed dated 28.01.2014 was liable to be treated as cancelled as the transfer of property was void. The complainant K.V Nanjappa aged nearly hundred stated that the ancestral property is being partitioned but the complainant has retained one house, certain sites and 5acres of land. It was stated that the younger son of the complainant Jayashankar took the complainant to the Taluka office by misrepresentation saying that his presence is needed for a pension case and instead he got registered the document from the complainant in his favour. The complainant recently learned that his younger son Jayashankar had gotten the property registered without his knowledge. The complainant stated that he did not execute such gift deed to his son. The Tribunal declared that the registered Gift Deed dated 28.01.20214 to be cancelled as transfer of the property is void. The Original Petition was filed under Section 4 of the Karnataka High Court 1961 to set aside the Order dated 06.01.2014 passed by the President of the Maintenance and Welfare of Parents and Senior Citizens Tribunal. On Appeal, the Learned Single Judge observed that the Gift Deed was unequivocal and the property was gifted provided the Appellant took care of the father. The Petitioner was found to be not taking care and hence the condition of the Gift Deed was breached and the said finding by the Assistant Commissioner under the Maintenance and Welfare of Parents and Senior Citizens Act,2007 was based on the admission of the Appellant that his father is not residing with him. This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, 1961, to set aside the impugned Order dated 03.03.2023 passed by the Learned Single Judge in WP 12226 of 2020.

Contentions of the appellant:

The single Judge overlooked the aspect that while providing the gift deed and transfer thereunder, the Competent Authority came to the conclusion that Gift Deed was acted upon by fraud. However, there was no evidence before the Authority that the Gift deed was executed by fraud. After death of the Complainant, it came to light that the father had executed a Will and that the Respondents were not happy with the Will and lodged Complaint under Section 379,420,447,448,465,468,471 and 506 of IPC. Apart from the same the Respondents also filed OS 70/2019 to declare the registered Will as null and void. All these material aspects were disregarded by the learned single Judge to confirm the judgment and order of the Tribunal.

Issues:

Whether the Competent Authority under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 has passed order by going beyond the purview of Section 23 (1) of the Act?

Legal provisions:

Section 23 (1) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007: Section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 empowers a senior citizen to approach the Maintenance Tribunal to declare a certain specific transfer of property, by way of gift or otherwise, after the commencement of the MWPSCA, as void, if in case the transfer of property was premised on the condition that the transferee shall provide for the basic amenities and physical needs of the transferor; and after the transfer got effected such transferee refused or failed to provide for such basic amenities and physical needs.

Section 379- Theft imprisonment for three years with fine or both.
Section 420- deals with act of cheating.
Section 447- criminal trespass.
Section 448- house trespass.
Section 465- punishment for forgery.
Section 468- forgery.
Section 471- using a forged document as genuine.
Section 506- punishment for criminal intimidation.

Courts analysis and judgement:

