The learned Special Judge for SPE ACB Cases' on the ratio laid down in v. Uday NaraYan

State- rep, by lnspector of Police, ACB, City Range Hyderabad, rep. by Special Public Prosecutor, High Court, Hyderabad. ...RespondenURespondent Counsel for the Petitioner: Sri Y. Srinivasa Murthy, representing Sri T.S. Anand Counsel for the Respondent: Sri Sridhar Chikyala, Standing counsel-cum- Special Public Prosecutor for ACB The Court delivered the following: JUDGMENT THE H ON'B LE SRI JUSTICE E.V.VENU GO PAL RI IN LRE ISI c E .11 OF 1 OR ER: 1 Challenge n this criminal revision case is to the legality of the order dated 11.4.2011 passed by learned Principal Special Judge for SPE & ACB Cases, City Civil Court' Hyderabad in Crl.M.P.No. l4O4 ctf 2010 in C'C'No'31 of 2008 dismisslng the petition filed under Section 239 Cr'P'C' by the petitioner to discharge him from the offences under Sections 13(2) r/w L3 (1) (d) (ii) of P.(1. Act, 1988 r/w Section 120-8 IPC' 2 The mater al facts may now be briefly stated' 3 The petitic'ner joined the Government service in A'P' State Police Housing Corporation Limited, and on deputation worked in A.P. Health and Medical Housing and Infrastructure Development Corporation (APHMHIDC) as Superintendent from 12.B.7gg7 to 05'7.2000. On the allegat'ions of gross irregularities in procurement of Drugs and Medicines by the Drugs Wlng of APHMHIDC, a surprise check was conducted by ACB officials on -']0.9.2000, during the course of which followed by regular enquiry, all the relevant documents / records were obtained and on scrutiny of the same it was noticed that from i I l t t i I { I i I I I i ! I I I I I I i 2 the stage of placing orders for procurement of drugs / medicines to payments, as well as calling for short tenders, several deliberate and wilful omissions and commissions were found to have been committed by the officials and their subordinates of Drugs Wing, APHMHIDC, Hyderabad and as such a case in Cr.No.6/ACB-CR/2001 under Section 13 (1) (d) (ii) (iii) of P.C. Act, 1988 r/w Section 34 and 120-B IPC was registered, investigated into and a charge sheet to that effect came to be filed. The petitioner was alleged to have been involved in Charge Nos.2, 6 and 7 for the offences under Section L3(2) r/w 13 (1) (d) (ii) of P.C. Act, 1988 r/w Section 120-8 IPC for abusing his official position and showing pecuniary advantage to the suppliers by conspiring together with the drugs wing of APHMHIDC and committing gross irregularities in procurement of drugs / medicines. 4 The specific allegations levelled against the petitioner, as per charge No.2, are that for every purchase order placed by Nodal Agency to the Public Sector Undertakings, all the batches of drugs and pharmaceuticals shall be sent for analysis to an independent laboratory and to Director of Drugs Control and Administration on random basis and payments should be made subject to the result of analysis. The charge sheet discloses that I t \ 3 the copy of purchase order had not been marked to the Director of Drug Control Administration and as per the annexures to the purchase orders, it was disclosed that supplies were directly sent to the Executive Engineer, APHMHIDC of concerned district' Without receiving; any analytical report on antibiotics' payments weremadetothedistributors,whichwascontrarytothe conditions of plrchase orders' The firms strould enclose analysis report from the competent authority identified by the indenting officer for supply of each batch and the bill should be passed only after verification of analysis report by the indenting officer. As seer from the charge sheet, the analytical reports for quarters I, 1l and III of 1998-99 and quality control test report correspondence file disclosed that the Finance Officers without verifyinq the analytical reports passed the bills' 5 The further allegation levelled against the petitioner' as per Charge No'6, was that the rate of medicines quoted in the short tender notices should be excluded of taxes' but the Corporation had done the billing including the taxes and paid to the firms and failed to deduct the sales tax at source and remit to Commercial lax Department as per Rule No'B of Instructions to Bidder and Rule No.10 of Notice No'F'40/A 1/50/D' dated

