A KANAGASABAPATHI Vs. STATE

JUDGEMENT

(1.) THIS appeal is against the conviction and sentence of the learned IX Additional Special Judge, Madras , in C. C. No. 27 of 1980 for the offences under Secs. 409, 467, 471 read with Sec. 467, Indian Penal Code and Sec. 5 (1) (c) and (d) read with Sec. 5 (2) of the prevention of Corruption Act to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 500 for each of the first three offences and one year rigorous imprisonment and to pay a fine of Rs. 250 the other offence.

(2.) THE case of the prosecution is as follows: In the Port trust, Madras, the employees are given the benefit of Leave Travel Concession. THE staff member who avails the Leave Travel Concession will be sometimes withdrawing advance amount or used to claim the entire amount after the travel. Such employees, who availed the Leave Travel Concession (LTC) used to file the claim application in their respective departments and the concerned section used to verify the claim amount mentioned in the application. After the eligible amount was ascertained, a stamped voucher will be obtained from the concerned staff member and in the vouchers, the amount eligible and the code number according to the different departments, will be mentioned. THE section will forward the application and the voucher to the Senior Accountant and after his signature, it will be sent Accountant and after his signature, it will be sent to the accounts Officer. THE Accounts Officer, after perusal, pass the voucher for payment. After the vouchers were passed for payment, necessary entries will be made in the register maintained in the Accounts Section and will be forwarded to the revenue section. In the revenue section, all the vouchers will be verified and a top voucher will be prepared for the consolidated amount. THE vouchers and the top vouchers will be sent to the Senior Accountant, who after verification will send it to the Accounts Officer, who, once again, after verification, prepare the cheque and the Chief Accounts Officer signs the cheque for drawing the amount from the bank. THE voucher and the cheque will be sent to the cashier, who draws the amount from the bank and disburse the cash to the concerned staff member through the shroff. After payment, the vouchers will be sent to the concerned sections for preservation. This accused was working as the Sheroff in the month of July and August, 1979. On 5. 9. 1979, p. W. 1 was working as the Upper Division Clerk in the Revenue Section and received the vouchers under the originals of Exs. P-27 to-29 standing in the names of Gunalan, G. Ramanathan and Vadivelu, Tally Clerks, claiming Leave travel Concession Amount. P. W. 1 prepared the top voucher Ex. P-2 for these vouchers and while he was perusing the pass order in those vouchers signed by the Accounts Officer Venkatarathnam, of establishment section, P. W. 1 suspected the genuineness of the signatures of the Accounts Officer Venkatarathnam. THErefore, he took these three vouchers to the Senior Accountant P. W. 2, who also suspected the signatures, and they took them to another Senior Accounts officer P. W. 17. P. W. 17 also, after perusal, got suspicion and therefore contacted the establishment section, which is in a different place, over phone, to confirm the entries in their office relating to these vouchers. One padmanabhan in the establishment section, who received the phone call of P. W. 17 replied that only after verifying the register it could be found out whether the questioned documents were genuine or not but as the register was sent to the auditor, he could verify it as soon as the register was received back from the Auditor. On the next day, i. e. , on 6. 9. 1979, the establishment section informed P. Ws. 1 and 2 that no vouchers in the name of Gunalan, Ramanathan and vadivelu were entered in the establishment section. P. Ws. 1 and 2 wanted to report the matter to the Deputy Chief Accounts Officer P. W. 4, but as he was not available in the headquarters on 6th and 7th they told about the bogus vouchers under the originals of Exs. P-27 to P-29 to him on 8. 9. 1979. P. W. 40 contracted his counter part, P. W. 41 the Deputy Chief Accounts Officer in the establishment section, and the originals of Exs. P-27 to P-29 were sent to him for verification. P. W. 41 found that these three vouchers were not passed for payment in his section as they were not entered in the register and they were bogus entries. On verification, he also found out that there was no staff members in the names of Gunalan, Ramanathan and Vadivelu in the sections mentioned in those vouchers. THErefore, having found that the vouchers were produced to claim money in the name of a fictitious persons, he sent a report Ex. P-84 to the Financial Adviser. P. W. 42, who was incharge of the post of the Financial adviser, sent a report Ex. P-86 to the Chairman of the Madras Port Trust with regard to this incident and P. W. 46, the Secretary of the Port Trust, launched a complaint Ex. P-146 to the C. B. I. Inspector with regard to this bogus claim, p. W. 47 the C. B. I. Inspector registered the complaint in R. C. No. 47 of 1979 against the accused, took up the matter for investigation and found out that claims were made under the originals of Exs. P-2 (a) to P-4 (a), P-6 (a) to P-9 (a)and P-11 (a) to P-23 (a) also in the fictitious names and the amounts were withdrawn by the culprit successfully. He found that there were no employees in the names found in those vouchers working in the Port Trust in the concerned sections barring one or two and amounts had been withdrawn under the bogus vouchers with forged entries for passing order of payments of the Establishment section. P. W. 47 obtained the sample writing of this accused and others and sent the disputed vouchers to the handwriting expert P. W. 45 who sent the report ex. P-144 giving his opinion that certain writing in the disputed vouchers were in the hand of this accused. After completing the investigation, the charge sheet was filed against this accused for the offences mentioned above. THE trial court examined 47 witnesses and the accused was questioned about the incriminating circumstances found against him under Sec. 313, Code of Criminal procedure. THE appellant denied his hand in the offence and said that he was in no way responsible for the bogus vouchers. He examined two witnesses on his side. THE learned Additional Special Judge has found that the prosecution has established the charges against this appellant beyond all reasonable doubt and convicted this appellant in the manner stated above. Hence, this appeal.

(3.) THE learned counsel Mr. Sudhanthiram appearing for the appellant/accused would contend that for the bogus claim, this appellant alone has been prosecuted as through he was the brain behind this scheme but this appellant was only a Shroff, whose duty was to disburse the cash to the person, who claimed himself to be the signatory of the voucher and even by negligence if the appellant had disbursed the claim amount to a wrong person thinking that he was the signatory of the voucher, it will amount only to negligence on his part and it will not amount to an offence punishable for the charges framed against him and therefore the accused cannot be found guilty of the charges. THE learned counsel further argues that pressing into service of these bogus vouchers should have been done with the active connivance of more number of staff members in the revenue section and therefore, the accused done cannot be fixed with the responsibility for this mischief when the activities of the others connected with this fraud is not brought to light and for this reason also, the appellant cannot be found guilty. Whether this ingenious method of draining out the funds of the port trust under bogus vouchers was formulated and operated either by a single person or a group of persons, is immaterial for the purpose of this case against this accused. THE only question is whether this appellant had a role in this fraud and whether he had participated in these false claims by manipulating the bogus bills. If it is found that this appellant had a hand in this scheme, certainly, he is guilty of the charges even if it is found that some others also were parties to the fraud. For the reason that the otherpersons connected with this conspiracy were hot brought to book, the accused person cannot escape under the cover of the defence that others are not brought before this Court. THErefore, now the question is whether this appellant accused has any connection with these bogus vouchers and collection of funds under these vouchers.