The Supreme Court in Sudhesh Chhikara Vs Ramti Devi held that for attracting Section 23(1) two conditions must be fulfilled (a) The transfer must have been made subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and (b) The transferee refuses or fails to provide such amenities and physical needs to the transferor. If both the conditions are fulfilled then by legal fiction the transfer shall be deemed to have been made by fraud or coercion or undue influence and the transfer shall become voidable. The facts suggests that an obligation was there on the Appellant to take care of the Complainant father and on such condition the gift deed was executed. The said condition was breached, as per the finding of the Competent Authority and the learned single judge as well. The Appellant admitted that father was not residing with him. The Complainant had to stay at the elder son’s house. The condition of treating the Gift Deed void was satisfied and hence there is no error in the order of the single judge for confirming the Order of the Tribunal by treating the gift deed as cancelled. However, the Tribunal while ordering cancellation of the gift deed cast doubt on the execution of the Gift Deed for the reason that while executing Gift Deed the Complainant has put thumb impression on the document but at the time of filing the complaint, he has put his signature which creates serious doubts about the consent and knowledge of the Complaint with regard to execution of the Gift Deed. The aforesaid finding by the Tribunal is unwarranted and further the Tribunal has gone beyond the operational purview of Section 23 (1). The section treats the transfer of the property in a particular manner to be deemed to have been made by fraud or coercion upon breach of condition of taking care and providing basic amenities i.e; the idea of fraud or coercion in section 23 (1) is in reference to breach of condition I.e; providing basic amenities and physical needs to the senior citizen. The words fraud and coercion could not be enlarged to normal concept of fraud or coercion in civil law. To establish fraud, evidence is required to prove the facts of fraud. Tribunal is neither a civil court nor the power exercised by the Tribunal is under the provisions of the Civil Court. The powers granted under the Act is to provide effective recourse in law or maintenance and welfare of parents and senior citizens and to guarantee and recognize them their rights. The Tribunal misdirected itself in law in making observations on paragraph 13 of the Order by suggesting that the gift deed was fraudulently obtained from the complainant. The findings are beyond powers and jurisdiction of the Tribunal. Accordingly, the observations in paragraph 13 of the Order of Tribunal are not sustained and are set aside. The Judgment and order of the learned single judge is modified to the said extent and rest of the part is confirmed. Accordingly, the Writ appeal is dismissed subject to the observations and findings and modifications.

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Supreme Court Directs Implementation of Standard Operating Procedure for Filing Paper Books.

Case title: Anjumol V.A. and Ors V. Kerala Public Service Commission and Ors.

Case no: petition (s) for special leave to appeal (C) No. 13242/2021

Dated on: 16.04.24

Quorum: Hon’ble Mr. Justice J.K. Maheshwari and Hon’ble Mr. Justice Sanjay Karol.

Facts of the case:

The Petition(s) for Special Leave to Appeal (C) No. 13242/2021 is arising from final. Judgment and Order dated 04-06-2019 passed by the Hon’ble High Court of Kerala at Ernakulum) in OPKAT No. 62/2017.

Court’s  Analysis and Judgement 

The Hon’ble Supreme Court, while hearing the above case, has perceived various practical difficulties both on miscellaneous or non-miscellaneous days and some of them are as mentioned herein below:

(i) The Orders passed during the proceedings are not attached to the paper books;

(ii) In Service matters, the counsels for the Petitioner are not attaching the relevant Service Rules with Appendix in the SLP paper book or the same is not referred in the pleadings. The Rules, sometimes, are filed in piecemeal with Applications or with additional documents, due to which matters are postponed. This causes financial burden upon the parties and further results in delay in adjudication;

(iii) Counter Affidavits are sometimes attached to the main SLP paper book without flagging, inviting attention and sometimes as separate paper book which requires unnecessary search and wastage of time by the Judges;

(iv) Upon directions and after filing the convenience compilation, the same is not sent to the residential offices of the Judges either in hard copy or by way of email and even during the hearing;

(v) The IA number is not properly exhibited on its face. The Applications are not attached date wise, with paper books. This causes inconvenience to the Judges;

(vi) Other ancillary issues in various paper books is also causing difficulty in day to day court functioning.

In view of the above, the Secretary General and the Registry Officers, in particular the Registrar (Judicial) shall prepare a Standard Operating Procedure (SOP) for properly maintaining the SLP paper books and also to eliminate the difficulties mentioned above. The SOP is to be notified after seeking appropriate orders from the Hon’ble Chief Justice of India. The due compliance shall be made as expeditiously as possible for efficient functioning of the court. Learned counsel for the parties were heard the hearing is concluded. The Learned State Counsel and the Counsels for Respondents are granted two weeks’ time to file affidavit clarifying how many persons have been appointed along with their qualifications and the status of the Petitioners in the present Special Leave petition.

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Delhi High Court’s Jurisdiction Limited to Cases of Perversity in Industrial Tribunal Decisions

Case title: Director General, Delhi Doordharshan Kendra v. Mohd. Shahbaz Khan, Tej Pal Manohar Paswan, Danvir Hans Raj.

