STATE C B I NEW DELHI Vs. SUBBARAYUDU

JUDGEMENT

(1.) eleven cases have been tried by the special judge for fertilizer transport ases, andhra pradesh, popularly known as "fertilizer scandal cases". There are eight accused in this case, out of whom a-7 died during pendency of the case. Charge-sheet was filed in the year 1973 which was registered as c. C. 3/74 by the special judge for fertilizer transport cases, andhra pradesh against a-1 to a-8 for the offences under Section s 120 (b) read with 420 i.p.c., 420 read with 109 i.p.c., 467, 468 and 471 i.p.c. and under Section 5 (2) read with 5 (1) (d) of the prevention of corruption act, 1947. The charges framed against the accused are as follows : charge No. 1 against a-1 is under Section 120 (3) read with Section 420 i.p.c. charge nos. 2 to 10 under Section 420 i.p.c. they related to each of the claims preferred by him. Charge No. 1 against a-2 is under Section 120 (b) read with Section 420 ipc. Charge nos. 2 to 6 are under Section 420 read with Section 109 ipc. Charge No. 1 against a-3 is under Section 120 (b) read with stction 420 ipc. Charge No. 2 is under Section 420 read with Section 109 ipc. Charge No. 1 against a-4 is under Section 120 (b) read with Section 420 ipc. Charge No. 3 is under Section 468 ipc. Charge No. 1 against a-5 is under Section 120 (b) read with Section 420 ipc. Charge No. 2 to 3 are under Section 468 ipc. Charge No. 1 against a-6 is under Section 120 (b) read with Section s 420 ipc a-7 expired. Therefore the case against him abated. Charge No. 1 against a-8 is under Section 120 (b) read with Section 420 ipc. Charge nos. 2 to 10 are under Section 5 (2) read with Section s 5 (1) (d) of the prevention of corruption act, 1947. Charge nos. 11 to 18 are under Section 477 (a) i.p.c." after a prolonged trial of about nine years, the learned judge found that the prosecution had not proved the case against the accused beyond all reasonable doubt and accordingly acquitted the accused with which they were charged. A-7 is the district agricultural officer, proddutur. He died. A-8 is the agricultural extension officer, porumamilla. A-1 to a-6 belong to cuddapah and kurnool districts respectively. A-1 is the sole proprietor of messrs. Aravati chinna subbarayudu of porumamilla. The firm was doing business in fertilizers and other articles. A-2 to a-6 are alleged to be co-conspirators along with a-1. A-7 and a-8 are officers. The prosecution case is that 300 metric tonnes of ammonium sulphate, 300 metric tonnes of urea, 300 metric tonnes of asn fertilizers and 100 tonnes of can fertilizers were imported and were allotted to a-1 or his nominees for taking delivery at madras, bombay, kakinada and visakhapatnam ports. Though the deliveries took place at the respective ports, fertilizers had not reached the destination. A-1, in collusion with others and the officers, filed a claim for Rs. 1, 57, 458/-towards the reimbursement of road transport charges. Out of it Rs. 1, 34, 630-31 ps. Was obtained by him dishonestly and fraudulently, as a result of the conspiracy hatched by them. The case of the accused is one of total denial. The case of the prosecution is that the fertilizer had not reached the destination and false claim was made. Claim nos. 137,138 and 139 relate to the deliveries taken at madras port, claim No. 144 relates to the delivery taken at bombay port, claim nos. 135, 141, 142 and 143 relate to kakinada port, while claim No. 140 relates to visakhapatnam port. P. Ws. 1 to 123 were examined and exs. P. 1 to p. 851 and d. 1 to d. 358 were marked in this case. The prosecution contemplated that, after the lorries teached the destination, stocks will be verified by the agricultural extension officer and after issuing reasonableness certificate, claim in the prescribed proforma will be submitted to the concerned officer for passing the bill. We are not concerned with the fertilizers as such. But we are concerned with the transport whether the transport is there or not. If there is no transport, the accused are liable for the offences. If there is transport, the prosecution case must fail.

(2.) before considering the evidence, it is convenient to refer to the arguments riased by both the parties, which arise for the determination of the real points raised in this case. In each and every claim, some legal aspects have been raised. Instead of discussing the evidence under each head of the claim, it is convenient to discuss the legal arguments set up by the parties first and decide the case with reference to the evidence let in by the prosecution. If the prosecution story is weak, it cannot gain strength from the weakness of the defence evidence. It should stand by itself. The burden of proving the guilt of the accused is upon the prosecution. The accused need not establish their case beyond reasonable doubt. It is enough if they show that the preponderance of probability is in favour of the accused.

(3.) the first contention raised by Sri Padmanabha Reddy, the learned counsel for the accused, is that, in an appeal against acquittal, the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this, he must do something more than merely asking for reassessment of the evidence. He must show wherein the assessment has gone wrong. The counsel for the appellant has not put forward any grounds for interference in this appeal. In Baburao Bagaji Karemore & Others vs. Govind & Others, it was pointed out: "before a finding of fact by a trial court can be set aside it must be established that the trial judge's findings were clearly unsound, perverse or have been based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies." while dealing with this aspect, the supreme court followed the Judgments Reported in Kanauji vs. State of U.P.Rahim Khan vs. Khurshid Ahmed and Others and Umedbhdi vs. State of Gujarat. It is well-settled by the judgments of the supreme court that, if the sessions judge committed a manifest error which can by no means be supported by the evidence on record, the high court was justified in entertaining the appeal against acquittal. Ordinarily, the high court would give due importance to the opinion of the sessions judge, if the same were arrived at after proper appreciation of the evidence. This Rule will not be applicable in a case where the sessions judge has made an absolutely wrong assumption of every material and clinching aspect in ths peculiar circumstances of the case. The learned judge's approach with regard to the acceptance of the evidence of the fertilizer dealers or the clerks or the drivers or the lorry owners with regard to the entries and the identification of the entries in the account-books etc. Is not correct. In spite of laying down settled principlies with regard to the guidelines for the application of Section s 47, 65, 67 and 73 of the evidence act, the learned judge misconstrued and misapplied the ruling of muktadar, j in an unreported case in crl. Appeal nos. 398, 415 and 416/76 dated 1st July, 1980. Therefore, this is a case where miscarriage of justice resulted in misappreciation and misapplication of the well-settled legal principles.