29.4.Tgggandlulel25ofFinancialCode,causinglosstothe 4 Government and pecuniary advantage to the firms / distributors. While purchasing an article, a purchasing officer shall take into consideration only the price of' the articles excluding sales tax and compare the rates for the purpose of arriving at the competitive prices and then place order for purchase. But the Nodal Agency i.e. APHMHIDC had accepted the prices quoted by the public sector undertakings including sales tax, which was in contravention of A.P. Financial Code. The petitioner being the former Finance Officer of ApHMHIDC, had submitted the bills, passed the bills and issued cheques and thereby caused loss to the Government and also caused pecuniary advantage and wrongful gain to the extent of several lakhs of rupees either to themselves or to the firms / distributors concerned since he was part of the team which undertook all the functioning of the drugs wing. 6 The further allegation levelled against the petitioner, AS per Charge No.7, was that though APHMHIDC issued tender notification dated 01.7.1999, published in Deccan Chronicle English daily, dated 02.7.L999, stating the last date for receipt of tenders as 06.7.1999, for supply of Lambda-Cynacothrin, formulation of wettable powder which was effective in controlling mosquitoes, the General Manager of Drugs Wing ) ) \ \ .) opened the Agreo India scheduled date of 06'7 tenders received from Zeneca Icon' Bayers and Limited, on 07..7.7999 itself without waiting till the 1999 and the offer of Zeneca's officer' as Admittedly, the said firm was based at it was least in the bid' Chennai and its response to the short tender notification published in the Hyderabad daily, on the very date of publication seemed implausible and the inference was obvious that the General Manager of Drugs wing and other officials resorted to malpractices of omissions and commissions' The specific allegation was that the General Manager spent Rs'1'38'15'360/- for the purcha-';e of above insecticides whereas the amount released bY ther Government was only Rs.1,10,00,000/-, thus sanctioned amount and no spending ftrnds in excess of the ratification was obtained by the department' The quotations of other firms were not taken into consideration' The petitioner being the formt:r Finance Officer of APHMHIDC passed the bills and issued checlues without following the Finance Code' 7 The learned Special Judge for SPE & ACB Cases' on the ratio laid down in Soma vs. Uday NaraYan2, Hyderabad, relYing Chakravarthy vs' Statel, State of U'P' | 2ol07 l2l scc (cll s14 2 tg9,4 l4l crimx lsc) 2a7 (; Palwinver Singh vs. Balwinver Singh3 and State vs. P.Suryaprakasama, vide order dated 11.4.2011, dismissed the said petition observing that the petitioner being a Finance Officer, had a duty to verify the bills before passing them and could not escape from his liability by simply passing on the buck to the others saying that it was for them to verify the irregularities and his duty is only limited to the extent of signing the vouchers and cheques. 8 As stated supra, assailing the said order of dismissal, the petitioner preferred the present criminal revision case. 9 Sri Y.Srinivasa Murthy, learned counsel representing Sri T.S.Anand, the learned counsel for the petitioner contended that the learned trial Court failed to see that it was the duty of the Drug Wing to check the various steps to be taken as per the prescribed norms, and that it has come on record that the Junior Assistant in the Drugs Wing would prepare the bill and the same would be forwarded to Senior Assistant and after scrutiny the bills would be sent to the General Manager. After the General Manager passed the bills, the Finance Officer and the Managing Director would sign the cheques as , 3 2oo9 l2l scc (Crl.