Case no: LPA 242/2024, LPA 243/2024, LPA 244/2024, LPA 245/2024, LPA 246/2024,

Dated on: 22nd March, 2024

Quorum: Hon’ble Justice Rekha Palli and Hon’ble DR. Justice Sudhir Kumar Jain.

Facts of the case:

Appeals filed under Clause X of the Letters Patent LPA 242/2024 & other connected appeals to assail five similar orders dated 12.12.2023 passed by the learned Single Judge in a batch of Writ Petitions. Vide the impugned order dated 12.12.2023, the learned Single Judge has rejected the Appellant’s challenge to the award dated 15.10.2007 passed by the learned Industrial Tribunal (Tribunal), wherein the learned tribunal after holding that the termination of the respondents’ service by the Appellant was illegal, has directed the Appellant to reinstate them with 25% back wage.

Contentions of the appellant:

The learned Tribunal as also the learned Single Judge have failed to appreciate that the respondents were never employed with the Appellant but had in fact, been engaged by one M/S Navnidh Carriers who was engaged by the appellant on 31.07.1998, to provide manpower services as and when required. The learned Tribunal has not examined as to whether the Respondents had completed 240 days of continuous service in the year immediately preceding their termination, which aspect the learned Single Judge also over looked. Instead of placing the onus to prove the existence of an employer-employee relationship on the respondents, the learned Single Judge has wrongly shifted the said onus on the Appellant.

Contentions of the respondent:

The learned Tribunal has, as a matter of fact, found that the respondents had been working with the Appellant/Organization much prior to 31.07.1998, i.e; the date when the appellant had, with malafide intention, engaged M/S Navnidh Carriers for providing manpower services and therefore, it was evident that the respondents had initially been engaged by the appellant itself. The experience certificate dated 13.07.1999 issued by the appellant to one of the respondents wherein it has been categorically stated that he had been working with the appellant as a casual labourer since July 1997 and was an honest and hardworking worker. The appellant admittedly does not have any licence to engage workmen through a contractor as is mandated under the Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act), it is evident that the respondents were to be treated as employees of the appellant itself. He, therefore, prays that the appeals be dismissed.

Legal provisions:

Contract Labour (Regulation and Abolition) Act, 1970 (the CLRA Act)- regulated the employment of contract labor in certain establishments and provides for its abolition in certain circumstances. Article 226 of the Constitution- gives the High court the power to issue orders, directions and writs to any person or the authority including the Govt for the enforcement of Fundamental rights.

Issue:

Whether Respondents were engaged by the Appellant and were illegally terminated? When can Writ Court interfere with the factual findings of fact of Labour/Industrial Tribunal?

Courts judgement and analysis:

The learned Tribunal as also the learned Single Judge, after taking into account the gate passes as also experience letter dated 13.07.1999 issued by the appellant to one of the respondents have come to a conclusion that the respondents were employed with the appellant/ organisation and had been illegally terminated. Both the learned Single Judge as also the learned Tribunal found upon appreciation of evidence that the purported contract by the appellant in favor of M/s Navnidh Carriers was sham and an attempt to conceal the engagement of the respondents with the appellant. The learned counsel for the appellant has not been able to give any explanation whatsoever for the issuance of the said experience certificate if the respondent namely Mohd. Shahbaz Khan was not their employee. The Appellant did not have any license, as mandated under the CLRA Act, 1970, to engage workmen through a contractor, hence it is evident that they were directly engaged by the appellant. In the light of these categoric factual findings by the learned Tribunal, which cannot, in any manner, said to be perverse or contrary to the evidence lead before the learned Tribunal, we are of the view that it was neither open for the learned Single Judge to interfere with these findings in exercise of its writ jurisdiction nor is it open for this Court to examine these questions of fact. In Dinesh Kumar v. Central Public Works Department, 2023 SCC On-Line Del 6518, wherein the co-ordinate Bench after examining various decisions of the Apex Court held that writ Court can interfere with the factual findings of fact recorded in the industrial award only if the same are perverse or are entirely unsupported by evidence. The jurisdiction of the High Court in such matters is quite limited. In Management of Madurantakam Coop. Sugar Mills Limited v. S. Viswanathan, (2005) 3 SCC 193, the Apex Court, held that the Labour Courts/Industrial Tribunals as the case be is the final court of facts, unless the same is perverse or not based on legal evidence, which is when the High Courts can go into the question of fact decided by the Labour Court or the Tribunal.  The Hon’ble Supreme Court in State of Haryana v. Devi Dutt, (2006) 13 SCC 32, has held that the writ Court can interfere with the factual findings of fact only if in case the Award is perverse; the Labour Court has applied wrong legal principles; the Labour Court has posed wrong questions; the Labour Court has not taken into consideration all the relevant facts; or the Labour Court has arrived at findings based upon irrelevant facts or on extraneous considerations. In the present case, the Labour Court has arrived at a conclusion based upon the evidence adduced by the parties and the learned Single Judge has affirmed the findings of fact again after minutely scanning the entire evidence, and therefore, the question of interference by this Court does not arise. In the light of the aforesaid, we find absolutely no reason to interfere with the concurrent findings of fact arrived at by the learned Tribunal and the learned Single Judge to hold that the respondents were engaged by the appellant and were illegally terminated. The appeals being meritless are, along with all pending applications, dismissed.

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Accused presumed to be innocent unless proved to be guilty- burden lies on the prosecution: SC

