State by Inspector of Police, Vigilance & Anti Corruption, Salem v. D.Ramadoss & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:21.09.2010CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCrl.A.No.286 of 2001State byInspector of Police,Vigilance & Anti Corruption,Salem.Rep. by Public Prosecutor,High Court, Madras. .. Appellant/PetitionerVs.1.D.Ramadoss2.P.N.Arumugam3.R.Sampath4.R.Venugopal5.K.Chellappa6.P.Gajalakshmi7.P.Karunamurthy .. Respondents/AccusedPrayer:- Criminal Appeal filed under Section 378 of Cr.P.C. againstthe judgment and order of acquittal passed by the learned SpecialJudge/Additional District Judge-cum-Chief Judicial Magistrate,Villipuram in Spl.C.C.No.3 of 1995 acquitting therespondents/accused herein for the changes framed against them.For Appellant: Mr.A.Saravanan, Government Advocate (Crl.Side)For R-1: Mr.V.Gopinath, Senior Counsel for Mr.M.C.SwamyFor RR-2 to 5: Mr.L.ChandrakumarFor RR-6 and 7: Mr.R.Sreerangan for Mr.G.EthirajuluJUDGMENT The respondents herein were the accused 1 to 7 in Spl.C.C.No.3of 1995 on the file of the learned Special Judge-cum-Chief JudicialMagistrate, Villipuram. The accused Nos.1 to 5 were charged forthe offences under Sections 120(B) r/w.167, 477(A), 409 I.P.C. and5(2) r/w.5(1)(c) and (d) of the Prevention of Corruption Act,r/w.109 I.P.C. and the accused Nos.6 and 7 were charged for theoffences under Sections 120(B) r/w.167, 477(A), 409 I.P.C. and 5(2)r/w.5(1)(c) and (d) of the Prevention of Corruption Act, r/w.109 https://hcservices.ecourts.gov.in/hcservices/ I.P.C. and also charged for the offences under Sections 477(A) and409 r/w.109 I.P.C. The accused Nos.1 to 7 were acquitted by thelearned Magistrate from all the above said charges. Challenging thesaid acquittal, the State has preferred this Criminal Appeal.2.The case of the prosecution, in brief, is as follows:- The first accused was the Commissioner of VanurPanchayat Union. The second accused was the Manager, third accusedwas the Extension Officer, fourth accused was the Accountant andthe fifth accused was the Office Assistant of the said Vanurpanchayat union. The sixth and seventh accused were theproprietors of Gajalakshmi Steel Traders, Cuddalore and SriKarunamurthy Stores, Cuddalore respectively. During the periodbetween July 1986 and October 1986 at Vanur Panchayat Union,Tirukoilur Marketing Society and other places in South ArcotDistrict, the accused conspired together and in pursuance of theconspiracy, they instigated the approver Mohan to create falserecords at Tirukoilur Co-operative Marketing Society as if the pumpmaterials covered by voucher Nos.312/7.8.1986, 471/3.10.1986, and498/15.10.1986, of Vanur Panchayat Union were purchased by the Co-operative Marketing Society from Gajalakshmi Steel Traders,Cuddalore and from Sri Karunamurthy Stores, Cuddalore andthereafter sold to Vanur Panchayat Union. The Mohan, who was theapprover in this case, was the Special Officer of Thirukovilur Co-operative Marketing Society. The price paid to the sixth andseventh accused was higher than the market price and thereby, losswas caused to the Vanur Panchayat Union. When the transaction haddirectly taken place between Vanur Panchayat Union and GajalakshmiSteel Traders and Sri Karunamurthy Stores, an excess amount ofRs.66,659.65 was given. The accused have failed to follow theinstructions and procedures as per the circulars issued by theGovernment.3.In order to establish the case, the prosecution examinedP.Ws.1 to 26 and marked Exs.P.1 to P.162. One Dr.Ilanchezhian wasexamined as a Court witness and two documents were marked as CourtExhibits. The accused were questioned under Section 313 Cr.P.C.with regard to the incriminating circumstances and they deniedtheir complicity. On behalf of the accused, no witness was examinedand no document was marked. 