| 85o 4 1999 SCC (Crl) 373 signatories. The petitioner was not under obligation nor duty bound to verify the bills before passing them and that the record would indicate that the bllls would come to him only after passing of the bills by the General Manager, Drugs wing He had no role to play rn passing the bills and remitting the bills' 10 Sri Sridhar Chikyala, the learned standing counsel-cum- Special Public Prosecutor for ACB, basing on the averments made in the coLtnter affidavit and reiterating the contents of the charge sheet, ,:ontended that the petitioner being a Finance Officer, without following the Finance Code, passed the bills and thereby colluded with the firms and caused pecuniary loss to the Government and hence he is liable for prosecution' On examination of documents it is disclosed that the petitioner had signed on the cheques along with the Managing Director and he was also alleged to have conspired wlth other accused in abusing his offir:ial position and causing pecuniary advantage to himself or to others and corresponding loss to the Government. He further subnritted that the petitioner being a Finance officer, hadadutytoverifythebillsbeforepassingthemandcouldnot escape from his liability by shifting the burden on to others' The -.t'" learned triSl Court has gone into all these aspects meticulously and dismissed the petition. Hence he prayed to dismiss the I criminal revision case. The learned standing counsel relied on the following judgements: 1) State, rep. by the Deputy Supdt., of Police, Vigilance and Anti Corruption, Tamilnadu vs. J. Doraiswamys, Soma Chakravarty vs. State through CBf5, State of U.p. vs. Udai NarayanT, Palwinder Singh vs. Balwinder Singh8 and Hem Chand vs. State of Jharkhande 11 Now the point for consideration is whether the order under revision is sustainable or whether there are grounds to allow the revrsron case. L2 For convicting the person under Section 13 that there must be evidence on record that the accused obtained for himself or others any valuable things or pecuniary advantage either by corrupt or illegal means or by adducing his position as a public servant without any public interest. In the present case, there is a lack of evidence on the above aspect. 13 The entire charges levelled against the petitioner would go to show that all the bathes of drugs and pharmaceuticals were s (20191 4 SCC 149 6 12OO7l 5 SCC 4O3 7 (19991 a scc 74r 8 (2OO8l 14 SCC 5O4 e (2OO8) 5 SCC 113 I \ w 1) sent to the distributors without subjecting them for testing and that the financ<: officers have passed the bills without verifying the analytical rePorts. 74 Even if t he theory of the prosecution is taken into consideration as true and correct, the court below ought to have seen that the llills would be prepared by the drugs wing and would be forwarded to the General Manager, who ls a co- signatory to the petitioner after the same were scrutinised by a Senior Assistant. Here it is to be seen that the role of the petitioner is only to sign on the bank vouchers as well as on the cheques as a ,lcint signatory. He alone cannot pass the bills' The bills would come to him only after passing of the bills by the General Managt:r Drugs Wing. 15 The Job (-hart of the petitioner filed by the respondent shows that the petitioner herein will be over all in-charge of the finance wing. Ttis is not a case where misappropriation of funds or mischief wa:; alleged. The allegation against the petitioner i t obtained for hirnself or others any valuable things or pecuniary advantage eithr:r by corrupt or illegal means or by adducing his position as a public servant without any public interest' Simply l0 because he signed the bills / vouchers, he cannot be made liable for any wrong or irregularity committed by the drugs wing. 16 Therefore, I am of the considered view that possibility of finding the petitioner guilty for the offences alleged against him is too remote. Hence I deem it appropriate to discharge the petitioner from the offences. L7 In the result, the criminal revision case is allowed setting aside the order dated tl.4.2OII passed by learned principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad in Crl.M.P.No.l4O4 of 2010 in C.C.No.31 of 200g. The petitioner is discharged from the offences under Sections 13(2) r/w 13 (1) (d) (ii) of P.C. Act, 1988 r/w Section 120-B IpC. 18 Miscellaneous petitions if any pending shall stand closed. Sd/. M. MANJULA DE UTY REGISTRAR To, //TRUE COPY// SECTION OFFICER \

1. The Principal Special Judge for SPE & ACB Cases, City Civil Court, at Hyderabad. (with records, if any)

2. Two CCs to the Special Public Prosecutor for ACB, High Court for the State of Telangana at Hyderabad. [OUT] 3. One CC to Sri T.S. Anand, Advocate [OPUCI 4. fwo CD Copies kanr/PSL w HIGH COURT DATED:2510212025 ) ORDER CRLRC.No.1132 ot 2011 .j:j=->:=\ { tii;- S,f.4 r t'' i, ! ,' \*, 04 APfl 20fr P 2 o * oEi;PATCI\ + ,;ll ALLOWING OF THE CRIMINAL REVISION CASE

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