Case title: C. Bala Malleshwar Rao, G Chandrashekhar, Syed Anwar Hussain, G. Damodar, K.L. Rama
Rao, V. Satyanarayana.
Case No: Criminal appeal No.729 of 2007, Criminal Appeal No.737 OF 2007, Criminal Appeal No.793 OF
2007, Criminal Appeal No.828 OF 2007, Criminal Appeal No.850 OF 2007.
Dated on: 16th April,2024.
Quorum: Hon’ble Sri Justice K. Surender.
Facts of the case:
The Registrar of Osmania University addressed a letter dated 03.12.1993 in the form of complaint to the Director General, Anti -Corruption Bureau alleging that: there was large scale embezzlement in payment of over time allowances contrary to the financial rules and procedure; Printing material purchased by Director-A1 along with other employees resulted in misappropriation of funds; Purchase of press equipment by A1 along with other employees deliberately without usage to gain illegally. Accordingly, the case was registered on 01.01.1994 and investigation was taken up. During 1990-91 to 1992-93, A1 issued self-cheques amounting to Rs.28,99,343.43ps. The said cheques were encashed by A2 and A4. The said amount meant for overtime allowances to the employees were disbursed to an extent of Rs.11,13,339.59 ps and misappropriated the balance of Rs.17,86,003.84 ps punishable under Section 13(1) (c ) and 13(2) of Prevention of Corruption Act. A1, for the very same orders issued self-cheques and third-party cheques to an extent of Rs.54,71,964.18ps to A2, A3, A7 to A11, who have encashed the cheques. It was shown that printing material worth Rs.36,55,560/- was purchased. However, the remaining amount of Rs.18,16,404-18 ps was not accounted, punishable under Section 13(1)(c)and Section 34 of IPC. A1 has issued self-cheques amounting to Rs.5,08,502.50ps and A2, A5 and A6 encashed the said cheques. An amount of Rs.25,470/- was given for private orders and the remaining amount of Rs.4,83,032.50 ps was misappropriated, punishable under Section 13(1)(c) of Section 34 of IPC. A1, A3 to A5 and A7 to A11 have entered into criminal conspiracy while discharging their duties and misappropriated the amounts to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS for purchase of printing material, punishable under Section 409 A1, A3 to A5 and A7 to A11 have falsified accounts willfully with an intention to defraud the institution and caused wrongful loss to the printing press, Osmania University, Hyderabad to an extent of Rs,17,86,003.84 PS, Rs.18,16,404.18 PS, Rs.1,18,10,000.26ps and Rs.4,83,032.50 PS, punishable under Section 477-A 120-B The ACB, during the course of investigation, having collected documents and examining witnesses filed charge sheet for the offences under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(1) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC. Learned Special Judge convicted A3 to A5 and A7 to A11 and sentenced to undergo rigorous imprisonment for a period of one year each under Sections 13(1) (c), 13(1)(d) (1) & (ii) r/w 13(2) of the Prevention of Corruption Act, 1988 r/w 34 IPC, Section 409 r/w 120-B IPC, Section 277-A r/w 120-B IPC. Aggrieved by the conviction recorded by the Principal Special Judge, City Civil Court at Hyderabad vide judgment in C.C.No.17 of 2000 dated 15.06.2007 for the offences punishable under Sections 13(1)(c ) r/w 13(2) Section 13(1)(d)(i) & (ii) r/w 13 (2) of the Prevention of Corruption Act, under Section 409 r/w 120-B IPC and Section 477A r/w Section 120-B IPC, these Criminal Appeals are filed.
Contentions of the appellant:
The learned Special Judge has relied heavily on the enquiry conducted by P.W.2 against A1, A3 and A4 and the enquiry report Exs.P15, 16 and 17 respectively. The findings in the enquiry report were made without examining the witnesses. The documents Exs.P1 to P14, P22 to P247 which are overtime bills, cash books, bank statements, cheques and registers were all marked through P.W.1, who was Assistant Registrar, Osmania University. Merely marking the said documents cannot form basis for the Court to rely upon the gist of all the documents. The prosecution ought to have exhibited before the Court as to how the misappropriation was done by the appellants herein. Enquiry was conducted only against A1 to A4 and there is no enquiry against any of the other accused. Merely on the basis of conclusions drawn in the enquiry, all the accused were convicted. It was A1 who had the cheque power, drawing and disbursing power and responsible for the accounts of the Osmania University press. It was A1 who had informed and acknowledged that the amounts received were in fact paid to the persons who had executed job work which are the outside agencies. Learned counsel for A5 and A7 submits that enquiry was not conducted against A5 and A7. That itself reflects that even the department did not have any doubt about the alleged involvement of A5 and A7. It was specifically stated by investigating officer that A3 to A11 were not concerned with purchase of printing material. Learned counsel appearing for A4 argued that A4 was not entrusted with any amounts and whatever amounts were asked to be disbursed by A1, was disbursed. The allegation that A4 was maintaining overtime allowance register and other record were not proved by the prosecution. The Learned Special Judge had relied on the alleged confession of A4 before the enquiry officer/P.W.2 that he had withdrawn amount and was also maintaining the records pertaining to overtime allowances, which formed basis for conviction, which is incorrect.
Contentions of the respondent:
It is not in dispute that amounts were entrusted to A1 as the Director for the purpose of disbursing overtime allowances and also purchase of stationery and other material. The amounts that were withdrawn by A1, who had the power to disburse amounts and make payments for purchase of stationery, has to account for the same. In the absence of giving details of payments made after withdrawing the amounts, would clearly reflect that A1 along with other accused have misappropriated the amounts that were entrusted to them. The entire documents that were collected during the course of investigation and examined by PWs.1