4.The Trial Court, after analysing the oral and documentaryevidence, acquitted all the accused from all the charges.5.The learned Government Advocate (Crl.Side) submitted thatthe approver Mohan, who was also an accused, had given a confessionbefore the learned Judicial Magistrate and it was recorded underSection 164 of Cr.P.C., which is marked as Ex.P.162 in this caseand he was given pardon and made as an approver but during trial,due to some illness, he could not speak and therefore, he was notin a position to give evidence. Though the approver could not giveevidence before the trial Court, his confession statement wasmarked as Ex.P.162. Hence, the trial Court ought to have placed https://hcservices.ecourts.gov.in/hcservices/ reliance on Ex.P.162. The learned Government Advocate furthersubmitted that the trial Court also ought to have held that theprice of the materials purchased was higher than the market rate.6.Per contra, the learned Senior Counsel Mr.V.Gopinathappearing for the first accused and Mr.L.Chandrakumar, learnedcounsel appearing for the accused 2 to 5 and Mr.R.Sreerangan,learned counsel appearing for the accused 6 and 7 submitted that asthe approver was not examined before the trial Court, Ex.P.162becomes inadmissible and there is no evidence that the accused haveconspired together and the evidence available is to the extent thatorders were made and bills were prepared promptly and they were allaccounted. The cheques prepared were sent to the Co-operativeSocieties and after deducting 5% for the Co-operative Society, thebalance was paid to the traders. It is further submitted that P.W.1also admitted that 5% commission was used for the development ofthe Society and not for the personal benefit of the approver Mohanor any of the other officers of the Society. It is also submittedthat there is no material to show that the accused 1 to 5 have gotany share in the excess amount paid to the traders. 7.This Court has considered the submissions made by thelearned counsel on either side and perused the records.8.The first question which arises for consideration is,whether Ex.P.162, the confessional statement said to have beengiven by the accused Mohan who was already given pardon as anapprover, could be looked into. The approver Mohan has not beenexamined before the trial Court due to sickness and therefore, hehas not given any evidence against any of the accused in this case.But his confessional statement given before the learned Magistrateis marked as Ex.P.162. A confessional statement of co-accused isadmissible under Section 30 of the Indian Evidence Act, which is asfollows:-"30.Consideration of proved confession affectingperson making it and others jointly under trial for sameoffence.-When more persons than one are being triedjointly for the same offence, and a confession made byone of such persons affecting himself and some other ofsuch persons is proved, the Court may take intoconsideration such confession as against such otherperson as well as against the person who makes suchconfession."9.As per Section 30 of the Indian Evidence Act, aconfession statement of an accused is admissible and could be usedagainst the other co-accused only when they are tried together.But the approver Mohan was not tried as an accused along with otheraccused. He had already been given pardon. In the saidcircumstances, the confession given by the approver Mohan is notadmissible against the accused as per Section 30 of the IndianEvidence Act in the absence of any substantive evidence from theapprover. https://hcservices.ecourts.gov.in/hcservices/

10.The trial Court has given a finding that there is nomaterial to show that the accused 1 to 5 have got any share in theexcess amount paid to the traders. The price list marked by theprosecution reveals the price during that year. But it does notindicate the price on a particular date. It was also admitted thatthe price would change day to day and also the price of theproducts depends on the make and quality of the products and alsovary from company to company. The trial Court also has held thatP.W.7 had admitted that the procedure for buying the articles hasbeen followed in this case. The trial Court also has given afinding that the goods received from the sixth and seventh accusedwere sent to Vanur Panchayat and they have distributed the goods toother Panchayat Unions. Further, P.W.16 had admitted that the goodssupplied in this case have been shown in the stock register andthey have been distributed to Unions and there is no balance in thestock. This Court does not find any reason to interfere with thewell considered judgement of the trial Court. Therefore, thisCriminal Appeal is dismissed.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarjrlTo1. The Special Judge/Additional District Judge-cum-Chief Judicial Magistrate, Villipuram.2.The Public Prosecutor, High Court, Madras.3. The Director General of Police, Mylapore, Chennai-4.4. The District Collector, Villupuram District, Villupuram.5. The Section Officer, Criminal Section, High Court, Madras.Crl.A.No.286 of 2001BVN {CO}TP/5.10.2010.