to 4 during enquiry that was conducted against A1 to A4 can be looked into by the criminal Court for the purpose of adjudicating upon the criminal acts committed by these public servants. In the said circumstances, learned Special Judge was right in convicting the accused.
Legal provisions:
Sections 13(1) (c) of the Prevention of Corruption Act: states that a public servant is guilty of an offence if he dishonestly converts property for his public use. Section 13(2) of the Prevention of Corruption Act: any public servant who commits a misconduct will be sent for a rigorous punishment for a year. Section 13(1)(d) (1) & (ii) of the Prevention of Corruption Act: obtaining pecuniary advantage by corrupt means. Section 409 IPC: criminal breach by a servant or the banker. Section 120-B IPC: being a part of a criminal offence with death penalty or imprisonment. Section 477A IPC: falsification of accounts. 
Issue:
Whether the statements that were prepared on the basis of the documents available in the department can form basis to infer misappropriation and falsification of accounts, without there being any independent witnesses examined to support the allegation of drawing or
disbursing amounts in the names of individuals and Firms, or that such persons have not received amounts; Whether such statements prepared on the basis of enormous documents that were examined by witnesses can form basis to conclude guilt in the absence of proving each and every document before the Court below; Whether the learned Special Judge was right in invoking Section 106 of Indian Evidence Act on the basis of statements prepared by P.Ws.1 to 7 to convict the accused on the ground that the accused failed to discharge burden shifted on to them.
Courts judgement and analysis:
Appellants have totally denied the allegations leveled against them regarding any kind of misappropriation. Not a single witness is examined by the investigating agency to show that amounts were drawn, or cheques issued in favor of an individual or a firm and such amounts were not paid. Learned Special Judge believed the version of the prosecution witnesses regarding statements that were prepared and concluded that under Section 106 of Indian Evidence Act, the burden is on the accused to explain regarding the amounts that were withdrawn as such withdrawals and usage was to the exclusive knowledge of the accused. It is not in dispute and admitted that. The entire basis of P.W.2 finding A1, A3 and A4 guilty of the charges of misappropriation are the statements that were prepared under Exs.P1 and P35. The Court and the Investigating 30 Officer/P. W 8 heavily relied on Exs.P15 to P19 enquiry reports of P.W.2. The accused denied execution of any of the documents that were placed by the prosecution to show entrustment of the funds to them by A1.
Departmental enquiry conducted by any enquiry officer, who is appointed will conduct enquiry on the basis of preponderance of probabilities and inferences or conclusions will be drawn on the basis of the evidence that is placed before him and/or collected. However, in criminal cases, the principle of proof is beyond reasonable doubt, contrary to the procedure followed in the departmental enquiry. The Hon’ble Supreme Court in the case of Balvir Singh v. State of Uttarakhand held that when the prosecution has offered evidence which can be believed by the Court and convincing regarding the accused guilt beyond reasonable doubt, then the burden shifts on to the accused to present evidence regarding the facts peculiarly which are within the knowledge of the accused. The approach of the learned Special Judge in shifting the burden on to the accused to explain the opinion and inferences drawn during departmental enquiry is incorrect and it does not fall within the purview of Section 106 of Indian Evidence Act to draw adverse inference against accused and convict the accused. In view of above discussion, in the absence of any proof and direct evidence against the accused apart from the inferences drawn by P.Ws.1 to 3 and P.W.38, on the basis of the record found in the office, there cannot be any conviction for the offences alleged. The factum of entrustment to the appellants herein are assumptions on the basis of the withdrawals from Banks and payments made by A1 through cheques. Admittedly, self cheques were drawn and signed by A1. Not a single bank
witness is examined to show that at any point of time, self-cheques or the cheques of others were encased in the bank by any of these appellants.
The prosecution ought to have produced witnesses from the Bank to prove that cheques signed by A1 were withdrawn by the appellants herein. In the absence of any such proof, the question of these appellants abetting A1 in committing alleged misappropriation of the funds entrusted to A1 would not arise. The Hon’ble Supreme Court in the case of R. Sai Bharathi v. J. Jayalalitha held that entrustment has to be proved for establishing an offence of criminal misappropriation. The case is one of circumstantial evidence. The burden is on the prosecution to prove the circumstances of the case by admissible and legal evidence. All such circumstances cumulatively should form a complete chain pointing unerringly towards the guilt of the accused. The Hon’ble Supreme Court in the case of State of Uttar Pradesh v.  Suhasi, Haricharan v. State of Rajasthan held that where if there are missing links in the chain of evidence adduced by the prosecution, benefit of doubt should go to the accused.
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Judgement reviewed by- Parvathy P.V

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